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[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1977 and lives in St Petersburg.", "8. The applicant is the editor-in-chief of a publishing company and of an aviation magazine. He is also the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, a non-governmental organisation ( NGO ) monitoring the state of media freedom in the Russian regions, which promotes the independence of the regional mass media, freedom of speech and respect for journalists ’ rights, and provides legal support, including through litigation, to journalists.", "9. He subscribed to the services of several mobile-network operators.", "10. On 23 December 2003 he brought judicial proceedings against three mobile-network operators, claiming that there had been an interference with his right to the privacy of his telephone communications. He claimed that pursuant to Order no. 70 (see paragraphs 115 - 22 below) of the State Committee for Communications and Information Technologies (the predecessor to the Ministry of Communications and Information Technologies – “the Ministry of Communications”), the mobile-network operators had installed equipment which permitted the Federal Security Service (FSB) to intercept all telephone communications without prior judicial authorisation. The applicant argued that Order no. 70, which had never been published, unduly restricted his right to privacy. He asked the court to issue an injunction ordering the removal of the equipment installed pursuant to Order no. 70, and to ensure that access to mobile-telephone communications was given to authorised persons only. The Ministry of Communications and the St Petersburg and Leningrad Region Department of the FSB were joined as a third party to the proceedings.", "11. On 5 December 2005 the Vasileostrovskiy District Court of St Petersburg dismissed the applicant ’ s claims. It found that the applicant had not proved that the mobile-network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. The equipment to which he referred had been installed to enable law-enforcement agencies to conduct operational-search activities in accordance with the procedure prescribed by law. The installation of such equipment had not in itself interfered with the privacy of the applicant ’ s communications. The applicant had failed to demonstrate any facts which would warrant a finding that his right to the privacy of his telephone communications had been violated.", "12. The applicant appealed. He claimed, in particular, that the District Court had refused to accept several documents in evidence. Those documents had included two judicial orders retrospectively authorising the interception of mobile-telephone communications and an addendum to the standard service - provider agreement issued by one of the mobile-network operators. One of the judicial orders in question, issued on 8 October 2002, authorised the interception of several people ’ s mobile-telephone communications during the periods from 1 to 5 April, 19 to 23 June, 30 June to 4 July and 16 to 20 October 2001. The other judicial order, issued on 18 July 2003, authorised the interception of a Mr E. ’ s mobile-telephone communications during the period from 11 April to 11 October 2003. As to the addendum, it informed the subscriber that if his number were used to make terrorist threats, the mobile - network operator might suspend the provision of the telephone service and transfer the collected data to the law-enforcement agencies. In the applicant ’ s opinion, the judicial orders and the addendum proved that the mobile-network operators and law-enforcement agencies were technically capable of intercepting all telephone communications without obtaining prior judicial authorisation, and routinely resorted to unauthorised interception.", "13. On 26 April 2006 the St Petersburg City Court upheld the judgment on appeal. It confirmed the District Court ’ s finding that the applicant had failed to prove that his telephone communications had been intercepted. Nor had he shown that there was a danger that his right to the privacy of his telephone communications might be unlawfully infringed. To establish the existence of such a danger, the applicant would have had to prove that the respondents had acted unlawfully. However, mobile-network operators were required by law to install equipment enabling law-enforcement agencies to perform operational-search activities and the existence of that equipment did not in itself interfere with the privacy of the applicant ’ s communications. The refusal to admit the judicial orders of 8 October 2002 and 18 July 2003 in evidence had been lawful, as the judicial orders had been issued in respect of third persons and were irrelevant to the applicant ’ s case. The City Court further decided to admit in evidence and examine the addendum to the service - provider agreement, but found that it did not contain any information warranting reconsideration of the District Court ’ s judgment.", "14. It can be seen from a document submitted by the applicant that in January 2007 an NGO, Civilian Control, asked the Prosecutor General ’ s Office to carry out an inspection of the Ministry of Communications ’ Orders in the sphere of interception of communications in order to verify their compatibility with federal laws. In February 2007 an official from the Prosecutor General ’ s Office telephoned Civilian Control and asked for copies of the unpublished attachments to Order no. 70, saying that it had been unable to obtain them from the Ministry of Communications. In April 2007 the Prosecutor General ’ s Office refused to carry out the requested inspection.", "I. Judicial review", "1. General provisions on judicial review of interception of communications as established by the OSAA", "83. A person claiming that his rights have been or are being violated by a State official performing operational-search activities may complain to the official ’ s superior, a prosecutor or a court. If a citizen ’ s rights were violated in the course of operational-search activities by a State official, the official ’ s superior, a prosecutor or a court must take measures to remedy the violation and compensate the damage (section 5(3) and (9) of the OSAA ).", "84. If a person was refused access to information about the data collected about him in the course of operational-search activities, he is entitled to know the reasons for the refusal of access and may appeal against the refusal to a court. The burden of proof is on the law ‑ enforcement authorities to show that the refusal of access is justified. To ensure a full and thorough judicial examination, the law-enforcement agency responsible for the operational-search activities must produce, at the judge ’ s request, operational-search materials containing information about the data to which access was refused, with the exception of materials containing information about undercover agents or police informers. If the court finds that the refusal to grant access was unjustified, it may compel the law-enforcement agency to disclose the materials to the person concerned (section 5(4 ), (5) and ( 6) of the OSAA ).", "85. In its decision of 14 July 1998 (cited in paragraph 40 above), the Constitutional Court noted that a person who learned that he had been subjected to operational-search activities and believed that the actions of State officials had violated his rights was entitled, under section 5 of the OSAA, to challenge before a court the grounds for conducting such activities, as well as the specific actions performed by the competent authorities in the course of such activities, including in those cases where they had been authorised by a court.", "86. As regards procedural matters, the Constitutional Court held that in proceedings in which the grounds for the operational-search activities or the actions of the competent authorities conducting such activities were challenged, as well as proceedings against the refusal to give access to the data collected, the law-enforcement authorities were to submit to the judge, at his request, all relevant operational-search materials, except materials containing information about undercover agents or police informers.", "87. A person wishing to complain about interception of his communications may lodge a judicial - review complaint under Article 125 of the CCrP, a judicial - review complaint under Chapter 25 of the Code of Civil Procedure and Law no. 4866-1 of 27 April 1993 on judicial review of decisions and acts violating citizens ’ rights and freedoms (“ the Judicial Review Act ” ), which were repealed and replaced on 15 September 2015 by the Code of Administrative Procedure, or a civil tort claim under Article 1069 of the Civil Code.", "2. A judicial - review complaint under Article 125 of the CCrP", "88. The Plenary Supreme Court in its Ruling no. 1 of 10 February 2009 held that actions of officials or State agencies conducting operational-search activities at the request of an investigator could be challenged in accordance with the procedure prescribed by Article 125 of the CCrP (paragraph 4). Complaints lodged under that Article may be examined only while the criminal investigation is pending. If the case has already been transmitted to a court for trial, the judge declares the complaint inadmissible and explains to the complainant that he may raise the complaints before the relevant trial court (paragraph 9).", "89. Article 125 of the CCrP provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the participants to criminal proceedings. The lodging of a complaint does not suspend the challenged decision or act, unless the investigator, the prosecutor, or the court decides otherwise. The court must examine the complaint within five days. The complainant, his counsel, the investigator and the prosecutor are entitled to attend the hearing. The complainant must substantiate his complaint (Article 125 §§ 1, 2, 3 and 4 of the CCrP ).", "90. Participants in the hearing are entitled to study all the materials submitted to the court and to submit additional materials relevant to the complaint. Disclosure of criminal - case materials is permissible only if it is not contrary to the interests of the investigation and does not breach the rights of the participants in the criminal proceedings. The judge may request the parties to produce the materials which served as the basis for the contested decision or any other relevant materials (paragraph 12 of Ruling no. 1).", "91. Following the examination of the complaint, the court either declares the challenged decision, act or failure to act unlawful or unjustified and instructs the responsible official to rectify the indicated shortcoming, or dismisses the complaint (Article 125 § 5 of the CCrP ). When instructing the official to rectify the indicated shortcoming, the court may not indicate any specific measures to be taken by the official or annul or order that the official annul the decision that had been found to be unlawful or unjustified ( paragraph 21 of Ruling no. 1 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation).", "3. A judicial - review complaint under Chapter 25 of the Code of Civil Procedure, the Judicial Review Act and the Code of Administrative Procedure", "92. Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation provides that complaints concerning decisions and acts of officials or agencies performing operational-search activities that may not be challenged in criminal proceedings, as well as complaints concerning a refusal of access to information about the data collected in the course of operational-search activities, may be examined in accordance with the procedure established by Chapter 25 of the Code of Civil Procedure ( “ the CCP ” ) (paragraph 7).", "93. Chapter 25 of the CCP, in force until 15 September 2015, established the procedure for examining complaints against decisions and acts of officials violating citizens ’ rights and freedoms, which was further detailed in the Judicial Review Act. On 15 September 2015 Chapter 25 of the CCP and the Judicial Review Act were repealed and replaced by the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015 – “the CAP”) which came into force on that date. The CAP confirmed in substance and expounded the provisions of Chapter 25 of the CCP and the Judicial Review Act.", "94. The CCP, the Judicial Review Act and the CAP all provide that a citizen may lodge a complaint before a court concerning an act or decision by any State or municipal authority or official if he considers that it has violated his rights and freedoms (Article 254 of the CCP and section 1 of the Judicial Review Act). The complaint may concern any decision, act or omission which has violated the citizen ’ s rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on him (Article 255 of the CCP, section 2 of the Judicial Review Act and Article 218 § 1 of the CAP ).", "95. The complaint must be lodged with a court of general jurisdiction within three months of the date on which the complainant learnt of the breach of his rights. The time-limit may be extended for valid reasons (Article 254 of the CCP, sections 4 and 5 of the Judicial Review Act and Articles 218 § 5 and 219 §§ 1 and 7 of the CAP ). The complaint must mention the identification number and the date of the contested decision or the date and place of commission of the contested act (Article 220 § 2 (3) of the CAP ). The claimant must submit supporting documents or explain why he is unable to submit them (Article 220 §§ 2 (8) and 3 of the CAP ). If the claimant does not meet the above requirements, the judge declares the complaint inadmissible (Article 222 § 3 of the CAP ).", "96. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. The complainant must, however, prove that his rights and freedoms were breached by the contested decision, act or omission (section 6 of the Judicial Review Act and Article 226 § 11 of the CAP ).", "97. Under the CCP the complaint had to be examined within ten days (Article 257 of the CCP), while under the CAP it must be examined within two months (Article 226 § 1 of the CAP). If the court finds the complaint justified, it issues a decision annulling the contested decision or act and requiring the authority or official to remedy in full the breach of the citizen ’ s rights (Article 258 § 1 of the CCP, section 7 of the Judicial Review Act and Article 227 §§ 2 and 3 of the CAP ). The court may determine the time-limit for remedying the violation and/or the specific steps which need to be taken to remedy the violation in full (paragraph 28 of Ruling no. 2 and Article 227 § 3 of the CAP). The claimant may then claim compensation in respect of pecuniary and non-pecuniary damage in separate civil proceedings (section 7 of the Judicial Review Act).", "98. The court may reject the complaint if it finds that the act or decision being challenged has been taken by a competent authority or official, is lawful and does not breach the citizen ’ s rights (Article 258 § 4 of the CCP and Articles 226 § 9 and 227 § 2 of the CAP ).", "99. A party to the proceedings may lodge an appeal with a higher court (Article 336 of the CCP as in force until 1 January 2012, Article 320 of the CCP as in force after 1 January 2012, and Article 228 of the CAP ). The appeal decision come into force on the day of its delivery (Article 367 of the CCP as in force until 1 January 2012, Article 329 § 5 as in force after 1 January 2012, and Articles 186 and 227 § 5 of the CAP ).", "100. The CCP provided that a judicial decision allowing a complaint and requiring the authority or official to remedy the breach of the citizen ’ s rights had to be dispatched to the head of the authority concerned, to the official concerned or to their superiors within three days of its entry into force (Article 258 § 2 of the CCP). The Judicial Review Act required that the judicial decision be dispatched within ten days of its entry into force (section 8). The CAP requires that the judicial decision be dispatched on the day of its entry into force (Article 227 § 7). The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt ( Article 258 § 3 of the CCP, section 8 of the Judicial Review Act and Article 227 § 9 of the CAP).", "4. A tort claim under Article 1069 the of Civil Code", "101. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1 and 2 of the Civil Code).", "102. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069 of the Civil Code). Irrespective of any fault by State officials, the State or regional treasury is liable for damage sustained by a citizen on account of ( i ) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, or (iii) unlawful administrative punishment (Article 1070 of the Civil Code).", "103. A court may impose on the tortfeasor an obligation to compensate for non-pecuniary damage (physical or mental suffering). Compensation for non-pecuniary damage is unrelated to any award in respect of pecuniary damage (Articles 151 § 1 and 1099 of the Civil Code). The amount of compensation is determined by reference to the gravity of the tortfeasor ’ s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim ’ s individual characteristics (Articles 151 § 2 and 1101 of the Civil Code).", "104. Irrespective of the tortfeasor ’ s fault, non-pecuniary damage shall be compensated for if the damage was caused ( i ) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment; or (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100 of the Civil Code).", "105. In civil proceedings a party who makes an allegation must prove that allegation, unless provided otherwise by federal law (Article 56 § 1 of the CCP ).", "5. A complaint to the Constitutional Court", "106. The Constitutional Court Act ( Law no. 1-FKZ of 21 July 1994) provides that the Constitutional Court ’ s opinion as to whether the interpretation of a legislative provision adopted by judicial and other law-enforcement practice is compatible with the Constitution, when that opinion is expressed in a judgment, must be followed by the courts and law-enforcement authorities from the date of that judgment ’ s delivery (section 79 (5)).", "J. Obligations of communications service providers", "1. Obligation to protect personal data and privacy of communications", "107. The Communications Act provides that communications service providers must ensure privacy of communications. Information about the communications transmitted by means of telecommunications networks or mail services, and the contents of those communications, may be disclosed only to the sender and the addressee or their authorised representatives, except in cases specified in federal laws (section 63(2) and (4) of the Communications Act).", "108. Information about subscribers and the services provided to them is confidential. Information about subscribers includes their family names, first names, patronymics and nicknames for natural persons; company names and family names, first names and patronymics of company directors and employees for legal persons; subscribers ’ addresses, numbers and other information permitting identification of the subscriber or his terminal equipment; and data from payment databases, including information about the subscribers ’ communications, traffic and payments. Information about subscribers may not be disclosed to third parties without the subscriber ’ s consent, except in cases specified in federal laws (section 53 of the Communications Act).", "2. Obligation to cooperate with law-enforcement authorities", "109. The Communications Act imposes an obligation on communications service providers to provide the law-enforcement agencies, in cases specified in federal laws, with information about subscribers and services received by them and any other information the agencies require in order to achieve their aims and objectives (section 64(1) of the Communications Act).", "110. On 31 March 2008 the Moscow City Council discussed a proposal to introduce an amendment to section 64(1) of the Communications Act requiring law-enforcement agencies to show judicial authorisation to communications service providers when requesting information about subscribers. The representatives of the FSB and the Ministry of the Interior informed those present that judicial decisions authorising interceptions were classified documents and could not therefore be shown to communications service providers. The proposal to introduce the amendment was later rejected.", "111. Communications service providers must ensure that their networks and equipment comply with the technical requirements developed by the Ministry of Communications in cooperation with law-enforcement agencies. Communications service providers must also ensure that the methods and tactics employed by law-enforcement agencies remain confidential (section 64(2) of the Communications Act).", "112. In cases specified in federal laws, communications service providers must suspend provision of service to a subscriber upon receipt of a reasoned written order by the head of a law-enforcement agency conducting operational-search activities or protecting national security (section 64(3) of the Communications Act).", "113. The FSB Act requires communications service providers to install equipment permitting the FSB to carry out operational-search activities (section 15).", "3. Technical requirements for equipment to be installed by communications service providers", "114. The main characteristics of the system of technical facilities enabling operational-search activities to be carried out ( Система технических средств для обеспечения функций оперативно - разыскных мероприятий – “the SORM”) are outlined in a number of orders and regulations issued by the Ministry of Communications.", "(a ) Order no. 70", "115. Order no. 70 on the technical requirements for the system of technical facilities enabling the conduct of operational-search activities using telecommunications networks, issued by the Ministry of Communications on 20 April 1999, stipulates that equipment installed by communications service providers must meet certain technical requirements, which are described in the addendums to the Order. The Order, with addendums, has been published in the Ministry of Communications ’ official magazine, SvyazInform, distributed through subscription. It can also be accessed through a privately maintained online legal database, which reproduced it from the publication in SvyazInform.", "116. Addendums nos. 1 and 3 describe the technical requirements for the SORM on mobile - telephone networks. They specify that interception of communications is performed by law-enforcement agencies from a remote terminal connected to the interception equipment installed by the mobile-network operators. The equipment must be capable, inter alia, of (a) creating databases of interception subjects, to be managed from the remote terminal; (b) intercepting communications and transmitting the data thereby obtained to the remote terminal; (c) protecting the data from unauthorised access, including by the employees of the mobile - network operator; (d) providing access to subscriber - address databases (paragraphs 1.1 and 1.6 of Addendum no. 1).", "117. More precisely, the equipment must ensure (a) interception of all the incoming and outgoing calls of the interception subject; (b) access to information about his whereabouts; (c) maintenance of interception capability where an ongoing connection is transferred between the networks of different mobile-network operators; (d) maintenance of interception capability in cases involving supplementary services, such as call forwarding, call transfer or conference calls, with the possibility of registering the number or numbers to which the call is routed; (e ) collection of communications data concerning all types of connections, including fax, SMS or other; (f ) access to information about the services provided to the interception subject (paragraph 2.1.2 of Addendum no. 1).", "118. There are two types of interception: “total interception” and “statistical monitoring”. Total interception is the real-time interception of communications data and of the contents of all communications to or by the interception subject. Statistical monitoring is real-time monitoring of communications data only, with no interception of the content of communications. Communications data include the telephone number called, the start and end times of the connection, supplementary services used, location of the interception subject and his connection status (paragraphs 2.2 and 2.4 of Addendum no. 1).", "119. The equipment installed must be capable of launching the interception of communications within thirty seconds of receiving a command from the remote terminal (paragraph 2.5 of Addendum no. 1).", "120. Information about interception subjects or about the transmission of any data to the remote terminal cannot be logged or recorded (paragraph 5.4 of Addendum no. 1).", "121. The remote terminal receives a password from the mobile - network operator giving it full access to the SORM. The remote terminal then changes the password so that unauthorised persons cannot gain access to the SORM. From the remote terminal, the SORM can be commanded, among others, to start interception in respect of a subscriber, interrupt or discontinue the interception, intercept a subscriber ’ s ongoing communication, and submit specified information about a subscriber (paragraph 3.1.2 of Addendum no. 3).", "122. The remote terminal receives the following automatic notifications about the interception subjects: SMS sent or received by the interception subject, including their contents; a number being dialled; a connection being established; a connection being interrupted; use of supplementary services; and a change in the subject ’ s connection status or location (paragraph 3.1.4 of Addendum no. 3).", "(b ) Order no. 130", "123. Order no. 130 on the installation procedures for technical facilities enabling the conduct of operational-search activities, issued by the Ministry of Communications on 25 July 2000, stipulated that communications service providers had to install equipment which met the technical requirements laid down in Order no. 70. The installation procedure and schedule had to be approved by the FSB (paragraph 1.4).", "124. Communications service providers had to take measures to protect information regarding the methods and tactics employed in operational-search activities (paragraph 2.4)", "125. Communications service providers had to ensure that any interception of communications or access to communications data was granted only pursuant to a court order and in accordance with the procedure established by the OSAA (paragraph 2.5).", "126. Communications service providers did not have to be informed of interceptions in respect of their subscribers. Nor did they have to be provided with judicial orders authorising interceptions (paragraph 2.6).", "127. Interceptions were carried out by the staff and technical facilities of the FSB and the agencies of the Ministry of the Interior (paragraph 2.7).", "128. Paragraphs 1.4 and 2.6 of Order no. 130 were challenged by a Mr N. before the Supreme Court. Mr N. argued that the reference to Order no. 70 contained in paragraph 1.4 was unlawful, as Order no. 70 had not been published and was invalid. As to paragraph 2.6, it was incompatible with the Communications Act, which provided that communications service providers had an obligation to ensure the privacy of communications. On 25 September 2000 the Supreme Court found that the reference to Order no. 70 in paragraph 1.4 was lawful, as Order no. 70 was technical in nature and was therefore not subject to publication in a generally accessible official publication. It had therefore been published only in a specialised magazine. As to paragraph 2.6, the Supreme Court considered that it could be interpreted as requiring communications service providers to grant law-enforcement agencies access to information about subscribers without judicial authorisation. Such a requirement was, however, incompatible with the Communications Act. The Supreme Court therefore found that paragraph 2.6 was unlawful and inapplicable.", "129. On 25 October 2000 the Ministry of Communications amended Order no. 130 by repealing paragraph 2.6.", "130. In reply to a request for information by the NGO Civilian Control, the Ministry of Communications stated, in a letter dated 20 August 2006, that the repealing of paragraph 2.6 of Order no. 130 did not mean that communications service providers had to be informed of operational-search measures in respect of a subscriber or be provided with a copy of the relevant decision granting judicial authorisation for such surveillance.", "131. Order no. 130 was repealed on 16 January 2008 (see paragraph 134 below).", "(c ) Order no. 538", "132. Order no. 538 on cooperation between communications service providers and law - enforcement agencies, issued by the government on 27 August 2005, provides that communications service providers must be diligent in updating databases containing information about subscribers and the services provided to them. That information must be stored for three years. Law-enforcement agencies must have remote access to the databases at all times (paragraph 12).", "133. Databases must contain the following information about subscribers: (a) first name, patronymic and family name, home address and passport number for natural persons; (b) company name, address and list of persons having access to the terminal equipment with their names, patronymics and family names, home addresses and passport numbers for legal persons; (c) information about connections, traffic and payments (paragraph 14).", "(d ) Order no. 6", "134. Order no. 6 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part I, issued by the Ministry of Communications on 16 January 2008, replaced Order no. 130.", "135. It retained the requirement that communications service providers had to ensure transmission to the relevant law - enforcement agency ’ s remote terminal of information about (a) subscribers ’ numbers and identification codes, and (b) the contents of their communications. The information must be transmitted in real time following a request from the remote terminal. Communications service providers must also ensure that the subscriber ’ s location is identified (paragraphs 2, 3 and 5).", "136. The remote terminal must have access to databases containing information about subscribers, including their numbers and identification codes (paragraphs 7 and 8).", "137. Communications service providers must ensure that the interception subject remains unaware of the interception of his communications. Information about ongoing or past interceptions must be protected from unauthorised access by the employees of the communications service providers (paragraph 9).", "(e ) Order no. 73", "138. Order no. 73 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part II, issued by the Ministry of Communications on 27 May 2010, elaborates on certain requirements contained in Order no. 6. In particular, it provides that the equipment installed by communications service providers must ensure that agencies performing operational-search activities have access to all data transmitted through the telecommunications networks and are capable of selecting data and transmitting the selected data to its control terminal (paragraph 2)." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Right to respect for private life and correspondence", "15. The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). It further guarantees the right to respect for correspondence and telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order ( Article 23 § 2).", "16. The Constitution also stipulates that it is not permissible to collect, store, use or disseminate information about a person ’ s private life without his consent. State and municipal authorities must ensure that any person has access to documents and materials affecting his rights and freedoms, except where the law provides otherwise (Article 24).", "17. The Communications Act of 7 July 2003 (no. 126 ‑ FZ) guarantees the privacy of postal, telegraphic and other forms of communication transmitted by means of telecommunications networks or mail services. Restrictions on the privacy of communications are permissible only in cases specified in federal laws (section 63(1)). The interception of communications is subject to prior judicial authorisation, except in cases specified in federal laws (section 63(3)).", "18. On 2 October 2003, in its decision no. 345-O, the Constitutional Court held that the right to privacy of telephone communications covered all data transmitted, stored or discovered by means of telephone equipment, including non-content - based data, such as information about the incoming and outgoing connections of a specified subscriber. The monitoring of such data was also subject to prior judicial authorisation.", "B. Responsibility for breach of privacy", "19. The unauthorised collection or dissemination of information about the private or family life of a person without his consent, where it is committed out of mercenary or other personal interest and is damaging to the rights and lawful interests of citizens, is punishable by a fine, correctional labour or a custodial sentence of up to four months. The same actions committed by an official using his position are punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to six months (Article 137 of the Criminal Code).", "20. Any breach of citizens ’ right to the privacy of their postal, telegraphic, telephone or other forms of communication is punishable by a fine or correctional labour. The same act committed by an official using his position is punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to four months (Article 138 of the Criminal Code).", "21. Abuse of power by an official, where it is committed out of mercenary or other personal interest and entails a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests, is punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 285 § 1 of the Criminal Code).", "22. Actions by a public official which clearly exceed his authority and entail a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests, are punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 286 § 1 of the Criminal Code).", "23. Ruling no. 19 of 16 October 2009 by the Plenary Supreme Court provides that for the purposes of Articles 285 and 286 of the Criminal Code “a substantial violation of an individual ’ s or a legal entity ’ s rights and lawful interests” means a violation of the rights and freedoms guaranteed by the generally established principles and provisions of international law and the Constitution of the Russian Federation – such as the right to respect for a person ’ s honour and dignity, private or family life, correspondence, telephone, postal, telegraph and other communications, the inviolability of the home, etc. In assessing whether the violation was “substantial” in respect of a legal entity, it is necessary to take into account the extent of the damage sustained as a result of the unlawful act, the nature and the amount of the pecuniary damage, the number of persons affected and the gravity of the physical, pecuniary or non-pecuniary damage inflicted on them (paragraph 18 (2)).", "24. Criminal proceedings are opened if there are sufficient facts showing that a criminal offence has been committed (Article 140 § 2 of the Code of Criminal Procedure).", "C. General provisions on interception of communications", "25. The interception of communications is governed by the Operational-Search Activities Act of 12 August 1995 (no. 144 ‑ FZ – “the OSAA” ), applicable to the interception of communications both in the framework of criminal proceedings and outside such framework; and the Code of Criminal Procedure of 18 December 2001 (no. 174-FZ, in force since 1 July 2002 – “ the CCrP ” ), applicable only to the interception of communications in the framework of criminal proceedings.", "26. The aims of operational-search activities are ( a ) the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence; ( b ) the tracing of fugitives from justice and missing persons; ( c ) obtaining information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 2 of the OSAA ). On 25 December 2008 that section was amended and a further aim, that of obtaining information about property subject to confiscation, was added.", "27. State officials and agencies performing operational-search activities must show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to achieve aims or objectives other than those specified in the Act (section 5(1) and (2) of the OSAA ).", "28. State officials and agencies may not ( a ) conduct operational-search activities in the interest of political parties, non-profit or religious organisations; ( b ) conduct secret operational-search activities in respect of federal, regional or municipal authorities, political parties, or non-profit or religious organisations with the aim of influencing their activities or decisions; ( c ) disclose to anyone the data collected in the course of the operational-search activities if those data concern the private or family life of citizens or damage their reputation or good name, except in cases specified in federal laws; ( d ) incite, induce or entrap anyone to commit a criminal offence; ( e ) or falsify the results of operational-search activities (section 5(8) of the OSAA ).", "29. Operational-search activities include, inter alia, the interception of postal, telegraphic, telephone and other forms of communication and the collection of data from technical channels of communication. The Act stipulates that audio and video - recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to the life or health of those involved or to the environment. Operational-search activities involving the interception of postal, telegraphic, telephone and other forms of communication and collection of data from technical channels of communication using equipment installed by communications service providers is carried out by technical means by the FSB and the agencies of the Ministry of the Interior, in accordance with decisions and agreements signed between the agencies involved (section 6 of the OSAA ).", "30. Presidential Decree no. 891 of 1 September 1995 provides that the interception of postal, telegraphic or other communications is to be carried out by the FSB in the interests and on behalf of all law-enforcement agencies (paragraph 1). In situations where the FSB does not have available the necessary technical equipment, interceptions may be carried out by the agencies of the Ministry of the Interior in the interests and on behalf of all law-enforcement agencies (paragraph 2). Similar provisions are contained in paragraphs 2 and 3 of Order no. 538, issued by the government on 27 August 2005.", "D. Situations that may give rise to interception of communications", "31. Operational-search activities involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or within the privacy of the home, may be conducted following the receipt of information ( a ) that a criminal offence has been committed, is being committed, or is being plotted; ( b ) about persons conspiring to commit, or committing, or having committed a criminal offence; or ( c ) about events or activities endangering the national, military, economic or ecological security of the Russian Federation ( section 8(2) of the OSAA ).", "32. The OSAA provides that interception of telephone and other communications may be authorised only in cases where a person is suspected of, or charged with, a criminal offence of medium severity, a serious offence or an especially serious criminal offence, or may have information about such an offence (section 8(4) of the OSAA ). The CCrP also provides that interception of telephone and other communications of a suspect, an accused or other person may be authorised if there are reasons to believe that they may contain information relevant for the criminal case in respect of a criminal offence of medium severity, a serious offence or an especially serious criminal offence (Article 186 § 1 of the CCrP ).", "33. Article 15 of the Criminal Code provides that “offences of medium severity” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between three and five years ’ imprisonment and unpremeditated offences for which the Criminal Code prescribes a maximum penalty of more than three years ’ imprisonment. “Serious offences” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years ’ imprisonment. “Especially serious offences” are premeditated offences for which the Code prescribes a maximum penalty of more than ten years ’ imprisonment or a harsher penalty.", "E. Authorisation procedure and time-limits", "1. Operational-Search Activities Act", "34. Operational-search measures involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services or within the privacy of the home – such as an inspection of premises or buildings, an interception of postal, telegraphic, telephone and other forms of communication or a collection of data from technical channels of communication – require prior judicial authorisation (section 8(2) of the OSAA ).", "35. In urgent cases where there is an immediate danger that a serious or especially serious offence may be committed or where there is information about events or activities endangering national, military, economic or ecological security, the operational-search measures specified in section 8(2) may be conducted without prior judicial authorisation. In such cases a judge must be informed within twenty-four hours of the commencement of the operational-search activities. If judicial authorisation has not been obtained within forty-eight hours of the commencement of the operational-search activities, those activities must be stopped immediately (section 8(3) of the OSAA ).", "36. The examination of requests to take measures involving interference with the constitutional right to the privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services, or with the right to privacy of the home, falls within the competence of a court in the locality where the requested measure is to be carried out or in the locality where the requesting body is located. The request must be examined immediately by a single judge (section 9(1) of the OSAA ).", "37. The judge takes a decision on the basis of a reasoned request by the head of one of the agencies competent to perform operational-search activities. Relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures, may also be produced at the judge ’ s request (section 9(2) and (3) of the OSAA ).", "38. The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional rights, or to refuse authorisation, giving reasons. The judge must specify the period of time for which the authorisation is granted, which shall not normally exceed six months. If necessary, the judge may extend the authorised period after a fresh examination of all the relevant materials (section 9(4) and (5) of the OSAA ).", "39. The judicial decision authorising operational-search activities and the materials that served as a basis for that decision must be held in the exclusive possession of the State agency performing the operational-search activities (section 12(3) of the OSAA ).", "40. On 14 July 1998 the Constitutional Court, in its decision no. 86-O, dismissed as inadmissible a request for a review of the constitutionality of certain provisions of the OSAA. It held, in particular, that a judge was to authorise investigative measures involving interference with constitutional rights only if he was persuaded that such measures were lawful, necessary and justified, that is, compatible with all the requirements of the OSAA. The burden of proof was on the requesting State agency to show the necessity of the measures. Supporting materials were to be produced to the judge at his request. Given that some of those materials might contain State secrets, only judges with the necessary level of security clearance could examine authorisation requests. Further, relying on the need to keep the surveillance measures secret, the Constitutional Court held that the principles of a public hearing and adversarial proceedings were not applicable to the authorisation proceedings. The fact that the person concerned was not entitled to participate in the authorisation proceedings, to be informed of the decision taken or to appeal to a higher court did not therefore violate that person ’ s constitutional rights.", "41. On 2 October 2003 the Constitutional Court, in its decisionno. 345-O, held that the judge had an obligation to examine the materials submitted to him in support of a request for interception thoroughly and carefully. If the request was insufficiently substantiated, the judge could request additional information.", "42. Further, on 8 February 2007 the Constitutional Court, in its decision no. 1-O, dismissed as inadmissible a request for a review of the constitutionality of section 9 of the OSAA. It found that before granting authorisation to perform operational-search measures the judge had an obligation to verify the grounds for that measure. The judicial decision authorising operational-search measures was to contain reasons and to refer to specific grounds for suspecting that a criminal offence had been committed, was being committed, or was being plotted or that activities endangering national, military, economic or ecological security were being carried out, and that the person in respect of whom operational-search measures were requested was involved in those criminal or otherwise dangerous activities.", "43. On 15 July 2008 the Constitutional Court, in its decision no. 460 ‑ O ‑ O, dismissed as inadmissible a request for a review of the constitutionality of sections 5, 11 and 12 of the OSAA. The Constitutional Court found that a person whose communications had been intercepted was entitled to lodge a supervisory - review complaint against the judicial decision authorising the interception. The fact that he had no copy of that decision did not prevent him from lodging the supervisory-review complaint, because the relevant court could request it from the competent authorities.", "2. Code of Criminal Procedure", "44. Investigative measures involving a search in a person ’ s home or interception of his telephone calls and other communications are subject to prior judicial authorisation. A request to search a person ’ s home or intercept his communications must be submitted by an investigator with a prosecutor ’ s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request shall decide whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP ).", "45. A court may grant authorisation to intercept the communications of a suspect, an accused or other persons if there are reasons to believe that information relevant to the criminal case may be discussed ( Article 186 § 1 of the CCrP ).", "46. A request for authorisation to intercept communications must clearly mention ( a ) the criminal case to which the request is related; ( b ) the grounds for conducting the requested measures; ( c ) the family name, the first name and the patronymic of the person whose communications are to be intercepted; ( d ) the duration of the requested measure; and ( e ) the State agency that will perform the interception (Article 186 § 3 of the CCrP )", "47. The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186 §§ 4 and 5 of the CCrP ).", "48. A court may also authorise the monitoring of communications data relating to a person ’ s telephone or wireless connections if there are sufficient reasons to believe that such data may be relevant to a criminal case. A request for authorisation must contain the same elements referred to in paragraph 46 above. A copy of the judicial decision authorising the monitoring of a person ’ s communications-related data is forwarded by the investigator to the relevant communications service provider, which must then submit the requested data to the investigator on a regular basis, and at least once a week. The monitoring of communications data may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186.1 of the CCrP, added on 1 July 2010).", "F. Storage, use and destruction of collected data", "1. Storage of collected data", "49. Section 10 of the OSAA stipulates that law-enforcement agencies performing operational-search activities may create and use databases or open personal files. The personal file must be closed when the aims specified in section 2 of the Act have been achieved or if it has been established that it is impossible to achieve them.", "50. In its decision of 14 July 1998 ( see paragraph 40 above), the Constitutional Court noted, as regards the possibility provided by section 10 for law-enforcement agencies conducting operational-search activities to create databases or open personal files, that only the data relating to the prevention or investigation of criminal offences could be entered into such databases or personal files. Given that criminal activities did not fall within the sphere of private life, collection of information about such criminal activities did not interfere with the right to respect for private life. If information about a person ’ s criminal activities entered into a file was not subsequently confirmed, the personal file had to be closed.", "51. Records of intercepted telephone and other communications must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (section 8(4) of the OSAA ).", "52. Information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret. It may be declassified only pursuant to a special decision of the head of the State agency performing the operational-search activities (section 12(1) of the OSAA and section 5(4) of Law no. 5485-I of 21 July 1993 – “ the State Secrets Act ” ).", "53. Materials containing State secrets should be clearly marked with the following information: degree of secrecy, the State agency which has taken the decision to classify them, registration number, and the date or conditions for declassifying them (section 12 of the State Secrets Act).", "2. Use of collected data and conditions for their disclosure", "54. Information containing State secrets may be disclosed to another State authority, an organisation or an individual only subject to authorisation by the State authority which took the decision to classify that information. It may be disclosed only to State authorities or organisations holding a special license or to individuals with the required level of security clearance. The State authority or organisation to which classified information is disclosed must ensure that that information is adequately protected. The head of such State authority or organisation is personally responsible for protecting the classified information against unauthorised access or disclosure (sections 16 and 17 of the State Secrets Act).", "55. A license to access State secrets may be issued to an organisation or a company only after it has been confirmed that it has specific internal departments charged with data protection, that its employees are qualified to work with classified information and that it uses approved systems of data protection (section 27 of the State Secrets Act).", "56. Security clearance is granted only to those State officials who genuinely need it for the performance of their duties. It is also granted to judges for the period of their service and to counsel participating in a criminal case if the case file contains materials involving State secrets. Anyone who has been granted security clearance must give a written undertaking not to disclose the classified information entrusted to him (paragraphs 7, 11 and 21 of Regulation no. 63 of 6 February 2010 of the government of the Russian Federation).", "57. The head of the State authority or organisation in possession of information containing State secrets is responsible for giving State officials and other authorised persons access to that information. He must ensure that only the information that the recipient needs for the performance of his duties is disclosed (section 25 of the State Secrets Act).", "58. If the data collected in the course of operational-search activities contain information about the commission of a criminal offence, that information, together with all the necessary supporting material such as photographs and audio or video - recordings, must be sent to the competent investigation authorities or a court. If the information was obtained as a result of operational-search measures involving interference with the right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or with the privacy of the home, it must be sent to the investigation or prosecution authorities together with the judicial decision authorising those measures.The information must be transmitted in accordance with the special procedure for handling classified information, unless the State agency performing operational-search activities has decided to declassify it (paragraphs 1, 12, 14 and 16 of Order no. 776/703/509/507/1820/42/535/398/68 of 27 September 2013 by the Ministry of the Interior).", "59. If the person whose telephone or other communications were intercepted is charged with a criminal offence, the records are to be given to the investigator and attached to the criminal case file. Their further use and storage are governed by criminal procedural law (section 8(5) of the OSAA ).", "60. Data collected as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings and used as evidence in criminal proceedings in accordance with the legal provisions governing the collection, evaluation and assessment of evidence. The decision to transfer the collected data to other law-enforcement agencies or to a court is taken by the head of the State agency performing the operational-search activities (section 11 of the OSAA ).", "61. If the interception was authorised in the framework of criminal proceedings, the investigator may obtain the records from the agency conducting it at any time during the authorised period of interception. The records must be sealed and must be accompanied by a cover letter indicating the dates and time of the beginning and end of the recorded communications, as well as the technical means used to intercept them. Recordings must be listened to by the investigator in the presence of attesting witnesses, an expert ( where necessary ) and the persons whose communications have been intercepted. The investigator must draw up an official report containing a verbatim transcription of those parts of the recorded communications that are relevant to the criminal case ( Article 186 §§ 6 and 7 of the CCrP ). On 4 March 2013 Article 186 § 7 was amended and the requirement of the presence of attesting witnesses was deleted.", "62. Recordings and communications-related data that have been collected are to be attached to the criminal case file. They must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons ( Article 186 § 8 of the CCrP and Article 186.1, added on 1 July 2010).", "63. The results of operational-search activities involving a restriction on the right to respect for correspondence, telephone, postal, telegraph or other communications may be used as evidence in criminal proceedings only if they have been obtained pursuant to a court order and if the operational-search activities have been carried out in accordance with the law on criminal procedure (paragraph 14 of Ruling no. 8 of 31 October 1995 by the Plenary Supreme Court of the Russian Federation).", "64. It is prohibited to use in evidence data obtained as a result of operational-search activities that do not comply with the admissibility-of-evidence requirements of the CCrP (Article 89 of the CCrP ). Evidence obtained in breach of the CCrP shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial (Articles 75 and 235 of the CCrP ).", "3. Destruction of collected data", "65. The data collected in the course of operational-search activities in respect of a person whose guilt has not been proved in accordance with the procedure prescribed by law must be stored for a year and then destroyed, unless those data are needed in the interests of the authority or of justice. Audio - recordings and other materials collected as a result of intercepting telephone or other communications must be stored for six months and then destroyed if the person has not been charged with a criminal offence. The judge who authorised the interception must be informed of the scheduled destruction three months in advance (section 5(7) of the OSAA ).", "66. If the person has been charged with a criminal offence, at the end of the criminal proceedings the trial court takes a decision on the further storage or destruction of the data used in evidence. The destruction must be recorded in a report to be signed by the head of the investigation authority and included in the case file (Article 81 § 3 of the CCrP and paragraph 49 of Order no. 142 of 30 September 2011 of the Investigations Committee).", "G. Supervision of interception of communications", "67. The heads of the agencies conducting operational-search activities are personally responsible for the lawfulness of all operational-search activities (section 22 of the OSAA ).", "68. Overall supervision of operational-search activities is exercised by the President, Parliament and the government of the Russian Federation within the limits of their competence (section 20 of the OSAA ).", "69. The Prosecutor General and competent lower-level prosecutors may also exercise supervision over operational-search activities. At the request of a competent prosecutor, the head of a State agency performing operational-search activities must produce operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions. Materials containing information about undercover agents or police informers may be disclosed to the prosecutor only with the agent ’ s or informer ’ s consent, except in cases of criminal proceedings against them. The head of a State agency may be held liable in accordance with the law for failure to comply with the prosecutor ’ s request. The prosecutor must ensure the protection of the data contained in the materials produced (section 21 of the OSAA ).", "70. The Prosecutors ’ Office Act (Federal Law no. 2202-I of 17 January 1992) provides that the Prosecutor General is to be appointed or dismissed by the Federation Council (the upper house of Parliament) on proposal by the President (section 12). Lower-level prosecutors are to be appointed by the Prosecutor General after consultation with the regional executive authorities (section 13). To be appointed as a prosecutor the person must be a Russian citizen and must have a Russian law degree (section 40.1).", "71. In addition to their prosecuting functions, prosecutors are responsible for supervising whether the administration of detention facilities, bailiffs ’ activities, operational-search activities and criminal investigations are in compliance with the Russian Constitution and Russian laws (section 1). Prosecutors also coordinate the activities of all law-enforcement authorities in combatting crime (section 8).", "72. As regards supervision of operational-search activities, prosecutors may review whether measures taken in the course of operational-search activities are lawful and respectful of human rights (section 29). Prosecutors ’ orders made in the context of such supervision must be complied with within the time-limit set. Failure to comply may result in liability in accordance with the law (section 6).", "73. Prosecutors may also examine complaints of breaches of the law and give a reasoned decision on each complaint. Such a decision does not prevent the complainant from bringing the same complaint before a court. If a prosecutor discovers a breach of the law, he must take measures to bring the responsible persons to account (section 10).", "74. The Federal Security Service Act of 3 April 1995 (no. 40-FZ – “the FSB Act” ) provides that information about the security services ’ undercover agents, as well as about the tactics, methods and means used by them is outside the scope of supervision by prosecutors ( section 24).", "75. The procedures for prosecutors ’ supervision of operational-search activities have been set out in Order no. 33, issued by the Prosecutor General ’ s Office on 15 February 2011.", "76. Order no. 33 provides that a prosecutor may carry out routine inspections of agencies carrying out operational-search activities, as well as ad hoc inspections following a complaint by an individual or receipt of information about potential violations. Operational-search activities performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (paragraph 5 of Order no. 33).", "77. During the inspection the prosecutor must verify compliance with the following requirements:", "– observance of citizens ’ constitutional rights, such as the right to respect for private and family life, home, correspondence, telephone, postal, telegraph and other communications;", "– that the measures taken in the course of operational-search activities are lawful and justified, including those measures that have been authorised by a court (paragraphs 4 and 6 of Order no. 33).", "78. During the inspection the prosecutor must study the originals of the relevant operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions, and may request explanations from competent officials. The prosecutors must protect the sensitive data entrusted to them from unauthorised access or disclosure (paragraphs 9 and 12 of Order no. 33).", "79. If a prosecutor identifies a breach of the law, he must request the official responsible for it to remedy the breach. He must also take measures to stop and remedy violations of citizens ’ rights and to bring those responsible to liability (paragraphs 9 and 10 of Order no. 33). A State official who refuses to comply with a prosecutor ’ s orders may be brought to account in accordance with the law (paragraph 11).", "80. The prosecutors responsible for supervision of operational-search activities must submit six-monthly reports detailing the results of the inspections to the Prosecutor General ’ s Office (paragraph 15 of Order no. 33). A report form to be filled in by prosecutors is attached to Order no. 33. The form indicates that it is confidential. It contains two sections, both in table format. The first section concerns inspections carried out during the reference period and contains information about the number of inspections, number of files inspected and number of breaches detected. The second section concerns citizens ’ complaints and contains information about the number of complaints examined and granted.", "H. Access by individuals to data collected about them in the course of interception of communications", "81. Russian law does not provide that a person whose communications are intercepted must be notified at any point. However, a person who is in possession of the facts of the operational-search measures to which he was subjected and whose guilt has not been proved in accordance with the procedure prescribed by law, that is, he has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing, is entitled to receive information about the data collected in the course of the operational-search activities, to the extent compatible with the requirements of operational confidentiality ( конспирации ) and excluding data which could enable State secrets to be disclosed (section 5(4 ), (5) and ( 6) of the OSAA ).", "82. In its decision of 14 July 1998 (cited in paragraph 40 above), the Constitutional Court noted that any person who was in possession of the facts of the operational-search measures to which he had been subjected was entitled to receive information about the data collected in the course of those activities, unless those data contained State secrets. Under section 12 of the OSAA, data collected in the course of operational-search activities – such as information about criminal offences and the persons involved in their commission – were a State secret. However, information about breaches of citizens ’ rights or unlawful acts on the part of the authorities could not be classified as a State secret and should be disclosed. Section 12 could not therefore serve as a basis for refusing access to information affecting a person ’ s rights, provided that such information did not concern the aims of, or the grounds for, the operational-search activities. In view of the above, the fact that, pursuant to the contested Act, a person was not entitled to be granted access to the entirety of the data collected about him did not constitute a violation of that person ’ s constitutional rights.", "III. RELEVANT INTERNATIONAL AND EUROPEAN INSTRUMENTS", "A. United Nations", "139. Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, reads as follows:", "“The General Assembly,", "...", "4. Calls upon all States:", "...", "( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law;", "( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data;", "... ”", "B. Council of Europe", "140. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (ETS 108) sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. The relevant parts read as follows.", "Article 8 – Additional safeguards for the data subject", "“ Any person shall be enabled:", "a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention;", "d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with. ”", "Article 9 – Exceptions and restrictions", "“1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article.", "2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "... ”", "Article 10 – Sanctions and remedies", "“ Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.”", "141. The above Convention was ratified by Russia on 15 May 2013 and came into force in respect of Russia on 1 September 2013. The instrument of ratification deposited by the Russian Federation on 15 May 2013 contains the following declaration.", "“The Russian Federation declares that in accordance with subparagraph ‘ a ’ of paragraph 2 of Article 3 of the Convention, it will not apply the Convention to personal data:", "...", "( b) falling under State secrecy in accordance with the legislation of the Russian Federation on State secrecy.", "The Russian Federation declares that in accordance with subparagraph ‘ c ’ of paragraph 2 of Article 3 of the Convention, it will apply the Convention to personal data which is not processed automatically, if the application of the Convention corresponds to the nature of the actions performed with the personal data without using automatic means.", "The Russian Federation declares that in accordance with subparagraph ‘ a ’ of paragraph 2 of Article 9 of the Convention, it retains the right to limit the right of the data subject to access personal data on himself for the purposes of protecting State security and public order.”", "142. The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows of 8 November 2001 (ETS 181), signed but not ratified by Russia, provides as follows:", "“Article 1 – Supervisory authorities", "“ 1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.", "2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.", "b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.", "3. The supervisory authorities shall exercise their functions in complete independence.", "4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.", "... ”", "143. Recommendation No. R (87) 15 of the Council of Europe’s Committee of Ministers to member States regulating the use of personal data in the police sector, adopted on 17 September 1987, reads as follows.", "“1.1. Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation.", "...", "2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.", "2.2. Where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced.", "...", "3. 1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.", "...", "5.2 .i. ... Communication of data to other public bodies should only be permissible if, in a particular case:", "a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if", "b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this.", "5.2 .ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case:", "a. the communication is undoubtedly in the interest of the data subject and either the data subject has consented or circumstances are such as to allow a clear presumption of such consent, or if", "b. the communication is necessary so as to prevent a serious and imminent danger.", "5.3 .i. ... The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority.", "...", "6.4. Exercise of the rights [of the data subject] of access, rectification and erasure should only be restricted insofar as a restriction is indispensable for the performance of a legal task of the police or is necessary for the protection of the data subject or the rights and freedoms of others.", "...", "6.5. A refusal or a restriction of those rights should be reasoned in writing. It should only be possible to refuse to communicate the reasons insofar as this is indispensable for the performance of a legal task of the police or is necessary for the protection of the rights and freedoms of others.", "6.6. Where access is refused, the data subject should be able to appeal to the supervisory authority or to another independent body which shall satisfy itself that the refusal is well founded.", "...", "7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.", "For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.", "7.2. Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.", "8. The responsible body should take all the necessary measures to ensure the appropriate physical and logical security of the data and prevent unauthorised access, communication or alteration.", "The different characteristics and contents of files should, for this purpose, be taken into account.”", "144. Recommendation No. R (95) 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995, reads in so far as relevant as follows.", "“2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate:", "a. the exercise of the data subject ’ s rights of access and rectification;", "b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it;", "c. storage or destruction of such data.", "If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.”", "C. European Union", "145. Council Resolution of 17 January 1995 on the lawful interception of telecommunications (96/C 329/01) provides as follows.", "“This section presents the requirements of law enforcement agencies relating to the lawful interception of telecommunications. These requirements are subject to national law and should be interpreted in accordance with applicable national policies.", "...", "1.3. Law enforcement agencies require that the telecommunications to and from a target service be provided to the exclusion of any telecommunications that do not fall within the scope of the interception authorization.", "...", "2. Law enforcement agencies require a real-time, fulltime monitoring capability for the interception of telecommunications. Call associated data should also be provided in real - time. If call associated data cannot be made available in real time, law enforcement agencies require the data to be available as soon as possible upon call termination.", "3. Law enforcement agencies require network operators/service providers to provide one or several interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility. These interfaces have to be commonly agreed on by the interception authorities and the network operators/service providers. Other issues associated with these interfaces will be handled according to accepted practices in individual countries.", "...", "5. Law enforcement agencies require the interception to be designed and implemented to preclude unauthorized or improper use and to safeguard the information related to the interception.", "...", "5.2. Law enforcement agencies require network operators/service providers to ensure that intercepted communications are only transmitted to the monitoring agency specified in the interception authorization.", "...”", "146. The above requirements were confirmed and expounded in Council Resolution No. 9194/01 of 20 June 2001 on law enforcement operational needs with respect to public telecommunication networks and services.", "147. The judgment the Court of Justice of the European Union (CJEU ) of 8 April 2014 in the joined cases of Digital Rights Ireland and Seitinger and Others (C-293/12 and C-594/12, EU:C:2014:238) declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. The CJEU noted that, even though the Directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain those data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union and the right to protection of personal data under its Article 8. Furthermore, the access of the competent national authorities to the data constituted a further interference with those fundamental rights. The CJEU further held that the interference was particularly serious. The fact that data were retained and subsequently used without the subscriber or registered user being informed was likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. Firstly, the Directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Secondly, the Directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each member State in its national law, the Directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. Thirdly, the Directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the Directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the Directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "148. The applicant complained that the system of covert interception of mobile-telephone communications in Russia did not comply with the requirements of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "149. The Government submitted that the applicant could not claim to be a victim of the alleged violation of his right to respect for his private life or correspondence (see paragraphs 152 - 57 below). Moreover, he had not exhausted domestic remedies (see paragraphs 219 - 26 below).", "150. The Court considers that the Government ’ s objections are so closely linked to the substance of the applicant ’ s complaint that they must be joined to the merits.", "151. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The applicant ’ s victim status and the existence of an “ interference”", "(a) The parties ’ submissions", "( i ) The Government", "152. The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 8 of the Convention and that there had been no interference with his rights. He had not complained that his communications had been intercepted. The gist of his complaint before the domestic courts and the Court was that communications service providers had installed special equipment enabling the authorities to perform operational-search activities. In the Government ’ s opinion, the case of Orange Slovensko, a. s. v. Slovakia (( dec. ), no. 43983/02, 24 October 2006) confirmed that installation of interception equipment, or even its financing, by private companies was not in itself contrary to the Convention.", "153. The Government further submitted that Article 34 could not be used to lodge an application in the nature of an actio popularis; nor could it form the basis of a claim made in abstracto that a law contravened the Convention (they referred to Aalmoes and Others v. the Netherlands ( dec. ), no. 16269/02, 25 November 2004). They argued that the approach to victim status established in the cases of Klass and Others v. Germany ( 6 September 1978, § 34, Series A no. 28) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82) – according to which an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him– could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him. An applicant was required to demonstrate that there was a “reasonable likelihood” that the security services had compiled and retained information concerning his private life (they referred to Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993, unreported; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993, unreported; Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996, unreported; Halford v. the United Kingdom, 25 June 1997, § 17, Reports of Judgments and Decisions 1997 ‑ III; Weber and Saravia v. Germany ( dec. ), no. 54934/00, §§ 4-6 and 78, ECHR 2006 ‑ XI; and Kennedy v. the United Kingdom, no. 26839/05, §§ 122 - 23, 18 May 2010 ).", "154. The Government maintained that exceptions to the rule of “reasonable likelihood” were permissible only for special reasons. An individual could claim an interference as a result of the mere existence of legislation permitting secret surveillance measures in exceptional circumstances only, having regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him ( they cited Kennedy, cited above, § 124). According to the Government, no such special reasons could be established in the present case.", "155. Firstly, there was no “reasonable likelihood”, or indeed any risk whatsoever, that the applicant had been subjected to surveillance measures because he had not been suspected of any criminal offences. The fact that he was the editor-in-chief of a publishing company could not serve as a ground for interception under Russian law. The Government asserted that the applicant ’ s telephone conversations had never been intercepted. The applicant had not produced any proof to the contrary. The documents submitted by him in the domestic proceedings had concerned third persons and had not contained any proof that his telephone had been tapped.", "156. Secondly, remedies were available at the national level to challenge both the alleged insufficiency of safeguards against abuse in Russian law and any specific surveillance measures applied to an individual. It was possible to request that the Constitutional Court review the constitutionality of the Operational-Search Activities Act of 12 August 1995 (no. 144 ‑ FZ – “the OSAA”). It was also possible to lodge a complaint with the Supreme Court, as had been successfully done by Mr N., who had obtained a finding of unlawfulness in respect of a provision of the Ministry of Communications ’ Order no. 130 (see paragraph 128 above ). As regards Order no. 70, contrary to the applicant ’ s allegations, it had been duly published (see paragraph 181 below) and could therefore be challenged in the courts. A person whose communications had been intercepted unlawfully without prior judicial authorisation could also obtain redress in a civil court. The Government referred to the Supreme Court ’ s judgment of 15 July 2009, which found that the installation of a video camera in the claimant ’ s office and the tapping of his office telephone had been unlawful because those surveillance measures had been carried out without prior judicial authorisation (see also paragraphs 219 - 24 below). Finally, Russian law provided for supervision of interception of communications by an independent body, the prosecutor ’ s office.", "157. The Government concluded, in view of the above, that the present case was different from Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria ( no. 62540/00, 28 June 2007) where the Court had refused to apply the “reasonable likelihood” test because of the absence of any safeguards against unlawful interception in Bulgaria. Given that Russian law provided for adequate and sufficient safeguards against abuse in the sphere of interception of communications, including available remedies, in the Government ’ s opinion the applicant could not claim an interference as a result of the mere existence of legislation permitting secret surveillance. In the absence of a “reasonable likelihood” that his telephone communications had been intercepted, he could not claim to be a victim of the alleged violation of Article 8 of the Convention.", "(ii) The applicant", "158. The applicant submitted that he could claim to be a victim of a violation of Article 8 due to the mere existence of legislation which allowed a system of secret interception of communications, without having to demonstrate that such secret measures had in fact been applied to him. The existence of such legislation entailed a threat of surveillance for all users of the telecommunications services and therefore amounted in itself to an interference with the exercise of his rights under Article 8. He relied in support of his position on Klass and Others (cited above, §§ 34 and 37), Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 58) and Kennedy (cited above, § 123).", "159. The applicant maintained that the test of “reasonable likelihood” had been applied by the Court only in those cases where the applicant had alleged actual interception, while in the cases concerning general complaints concerning legislation and practice permitting secret surveillance measures the “mere existence” test established in Klass and Others had been applied (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59, and Kennedy, cited above, §§ 122 - 23, with further references). In Liberty and Others v. the United Kingdom (no. 58243/00, §§ 56 - 57, 1 July 2008), the Court found that the existence of powers permitting the authorities to intercept communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied. In Kennedy (cited above, § 124) that test had been further elaborated upon to include the assessment of availability of any remedies at the national level and the risk of secret surveillance measures being applied to the applicant. Finally, in Mersch and Others v. Luxemburg (nos. 10439/83 and 5 others, Commission decision of 10 May 1985, Decisions and Reports 43 ) the Commission found that, in those cases where the authorities had no obligation to notify the persons concerned about the surveillance measures to which they had been subjected, the applicants could claim to be “victims” of a violation of the Convention on account of the mere existence of secret - surveillance legislation, even though they could not allege in support of their applications that they had been subjected to an actual measure of surveillance.", "160. The applicant argued that he could claim to be a victim of a violation of Article 8 on account both of the mere existence of secret - surveillance legislation and of his personal situation. The OSAA, taken together with the FSB Act, the Communications Act and the Orders adopted by the Ministry of Communication, such as Order no. 70, permitted the security services to intercept, through technical means, any person ’ s communications without obtaining prior judicial authorisation for interception. In particular, the security services had no obligation to show the interception authorisation to anyone, including the communications service provider. The contested legislation therefore permitted blanket interception of communications.", "161. No remedies were available under Russian law to challenge that legislation. Thus, as regards the possibility of challenging Order no. 70, the applicant referred to the Supreme Court ’ s decision of 25 September 2000 on a complaint by a Mr N. (see paragraph 128 above) finding that that Order was technical rather than legal in nature, and was therefore not subject to official publication. He also submitted a copy of the decision of 24 May 2010 by the Supreme Commercial Court finding that the Orders by the Ministry of Communications requiring communications providers to install equipment enabling the authorities to perform operational-search activities were not subject to judicial review in commercial courts. The domestic proceedings brought by the applicant had shown that Order no. 70 could not be effectively challenged before the Russian courts. Further, as far as the OSAA was concerned, the Constitutional Court had already examined its constitutionality on a number of occasions and had found that it was compatible with the Constitution. Finally, as regards the possibility of challenging individual surveillance measures, the applicant submitted that the person concerned was not notified of the interception, unless the intercepted material had been used as evidence in criminal proceedings against him. In the absence of notification, the domestic remedies were ineffective (see also paragraph 217 below).", "162. As to his personal situation, the applicant submitted that he was a journalist and the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, which monitored the state of media freedom and provided legal support to journalists whose professional rights had been violated (see paragraph 8 above). His communications were therefore at an increased risk of being intercepted. The applicant referred in that connection to the fundamental importance of protecting journalists ’ sources, emphasised by the Grand Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands ([GC], no. 38224/03, § 50, 14 September 2010).", "(b) The Court ’ s assessment", "163. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting covert interception of mobile-telephone communications and a risk of being subjected to interception measures, rather than as a result of any specific interception measures applied to him.", "( i ) Summary of the Court ’ s case-law", "164. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014 ). Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96 ).", "165. Thus, the Court has permitted general challenges to the relevant legislative regime in the sphere of secret surveillance in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them. In Klass and Others the Court held that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him. The relevant conditions were to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures (see Klass and Others, cited above, § 34 ). The Court explained the reasons for its approach as follows.", "“ 36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.", "...", "The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 [currently Article 34 ], since otherwise Article 8 runs the risk of being nullified.", "37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment ... To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8.", "...", "38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to ‘ (claim) to be the victim of a violation ’ of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.", "... ”", "166. Following the judgment in Klass and Others, the case-law of the Convention organs developed two parallel approaches to victim status in secret - surveillance cases.", "167. In several cases the Commission and the Court held that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him. An applicant could not, however, be reasonably expected to prove that information concerning his private life had been compiled and retained. It was sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there was a reasonable likelihood that the security services had compiled and retained information concerning his private life (see Esbester, cited above; Redgrave, cited above; Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, Decisions and Reports 78-A; Matthews, cited above; Halford, cited above, § § 47 and 55 ‑ 57; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 49 - 50, 22 May 2008). In all of the above cases, the applicants alleged actual interception of their communications. In some of them they also made general complaints concerning legislation and practice permitting secret surveillance measures ( see Esbester; Redgrave; Matthews; and Christie, all cited above).", "168. In other cases the Court reiterated the Klass and Others approach that the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants ’ rights under Article 8, irrespective of any measures actually taken against them ( see Malone, cited above, § 64; Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 58 - 59 and 69; Liberty and Others, cited above, §§ 56 - 57; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30-35, 10 February 2009). In all of the above cases the applicants made general complaints concerning legislation and practice permitting secret surveillance measures. In some of them they also alleged actual interception of their communications (see Malone, cited above, § 62, and Liberty and Others, cited above, §§ 41 - 42).", "169. Finally, in its most recent case on the subject, Kennedy, the Court held that sight should not be lost of the special reasons justifying the Court ’ s departure, in cases concerning secret measures, from its general approach to deny individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court. In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court (see Kennedy, cited above, § 124).", "(ii) Harmonisation of the approach to be taken", "170. The Court considers, against this background, that it is necessary to clarify the conditions under which an applicant can claim to be the victim of a violation of Article 8 without having to prove that secret surveillance measures had in fact been applied to him, so that a uniform and foreseeable approach may be adopted.", "171. In the Court ’ s view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court observed in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy, cited above, § 124). In such circumstances the threat of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court, and an exception to the rule denying individuals the right to challenge a law in abstracto is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.", "172. The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants.", "(iii) Application to the present case", "173. It is not disputed that mobile-telephone communications are covered by the notions of “private life” and “correspondence” in Article 8 § 1 (see, for example, Liberty and Others, cited above, § 56 ).", "174. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting secret surveillance measures and a risk of being subjected to such measures, rather than as a result of any specific surveillance measures applied to him.", "175. The Court notes that the contested legislation institutes a system of secret surveillance under which any person using the mobile - telephone services of Russian providers can have his mobile-telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile - telephone services.", "176. Furthermore, for the reasons set out below (see paragraphs 286 ‑ 300 ), Russian law does not provide for effective remedies for a person who suspects that he was subjected to secret surveillance.", "177. In view of the above finding, the applicant does not need to demonstrate that, due to his personal situation, he is at risk of being subjected to secret surveillance.", "178. Having regard to the secret nature of the surveillance measures provided for by the contested legislation, the broad scope of their application, affecting all users of mobile-telephone communications, and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level, the Court considers an examination of the relevant legislation in abstracto to be justified.", "179. The Court therefore finds that the applicant is entitled to claim to be the victim of a violation of the Convention, even though he is unable to allege that he has been subject to a concrete measure of surveillance in support of his application. For the same reasons, the mere existence of the contested legislation amounts in itself to an interference with the exercise of his rights under Article 8. The Court therefore dismisses the Government ’ s objection concerning the applicant ’ s lack of victim status.", "2. The justification for the interference", "(a) The parties ’ submissions", "( i ) Accessibility of domestic law", "180. The applicant submitted that the addendums to Order no. 70 describing the technical requirements for the equipment to be installed by communications service providers had never been officially published and were not accessible to the public. In the applicant ’ s opinion, in so far as they determined the powers of the law-enforcement authorities with regard to secret surveillance, they affected citizens ’ rights and ought therefore to have been published. The fact that the applicant had eventually had access to the addendums in the domestic proceedings could not remedy the lack of an official publication ( he referred to Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, § 92, 14 March 2013). Citizens should not be required to engage judicial proceedings to obtain access to regulations applicable to them. The Court had already found that it was essential to have clear, detailed and accessible rules on the application of secret measures of surveillance ( Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011).", "181. The Government submitted that Order no. 70 was technical in nature and was not therefore subject to official publication. It had been published in a specialised magazine, SvyazInform ( issue no. 6 of 1999 ). It was also available in the ConsultantPlus online legal database, and was accessible without charge. The applicant had submitted a copy of the Order with its addendums to the Court, which showed that he had been able to obtain access to it. The domestic law was therefore accessible.", "(ii) Scope of application of secret surveillance measures", "182. The applicant submitted that the Court had already found that the OSAA did not meet the “foreseeability” requirement because the legal discretion of the authorities to order “an operative experiment” involving recording of private communications through a radio ‑ transmitting device was not subject to any conditions, and the scope and the manner of its exercise were not defined (see Bykov v. Russia [GC], no. 4378/02, § 80, 10 March 2009). The present case was similar to that in Bykov. In particular, Russian law did not clearly specify the categories of persons who might be subjected to interception measures. In particular, surveillance measures were not limited to persons suspected or accused of criminal offences. Any person who had information about a criminal offence could have his telephone tapped. Furthermore, interception was not limited to serious and especially serious offences. Russian law allowed interception measures in connection with offences of medium severity, such as, for example, pickpocketing.", "183. The Government submitted that interception of communications might be conducted only following the receipt of information that a criminal offence had been committed, was being committed or was being plotted; about persons conspiring to commit, or committing, or having committed a criminal offence; or about events or activities endangering the national, military, economic or ecological security of the Russian Federation. The Constitutional Court had held in its ruling of 14 July 1998 that collecting information about a person ’ s private life was permissible only with the aim of preventing, detecting and investigating criminal offences or in pursuance of other lawful aims listed in the OSAA.", "184. Only offences of medium severity, serious offences and especially serious offences might give rise to an interception order and only persons suspected of such offences or who might have information about such offences could be subject to interception measures. The Government submitted in this connection that the Court had already found that surveillance measures in respect of a person who was not suspected of any offence could be justified under the Convention ( referring to Greuter v. the Netherlands ( dec. ), no. 40045/98, 19 March 2002).", "185. Further, in respect of interceptions for the purpose of protecting national security, the Government argued that the requirement of “foreseeability” of the law did not go so far as to compel States to enact legal provisions listing in detail all conduct that might prompt a decision to subject an individual to surveillance on “national security” grounds (see Kennedy, cited above, § 159).", "( iii ) The duration of secret surveillance measures", "186. The applicant submitted that the OSAA did not explain under what circumstances interception could be extended beyond six months. Nor did it establish the maximum duration of interception measures.", "187. The Government submitted that under Russian law interception might be authorised by a judge for a maximum period of six months and might be extended if necessary. It had to be discontinued if the investigation was terminated. They argued that it was reasonable to leave the duration of the interception to the discretion of the domestic authorities, having regard to the complexity and the duration of the investigation in a specific case ( see Kennedy, cited above). They also referred to the case of Van Pelt v. the Netherlands (no. 20555/92, Commission decision of 6 April 1994, unreported ), where the Commission had found that the tapping of the applicant ’ s telephone for almost two years had not violated the Convention.", "( iv ) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data", "188. The applicant further submitted that the OSAA did not specify the procedures to be followed for examining, storing, accessing or using the intercept data or the precautions to be taken when communicating the data to other parties. It provided that the data had to be destroyed within six months, unless those data were needed in the interest of the service or of justice. There was however no definition of what the “interest of the service or of justice” meant. Russian law also gave complete freedom to the trial judge as to whether to store or to destroy data used in evidence after the end of the trial.", "189. The Government submitted that the OSAA required that records of intercepted communications had to be stored under conditions excluding any risk of their being listened to or copied by unauthorised persons. The judicial decision authorising interception of communications, the materials that served as a basis for that decision and the data collected as a result of interception constituted a State secret and were to be held in the exclusive possession of the State agency performing interceptions. If it was necessary to transmit them to an investigator, a prosecutor or a court, they could be declassified by the heads of the agencies conducting operational-search activities. Interception authorisations were declassified by the courts which had issued them. The procedure for transmitting the data collected in the course of operational-search activities to the competent investigating authorities or a court was set out in the Ministry of the Interior ’ s Order of 27 September 2013 (see paragraph 58 above).", "190. The data collected in the course of operational-search activities were to be stored for one year and then destroyed, unless they were needed in the interests of the authority or of justice. Recordings were to be stored for six months and then destroyed. Russian law was therefore foreseeable and contained sufficient safeguards.", "( v ) Authorisation of secret surveillance measures", "(α) The applicant", "191. The applicant submitted that, although domestic law required prior judicial authorisation for interceptions, the authorisation procedure did not provide for sufficient safeguards against abuse. Firstly, in urgent cases communications could be intercepted without judicial authorisation for up to forty-eight hours. Secondly, in contrast to the CCrP, the OSAA did not provide for any requirements concerning the content of the interception authorisation. In particular, it did not require that the interception subject be clearly specified in the authorisation by name, telephone number or address (see, by contrast, the United Kingdom ’ s and Bulgaria ’s legislation reproduced in Kennedy, cited above, §§ 41 and 160, and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 13). Nor did domestic law require that the authorisation specify which communications, or types of communications, should be recorded in order to limit the law-enforcement authorities ’ discretion to determine the scope of surveillance measures. Russian law did not establish any special rules for surveillance in sensitive situations, for example where the confidentiality of journalists ’ sources was at stake, or where surveillance concerned privileged lawyer-client communications.", "192. The applicant further submitted that domestic law did not impose any requirement on the judge to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. ­ ­ The requesting authorities had no obligation to attach any supporting materials to the interception requests. Moreover, the OSAA expressly prohibited submission to the judge of certain materials – those containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures – thereby making it impossible for the judge to verify effectively the existence of a “reasonable suspicion”. Russian law did not require that the judge should authorise interception only when it was impossible to achieve the legitimate aims by other less intrusive means.", "193. In support of his allegation that judges did not verify the existence of a “reasonable suspicion” against the person concerned and did not apply the “necessity” and “proportionality” test, the applicant produced copies of analytical notes issued by three District Courts in different Russian regions (the Tambov region, the Tula region and the Dagestan Republic). The courts summarised their own case-law concerning operational-search measures involving interference with the privacy of communications or privacy of the home for the period from 2010 - 13. One of the courts noted that it refused authorisation to carry out an operational-search measure if it did not appear on the list of operational-search measures in the OSAA, if the request for authorisation was not signed by a competent official or was not reasoned, or if the case fell under statutory restrictions on the use of that measure (for example, relating to the person ’ s status or to the nature of the offence). Authorisation was given if all of the above conditions were met. Another court stated that authorisation could also be refused if the request was insufficiently reasoned, that is, if it did not contain sufficient information permitting the judge to ascertain that the measure was lawful and justified. The third court stated that it granted authorisation if requested to do so by the law-enforcement authorities. It never refused a request for authorisation. All three courts considered that the request was sufficiently reasoned if it referred to the existence of information listed in section 8(2) of the OSAA (see paragraph 31 above). One of the courts noted that supporting materials were never attached to requests for authorisation; another court noted that some, but not all, of the requests were accompanied by supporting materials, while the third court stated that all requests were accompanied by supporting materials. In all three courts the judges never requested that the law-enforcement authorities submit additional supporting materials, such as materials confirming the grounds for the interception or proving that the telephone numbers to be tapped belonged to the person concerned. Two courts granted interception authorisations in respect of unidentified persons, one of them specifying that such authorisations only concerned collection of data from technical channels of communication. Such authorisations did not mention a specific person or a telephone number to be tapped, but authorised interception of all telephone communications in the area where a criminal offence had been committed. One court never gave such authorisations. Two courts noted that authorisations always indicated the duration for which the interception was authorised, while one court stated that the duration of interception was not indicated in the authorisations issued by it. Finally, none of the three courts had examined any complaints from persons whose communications had been intercepted.", "194. The applicant also produced official statistics by the Supreme Court for the period from 2009 - 13. It could be seen from those statistics that in 2009 Russian courts granted 130,083 out of 132,821 requests under the CCrP and 245,645 out of 246,228 requests under the OSAA (99%). In 2010 the courts allowed 136,953 out of 140,372 interception requests under the CCrP and 276,682 out of 284,137 requests under the OSAA. In 2011 the courts allowed 140,047 out of 144,762 interception requests under the CCrP and 326,105 out of 329,415 requests under the OSAA. In 2012 they granted 156,751 out of 163,469 interception requests under the CCrP (95%) and 372,744 out of 376,368 requests under the OSAA (99%). In 2013 the courts allowed 178,149 out of 189,741 interception requests lodged under the CCrP (93%) and 416,045 out of 420,242 interception requests lodged under the OSAA (99%). The applicant drew the Court ’ s attention to the fact that the number of interception authorisations had almost doubled between 2009 and 2013. He also argued that the very high percentage of authorisations granted showed that the judges did not verify the existence of a “reasonable suspicion” against the interception subject and did not exercise careful and rigorous scrutiny. As a result, interceptions were ordered in respect of vast numbers of people in situations where the information could have been obtained by other less intrusive means.", "195. The applicant concluded from the above that the authorisation procedure was defective and was therefore not capable of confining the use of secret surveillance measures to what was necessary in a democratic society.", "196. As regards safeguards against unauthorised interceptions, the applicant submitted that the law-enforcement authorities were not required under domestic law to show judicial authorisation to the communications service provider before obtaining access to a person ’ s communications. All judicial authorisations were classified documents, kept in the exclusive possession of law-enforcement authorities. An obligation to forward an interception authorisation to the communications service provider was mentioned only once in Russian law in connection with the monitoring of communications-related data under the CCrP (see paragraph 48 above ). The equipment the communications service providers had installed pursuant to the Orders issued by the Ministry of Communications, in particular the unpublished addendums to Order no. 70, allowed the law-enforcement authorities direct and unrestricted access to all mobile-telephone communications of all users. The communications service providers also had an obligation under Order no. 538 to create databases to store information about all subscribers and the services provided to them for three years. The secret services had direct remote access to those databases. The manner in which the system of secret surveillance thus operated gave the security services and the police the technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. The necessity to obtain such authorisation therefore arose only in those cases where the intercepted data had to be used as evidence in criminal proceedings.", "197. The applicant produced documents showing, in his view, that law - enforcement officials unlawfully intercepted telephone communications without prior judicial authorisation and disclosed the records to unauthorised persons. For example, he produced printouts from the Internet containing transcripts of the private telephone conversations of politicians. He also submitted news articles describing criminal proceedings against several high-ranking officers from the police technical department. The officers were suspected of unlawfully intercepting the private communications of politicians and businessmen in return for bribes from their political or business rivals. The news articles referred to witness statements to the effect that intercepting communications in return for bribes was a widespread practice and that anyone could buy a transcript of another person ’ s telephone conversations from the police.", "(β) The Government", "198. The Government submitted that any interception of telephone or other communications had to be authorised by a court. The court took a decision on the basis of a reasoned request by a law-enforcement authority. The burden of proof was on the requesting authority to justify the necessity of the interception measures. To satisfy that burden of proof, the requesting authorities enclosed with their request all relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures. That exception was justified by the necessity to ensure the security and protection of undercover agents and police informers and their family members and was therefore compatible with the Convention.", "199. The Government further referred to the Plenary Supreme Court ’ s Ruling of 27 June 2013, which explained to the lower courts that any restrictions on human rights and freedoms had to be prescribed by law and be necessary in a democratic society, that is, proportionate to a legitimate aim. Courts were instructed to rely on established facts, verify the existence of relevant and sufficient reasons to justify a restriction on an individual ’ s rights and balance the interests of the individual whose rights were being restricted against the interests of other individuals, the State and society as a whole. The OSAA explicitly required the courts to give reasons for the decision to authorise interception. In line with the Constitutional Court ’ s decision of 8 February 2007 (see paragraph 42 above), the interception authorisation was to refer to the specific grounds for suspecting the person in respect of whom operational-search measures were requested of a criminal offence or of activities endangering national, military, economic or ecological security. In its decision of 2 October 2003 (see paragraph 41 above), the Constitutional Court also held that judges had an obligation to examine the materials submitted to them carefully and thoroughly.", "200. According to the Government, in practice, each interception authorisation specified : the State agency responsible for performing the interception; the grounds for conducting the surveillance measures and the reasons why they were necessary; a reference to applicable legal provisions, the person whose communications were to be intercepted; the grounds for suspecting that person ’ s involvement in the commission of a specific criminal offence; that person ’ s telephone number or IMEI code; the period of time for which the authorisation was granted; and other necessary information. In exceptional circumstances it was permissible to authorise the interception of communications of unidentified persons. As a rule, in such cases a judge authorised the collection of data from technical channels of communication in order to identify the persons present at a specific location at the time that a criminal offence was committed there. That practice was compatible with the principles established in the Court ’ s case-law, because in such cases the interception authorisation specified a single set of premises (locations) as the premises (locations) in respect of which the authorisation was ordered ( they referred to Kennedy, cited above).", "201. Russian law permitted communications to be intercepted without prior judicial authorisation in urgent cases. A judge had to be informed of any such case within twenty-four hours and judicial authorisation for continuing the interception had to be obtained within forty-eight hours. According to the Government, the judge had to examine the lawfulness of such interception even in those cases when it had already been discontinued. They referred to an appeal judgment of 13 December 2013 in a criminal case, in which the Supreme Court declared inadmissible as evidence recordings of telephone conversations obtained under the urgent procedure without prior judicial authorisation. The Supreme Court had held that, although a judge had been informed of the interception, no judicial decision on its lawfulness and necessity had ever been issued.", "( vi ) Supervision of the implementation of secret surveillance measures", "(α) The applicant", "202. Regarding supervision of interceptions, the applicant argued at the outset that in Russia the effectiveness of any supervision was undermined by the absence of an obligation on the intercepting authorities to keep records of interceptions carried out by them. Moreover, Order no. 70 explicitly provided that information about interceptions could not be logged or recorded.", "203. The applicant further submitted that in Russia neither the judge who had issued the interception authorisation nor any other independent official qualified for judicial office had the power to supervise its implementation, and in particular to review whether the surveillance remained within the scope determined by the interception authorisation and complied with various requirements contained in domestic law.", "204. Domestic law did not set out any procedures for the supervision of interceptions by the President, Parliament and the government. They certainly had no powers to supervise the implementation of interception measures in specific cases.", "205. As regards supervision by the Prosecutor General and competent low-level prosecutors, they could not be considered independent because of their position within the criminal justice system and their prosecuting functions. In particular, prosecutors gave their approval to all interception requests lodged by investigators in the framework of criminal proceedings, and participated in the related court hearings. They could then use the data obtained as a result of the interception in the framework of their prosecuting functions, in particular by presenting them as evidence during a trial. There was therefore a conflict of interest with the prosecutor performing the dual function of a party to a criminal case and an authority supervising interceptions.", "206. The applicant further submitted that the prosecutors ’ supervisory functions were limited because certain materials, in particular those revealing the identity of undercover agents or the tactics, methods and means used by the security services, were outside the scope of their supervision. The prosecutors ’ supervisory powers were also limited in the area of counter - intelligence, where inspections could be carried out only following an individual complaint. Given the secrecy of interception measures and the lack of any notification of the person concerned, such individual complaints were unlikely to be lodged, with the result that counter - intelligence-related surveillance measures de facto escaped any supervision by prosecutors. It was also significant that prosecutors had no power to cancel an interception authorisation, to discontinue unlawful interceptions or to order the destruction of unlawfully obtained data.", "207. Further, prosecutors ’ biannual reports were not published or publicly discussed. The reports were classified documents and contained statistical information only. They did not contain any substantive analysis of the state of legality in the sphere of operational-search activities or any information about what breaches of law had been detected and what measures had been taken to remedy them. Moreover, the reports amalgamated together all types of operational-search activities, without separating interceptions from other measures.", "(β) The Government", "208. The Government submitted that supervision of operational-search activities, including interceptions of telephone communications, was exercised by the President, Parliament and the government. In particular, the President determined the national security strategy and appointed and dismissed the heads of all law-enforcement agencies. There was also a special department within the President ’ s Administration which supervised the activities of the law-enforcement agencies, including operational-search activities. That department consisted of officials from the Ministry of the Interior and the FSB who had the appropriate level of security clearance. Parliament participated in the supervision process by adopting and amending laws governing operational-search activities. It could also form committees and commissions and hold parliamentary hearings on all issues, including those relating to operational-search activities, and could hear the heads of law-enforcement agencies if necessary. The government adopted decrees and orders governing operational-search activities and allocated the budgetary funds to the law-enforcement agencies.", "209. Supervision was also exercised by the Prosecutor General and competent low-level prosecutors who were independent from the federal, regional and local authorities. The Prosecutor General and his deputies were appointed and dismissed by the Federation Council, the upper house of Parliament. Prosecutors were not entitled to lodge interception requests. Such requests could be lodged either by the State agency performing operational-search activities in the framework of the OSAA, or by the investigator in the framework of the CCrP. The prosecutor could not give any instructions to the investigator. In the course of a prosecutor ’ s inspection, the head of the intercepting agency had an obligation to submit all relevant materials to the prosecutor at his request and could be held liable for a failure to do so. The prosecutors responsible for supervision of operational-search activities submitted six-monthly reports to the Prosecutor General. The reports did not, however, analyse interceptions separately from other operational-search measures.", "( vii ) Notification of secret surveillance measures", "(α) The applicant", "210. The applicant further submitted that Russian law did not provide that a person whose communications had been intercepted was to be notified before, during or after the interception. He conceded that it was acceptable not to notify the person before or during the interception, since the secrecy of the measure was essential to its efficacy. He argued, however, that such notification was possible after the interception had ended, “as soon as it [ could ] be made without jeopardising the purpose of the restriction” ( he referred to Klass and Others, cited above). In Russia the person concerned was not notified at any point. He could therefore learn about the interception only if there was a leak or if criminal proceedings were opened against him, and the intercepted data were used in evidence.", "211. With regard to the possibility of obtaining access to the data collected in the course of interception, the applicant submitted that such access was possible only in very limited circumstances. If criminal proceedings had never been opened or if the charges had been dropped on other grounds than those listed in the OSAA, the person concerned was not entitled to have access to the data. Furthermore, before obtaining access, the claimant had to prove that his communications had been intercepted. Given the secrecy of the surveillance measures and the lack of notification, such burden of proof was impossible to satisfy unless the information about the interception had been leaked. Even after satisfying all those preconditions, the person could only receive “information about the data collected” rather than obtain access to the data themselves. Finally, only information that did not contain State secrets could be disclosed. Given that under the OSAA all data collected in the course of operational-search activities constituted a State secret and the decision to declassify them fell to the head of the intercepting authority, access to interception-related documents depended entirely on the intercepting authorities ’ discretion.", "212. A refusal to grant access to the collected data could be appealed against to a court and the OSAA required the intercepting authorities to produce, at the judge ’ s request, “operational-search materials containing information about the data to which access [had been] refused”. It was significant that the intercepting authorities were required to submit “information about the data” rather than the data themselves. Materials containing information about undercover agents or police informers could not be submitted to the court and were thereby excluded from the scope of judicial review.", "(β) The Government", "213. The Government submitted that under Russian law an individual subject to secret surveillance measures did not have to be informed of those measures at any point. The Constitutional Court held (see paragraph 40 above) that, in view of the necessity to keep the surveillance measures secret, the principles of a public hearing and adversarial proceedings were not applicable to the interception authorisation proceedings. The person concerned was therefore not entitled to participate in the authorisation proceedings or to be informed of the decision taken.", "214. After the termination of the investigation, the defendant was entitled to study all the materials in the criminal case-file, including the data obtained in the course of operational-search activities. Otherwise, in cases where the investigator decided not to open criminal proceedings against the interception subject or to discontinue the criminal proceedings on the grounds that the alleged offence had not been committed or one or more elements of a criminal offence were missing, the interception subject was entitled to request and receive information about the data collected. A refusal to provide such information could be challenged before a court, which had power to order the disclosure of the information if it considered the refusal to be ill-founded. The Government submitted a copy of the decision of 4 August 2009 by the Alekseyevskiy District Court of the Belgorod region, ordering that the police provide, within one month, an interception subject with information about the data collected about him in the course of the interception “ to the extent permitted by the requirements of confidentiality and with the exception of data which could enable State secrets to be disclosed ”.", "215. The Government argued that Russian law was different from the Bulgarian law criticised by the Court in its judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 91) because it provided for a possibility of declassifying the interception materials and granting the person concerned access to them. In support of that allegation, they referred to the criminal - conviction judgment of 11 July 2012 by the Zabaykalsk Regional Court. That judgment – a copy of which was not provided to the Court – relied, according to the Government, on a judicial decision authorising the interception of the defendant ’ s telephone communications which had been declassified and submitted to the trial judge at his request. The Government also referred to two further judgments – by the Presidium of the Krasnoyarsk Regional Court and the Presidium of the Supreme Court of the Mariy -El Republic – quashing, by way of supervisory review, judicial decisions authorising the interception of communications. They did not submit copies of those judgments.", "( viii ) Available remedies", "(α) The applicant", "216. The applicant submitted that the questions of notification of surveillance measures and of the effectiveness of remedies before the courts were inextricably linked, since there was in principle little scope for recourse to the courts by the individual concerned unless the latter was advised of the measures taken without his knowledge and was thus able to challenge their legality retrospectively (he referred to Weber and Saravia, cited above).", "217. The applicant argued that the remedies available under Russian law were ineffective. As regards the possibility for the surveillance subject to apply for judicial review of the measures applied, the burden of proof was on the claimant to demonstrate that his telephone had been tapped. However, since those being monitored were not informed of the surveillance measures unless charged with a criminal offence, the burden of proof was impossible to satisfy. The copies of domestic judgments submitted by the Government concerned searches and seizures, that is, operational -search measures which were known to the person concerned (see paragraphs 220, 221 and 223 below ). The applicant knew of no publicly available judicial decisions where an interception subject ’ s complaint concerning unlawful interception had been allowed. It was also significant that in none of the judgments produced by the Government had the domestic courts assessed the proportionality of the contested operational -search measures. The domestic proceedings brought by the applicant had also clearly demonstrated that remedies available under Russian law were ineffective. Moreover, in Avanesyan v. Russia (no. 41152/06, 18 September 2014) the Court had already found that there were no effective remedies under Russian law to challenge operational-search measures.", "218. Lastly, the applicant submitted that an interception subject or the communications service providers could not challenge the ministerial orders governing secret interceptions of communications, because those orders were considered to be technical rather than legal in nature and were therefore not subject to judicial review, as demonstrated by the decisions mentioned in paragraph 161 above.", "(β) The Government", "219. The Government argued that in Russia a person claiming that his rights had been or were being violated by a State official performing operational-search activities was entitled to complain to the official ’ s superior, the prosecutor or a court, in accordance with section 5 of the OSAA (see paragraph 83 above).", "220. As explained by the Plenary Supreme Court, if the person concerned learned of the interception, he could apply to a court of general jurisdiction in accordance with the procedure established by Chapter 25 of the CCP ( see paragraph 92 above ). According to the Government, a claimant did not have to prove that his rights had been breached as a result of the interception measures. The burden of proof was on the intercepting authorities to show that the interception measures had been lawful and justified. Russian law provided that if a breach of the claimant ’ s rights was found by a court in civil proceedings, the court had to take measures to remedy the violation and compensate the damage ( see paragraph 97 above ). The Government submitted copies of two judicial decisions under Chapter 25 of the CCP, declaring searches and seizures of objects or documents unlawful and ordering the police to take specific measures to remedy the violations.", "221. Furthermore, according to the Government, the interception subject was also entitled to lodge a supervisory-review complaint against the judicial decision authorising the interception, as explained by the Constitutional Court in its decision of 15 July 2008 (see paragraph 43 above). He was likewise entitled to lodge an appeal or a cassation appeal.", "222. If the interception was carried out in the framework of criminal proceedings, the person concerned could also lodge a complaint under Article 125 of the CCrP. The Government referred to the Supreme Court ’ s decision of 26 October 2010 quashing, by way of supervisory review, the lower courts ’ decisions to declare inadmissible K. ’ s complaint under Article 125 of the CCrP regarding the investigator ’ s refusal to give her a copy of the judicial decision authorising the interception of her communications. The Supreme Court held that her complaint was to be examined under Article 125 of the CCrP, despite the fact that she had already been convicted, and that she was entitled to receive a copy of the interception authorisation. The Government submitted copies of ten judicial decisions allowing complaints under Article 125 of the CCrP concerning unlawful searches and seizures of objects or documents. They also produced a copy of a judgment acquitting a defendant on appeal after finding that his conviction at first instance had been based on inadmissible evidence obtained as a result of an unlawful test purchase of drugs.", "223. The Government further submitted that the person concerned could apply for compensation under Article 1069 of the Civil Code ( see paragraph 102 above ). That Article provided for compensation of pecuniary and non-pecuniary damage caused to an individual or a legal entity by unlawful actions by State and municipal bodies and officials, provided that the body ’ s or the official ’ s fault had been established. Compensation for non-pecuniary damage was determined in accordance with the rules set out in Articles 1099 to 1101 of the Civil Code ( see paragraphs 103 - 04 above ). The Government observed, in particular, that non-pecuniary damage caused through dissemination of information which was damaging to honour, dignity or reputation could be compensated irrespective of the tortfeasor ’ s fault. The Government submitted a copy of a decision of 9 December 2013 by the Vichuga Town Court of the Ivanovo region, awarding compensation in respect of non-pecuniary damage for unlawful interception of a suspect ’ s telephone conversations after the recordings obtained as a result of that interception had been declared inadmissible as evidence by the trial court. The Government also submitted a judicial decision awarding compensation for an unlawful search and seizure of documents and a judicial decision awarding compensation to an acquitted defendant for unlawful prosecution.", "224. Russian law also provided for criminal remedies for abuse of power (Articles 285 and 286 of the Criminal Code), unauthorised collection or dissemination of information about a person ’ s private and family life (Article 137 of the Criminal Code) and breach of citizens ’ right to privacy of communications (Article 138 of the Criminal Code – see paragraphs 19 ‑ 22 above ). The Government referred in that connection to the Supreme Court ’ s judgment of 24 October 2002, convicting a certain E.S. of an offence under Article 138 of the Criminal Code for inciting an official to supply him with the names of the owners of several telephone numbers and to provide him with call detail records in respect of those telephone numbers. They also referred to the Supreme Court ’ s judgment of 15 March 2007, convicting a customs official of an offence under Article 138 of the Criminal Code for intercepting the telephone communications of a certain P. They submitted copies of two more conviction judgments under Article 138 of the Criminal Code: the first concerned the selling of espionage equipment, namely pens and watches with built-in cameras, while the second concerned the covert hacking of a communication provider ’ s database in order to obtain the users ’ call detail records.", "225. Lastly, the Government argued that remedies were also available in Russian law to challenge the alleged insufficiency of safeguards against abuse in the sphere of interception of communications (see paragraph 156 above).", "226. The Government submitted that the applicant had not used any of the remedies available to him under Russian law and described above. In particular, he had chosen to bring judicial proceedings against mobile-network operators, the Ministry of Communications being joined only as a third party to the proceedings.", "(b) The Court ’ s assessment", "( i ) General principles", "227. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see Kennedy, cited above, § 130).", "228. The Court notes from its well - established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements : it must be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; and Kennedy, cited above, § 151).", "229. The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures ( see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998 ‑ V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75).", "230. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).", "231. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000 ‑ II; Valenzuela Contreras, cited above, § 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76 ).", "232. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant ’ s right to respect for his private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49 - 50 and 59; Weber and Saravia, cited above, § 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, §§ 153 - 54).", "233. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Klass and Others, cited above, §§ 55 - 56).", "234. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his knowledge and thus able to challenge their legality retrospectively (see Klass and Others, cited above, § 5 7, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that his communications are being or have been intercepted can apply to courts, so that the courts ’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his communications (see Kennedy, cited above, § 167).", "(ii) Application of the general principles to the present case", "235. The Court notes that it has found there to be an interference under Article 8 § 1 in respect of the applicant ’ s general complaint regarding the Russian legislation governing covert interception of mobile-telephone communications. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine whether the contested legislation itself is in conformity with the Convention.", "236. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kennedy, cited above, § 155; see also Kvasnica, cited above, § 84). The “ quality of law ” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse.", "237. It has not been disputed by the parties that interceptions of mobile-telephone communications have a basis in domestic law. They are governed, in particular, by the CCrP and the OSAA, as well as by the Communications Act and the Orders issued by the Ministry of Communications. Furthermore, the Court considers it clear that the surveillance measures permitted by Russian law pursue the legitimate aims of the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country (see paragraph 26 above). It therefore remains to be ascertained whether the domestic law is accessible and contains adequate and effective safeguards and guarantees to meet the requirements of “ foreseeability ” and “necessity in a democratic society”.", "238. The Court will therefore assess in turn the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law.", "( α ) Accessibility of the domestic law", "239. It is common ground between the parties that almost all legal provisions governing secret surveillance – including the CCrP, the OSAA, the Communications Act and the majority of the Orders issued by the Ministry of Communications – have been officially published and are accessible to the public. The parties disputed, however, whether the addendums to Order no. 70 by the Ministry of Communications met the requirements of accessibility.", "240. The Court observes that the addendums to Order no. 70 have never been published in a generally accessible official publication, as they were considered to be technical in nature (see paragraph 128 above).", "241. The Court accepts that the addendums to Order no. 70 mainly describe the technical requirements for the interception equipment to be installed by communications service providers. At the same time, by requiring that the equipment in issue must ensure that the law-enforcement authorities have direct access to all mobile-telephone communications of all users and must not log or record information about interceptions initiated by the law-enforcement authorities (see paragraphs 115 - 22 above), the addendums to Order no. 70 are capable of affecting the users ’ right to respect for their private life and correspondence. The Court therefore considers that they must be accessible to the public.", "242. The publication of the Order in the Ministry of Communications ’ official magazine SvyazInform, distributed through subscription, made it available only to communications specialists rather than to the public at large. At the same time, the Court notes that the text of the Order, with the addendums, can be accessed through a privately maintained online legal database, which reproduced it from the publication in SvyazInform ( see paragraph 115 above). The Court finds the lack of a generally accessible official publication of Order no. 70 regrettable. However, taking into account the fact that it has been published in an official ministerial magazine, combined with the fact that it can be accessed by the general public through an online legal database, the Court does not find it necessary to pursue further the issue of the accessibility of the domestic law. It will concentrate instead on the requirements of “foreseeability” and “necessity”.", "(β) Scope of application of secret surveillance measures", "243. The Court reiterates that national law must define the scope of application of secret surveillance measures by giving citizens an adequate indication as to the circumstances in which public authorities are empowered to resort to such measures – in particular by clearly setting out the nature of the offences which may give rise to an interception order and a definition of the categories of people liable to have their telephones tapped (see paragraph 231 above).", "244. As regards the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively, by name, the specific offences which may give rise to interception. However, sufficient detail should be provided on the nature of the offences in question (see Kennedy, cited above, § 159). Both the OSAA and the CCrP provide that telephone and other communications may be intercepted in connection with an offence of medium severity, a serious offence or an especially serious criminal offence – that is, an offence for which the Criminal Code prescribes a maximum penalty of more than three years ’ imprisonment – which has been already committed, is being committed or being plotted ( see paragraphs 31 - 33 above). The Court considers that the nature of the offences which may give rise to an interception order is sufficiently clear. At the same time it notes with concern that Russian law allows secret interception of communications in respect of a very wide range of criminal offences, including for example, as pointed out by the applicant, pickpocketing (see paragraph 182 above; see also, for similar reasoning, Iordachi and Others, cited above, §§ 43 - 44).", "245. The Court further notes that interceptions may be ordered not only in respect of a suspect or an accused, but also in respect of a person who may have information about an offence or may have other information relevant to the criminal case (see paragraph 32 above). The Court has earlier found that interception measures in respect of a person who was not suspected of any offence but could possess information about such an offence might be justified under Article 8 of the Convention (see Greuter, cited above ). At the same time, the Court notes the absence of any clarifications in Russian legislation or established case-law as to how the terms “ a person who may have information about a criminal offence” and “a person who may have information relevant to the criminal case” are to be applied in practice (see, for similar reasoning, Iordachi and Others, cited above, § 44).", "246. The Court also observes that, in addition to interceptions for the purposes of preventing or detecting criminal offences, the OSAA also provides that telephone or other communications may be intercepted following the receipt of information about events or activities endangering Russia ’ s national, military, economic or ecological security ( see paragraph 31 above). Which events or activities may be considered as endangering such types of security interests is not defined anywhere in Russian law.", "247. The Court has previously found that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to subject an individual to secret surveillance on “national security” grounds. By their very nature, threats to national security may vary in character and may be unanticipated or difficult to define in advance (see Kennedy, cited above, § 159). At the same time, the Court has also emphasised that in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007, with further references).", "248. It is significant that the OSAA does not give any indication of the circumstances under which an individual ’ s communications may be intercepted on account of events or activities endangering Russia ’ s national, military, economic or ecological security. It leaves the authorities an almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance, thereby creating possibilities for abuse ( see, for similar reasoning, Iordachi and Others, cited above, § 46).", "249. That being said, the Court does not lose sight of the fact that prior judicial authorisation for interceptions is required in Russia. Such judicial authorisation may serve to limit the law-enforcement authorities ’ discretion in interpreting the broad terms of “ a person who may have information about a criminal offence”, “a person who may have information relevant to the criminal case”, and “events or activities endangering Russia ’ s national, military, economic or ecological security” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual ’ s communications exist in each case. The Court accepts that the requirement of prior judicial authorisation constitutes an important safeguard against arbitrariness. The effectiveness of that safeguard will be examined below.", "( γ ) The duration of secret surveillance measures", "250. The Court has held that it is not unreasonable to leave the overall duration of interception to the discretion of the relevant domestic authorities which have competence to issue and renew interception warrants, provided that adequate safeguards exist, such as a clear indication in the domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Kennedy, cited above, § 161; see also Klass and Others, cited above, § 52, and Weber and Saravia, cited above, § 98 ).", "251. As regards the first safeguard, both the CCrP and the OSAA provide that interceptions may be authorised by a judge for a period not exceeding six months (see paragraphs 38 and 47 above). There is therefore a clear indication in the domestic law of the period after which an interception authorisation will expire. Secondly, the conditions under which an authorisation can be renewed are also clearly set out in law. In particular, under both the CCrP and the OSAA a judge may extend interception for a maximum of six months at a time, after a fresh examination of all the relevant materials ( ibid .). However, as regards the third safeguard concerning the circumstances in which the interception must be discontinued, the Court notes that the requirement to discontinue interception when no longer necessary is mentioned in the CCrP only. Regrettably, the OSAA does not contain such a requirement ( ibid .). In practice, this means that interceptions in the framework of criminal proceedings are attended by more safeguards than interceptions conducted outside such a framework, in particular in connection with “events or activities endangering national, military, economic or ecological security”.", "252. The Court concludes from the above that, while Russian law contains clear rules on the duration and renewal of interceptions providing adequate safeguards against abuse, the OSAA provisions on discontinuing surveillance measures do not provide sufficient guarantees against arbitrary interference.", "(δ) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data", "253. Russian law stipulates that data collected as a result of secret surveillance measures constitute a State secret and are to be sealed and stored under conditions excluding any risk of unauthorised access. They may be disclosed to those State officials who genuinely need the data for the performance of their duties and have the appropriate level of security clearance. Steps must be taken to ensure that only the amount of information needed by the recipient to perform his duties is disclosed, and no more. The official responsible for ensuring that the data are securely stored and inaccessible to those without the necessary security clearance is clearly defined (see paragraphs 51 - 57 above). Domestic law also sets out the conditions and procedures for communicating intercepted data containing information about a criminal offence to the prosecuting authorities. It describes, in particular, the requirements for their secure storage and the conditions for their use as evidence in criminal proceedings (see paragraphs 58 - 64 above ). The Court is satisfied that Russian law contains clear rules governing the storage, use and communication of intercepted data, making it possible to minimise the risk of unauthorised access or disclosure (see, for similar reasoning, Kennedy, cited above, §§ 1 62 - 63).", "254. As far as the destruction of intercept material is concerned, domestic law provides that it must be destroyed after six months of storage if the person concerned has not been charged with a criminal offence. If the person has been charged with a criminal offence, the trial judge must make a decision, at the end of the criminal proceedings, on the further storage and destruction of the intercept material used in evidence (see paragraphs 65 - 66 above).", "255. As regards the cases where the person concerned has not been charged with a criminal offence, the Court is not convinced by the applicant ’ s argument that Russian law permits storage of the intercept material beyond the statutory time-limit (see paragraph 188 above). It appears that the provision referred to by the applicant does not apply to the specific case of storage of data collected as a result of interception of communications. The Court considers the six-month storage time-limit set out in Russian law for such data reasonable. At the same time, it deplores the lack of a requirement to destroy immediately any data that are not relevant to the purpose for which they have been obtained (compare Klass and Others, cited above, § 52, and Kennedy, cited above, § 162 ). The automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8.", "256. Furthermore, as regards the cases where the person has been charged with a criminal offence, the Court notes with concern that Russian law allows unlimited discretion to the trial judge to store or to destroy the data used in evidence after the end of the trial (see paragraph 66 above ). Russian law does not give citizens any indication as to the circumstances in which the intercept material may be stored after the end of the trial. The Court therefore considers that the domestic law is not sufficiently clear on this point.", "( ε ) Authorisation of interceptions", "Authorisation procedures", "257. The Court will take into account a number of factors in assessing whether the authorisation procedures are capable of ensuring that secret surveillance is not ordered haphazardly, irregularly or without due and proper consideration. These factors include, in particular, the authority competent to authorise the surveillance, its scope of review and the content of the interception authorisation.", "258. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive ( see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 71, 26 April 2007).", "259. Russian law contains an important safeguard against arbitrary or indiscriminate secret surveillance. It dictates that any interception of telephone or other communications must be authorised by a court ( see paragraphs 34 and 44 above ). The law-enforcement agency seeking authorisation for interception must submit a reasoned request to that effect to a judge, who may require the agency to produce supporting materials ( see paragraphs 37 and 46 above). The judge must give reasons for the decision to authorise interceptions (see paragraphs 38 and 44 above).", "260. Turning now to the authorisation authority ’ s scope of review, the Court reiterates that it must be capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security. It must also ascertain whether the requested interception meets the requirement of “ necessity in a democratic society”, as provided by Article 8 § 2 of the Convention, including whether it is proportionate to the legitimate aims pursued, by verifying, for example, whether it is possible to achieve the aims by less restrictive means (see Klass and Others, cited above, § 51; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § § 79 - 80; Iordachi and Others, cited above, § 51; and Kennedy, cited above, §§ 31 - 32).", "261. The Court notes that in Russia judicial scrutiny is limited in scope. Thus, materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures may not be submitted to the judge and are therefore excluded from the court ’ s scope of review (see paragraph 37 above). The Court considers that the failure to disclose the relevant information to the courts deprives them of the power to assess whether there is a sufficient factual basis to suspect the person in respect of whom operational-search measures are requested of a criminal offence or of activities endangering national, military, economic or ecological security (see, mutatis mutandis, Liu, cited above, §§ 59-63). The Court has earlier found that there are techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see, mutatis mutandis, Chahal v. the United Kingdom, 15 November 1996, § 131, Reports 1996 ‑ V ).", "262. Furthermore, the Court observes that in Russia the judges are not instructed, either by the CCrP or by the OSAA, to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. At the same time, the Court notes that the Constitutional Court has explained in its decisions that the burden of proof is on the requesting agency to show that interception is necessary and that the judge examining an interception request should verify the grounds for that measure and grant authorisation only if he is persuaded that interception is lawful, necessary and justified. The Constitutional Court has also held that the judicial decision authorising interception should contain reasons and refer to specific grounds for suspecting that a criminal offence has been committed, is being committed, or is being plotted or that activities endangering national, military, economic or ecological security are being carried out, as well as that the person in respect of whom interception is requested is involved in these criminal or otherwise dangerous activities (see paragraphs 40 - 42 above). The Constitutional Court has therefore recommended, in substance, that when examining interception authorisation requests Russian courts should verify the existence of a reasonable suspicion against the person concerned and should authorise interception only if it meets the requirements of necessity and proportionality.", "263. However, the Court observes that domestic law does not explicitly require the courts of general jurisdiction to follow the Constitutional Court ’ s opinion as to how a legislative provision should be interpreted if such opinion has been expressed in a decision rather than a judgment (see paragraph 106 above). Indeed, the materials submitted by the applicant show that the domestic courts do not always follow the above - mentioned recommendations of the Constitutional Court, all of which were contained in decisions rather than in judgments. Thus, it transpires from the analytical notes issued by District Courts that interception requests are often not accompanied by any supporting materials, that the judges of these District Courts never request the interception agency to submit such materials and that a mere reference to the existence of information about a criminal offence or activities endangering national, military, economic or ecological security is considered to be sufficient for the authorisation to be granted. An interception request is rejected only if it is not signed by a competent person, contains no reference to the offence in connection with which interception is to be ordered, or concerns a criminal offence in respect of which interception is not permitted under domestic law ( see paragraph 193 above). Thus, the analytical notes issued by District Courts, taken together with the statistical information for the period from 2009 - 13 provided by the applicant (see paragraph 194 above), indicate that in their everyday practice Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “ necessity ” and “ proportionality ” test.", "264. Lastly, as regards the content of the interception authorisation, it must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information ( see Klass and Others, cited above, § 51; Liberty and Others, cited above, § § 64 - 65; Dumitru Popescu, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 80; and Kennedy, cited above, § 160).", "265. The Court observes that the CCrP requires that a request for interception authorisation must clearly mention a specific person whose communications are to be intercepted, as well as the duration of the interception measure (see paragraph 46 above). By contrast, the OSAA does not contain any requirements either with regard to the content of the request for interception or to the content of the interception authorisation. As a result, courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed. Some authorisations do not mention the duration for which interception is authorised (see paragraph 193 above). The Court considers that such authorisations, which are not clearly prohibited by the OSAA, grant a very wide discretion to the law ‑ enforcement authorities as to which communications to intercept, and for how long.", "266. The Court further notes that in urgent cases it is possible to intercept communications without prior judicial authorisation for up to forty-eight hours. A judge must be informed of any such case within twenty-four hours from the commencement of the interception. If no judicial authorisation has been issued within forty-eight hours, the interception must be stopped immediately (see paragraph 35 above). The Court has already examined the “urgency” procedure provided for in Bulgarian law and found that it was compatible with the Convention ( see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § § 16 and 82). However, in contrast to the Bulgarian provision, the Russian “ urgent procedure ” does not provide for sufficient safeguards to ensure that it is used sparingly and only in duly justified cases. Thus, although in the criminal sphere the OSAA limits recourse to the urgency procedure to cases where there exists an immediate danger that a serious or especially serious offence may be committed, it does not contain any such limitations in respect of secret surveillance in connection with events or activities endangering national, military, economic or ecological security. Domestic law does not limit the use of the urgency procedure to cases involving an immediate serious danger to national, military, economic or ecological security. It leaves the authorities an unlimited degree of discretion in determining in which situations it is justified to use the non-judicial urgent procedure, thereby creating possibilities for abusive recourse to it ( ibid. ). Furthermore, although Russian law requires that a judge be immediately informed of each instance of urgent interception, his power is limited to authorising the extension of the interception measure beyond forty-eight hours. He has no power to assess whether the use of the urgent procedure was justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Russian law does not therefore provide for an effective judicial review of the urgency procedure.", "267. In view of the above considerations the Court considers that the authorisation procedures provided for by Russian law are not capable of ensuring that secret surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration.", "The authorities ’ access to communications", "268. The Court takes note of the applicant ’ s argument that the security services and the police have the technical means to intercept mobile-telephone communications without obtaining judicial authorisation, as they have direct access to all communications and as their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider.", "269. The Court considers that the requirement to show an interception authorisation to the communications service provider before obtaining access to a person ’ s communications is one of the important safeguards against abuse by the law-enforcement authorities, ensuring that proper authorisation is obtained in all cases of interception. In Russia the law ‑ enforcement authorities are not required under domestic law to show the judicial authorisation to the communications service provider before obtaining access to a person ’ s communications (see, by contrast, the EU Council Resolution, paragraph 145 above), except in connection with the monitoring of communications - related data under the CCrP ( see paragraph 48 above). Indeed, pursuant to Orders issued by the Ministry of Communications, in particular the addendums to Order no. 70, communications service providers must install equipment giving the law ‑ enforcement authorities direct access to all mobile-telephone communications of all users (see paragraphs 115 - 22 above). The communications service providers also have an obligation under Order no. 538 to create databases storing information about all subscribers, and the services provided to them, for three years; the secret services have direct remote access to those databases (see paragraphs 132 - 33 above ). The law-enforcement authorities thus have direct access to all mobile-telephone communications and related communications data.", "270. The Court considers that the manner in which the system of secret surveillance operates in Russia gives the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. Although the possibility of improper action by a dishonest, negligent or overzealous official can never be completely ruled out whatever the system (see Klass and Others, cited above, § 59), the Court considers that a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great.", "271. The Court will therefore examine with particular attention whether the supervision arrangements provided by Russian law are capable of ensuring that all interceptions are performed lawfully on the basis of proper judicial authorisation.", "( ζ ) Supervision of the implementation of secret surveillance measures", "272. The Court notes at the outset that Order no. 70 requires that the equipment installed by the communications service providers not record or log information about interceptions (see paragraph 120 above ). The Court has found that an obligation on the intercepting agencies to keep records of interceptions is particularly important to ensure that the supervisory body has effective access to details of surveillance activities undertaken ( see Kennedy, cited above, § 165). The prohibition on logging or recording interceptions set out in Russian law makes it impossible for the supervising authority to discover interceptions carried out without proper judicial authorisation. Combined with the law-enforcement authorities ’ technical ability, pursuant to the same Order, to intercept directly all communications, this provision renders any supervision arrangements incapable of detecting unlawful interceptions and therefore ineffective.", "273. As regards supervision of interceptions carried out on the basis of proper judicial authorisations, the Court will examine whether the supervision arrangements existing in Russia are capable of ensuring that the statutory requirements relating to the implementation of the surveillance measures, the storage, access to, use, processing, communication and destruction of intercept material are routinely respected.", "274. A court which has granted authorisation for interception has no competence to supervise its implementation. It is not informed of the results of the interceptions and has no power to review whether the requirements of the decision granting authorisation were complied with. Nor do Russian courts in general have competence to carry out the overall supervision of interceptions. Judicial supervision is limited to the initial authorisation stage. Subsequent supervision is entrusted to the President, Parliament, the government, the Prosecutor General and competent lower-level prosecutors.", "275. The Court has earlier found that, although it is in principle desirable to entrust supervisory control to a judge, supervision by non-judicial bodies may be considered compatible with the Convention, provided that the supervisory body is independent of the authorities carrying out the surveillance, and is vested with sufficient powers and competence to exercise an effective and continuous control (see Klass and Others, cited above, § 56).", "276. As far as the President, Parliament and the Government are concerned, Russian law does not set out the manner in which they may supervise interceptions. There are no publicly available regulations or instructions describing the scope of their review, the conditions under which it may be carried out, the procedures for reviewing the surveillance measures or for remedying the breaches detected (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88).", "277. As regards supervision of interceptions by prosecutors, the Court observes that domestic law sets out the scope of, and the procedures for, prosecutors ’ supervision of operational-search activities (see paragraphs 69 ‑ 80 above ). It stipulates that prosecutors may carry out routine and ad hoc inspections of agencies performing operational-search activities and are entitled to study the relevant documents, including confidential ones. They may take measures to stop or remedy the detected breaches of law and to bring those responsible to account. They must submit biannual reports detailing the results of the inspections to the Prosecutor General ’ s Office. The Court accepts that a legal framework exists which provides, at least in theory, for some supervision by prosecutors of secret surveillance measures. It must next be examined whether the prosecutors are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise effective and continuous control.", "278. As to the independence requirement, in previous cases the Court has taken into account the manner of appointment and the legal status of the members of the supervisory body. In particular, it found sufficiently independent bodies composed of members of parliament of both the majority and the opposition, or of persons qualified to hold judicial office, appointed either by Parliament or by the Prime Minister (see, for example, Klass and Others, cited above, §§ 21 and 56; Weber and Saravia, cited above, §§ 24 - 25 and 117; Leander, cited above, § 65; L. v. Norway, no. 13564/88, Commission decision of 8 June 1990, Decisions and Reports 65; and Kennedy, cited above, §§ 57 and 166). In contrast, a Minister for Internal Affairs – who was not only a political appointee and a member of the executive, but also directly involved in the commissioning of special means of surveillance – was found to be insufficiently independent (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 85 and 87). Similarly, a Prosecutor General and competent lower-level prosecutors were also found to be insufficiently independent (see Iordachi and Others, cited above, § 47).", "279. In contrast to the supervisory bodies cited above, in Russia prosecutors are appointed and dismissed by the Prosecutor General after consultation with the regional executive authorities (see paragraph 70 above). This fact may raise doubts as to their independence from the executive.", "280. Furthermore, it is essential that any role prosecutors have in the general protection of human rights does not give rise to any conflict of interest (see Menchinskaya v. Russia, no. 42454/02, §§ 19 and 38, 15 January 2009). The Court observes that prosecutor ’ s offices do not specialise in supervision of interceptions (see paragraph 71 above). Such supervision is only one part of their broad and diversified functions, which include prosecution and supervision of criminal investigations. In the framework of their prosecuting functions, prosecutors give their approval to all interception requests lodged by investigators in the framework of criminal proceedings (see paragraph 44 above). This blending of functions within one prosecutor ’ s office, with the same office giving approval to requests for interceptions and then supervising their implementation, may also raise doubts as to prosecutors ’ independence (see, by way of contrast, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 215, 10 January 2012, concerning supervision by prosecutors of detention facilities, where it was found that prosecutors complied with the requirement of independence vis-à-vis the penitentiary system ’ s bodies).", "281. Turning now to the prosecutors ’ powers and competences, the Court notes that it is essential that the supervisory body has access to all relevant documents, including closed materials and that all those involved in interception activities have a duty to disclose to it any material it required ( see Kennedy, cited above, § 166). Russian law stipulates that prosecutors are entitled to study relevant documents, including confidential ones. It is, however, important to note that information about the security services ’ undercover agents, and about the tactics, methods and means used by them, is outside the scope of prosecutors ’ supervision (see paragraph 74 above ). The scope of their supervision is therefore limited. Moreover, interceptions performed by the FSB in the sphere of counter - intelligence may be inspected only following an individual complaint (see paragraph 76 above ). As individuals are not notified of interceptions (see paragraph 81 above and paragraph 289 below), it is unlikely that such a complaint will ever be lodged. As a result, surveillance measures related to counter-intelligence de facto escape supervision by prosecutors.", "282. The supervisory body ’ s powers with respect to any breaches detected are also an important element for the assessment of the effectiveness of its supervision (see, for example, Klass and Others, cited above, § 53, where the intercepting agency was required to terminate the interception immediately if the G10 Commission found it illegal or unnecessary; and Kennedy, cited above, § 168, where any intercept material was to be destroyed as soon as the Interception of Communications Commissioner discovered that the interception was unlawful). The Court is satisfied that prosecutors have certain powers with respect to the breaches detected by them. Thus, they may take measures to stop or remedy the detected breaches of law and to bring those responsible to account (see paragraph 79 above ). However, there is no specific provision requiring destruction of the unlawfully obtained intercept material (see Kennedy, cited above, § 168 ).", "283. The Court must also examine whether the supervisory body ’ s activities are open to public scrutiny ( see, for example, L. v. Norway, cited above, where the supervision was performed by the Control Committee, which reported annually to the government and whose reports were published and discussed by Parliament; Kennedy, cited above, § 166, where the supervision of interceptions was performed by the Interception of Communications Commissioner, who reported annually to the Prime Minister, his report being a public document laid before Parliament; and, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88, where the Court found fault with the system where neither the Minister for Internal Affairs nor any other official was required to report regularly to an independent body or to the general public on the overall operation of the system or on the measures applied in individual cases ). In Russia, prosecutors must submit biannual reports detailing the results of the inspections to the Prosecutor General ’ s Office. However, these reports concern all types of operational-search measures, amalgamated together, without interceptions being treated separately from other measures. Moreover, the reports contain only statistical information about the number of inspections of operational-search measures carried out and the number of breaches detected, without specifying the nature of the breaches or the measures taken to remedy them. It is also significant that the reports are confidential documents. They are not published or otherwise accessible to the public (see paragraph 80 above). It follows that in Russia supervision by prosecutors is conducted in a manner which is not open to public scrutiny and knowledge.", "284. Lastly, the Court notes that it is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see, mutatis mutandis, Ananyev and Others, cited above, §§ 109 ‑ 10 ). However, they did not submit any inspection reports or decisions by prosecutors ordering the taking of measures to stop or remedy a detected breach of law. It follows that the Government did not demonstrate that prosecutors ’ supervision of secret surveillance measures is effective in practice. The Court also takes note in this connection of the documents submitted by the applicant illustrating prosecutors ’ inability to obtain access to classified materials relating to interceptions ( see paragraph 14 above). That example also raises doubts as to the effectiveness of supervision by prosecutors in practice.", "285. In view of the defects identified above, and taking into account the particular importance of supervision in a system where law-enforcement authorities have direct access to all communications, the Court considers that the prosecutors ’ supervision of interceptions as it is currently organised is not capable of providing adequate and effective guarantees against abuse.", "( η ) Notification of interception of communications and available remedies", "286. The Court will now turn to the issue of notification of interception of communications which is inextricably linked to the effectiveness of remedies before the courts (see the case-law cited in paragraph 234 above).", "287. It may not be feasible in practice to require subsequent notification in all cases. The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. Therefore, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance has ceased cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society”, as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 135). The Court also takes note of the Recommendation of the Committee of Ministers regulating the use of personal data in the police sector, which provides that where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced (§ 2.2, see paragraph 143 above).", "288. In Klass and Others and Weber and Saravia, the Court examined German legislation which provided for notification of surveillance as soon as that could be done after its termination without jeopardising its purpose. The Court took into account that it was an independent authority, the G10 Commission, which had the power to decide whether an individual being monitored was to be notified of a surveillance measure. The Court found that the provision in question ensured an effective notification mechanism which contributed to keeping the interference with the secrecy of telecommunications within the limits of what was necessary to achieve the legitimate aims pursued (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 136). In Association for European Integration and Human Rights and Ekimdzhiev and Dumitru Popescu, the Court found that the absence of a requirement to notify the subject of interception at any point was incompatible with the Convention, in that it deprived the interception subject of an opportunity to seek redress for unlawful interferences with his Article 8 rights and rendered the remedies available under the national law theoretical and illusory rather than practical and effective. The national law thus eschewed an important safeguard against the improper use of special means of surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 90 - 91, and Dumitru Popescu, cited above, § 77). By contrast, in Kennedy the absence of a requirement to notify the subject of interception at any point in time was compatible with the Convention, because in the United Kingdom any person who suspected that his communications were being or had been intercepted could apply to the Investigatory Powers Tribunal, whose jurisdiction did not depend on notification to the interception subject that there had been an interception of his communications (see Kennedy, cited above, § 167).", "289. Turning now to the circumstances of the present case, the Court observes that in Russia persons whose communications have been intercepted are not notified of this fact at any point or under any circumstances. It follows that, unless criminal proceedings have been opened against the interception subject and the intercepted data have been used in evidence, or unless there has been a leak, the person concerned is unlikely ever to find out that his communications have been intercepted.", "290. The Court takes note of the fact that a person who has somehow learned that his communications have been intercepted may request information about the corresponding data (see paragraph 81 above ). It is worth noting in this connection that in order to be entitled to lodge such a request the person must be in possession of the facts of the operational-search measures to which he was subjected. It follows that access to the information is conditional on the person ’ s ability to prove that his communications were intercepted. Furthermore, the interception subject is not entitled to obtain access to documents relating to interception of his communications; he is at best entitled to receive “information” about the collected data. Such information is provided only in very limited circumstances, namely if the person ’ s guilt has not been proved in accordance with the procedure prescribed by law, that is, he has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing. It is also significant that only information that does not contain State secrets may be disclosed to the interception subject and that under Russian law information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret ( see paragraph 52 above ). In view of the above features of Russian law, the possibility of obtaining information about interceptions appears to be ineffective.", "291. The Court will bear the above factors – the absence of notification and the lack of an effective possibility of requesting and obtaining information about interceptions from the authorities – in mind when assessing the effectiveness of remedies available under Russian law.", "292. Russian law provides that a person claiming that his rights have been or are being violated by a State official performing operational-search activities may complain to the official ’ s superior, a prosecutor or a court (see paragraph 83 above). The Court reiterates that a hierarchical appeal to a direct supervisor of the authority whose actions are being challenged does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority (see, for similar reasoning, Khan v. the United Kingdom, no. 35394/97, §§ 45-47, ECHR 2000 ‑ V; Dumitru Popescu, cited above, § 72; and Avanesyan, cited above, § 32 ). Prosecutors also lack independence and have a limited scope of review, as demonstrated above (see paragraphs 277 - 85 above). It remains to be ascertained whether a complaint to a court may be regarded as an effective remedy.", "293. There are four judicial procedures which, according to the Government, may be used by a person wishing to complain of the interception of his communications: an appeal, a cassation appeal or a supervisory-review complaint against the judicial decision authorising interception of communications; a judicial - review complaint under Article 125 of the CCrP; a judicial - review complaint under the Judicial Review Act and Chapter 25 of the CCP; and a civil tort claim under Article 1069 of the Civil Code. The Court will examine them in turn.", "294. The first of the procedures invoked by the Government is an appeal, cassation appeal or supervisory-review complaint against the judicial decision authorising interception of communications. However, the Constitutional Court stated clearly that the interception subject had no right to appeal against the judicial decision authorising interception of his communications (see paragraph 40 above; see also Avanesyan, cited above, § 30 ). Domestic law is silent on the possibility of lodging a cassation appeal. Given that the Government did not submit any examples of domestic practice on examination of cassation appeals, the Court has serious doubts as to the existence of a right to lodge a cassation appeal against a judicial decision authorising interception of communications. At the same time, the interception subject is clearly entitled to lodge a supervisory - review complaint (see paragraph 43 above ). However, in order to lodge a supervisory - review complaint against the judicial decision authorising interception of communications, the person concerned had to be aware that such a decision existed. Although the Constitutional Court has held that it is not necessary to attach a copy of the contested judicial decision to the supervisory - review complaint ( ibid. ), it is difficult to imagine how a person can lodge such a complaint without having at least the minimum information about the decision he is challenging, such as its date and the court which has issued it. In the absence of notification of surveillance measures under Russian law, an individual would hardly ever be able to obtain that information unless it were to be disclosed in the context of criminal proceedings against him or there was some indiscretion which resulted in disclosure.", "295. Further, a complaint under Article 125 of the CCrP may be lodged only by a participant to criminal proceedings while a pre-trial investigation is pending (see paragraphs 88 - 89 above ). This remedy is therefore available only to persons who have learned of the interception of their communications in the framework of criminal proceedings against them. It cannot be used by a person against whom no criminal proceedings have been brought following the interception of his communications and who does not know whether his communications were intercepted. It is also worth noting that the Government did not submit any judicial decisions examining a complaint under Article 125 of the CCrP concerning the interception of communications. They therefore failed to illustrate the practical effectiveness of the remedy invoked by them with examples from the case-law of the domestic courts (see, for similar reasoning, Rotaru, cited above, § 70, and Ananyev and Others, cited above, §§ 109 - 10).", "296. As regards the judicial - review complaint under the Judicial Review Act, Chapter 25 of the CCP and the new Code of Administrative Procedure and a civil tort claim under Article 1069 of the Civil Code, the burden of proof is on the claimant to show that the interception has taken place and that his rights were thereby breached (see paragraphs 85, 95 - 96 and 105 above ). In the absence of notification or some form of access to official documents relating to the interceptions, such a burden of proof is virtually impossible to satisfy. Indeed, the applicant ’ s judicial complaint was rejected by the domestic courts on the ground that he had failed to prove that his telephone communications had been intercepted (see paragraphs 11 and 13 above). The Court notes that the Government submitted several judicial decisions taken under Chapter 25 of the CCP or Article 1069 of the Civil Code (see paragraphs 220 - 23 above). However, all of those decisions, with one exception, concern searches or seizures of documents or objects, that is, operational-search measures carried out with the knowledge of the person concerned. Only one judicial decision concerns interception of communications. In that case the intercept subject was able to discharge the burden of proof because she had learned of the interception of her communications in the course of criminal proceedings against her.", "297. Further, the Court takes note of the Government ’ s argument that Russian law provides for criminal remedies for abuse of power, unauthorised collection or dissemination of information about a person ’ s private and family life and breach of citizens ’ right to privacy of communications. For the reasons set out in the preceding paragraphs these remedies are also available only to persons who are capable of submitting to the prosecuting authorities at least some factual information about the interception of their communications (see paragraph 24 above).", "298. The Court concludes from the above that the remedies referred to by the Government are available only to persons who are in possession of information about the interception of their communications. Their effectiveness is therefore undermined by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility of requesting and obtaining information about interceptions from the authorities. Accordingly, the Court finds that Russian law does not provide for an effective judicial remedy against secret surveillance measures in cases where no criminal proceedings were brought against the interception subject. It is not the Court ’ s task in the present case to decide whether these remedies will be effective in cases where an individual learns about the interception of his communications in the course of criminal proceedings against him (see, however, Avanesyan, cited above, where some of these remedies were found to be ineffective in order to complain of an “inspection” of the applicant ’ s flat).", "299. Lastly, with respect to the remedies to challenge the alleged insufficiency of safeguards against abuse in Russian law before the Russian courts, the Court is not convinced by the Government ’ s argument that such remedies are effective (see paragraphs 156 and 225 above). As regards the possibility of challenging the OSAA before the Constitutional Court, the Court observes that the Constitutional Court has examined the constitutionality of the OSAA on many occasions and found that it was compatible with the Constitution (see paragraphs 40 - 43, 50, 82 and 85 - 87 above). In such circumstances the Court finds it unlikely that a complaint by the applicant to the Constitutional Court, raising the same issues that have already been examined by it, would have any prospect of success. Nor is the Court convinced that a challenge of Order no. 70 before the Supreme Court or the lower courts would constitute an effective remedy. Indeed, the applicant did challenge Order no. 70 in the domestic proceedings. However, both the District and City Courts found that the applicant had no standing to challenge the Order because the equipment installed pursuant to it did not in itself interfere with the privacy of his communications (see paragraphs 10 ‑ 11 and 13 above). It is also significant that the Supreme Court found that Order no. 70 was technical rather than legal in nature (see paragraph 128 above).", "300. In view of the above considerations, the Court finds that Russian law does not provide for effective remedies to a person who suspects that he has been subjected to secret surveillance. By depriving the subject of interception of the effective possibility of challenging interceptions retrospectively, Russian law thus eschews an important safeguard against the improper use of secret surveillance measures.", "301. For the above reasons, the Court also rejects the Government ’ s objection as to non-exhaustion of domestic remedies.", "(θ) Conclusion", "302. The Court concludes that Russian legal provisions governing interceptions of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which is inherent in any system of secret surveillance, and which is particularly high in a system where the secret services and the police have direct access, by technical means, to all mobile-telephone communications. In particular, the circumstances in which public authorities are empowered to resort to secret surveillance measures are not defined with sufficient clarity. Provisions on discontinuation of secret surveillance measures do not provide sufficient guarantees against arbitrary interference. Domestic law permits automatic storage of clearly irrelevant data and is not sufficiently clear as to the circumstances in which the intercept material will be stored and destroyed after the end of a trial. The authorisation procedures are not capable of ensuring that secret surveillance measures are ordered only when “necessary in a democratic society”. The supervision of interceptions, as it is currently organised, does not comply with the requirements of independence, powers and competence which are sufficient to exercise an effective and continuous control, public scrutiny and effectiveness in practice. The effectiveness of the remedies is undermined by the absence of notification at any point of interceptions, or adequate access to documents relating to interceptions.", "303. It is significant that the shortcomings in the legal framework as identified above appear to have an impact on the actual operation of the system of secret surveillance which exists in Russia. The Court is not convinced by the Government ’ s assertion that all interceptions in Russia are performed lawfully on the basis of a proper judicial authorisation. The examples submitted by the applicant in the domestic proceedings ( see paragraph 12 above) and in the proceedings before the Court ( see paragraph 197 above) indicate the existence of arbitrary and abusive surveillance practices, which appear to be due to the inadequate safeguards provided by law (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92; and, by contrast, Klass and Others, cited above, § 59, and Kennedy, cited above, §§ 168 - 69).", "304. In view of the shortcomings identified above, the Court finds that Russian law does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”.", "305. There has accordingly been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "306. The applicant complained that he had no effective remedy for his complaint under Article 8. He relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "307. Having regard to the findings under Article 8 of the Convention in paragraphs 286 to 300 above, the Court considers that, although the complaint under Article 13 of the Convention is closely linked to the complaint under Article 8 and therefore has to be declared admissible, it is not necessary to examine it separately (see Liberty and Others, cited above, § 73).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "308. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "309. The applicant claimed 9, 000 euros (EUR) in respect of non-pecuniary damage.", "310. The Government submitted that the claim was excessive, taking into account that the applicant had challenged Russian law in abstracto without being in any way personally affected by it. The finding of a violation would therefore constitute sufficient just satisfaction.", "311. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned any sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. Furthermore, in ratifying the Convention, the Contracting States undertake to ensure that their domestic law is compatible with it (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 111, with further references).", "312. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicant.", "B. Costs and expenses", "313. Before the Chamber, the applicant claimed 26,579 Russian roubles (RUB, approximately EUR 670 ) on the date of submission ) for postal and translation expenses. He relied on postal and fax - service invoices and a translation - services contract.", "314. Before the Grand Chamber, the applicant claimed 22,800 pounds sterling (GBP, approximately EUR 2 9, 000 on the date of submission ) and EUR 13, 800 for legal fees. He relied on lawyers ’ time-sheets. Relying on bills and invoices, he also claimed GBP 6,833.24 ( approximately EUR 8,700 on the date of submission ) for translation, travelling and other administrative expenses.", "315. The Government accepted the claim for costs and expenses made before the Chamber because it was supported by documentary evidence. As regards the claims for costs and expenses made before the Grand Chamber, the Government submitted that the claims had been submitted more than a month after the hearing. As regards the legal fees, the Government submitted that part of those fees covered the work performed by the representatives before the applicant had signed an authority form and that there was no authority form in the name of Ms Levine. Furthermore, the number of representatives and the number of hours spent by them on the preparation of the case had been excessive. There was moreover no evidence that the applicant had paid the legal fees in question or was under a legal or contractual obligation to pay them. As regards the translation and other administrative expenses, the Government submitted that the applicant had not provided any documents showing that he had paid the amounts claimed. Nor had he proved that the translation expenses had indeed been necessary, given that some of the applicant ’ s lawyers spoke Russian. The rates claimed by the translators had been excessive. Lastly, the travelling expenses had also been excessive.", "316. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4 0,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.", "C. Default interest", "317. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "6. The applicants were born in 1977 and 1982 respectively and live in Wald-Michelbach. Both applicants were involved in a civil-liberties union which campaigned against the general retention of telecommunications data. In that context both applicants organised public protests and published articles criticising State surveillance. The first applicant was also a member of the Parliament of Schleswig-Holstein.", "7. In June 2004 a legal obligation for telecommunications providers to store personal details of all their customers, even of customers where such details were not necessary for billing purposes or other contractual reasons (prepaid (“pay-as-you-go”) mobile telephone SIM cards), was introduced via amendments to the Telecommunications Act ( Telekommunikationsgesetz ). Until these amendments came into force, telecommunications service providers had been entitled solely to collect and store the data necessary for their contractual relationship. Where prepaid mobile telephone SIM cards were concerned, no such data had been considered necessary. These amendments were made in the framework of a fundamental revision of the Telecommunications Act which was felt necessary after the adoption of five EU Directives on 7 March and 12 July 2002 which had to be transposed into German Law before July and October 2003.", "8. Both applicants use prepaid mobile phone SIM cards and had to register under section 111 of the Telecommunications Act (see paragraph 27 below) certain personal details with their respective service providers when activating those SIM cards.", "B. Proceedings before the Federal Constitutional Court", "9. On 13 July 2005 the applicants lodged a constitutional complaint against, amongst other provisions, sections 111, 112 and 113 of the Telecommunications Act. Section 111 of this Act introduced the obligation to collect and store the telephone numbers, the name, address and date of birth of an allocation holder and the effective date of the contract (see paragraphs 27-28 below). Sections 112 and 113 of the Telecommunications Act contained an automated and a manual procedure for accessing the data stored under section 111 (see paragraphs 29 and 31 below). The applicants argued that the above-mentioned sections violated their right to privacy of correspondence, post and telecommunications as well as their right to informational self-determination ( Recht auf informationelle Selbstbestimmung – see paragraph 25 below).", "10. Section 111 of the Telecommunications Act was amended by an Act of 21 December 2007 by which other identifiers of an allocation were included under the obligation to store subscriber data and the data to be stored were expanded to include the respective device number, in cases in which a mobile-communication end device was made available together with the mobile-communication allocation.", "11. The applicants extended their pending constitutional complaint to include the amended version of the Telecommunications Act. Consequently, the Federal Constitutional Court considered in its judgment the Telecommunications Act as in force on 1 January 2008.", "C. Decision of the Federal Constitutional Court (no. 1 BvR 1299/05)", "12. On 24 January 2012 the Federal Constitutional Court decided, in so far as relevant for the present case, that sections 111 and 112 of the Telecommunications Act were compatible with the Basic Law ( Grundgesetz ), that section 113(1), sentence 1, was compatible with the Basic Law when interpreted in conformity with it, and that sections 112 and 113 required independent enabling legislation for the retrieval of data by the authorities listed or referred to therein (see paragraphs 29 and 31 below). Concerning the parts of the applicants’ constitutional complaint that are not at issue in the present proceedings, the Federal Constitutional Court held that the manual information procedure set out in section 113(1) could not be used for the assignment of dynamic IP addresses and that the security authorities could only request information on access codes under section 113(1) if the statutory requirements for their use were satisfied.", "13. It also noted that according to the federal government, the automated retrieval procedure under section 112 of the Telecommunications Act was of primary importance. Experience had shown that the number of manual retrievals carried out under section 113 of the Telecommunications Act was between 3% and 5% of the number of automated requests made under section 112 of the Telecommunications Act.", "14. As regards the relevant parts of the applicants’ constitutional complaint, the Federal Constitutional Court first held that the provisions being challenged interfered with the right to informational self-determination. It further stated (as translated into English on the Federal Constitutional Court’s website; references to the court’s jurisprudence have been omitted in the quotes below) as follows:", "“122. a) The right to informational self-determination takes account of endangerments and violations of personality which arise in the conditions of modern data processing from information-related measures. The free development of personality presupposes the protection of the individual against unrestricted collection, storage, use and transmission of the individual’s personal data. This protection is therefore covered by the fundamental right of Article 2(1) in conjunction with Article 1(1) of the Basic Law. In this respect, the fundamental right guarantees the authority of the individual in principle himself or herself to decide on the disclosure and use of his or her personal data. The guarantee of the fundamental right takes effect in particular when the development of personality is endangered by government authorities using and combining personal information in a manner which persons affected can neither fully appreciate nor control. The extent of protection of the right to informational self-determination is not restricted to information which by its very nature is sensitive and for this reason alone is constitutionally protected. In view of the possibilities of processing and combining, there is no item of personal data which is in itself, that is, regardless of the context of its use, insignificant. In particular, the protection of informational self-determination also includes personal information on the procedure by which telecommunications services are provided.", "123. Provisions which give authority for government authorities to deal with personal data as a rule create a number of encroachments which build on each other. In this respect, a distinction must in particular be made between the collection, storage and use of data. In legislating for data exchange for the purpose of the performance of government duties, however, a distinction must also be made between data transfer by the party supplying the information and data retrieval by the agency seeking the information. A data exchange takes place through the encroachments of retrieval and transfer, which correspond to each other and each of which requires an independent legal basis. Figuratively speaking, the legislature must open not only the door for the transmission of data, but also the door for their retrieval. It is only both legal bases together, which must operate together like a double door, which give authority to exchange personal data. This does not exclude – subject to the system of competencies and the requirements of clear drafting – the possibility of both legal bases being contained in one provision.", "124. b) The challenged provisions encroach upon the complainants’ fundamental right to informational self-determination. Firstly, there are encroachments upon the duty of collection and storage of [section 111 of the Telecommunications Act]. There are independent further encroachments upon fundamental rights by the duty of service providers laid down in [section 112(1) of the Telecommunications Act] to make the data available as customer databases which can be accessed in an automated procedure and by the authority of the Federal Network Agency to retrieve these data and to transmit them to particular authorities (see [section 112(4) of the Telecommunications Act]). Accordingly, [section 113(1), sentences 1 and 2, of the Telecommunications Act] create independent encroachments upon fundamental rights by imposing on the telecommunications service providers a duty to provide information on demand with regard to the data stored by themselves.", "125. Finally, [sections 112 and 113 of the Telecommunications Act] are subject to prior retrieval of the data by the authorities entitled to retrieve, in the form of a request ([sections 112(1), 112(2) and 112(4) of the Telecommunications Act]) or a demand ([section 113(1) of the Telecommunications Act]); this constitutes an independent encroachment which must be distinguished from the foregoing. But under the legislature’s legislative concept, this also requires a further legal basis, which must be contained in federal or Land legislation, depending on the area involved. The provisions of [sections 112 and 113 of the Telecommunications Act] – corresponding to the distinction between collection and transmission in the legislative typology of the data protection Acts – are to be understood solely as the legal basis for the transmission. They presuppose that the authorities entitled to receive information have independent powers of collection ...”", "15. In connection with section 111 of the Telecommunications Act the Federal Constitutional Court held that the obligation to maintain a database for subscriber information pursued the legitimate aim of, in particular, criminal prosecution. Even though the database constituted a precautionary collection and storage of a great range of data and criminal offenders would still be able to circumvent the provision by using telecommunications services anonymously, under false names or with mobile-telephone cards acquired from third parties, the interference with the right to informational self-determination was ultimately justified owing to the relatively restricted nature of the information stored.", "16. Concerning proportionality, the Federal Constitutional Court stated, inter alia :", "“136. [Section 111 of the Telecommunications Act] does not violate the requirements of proportionality in the narrow sense. Even if the provision orders a precautionary collection and storage, without occasion, of a great range of telecommunications data, in view of the relatively restricted information content of the collected data this is an encroachment of limited weight.", "137. However, the encroachment is non-trivial. It has weight in so far as [section 111 of the Telecommunications Act] makes it possible to attribute telecommunications numbers and subscribers almost completely for all telecommunications services and for this purpose individualising data such as address, date of birth and date when the contract commences are recorded and kept available by the government. The data form a general basis for information and fulfil the function of a telecommunications number register. As a rule, they make it possible to obtain all the telecommunication numbers of any person; conversely, virtually every telecommunications event for which a telecommunications number is determined may also be attributed to a connection and thus to a subscriber. As data which relate to the fundamental elements of telecommunications events they are therefore associated with particularly protected information relationships whose confidentiality is essential for a free order. In addition, the corresponding data are collected and stored without cause by way of precaution in order to make them available for the performance of government duties.", "138. Nevertheless, the encroachment constituted by this is not of very great weight. In particular, the fact that the data are collected by way of precaution does not give the procedure a very great weight. For even if [section 111 of the Telecommunications Act] has a great range, the encroachment is restricted in substance to narrowly restricted data which in themselves give no evidence as to the specific activities of individuals and whose use the legislature has restricted to purposes defined in more detail. In such cases, even a precautionary storage is not automatically a particularly serious encroachment for the mere reason that it is carried out without occasion. Admittedly, the precautionary storage of data must always remain an exception to the rule and needs to be justified. But it is not excluded from the outset that precautionary data collections may be justified as the basis of the performance of a variety of government duties, such as are currently familiar in the form of the register of residents or, in the field of motor vehicles, in the form of the Central Vehicle Register ... and the Central Register of Driving Licences ...", "139. The data covered by [section 111 of the Telecommunications Act] have limited probative value. They merely make it possible for telecommunications numbers to be individually attributed to the respective subscribers and thus to those numbers’ potential (and typical) users. These data contain no more detailed private information. In a fundamentally different way than in the case of precautionary storage of all telecommunications traffic data, neither do these data as such contain highly personal information, nor is it possible to use them to create personality profiles or track users’ movements. ...", "140. Nor does a particular weight of the encroachment result from the fact that the data of [section 111 of the Telecommunications Act], taken in context, permit individual telecommunications events known to the authorities to be attributed and thus in certain circumstances make it possible to obtain individualised knowledge of their circumstances or their content. For in this way all that is made possible from the outset is the investigation of individual events where required by a specific case. In these cases, the authority already knows the circumstances or the content of the telecommunications event which is to be individualised with the data of [section 111 of the Telecommunications Act], whether because the authority has found them by investigation within its own competence – for example on the basis of § 100g of the Code of Criminal Procedure ... – involving encroachment upon the secrecy of telecommunications, whether because it has learnt of them through its own observations or from third-party information without such an encroachment. In the same way, conversely, no particular weight of the encroachment results from the fact that a retrieval of telecommunications numbers may be followed by further measures which in certain circumstances may entail serious encroachments, including encroachments upon the secrecy of telecommunications. For such further encroachments are only permissible under independent legal bases, which must take account of the weight of the encroachment in question.", "141. The possibility of attribution of the data collected in [section 111 of the Telecommunications Act] serves the effective performance of the duties of the authorities defined in more detail in the provisions on use. It is constitutionally justified by the fact that the State may have a legitimate interest in successfully investigating particular telecommunications events if occasion arises, and this interest in the performance of particular tasks may have considerable weight, in individual cases even pre-eminent weight. It may not be cited in opposition to this that direct communication without means of telecommunications has no comparable encroachments. For the situation in that case is different. Because direct communication does not resort to technical means of communication which make it possible, without public observation, to interact over any distance in real time, it has no comparable basis, nor is there a comparable necessity for such a register. The traditional powers of investigation, for example the examination of witnesses or the seizure of documents, are more useful for clarification here than they are with regard to communication by means of electronic services. However, it is correct that even the possibilities of the modern means of telecommunications provide no justification for registering, if possible, all activities of citizens by way of precaution and making them basically reconstructible in this way. But there is no question of this when a register of telecommunications numbers is established, even when account is taken of the interaction with other available data.”", "17. With regard to section 112 of the Telecommunications Act, the Federal Constitutional Court clarified (paragraph 144) that this provision", "“governs the use of the data stored under [section 111 of the Telecommunications Act] in the form of an automated information procedure in which the Federal Network Agency [ Bundesnetzagentur ] is to transmit the data on request to particular authorities named in [section 112(2) of the Telecommunications Act]. The provision is the legal basis only for the duty to make the data available as customer databases, for access to and transmission of these data, but not also for the retrieval in the form of a request from the authorities entitled to receive information.”", "However, according to the court, a general entitlement to collect data could be sufficient for a request by the entitled authorities. In this connection the court used the analogy of a double door (see paragraph 123, cited in paragraph 14 above), stating that, while section 112 of the Telecommunications Act opened the door for transmission, it did not open the door for data collection by the specialised authorities.", "18. Nonetheless, the Federal Constitutional Court held that – for several reasons – the interference provided for by section 112 of the Telecommunications Act was considerably weighty:", "“156. However, the provision acquires a considerable weight of encroachment from the fact that [section 111 of the Telecommunications Act] very much simplifies data retrievals. The procedure, which is centrally organised and automated, permits an access which largely removes practical difficulties of data collection and makes the data of the persons affected available without delay or attrition in the form of requirements of review. In addition, the information is given without telecommunications enterprises or other third parties becoming aware of this. Admittedly, the fact that the issuing of information is not noticed by the telecommunications enterprise ensures discretion for the persons whose data are involved; but at the same time, this means that the encroachments lack the effects of restraint and control which are entailed by observation by third parties. In addition, a legal review by the Federal Network Agency, which transmits the data, is only made if there is a particular occasion for this (see [section 112(4), sentence 2, of the Telecommunications Act ]). Since the retrieving authority does not have to give reasons for its request, however, such an occasion will scarcely ever arise.", "157. Weight also attaches to the fact that the legislature has drafted the purposes of the data very broadly. The data may generally be transmitted to the authorities named in [section 112(2) of the Telecommunications Act] for the performance of their statutory duties. This is restricted only for the law enforcement authorities under [section 112(2), no. 2, of the Telecommunications Act], and under [section 112(2), nos. 3 and 7, of that Act] for the customs authorities named there. But it is important in this connection that data may be issued to the former, under [section 112 of the Telecommunications Act], only for purposes of warding off danger, which excludes mere risk precaution. In connection with the respective duties of the authorities entitled to retrieve, the information duties of the Federal Network Agency are also not very restricted. In particular, there are no strict encroachment thresholds in the statute; instead, the duty of information is opened in full to the respective competence of the authorities. However, the fact that information may only be given in so far as it is necessary for the performance of the duty does create an objectively limiting factor. This ensures that retrievals are not casually permitted for mere guidance in advance but only when information actually needed for the performance of duties cannot be obtained more easily but equally effectively in another way.", "...", "163. However, [section 112 of the Telecommunications Act] does not in fact restrict information to retrievals which are legitimised by specific legal bases relating to the automated information procedure, but also accepts requests which are based on simple powers of data collection. As a result, there is no requirement on the non ‑ constitutional level for the entitled authorities to be expressly specified over and above [section 112(2) of the Telecommunications Act] and for further conditions for data retrieval which are to be observed. ...”", "19. The Federal Constitutional Court nevertheless concluded that section 112 of the Telecommunications Act was proportionate:", "“155. [Section 112 of the Telecommunications Act] satisfies the requirements of the principle of proportionality. The provision serves to increase the effectiveness of the performance of their duties by the authorities named in [section 112(2) of the Telecommunications Act] and it is suitable and necessary for this. It is also proportionate in the narrow sense.", "...", "158. Despite the fact that the weight of the encroachment is considerable, the provision is proportionate. The authorities entitled to retrieve are at least limited in number. The purposes for which they are given information under [section 112(2) of the Telecommunications Act] are central duties relating to the guarantee of security. In view of the increasing importance of electronic means of communication and the concomitant changes of human communication behaviour in all areas of life, the authorities here depend to a great extent on a possibility which is as uncomplicated as possible of being able to attribute telecommunications numbers individually. In this respect, it is a decision of the legislature which is constitutionally unobjectionable if it permits the transmission of these data in order to investigate criminal offences and dangers, to observe developments which endanger the Constitution in order for the government and the public to be informed or to give assistance in emergencies. Because such investigations must often be carried out rapidly and without the knowledge of those affected, an automated information procedure is of particular importance for them. Increasing the effectiveness of the work of the courts is also a concern whose weight is supported by such a provision.", "159. The limited probative value of the data is of central importance for the weighing of interests: They provide information solely on the attribution of individual telecommunications numbers to their subscriber. Even if, in specific collection contexts, sensitive information may result from them, the information content of this information as such remains limited and in addition depends on further investigations whose lawfulness is to be evaluated under different provisions.", "...", "163. ... Since the subject here is the transmission of data by an authority and the substantive conditions for this, including those with regard to the persons whose data are involved, are laid down definitively and with sufficient clarity [in section 112 of the Telecommunications Act], then, taking account of the limited weight of encroachment of the provision, this is compatible with the principle of proportionality and corresponds to the structure of the provisions on the automated retrieval of vehicle and vehicle owner data from the vehicle register ... and the provision on data transmission in the law relating to the registration of residents .... Admittedly, this does not change the responsibility of the legislature – and in this connection, where applicable, of the Länder – for the constitutional formulation of the data collection provisions, which are not themselves the subject of the present proceedings. ...”", "In addition, the court emphasised the responsibility of the public authorities to apply these provisions in such a way that specific account was taken of the requirements of section 112(1) and (2) of the Telecommunications Act and in particular of the requirement that collection had to be necessary even in an individual case, and of the further requirements of the principle of proportionality.", "20. In respect of section 113 of the Telecommunications Act, the Constitutional Court held that the provision could only be understood as a release provision and that an additional legal basis for the retrieval of data by the authorities was required. The court also noted that there was no limitation regarding the requesting authority – except in relation to the authorities’ duties – and that the purposes for data retrieval were stated in broad terms. It concluded, nonetheless, that, in view of the information from the data in question, which in itself was limited, and their great importance for an effective performance of duties, the reach of this provision was constitutionally unobjectionable.", "21. The Federal Constitutional Court stated, inter alia :", "“176. However, [section 113(1), sentence 1, of the Telecommunications Act] opens the manual information procedure very wide. It permits information for the purpose of warding off dangers, prosecuting criminal offences or regulatory offences and performing intelligence duties. In this connection, the provision is also given no specific thresholds of encroachment which define its scope in more detail. Instead, it always permits information in the individual case if this is necessary to perform the above duties.", "177. However, in view of the information content of the data in question, which in itself is limited, and their great importance for an effective performance of duties, the reach of this provision is constitutionally unobjectionable. In this connection, account must be taken of the fact that it by no means permits information to be given indiscriminately. On the contrary, there is a restrictive effect in the fact that information under [section 113(1), sentence 1, of the Telecommunications Act is] called for in the individual case and must be necessary. In relation to warding off danger, which the legislature has expressly not defined as including risk precaution, a prudent interpretation reveals that a ‘concrete danger’ within the meaning of the ‘general clauses’ [ Generalklauseln ] of police law is a requirement for such information. Admittedly, this threshold is low and also admits the suspicion of dangers. Equally, it does not in advance restrict information to persons endangering public security within the meaning of general police and regulatory law. However, this does not relieve it from restriction to such an extent as to be disproportionate in view of its limited weight of encroachment. In particular it does not enable information as a general means for lawful administrative enforcement, but in the individual case it requires the duty in question to have a security-law character. It is true that in regard to the intelligence services, which in general act in advance, irrespective of concrete dangers, there is no comparable threshold of encroachment. But this is justified by the restricted duties of the intelligence services, which are not directly aimed at police measures, but only at a duty to provide reports to the politically responsible State bodies or to the public. Apart from this, it follows here too from the requirement of necessity in the individual case that information under [section 113(1), sentence 1, of the Telecommunications Act] must be required in order to successfully investigate a particular action or group which requires observation by the security authorities. In so far as information relates to the prosecution of criminal offences and regulatory offences, the requirement of necessity in an individual case means that there must at least be an initial suspicion.", "178. Taken together, these thresholds are not high, but they are constitutionally acceptable. In this connection, it must be taken into account in comparison to [section 112 of the Telecommunications Act] that a manual information procedure entails certain procedural efforts on the part of the retrieving authority, which is likely to encourage the authority to obtain the information only where it is sufficiently needed.”", "22. Regarding legal remedies against information requests under sections 112 and 113 of the Telecommunications Act, the Federal Constitutional Court held:", "“186. ... Nor are there objections to the fact that in view of the slightness of the encroachment no specific proceedings of legal redress are intended against information under [sections 112 and 113 of the Telecommunications Act]. Legal redress in this connection may be sought under general rules – in particular together with legal redress proceedings against the final decisions of the authorities.", "187. The requirements of the principle of proportionality do not give rise to a blanket requirement for the persons affected by the information to be notified of the information under [sections 112 and 113 of the Telecommunications Act], ...”", "23. In its decision the Federal Constitutional Court established that 26.6 million data sets – either subscriber identity or telephone number – had been queried in 2008 under section 112 of the Telecommunications Act. That figure did not differentiate between data sets relating to pay-as-you-go mobile-telephone users and other customers." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Basic Law", "24. The provisions of the Basic Law, in so far as relevant for the present case, read:", "Article 1", "“1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority. ...”", "Article 2", "“1. Every person shall have the right to free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law. ...”", "Article 10", "“1. The privacy of correspondence, post and telecommunications shall be inviolable.", "2. Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.”", "25. In its judgment of 15 December 1983 (nos. 1 BvR 209, 269, 362, 420, 440, 484/83) the Federal Constitutional Court established the right to informational self-determination and held:", "“In the context of modern data processing, the protection of the individual against unlimited collection, storage, use and disclosure of his or her personal data is encompassed by the right to protection of personality rights under Article 2 § 1 in conjunction with Article 1 of the Basic Law. This basic right warrants in this respect the capacity of the individual to determine in principle the disclosure and use of his or her personal data.”", "26. In its judgment of 2 March 2010 (nos. 1 BvR 256, 586, 263/08) the Federal Constitutional Court decided upon the constitutionality of provisions transposing EU Directive 2006/24/EC (see paragraphs 49-50 below) into German law (sections 113a and 113b of the Telecommunications Act and Article 100g of the Code of Criminal Procedure), which obliged service providers to store for a limited time (six months) all traffic data of telephone services and allowed the use of such data in the context of criminal prosecutions. The court declared section 113a of the Telecommunications Act (obligation to store) unconstitutional and void, owing to a violation of the right to protection of the secrecy of telecommunications. It held that a duty of storage to the extent provided was not automatically unconstitutional at the outset. However, it was not structured in a manner adapted to the principle of proportionality. The challenged provisions guaranteed neither adequate data security nor an adequate restriction of the purposes of use of the data. Nor did they in every respect satisfy the constitutional requirements of transparency and legal protection.", "B. Telecommunications Act", "27. Section 111 of the Telecommunications Act obliges service providers to collect and store certain personal data of their customers. It thereby creates the basis for information requests under sections 112 and 113 of the Telecommunications Act. It read, at the relevant time and in so far as relevant, as follows:", "“(1) Any person commercially providing or assisting in providing telecommunications services and in so doing allocating telephone numbers or providing telecommunications connections for telephone numbers allocated by other parties or other identifiers of the respective allocation, is, for the information procedures under sections 112 and 113, to collect, prior to activation, and store without undue delay:", "1. The telephone numbers and other identifiers of the respective allocation;", "2. The name and address of the allocation holder;", "3. The date of birth in the case of natural persons;", "4. In the case of fixed lines, additionally the address for the line;", "5. In cases in which a mobile-communication end device is made available together with the mobile-communication allocation, also the device number of the device in question, as well as;", "6. The effective date of the contract.", "Even if such data are not necessary for operational purposes; where known, the date of termination of the contract is likewise to be stored. Sentence 1 also applies where the data are not included in directories of subscribers. ... A person with obligations under sentence 1 or sentence 3 receiving notice of any changes is to correct the data without undue delay; in this connection the person with obligations under sentence 1 is subsequently to collect and store data not yet recorded if collecting the data is possible with no special effort. The manner in which data for the information-retrieval procedure provided for under section 113 are stored is optional.", "(2) Where the service provider in accordance with subsection (1), sentence 1 or sentence 3, operates in conjunction with a sales partner, such a partner shall collect data according to subsection (1), sentences 1 and 3, under the pre-requisites set out therein and shall transmit to the service provider, without undue delay, these and other data collected under section 95; subsection (1), sentence 2, applies accordingly. Sentence 1 also applies to data relating to changes, inasmuch as the sales partner receives notice of them in the course of normal business transactions.", "(3) Data within the meaning of subsection (1), sentence 1 or sentence 3, need not be collected subsequently for contractual relationships existing on the date of entry into force of this provision, save in the cases referred to in subsection (1), sentence 4.", "(4) The data are to be erased upon expiry of the calendar year following the year in which the contractual relationship ended.", "...”", "28. In July 2016 section 111 of the Telecommunications Act was amended and an obligation for service providers to verify prior to collection the personal data of the mobile-telephone user was included. Presentation of an identity card, a passport or other official identity document is required when the data are being registered initially. The amendment had been considered necessary to further restrict the possibilities available for circumventing the obligations laid down in section 111 of the Telecommunications Act. According to the preparatory work of the amendment (Publication of the Federal Parliament ( Bundestagsdrucksache ) no. 18/8702, p. 22), a considerable amount of false data had been found in the telecommunications providers’ databases, which had the character of a mass phenomenon. Requests of the relevant authorities pursuant to sections 112 and 113 of the Telecommunications Act had therefore in many procedures not resulted in useful information being provided. A constitutional complaint challenging the compatibility of this amendment with the Basic Law is currently pending before the Federal Constitutional Court (no. 1 BvR 1713/17).", "29. Section 112 of the Telecommunications Act sets out an automated procedure for the data stored under section 111 of the Telecommunications Act. In accordance with this procedure, providers of telecommunications services must supply the data in such a way that they can be retrieved by the Federal Network Agency without the knowledge of the providers. Moreover, the possibility of data retrieval using incomplete search data or a search with a similarity function must be provided. The relevant parts of section 112 of the Telecommunications Act read at the relevant time:", "“(1) Any person providing publicly available telecommunications services shall store, without undue delay, data collected under section 111(1), sentences 1, 3 and 4, and subsection (2) in customer data files .... The obligated person shall ensure that:", "1. the Federal Network Agency is enabled, at all times, to retrieve data from customer data files by way of automation within Germany;", "2. data can be retrieved using incomplete search data or searches made by means of a similarity function.", "The obligated person and his agent are to ensure by technical and organisational measures that no retrievals can come to their notice. The Federal Network Agency may retrieve data from customer databases only to the extent that knowledge of the data is necessary:", "1. in order to prosecute administrative offences under the present Act or under the Unfair Competition Act [ Gesetz gegen den unlauteren Wettbewerb ];", "2. in order to process requests for information lodged by the bodies set out in subsection (2).", "The requesting body shall verify without undue delay to what extent it needs the data transmitted in response to its request and shall erase any data it does not need without undue delay; this shall also apply to the Federal Network Agency regarding the retrieval of data in accordance with sentence 7, no. 1.", "(2) Information from the customer data files according to subsection (1) shall be provided to:", "1. the courts and criminal prosecution authorities;", "2. Federal and Land law-enforcement authorities for purposes of averting danger;", "3. the Customs Criminal Investigations Office [ Zollkriminalamt ] and customs investigation offices [ Zollfahndungsämter ] for criminal proceedings and the Customs Criminal Investigations Office for the preparation and execution of measures under section 23a of the Customs Investigation Service Act [ Zollfahndungsdienstgesetz ];", "4. Federal and Land offices for the protection of the Constitution, the Federal Armed Forces Counter-Intelligence Office, and the Federal Intelligence Service;", "5. the emergency service centres under section 108 and the service centre for the maritime mobile emergency number ‘124 124’;", "6. the Federal Financial Supervisory Authority; and", "7. the authorities of the customs administration for the purposes listed in section 2(1) of the Undeclared Work Act [ Schwarzarbeitsbekämpfungsgesetz ] via central enquiries offices", "as stipulated in subsection (4), at all times, as far as such information is needed to discharge their legal functions and the requests are submitted to the Federal Network Agency by means of automated procedures.", "...", "(4) At the request of the authorities referred to in subsection (2), the Federal Network Agency is to retrieve and transmit to the requesting authority the relevant data sets from the customer data files in accordance with subsection (1). It shall examine the admissibility of the transmission only where there is special reason to do so. Responsibility for such admissibility lies with:", "1. the Federal Network Agency, in the cases governed by subsection (1), sentence 7, no. 1; and", "2. the bodies set out in subsection (2), in the cases of subsection (1), sentence 7, no. 2.", "For purposes of data-protection supervision by the competent body, the Federal Network Agency shall record, for each retrieval, the time, the data used in the process of retrieval, the data retrieved, information clearly identifying the person retrieving the data, as well as the requesting authority, its reference number, and information clearly identifying the person requesting the data. Use for any other purposes of data recorded is not permitted. Data recorded are to be erased after a period of one year.", "...”", "30. In June 2017 a regulation was issued concerning the automatic retrieval procedure under section 112 of the Telecommunications Act. This subscriber data information regulation ( Kundendatenauskunftsverordnung ) describes in more detail the possibilities of requesting information based on the address, name or telephone number of subscribers and outlines the required information to be provided for the requested search. In addition, it regulates searches based on incomplete data and searches made by means of a similarity function. The regulation was accompanied by a technical directive, setting the technical standards for the searches and for communication between the Federal Network Agency, the requesting authorities and the telecommunications providers.", "31. Section 113 of the Telecommunications Act provides for a manual procedure for requesting data stored pursuant to section 111 of the Telecommunications Act. In contrast to the automated information procedure, this provides for a duty of the service providers themselves to supply information to the entitled authorities. In the same way as in the automated information procedure, confidentiality regarding information requests in respect of the persons to whom the data relate must be preserved. Section 113 does not contain an exhaustive list of the authorities entitled to receive information thereunder. Information requests are permissible in so far as they are necessary to prosecute criminal and regulatory offences, to avert danger ( Gefahrenabwehr ) and to perform intelligence tasks. Section 113 of the Telecommunications Act read, in so far as relevant, at the relevant time:", "“(1) Any person commercially providing or assisting in providing telecommunications services may use, subject to the stipulations of subsection (2), the data collected under sections 95 and 111 in accordance with this provision of the Law in order to fulfil its obligations to provide information to the bodies listed in subsection 3. ...", "(2) The information may be provided only inasmuch as one of the bodies set out in paragraph 3 has requested that this be done, in text form, in an individual case in order to prosecute criminal or administrative offences, in order to avert danger to public safety or order, and in order to discharge the legal functions of the bodies set out in subsection (3), no. 3, citing a provision of the law that allows it to so collect the data referenced in subsection (1); no data pursuant to subsection (1) may be transmitted to any other public or non-public bodies. In the case of imminent danger, the information may be provided also if the request is made in a form other than text form. In such an event, the request is to be confirmed subsequently in text form; this shall be done without undue delay. Responsibility for the admissibility of the request for information lies with the bodies set out in subsection (3).", "(3) The following are ‘bodies’ in the sense of subsection (1):", "1. The authorities responsible for prosecuting criminal or administrative offences;", "2. The authorities responsible for preventing threats to public security or to public order;", "3. Federal and Land offices for the protection of the Constitution, the Federal Armed Forces Counter-Intelligence Office, and the Federal Intelligence Service.", "(4) A person commercially providing or assisting in providing telecommunications services is to transmit the data to be provided pursuant to a request completely and without undue delay. The parties obligated to provide information are to keep confidential requests for information and the provision of information both vis-à-vis the party/parties affected and vis-à-vis third parties.", "...”", "C. Legal basis for automated information requests under section 112 of the Telecommunications Act", "32. Information requests in the context of criminal investigations by the public prosecutor’s office and the police under the automated procedure under section 112 of the Telecommunications Act are regulated in the Code of Criminal Procedure ( Strafprozessordnung ). The applicable Articles read, at the relevant time and in so far as relevant, as follows:", "Article 160", "“1. As soon as the public prosecutor’s office obtains knowledge of a suspected criminal offence either through a criminal complaint or by other means it shall investigate the facts to decide whether public charges are to be brought.", "2. The public prosecutor’s office shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that evidence, the loss of which is to be feared, is taken.", "3. The investigations of the public prosecutor’s office shall extend also to the circumstances which are important for the determination of the legal consequences of the act. For this purpose it may avail itself of the service of the court assistance agency.”", "Article 161 § 1", "“For the purpose indicated in Article 160 § 1 to § 3 [of the CCP], the public prosecutor’s office shall be entitled to request information from all authorities and to initiate investigations of any kind, either itself or through the authorities and officials in the police force provided there are no other statutory provisions specifically regulating their powers. The authorities and officials in the police force shall be obliged to comply with such a request or order of the public prosecutor’s office and shall be entitled, in such cases, to request information from all authorities.”", "Article 163 § 1", "“The authorities and officials in the police force shall investigate criminal offences and shall take all measures that may not be deferred, in order to prevent concealment of facts. To this end they shall be entitled to request, and in exigent circumstances to demand, information from all authorities, as well as to conduct investigations of any kind in so far as there are no other statutory provisions specifically regulating their powers.", "...”", "33. For the prevention of crime the Federal Office for Criminal Investigation ( Bundeskriminalamt ) and the Federal Police ( Bundespolizei ) may request information under the automated procedure under section 112 of the Telecommunications Act in accordance with the following provisions which read at the relevant time:", "Section 2 of the Federal Office for Criminal Investigation Act ( Bundeskriminalamtgesetz )", "“(1) As the central office for the information and intelligence system of the police, the Federal Office of Criminal Investigation supports police forces at Land and federal level in the prevention and investigation of crimes of cross- Land, international or considerable importance", "(2) The Federal Office for Criminal Investigation shall for the performance of this task:", "1. collect and analyse all, for this purpose, necessary, data;", "...”", "Section 7 of the Federal Office for Criminal Investigation Act", "“(1) The Federal Office for Criminal Investigation may store, change or use personal data, in so far as required by its respective task as central office.", "(2) The Federal Office for Criminal Investigation may, in so far as required for the performance of its task as central office under section 2(2), no. 1, collect data via requests for information or enquiries at public and non-public entities for the supplementation of existing information or other analytic purposes. ...”", "Section 21 of the Federal Police Act ( Bundespolizeigesetz )", "“(1) The Federal Police may, unless this chapter states otherwise, collect personal data in so far as required for the performance of its tasks.", "(2) For the prevention of criminal acts the collection of personal data is permitted, in so far as facts justify the presumption that:", "1. an individual will commit a serious criminal act in the meaning of section 12(1) and that the information is required for the prevention of said criminal act; or", "2. an individual is or will be in contact with an individual as described in no. 1 in a way that it can be expected that the measure will lead to the prevention of a criminal act as described in no. 1 and that the prevention in another way would be impossible or severely hampered.”", "34. Provisions similar to section 21 of the Federal Police Act exist for the police forces of the Länder. In addition these police forces are also permitted to collect personal information in so far as necessary for averting danger and the protection of the rights of others.", "35. Under section 7 and 27 of the German Customs Investigation Service Act, the Customs Criminal Investigations Office and the Customs Investigation Offices are authorised to collect personal information in so far as required for the performance of their tasks. In addition the customs authorities may collect information under Article 163 of the Code of Criminal Procedure (see paragraph 32 above) when investigating undeclared work.", "36. The Federal and Land offices for the protection of the Constitution, may request the information stored pursuant to section 111 of the Telecommunications Act in so far as necessary for the performance of their tasks and not prohibited by the Federal Data Protection Act.", "37. The Military Counter-Intelligence Office may, under section 4 of the Military Counter-Intelligence Office Act, collect the information required for its tasks, except for the assessment of the security situation of the offices and facilities under the administration of the Ministry of Defence, of allied forces or of international military headquarters.", "38. Under section 2(1) of the Federal Intelligence Service Act, the Federal Intelligence Service may request information stored pursuant to section 111 of the Telecommunications Act, in so far as necessary and not prohibited by the Federal Data Protection Act:", "– for the protection of its personnel, facilities and sources against security-endangering activities and secret-service activities;", "– for vetting future or current personnel;", "– for the verification of incoming information, necessary for the performance of its tasks.", "D. Legal basis for manual information requests under section 113 of the Telecommunications Act", "39. Owing to criticism by the Federal Constitutional Court of section 113(1) of the Telecommunications Act (see paragraphs 12 and 20-21 above) several new provisions regulating retrieval of data by authorities under the manual procedure under section 113 were introduced in June 2013, after this application had been lodged.", "40. Information requests by the public prosecutor’s office and the police were subsequently regulated in Article 100j of the Code of Criminal Procedure, which in so far as relevant, reads:", "“1. In so far as necessary to establish the facts or to determine the whereabouts of an accused person, information on data collected pursuant to sections 95 and 111 of the Telecommunications Act may be requested from any person providing or collaborating in the provision of telecommunications services on a commercial basis (section 113(1), sentence 1, of the Telecommunications Act).", "...", "5. On the basis of a request for information under subsection (1) or (2), any person providing or collaborating in the provision of telecommunications services on a commercial basis shall transmit without delay the data required for the provision of the information. ...”", "Similar provisions were created for the Federal Police, the Federal Office of Criminal Investigation and the Customs Investigation Service.", "41. The Federal Office for the Protection of the Constitution is permitted to request the data collected pursuant to section 111 of the Telecommunications Act from service providers under section 8d of the Federal Act on the Protection of the Constitution ( Bundesverfassungsschutzgesetz ), which reads in so far as relevant:", "“In so far as necessary for the performance of its tasks the Federal Office for the Protection of the Constitution may request from any person providing or collaborating in the provision of telecommunications services on a commercial basis information on data collected pursuant to sections 95 and 111 of the Telecommunications Act (section 113(1), sentence 1, of the Telecommunications Act). ...”", "Similar provisions were introduced for the offices for the protection of the Constitution of the Länder. Moreover, the legal basis for manual information requests by the Military Counter-Intelligence Office and the Federal Intelligence Service refer to section 8d of the Federal Act on the Protection of the Constitution.", "E. Judicial review of investigative measures", "42. Under Article 98 § 2 of the Code of Criminal Procedure, a person affected by the seizure of an object in the absence of court involvement may apply for a court decision at any time.", "43. In accordance with the well-established case-law of the Federal Court of Justice (see, for example, case no. 5 ARs (VS) 1/97, 5 August 1998), an analogous application of Article 98 § 2 of the Code of Criminal Procedure offers the possibility of judicial review of any completed investigative measure by a public prosecutor if the measure constituted a serious interference with the person’s fundamental rights.", "F. Data protection law", "44. The relevant parts of the Federal Data Protection Act ( Bundesdatenschutzgesetz ), as in force until 24 May 2018, read as follows:", "Section 1 – Purpose and scope", "“(1) The purpose of this Act is to protect individuals against infringements of their right to privacy as the result of the handling of their personal data.", "(2) This Act shall apply to the collection, processing and use of personal data by", "1. public bodies of the Federation,", "2. public bodies of the Länder, where data protection is not covered by Land legislation and where the Länder", "(a) execute federal law, or", "(b) act as judicial bodies and administrative matters are not involved,", "...", "(3) Where other federal laws apply to personal data and their publication, they shall take precedence over the provisions of this Act. The obligation to abide by legal obligations of secrecy or professional or special official secrecy not based on law shall remain unaffected.”", "Section 2 – Public and private bodies", "“(1) ’Public bodies of the Federation’ shall mean the authorities, judicial bodies and other public-law institutions of the Federation, of the direct federal corporations, institutions and foundations under public law, as well as their associations irrespective of their legal forms. ...”", "Section 3a – Data reduction and data economy", "“Personal data shall be collected, processed and used, and data-processing systems shall be chosen and organised in accordance with the aim of collecting, processing and using as little personal data as possible. In particular, personal data shall be rendered anonymous or aliased as allowed by the purpose for which they are collected and/or further processed, and in so far as the effort required is not disproportionate to the desired purpose of protection.”", "Section 4 – Lawfulness of data collection, processing and use", "“(1) The collection, processing and use of personal data shall be lawful only if permitted or ordered by this Act or other law, or if the data subject has given consent.", "(2) Personal data shall be collected from the data subject. They may be collected without the data subject’s participation only if", "1. allowed or required by law, or", "2. (a) the data must be collected from other persons or bodies on account of the nature of the administrative task to be performed or the commercial purpose, or", "(b) collecting the data from the data subject would require disproportionate effort and there are no indications that overriding legitimate interests of the data subject would be adversely affected.”", "Section 13 – Data collection", "“(1) Collecting personal data shall be lawful when knowledge of such data is necessary for the controller to perform its tasks.", "(1a) If personal data are collected from a private body rather than from the data subject, this body shall be informed of the legal provision requiring the supply of information or that such supply is voluntary.”", "Section 19 – Access to data", "“(1) Upon request, data subjects shall be given information on", "1. recorded data relating to them, including information relating to the source of the data,", "2. the recipients or categories of recipients to which the data are transferred, and", "3. the purpose of recording the data.", "The request should specify the type of personal data on which information is to be given. If the personal data are recorded neither in automated format nor in non-automated filing systems, this information shall be provided only if the data subject provides information enabling the data to be located and if the effort required is not disproportionate to the data subject’s interest in the information. The controller shall exercise due discretion in determining the procedure for providing such information and in particular the form in which it is provided.", "(2) Subsection 1 shall not apply to personal data recorded only because they may not be erased owing to legal, statutory or contractual provisions on retention, or only for purposes of monitoring data protection or safeguarding data, where provision of the information would require a disproportionate effort.", "(3) If the provision of information relates to the transfer of personal data to authorities for the protection of the constitution, to the Federal Intelligence Service, the Military Counterintelligence Service and, as far as the security of the Federation is concerned, other agencies of the Federal Ministry of Defence, such provision shall be lawful only with the consent of these bodies.", "(4) Information shall not be provided if", "1. the information would endanger the orderly performance of tasks for which the controller is responsible,", "2. the information would threaten public security or order or otherwise be detrimental to the Federation or a Land, or", "3. the data or the fact of their recording, in particular on account of the overriding legitimate interests of a third party, must be kept secret by law or because of the nature of the data, and therefore the data subject’s interest in obtaining information shall not take precedence.", "(5) It is not necessary to provide reasons for refusing to provide information if stating the actual and legal grounds for refusal would threaten the purpose of refusing to provide the information. In this case, data subjects shall be informed of the possibility of contacting the Federal Commissioner for Data Protection and Freedom of Information.", "(6) If no information is provided to the data subject, at the data subject’s request this information shall be supplied to the Federal Commissioner for Data Protection and Freedom of Information unless the relevant supreme federal authority finds in the individual case that doing so would endanger the security of the Federation or a Land. The information provided by the Federal Commissioner to the data subject may not provide any indication of the knowledge available to the controller without its consent.", "(7) Information shall be provided free of charge.”", "Section 19a – Notification", "“(1) If data are collected without the data subject’s knowledge, he or she shall be notified of such recording, the identity of the controller and the purposes of collection, processing or use. The data subject shall also be notified of recipients or categories of recipients except where he or she must expect transfer to such recipients. If a transfer is planned, notification shall be provided no later than the first transfer.", "(2) Notification shall not be required if", "1. the data subject already has this information,", "2. notifying the data subject would involve a disproportionate effort, or", "3. recording or transferring of personal data is expressly laid down by law.", "The controller shall specify in writing the conditions under which notification shall not be provided in accordance with nos. 2 or 3.", "(3) Section 19(2) to (4) shall apply accordingly.”", "Section 21 – Appeals to the Federal Commissioner for Data Protection and Freedom of Information", "“Anyone who believes that his or her rights have been infringed through the collection, processing or use of his or her personal data by public bodies of the Federation may appeal to the Federal Commissioner for Data Protection and Freedom of Information. This shall apply to the collection, processing or use of personal data by federal courts only where they are active in administrative matters.”", "Section 24 – Monitoring by the Federal Commissioner for Data Protection and Freedom of Information", "“(1) The Federal Commissioner for Data Protection and Freedom of Information shall monitor compliance by the public bodies of the Federation with the provisions of this Act and other data protection provisions.", "(2) Monitoring by the Federal Commissioner shall also extend to", "1. personal data obtained by public bodies of the Federation concerning the contents of and specific circumstances relating to postal communications and telecommunications, and", "2. personal data subject to professional or special official secrecy, especially tax secrecy under Article 30 of the German Fiscal Code. ...”", "45. Similar provisions existed in Länder. In addition the Länder have their own data protection commissioner monitoring the compliance of Länder authorities with the respective data protection acts.", "III. EUROPEAN UNION LAW AND PRACTICE", "A. Charter of Fundamental Rights of the European Union", "46. Articles 7 and 8 of the Charter provide as follows:", "Article 7 – Respect for private and family life", "“Everyone has the right to respect for his or her private and family life, home and communications.”", "Article 8 – Protection of personal data", "“1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified.", "3. Compliance with these rules shall be subject to control by an independent authority.”", "B. EU secondary legislation relating to data protection", "47. The relevant recitals of the Privacy and Electronic Communications Directive (Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector) state as follows:", "“(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter.", "...", "(11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.”", "48. The Directive further provides, in so far as relevant:", "Article 1 – Scope and aim", "“1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.", "2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.", "3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.”", "Article 15 – Application of certain provisions of Directive 95/46/EC", "“1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.”", "49. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. It provided, in so far as relevant:", "Article 1 – Subject matter and scope", "“1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.", "2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.”", "Article 3 § 1 – Obligation to retain data", "“By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.”", "50. In essence, the Directive established an obligation for providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods of from six months to two years. It aimed at ensuring that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. The retention obligation entailed, inter alia, data necessary to trace and identify the source and destination of a communication, meaning the telephone number and the name and address of the subscriber or registered user (Article 5 § 1 (a) and (b)).", "C. Relevant case-law of the Court of Justice of the European Union", "51. In a judgment adopted on 8 April 2014 in Digital Rights Ireland and Seitlinger and Others (joined cases C-293/12 and C-594/12, EU:C:2014:238) the Court of Justice of the European Union (CJEU) declared the Data Retention Directive invalid (see paragraphs 49-50 above).", "52. The CJEU further developed its Digital Rights case-law in Tele2 Sverige and Tom Watson and Others (judgment of 21 December 2016, joined cases C-203/15 and C-698/15, EU:C:2016:970). The court stated, inter alia (references to further CJEU judgments have been omitted in the quote below):", "“103. ... while the effectiveness of the fight against serious crime, in particular organised crime and terrorism, may depend to a great extent on the use of modern investigation techniques, such an objective of general interest, however fundamental it may be, cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight.", "104. In that regard, it must be observed, first, that the effect of such legislation, in the light of its characteristic features as described in paragraph 97 of the present judgment, is that the retention of traffic and location data is the rule, whereas the system put in place by Directive 2002/58 requires the retention of data to be the exception.", "105. Second, national legislation such as that at issue in the main proceedings, which covers, in a generalised manner, all subscribers and registered users and all means of electronic communication as well as all traffic data, provides for no differentiation, limitation or exception according to the objective pursued. It is comprehensive in that it affects all persons using electronic communication services, even though those persons are not, even indirectly, in a situation that is liable to give rise to criminal proceedings. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious criminal offences. Further, it does not provide for any exception, and consequently it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy.", "106. Such legislation does not require there to be any relationship between the data which must be retained and a threat to public security. In particular, it is not restricted to retention in relation to (i) data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved, in one way or another, in a serious crime, or (ii) persons who could, for other reasons, contribute, through their data being retained, to fighting crime.", "107. National legislation such as that at issue in the main proceedings therefore exceeds the limits of what is strictly necessary and cannot be considered to be justified, within a democratic society, as required by Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter.", "108. However, Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not prevent a Member State from adopting legislation permitting, as a preventive measure, the targeted retention of traffic and location data, for the purpose of fighting serious crime, provided that the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary.", "109. In order to satisfy the requirements set out in the preceding paragraph of the present judgment, that national legislation must, first, lay down clear and precise rules governing the scope and application of such a data retention measure and imposing minimum safeguards, so that the persons whose data has been retained have sufficient guarantees of the effective protection of their personal data against the risk of misuse. That legislation must, in particular, indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted, thereby ensuring that such a measure is limited to what is strictly necessary.", "110. Second, as regards the substantive conditions which must be satisfied by national legislation that authorises, in the context of fighting crime, the retention, as a preventive measure, of traffic and location data, if it is to be ensured that data retention is limited to what is strictly necessary, it must be observed that, while those conditions may vary according to the nature of the measures taken for the purposes of prevention, investigation, detection and prosecution of serious crime, the retention of data must continue nonetheless to meet objective criteria, that establish a connection between the data to be retained and the objective pursued. In particular, such conditions must be shown to be such as actually to circumscribe, in practice, the extent of that measure and, thus, the public affected.", "111. As regard the setting of limits on such a measure with respect to the public and the situations that may potentially be affected, the national legislation must be based on objective evidence which makes it possible to identify a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offences, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security.”", "53. Subsequent to the latter judgment, national courts in several EU member States have sought preliminary rulings from the CJEU seeking to clarify the scope and effects of the Tele2 Sverige judgment. Two of those cases are still pending (see Privacy International, C-623/17, and Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX, C ‑ 520/18).", "54. In a third case, Ministerio Fiscal (judgment of 2 October 2018, C ‑ 207/16, EU:C:2018:788), the CJEU was asked whether Article 15 § 1 of the Data Retention Directive, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights, must be interpreted as meaning that public authorities’ access to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners of the SIM cards, entails interference with their fundamental rights, enshrined in those Articles of the Charter, which is sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime and, if so, by reference to which criteria the seriousness of the offence at issue must be assessed.", "55. In its judgment of 2 October 2018, the CJEU held as follows (references to further CJEU judgments have been omitted in the quote below):", "“51. As to the existence of an interference with those fundamental rights, it should be borne in mind ... that the access of public authorities to such data constitutes an interference with the fundamental right to respect for private life, enshrined in Article 7 of the Charter, even in the absence of circumstances which would allow that interference to be defined as ‘serious’, without it being relevant that the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way. Such access also constitutes interference with the fundamental right to the protection of personal data guaranteed in Article 8 of the Charter, as it constitutes processing of personal data.", "...", "56. In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’.", "57. By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally.", "58. It should therefore, first of all, be determined whether, in the present case, in the light of the facts of the case, the interference with fundamental rights enshrined in Articles 7 and 8 of the Charter that police access to the data in question in the main proceedings would entail must be regarded as ‘serious’.", "59. In that regard, the sole purpose of the request at issue in the main proceedings, by which the police seeks, for the purposes of a criminal investigation, a court authorisation to access personal data retained by providers of electronic communications services, is to identify the owners of SIM cards activated over a period of 12 days with the IMEI code of the stolen mobile telephone. ... that request seeks access to only the telephone numbers corresponding to those SIM cards and to the data relating to the identity of the owners of those cards, such as their surnames, forenames and, if need be, addresses. By contrast, those data do not concern ... the communications carried out with the stolen mobile telephone or its location.", "60. It is therefore apparent that the data concerned by the request for access at issue in the main proceedings only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.", "61. In those circumstances, access to only the data referred to in the request at issue in the main proceedings cannot be defined as ‘serious’ interference with the fundamental rights of the persons whose data is concerned.”", "IV. INTERNATIONAL LAW AND PRACTICE", "56. The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, recommended in his Report to the Human Rights Council on the use of encryption and anonymity to exercise the rights to freedom of opinion and expression in the digital age (A/HRC/29/32, 22 May 2015, § 60):", "“States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile-telephone users.”", "57. The Council of Europe Convention of 1981 for the Protection of Individuals with Regard to Automatic Processing of Personal Data (“the Data Protection Convention”), which was ratified by all Council of Europe member States and came into force in respect of Germany on 1 October 1985, formulates a number of core principles for the collection and processing of personal data. The purpose of the Convention is, according to Article 1, to secure respect for every individual’s rights and fundamental freedoms, and in particular his or her right to privacy, with regard to the automatic processing of personal data relating to him or her. The Convention includes the following basic principles:", "Article 2 – Definitions", "“For the purposes of this Convention:", "a ’personal data’ means any information relating to an identified or identifiable individual (‘data subject’);", "b ’automated data file’ means any set of data undergoing automatic processing;", "c ’automatic processing’ includes the following operations if carried out in whole or in part by automated means: storage of data, carrying out of logical and/or arithmetical operations on those data, their alteration, erasure, retrieval or dissemination;", "...”", "Article 5 – Quality of data", "“Personal data undergoing automatic processing shall be:", "a obtained and processed fairly and lawfully;", "b stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c adequate, relevant and not excessive in relation to the purposes for which they are stored;", "d accurate and, where necessary, kept up to date;", "e preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”", "Article 7 – Data security", "“Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”", "Article 8 – Additional safeguards for the data subject", "“Any person shall be enabled:", "a to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention;", "d to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with.”", "Article 9 – Exceptions and restrictions", "“No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article.", "Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b protecting the data subject or the rights and freedoms of others.", "Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.”", "The Data Protection Convention is currently being updated to, inter alia, better address challenges resulting from the use of new information and communication technologies. A Protocol amending the Data Protection Convention was opened for signature by the Contracting States to that Convention on 10 October 2018 and was signed by Germany on the same day.", "V. COMPARATIVE LAW", "58. From a comparative-law report on thirty-four Council of Europe member States’ practices as to the retention of subscriber information of prepaid SIM card customers, it appears that fifteen States require telecommunications providers to store such data and that none of the States surveyed currently permits its authorities to maintain their own database of personal data of telecommunications subscribers. Moreover, there is variation as regards the length of time such data may be stored, the purposes for which they may be used, and the procedural requirements that must be met in order to access them. In particular, a majority of the States prescribe in law a list of specific authorities who are permitted to access subscriber information and limit the acceptable purposes to the investigation of crimes or for the prevention of threats to public order. Furthermore, in most States, procedural requirements for accessing stored subscriber information include an order by a court or a public prosecutor, typically if the subscriber data are to be used mainly for criminal investigative purposes. Lastly, only a minority of States require that customers be notified where their personal data have been accessed.", "THE LAW", "ALLEGED VIOLATION OF ARTICLES 8 AND 10 OF THE CONVENTION", "59. The applicants complained that, as users of prepaid mobile phone SIM cards, certain personal data had been stored by their respective telecommunications service providers owing to the legal obligation provided in section 111 of the Telecommunications Act. They relied on their right to respect for private life and correspondence as provided in Article 8 of the Convention and their freedom of expression as provided in Article 10 of the Convention which read, in so far as relevant to the present case, as follows:", "Article 8", "“1. Everyone has the right to respect for his private ... life ... and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or ..., for the prevention of disorder or crime ...”", "Article 10", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security ... or public safety, for the prevention of disorder or crime ...”", "A. Scope of the application and the Court’s assessment", "1. The Convention rights to be assessed", "60. At the outset the Court notes that the applicants relied on Article 8 (right to respect for private life and correspondence) and Article 10 (right to anonymous communication as an aspect of freedom of expression). However, it also observes that before the Court the applicants merely challenged the compatibility of section 111 of the Telecommunications Act with the Convention. They did not explicitly complain about sections 112 or 113 of that Act, which had also been the subject of their complaint before the Federal Constitutional Court, or about any further measures concerning surveillance or interception of telephone communications. This does not mean, however, that those other provisions of the Telecommunications Act will not prove relevant when assessing the proportionality of the interference complained of and how it operates in practice (see paragraphs 97 ‑ 101 below).", "61. Section 111 of the Telecommunications Act only concerns the storage of subscriber data, namely the telephone number, name and address, date of birth, and date of the contract. This provision does not extend to traffic data, location data or data which reveal the content of communications. Moreover, the applicants have not alleged that their communications have been intercepted or that their telecommunications have been subjected to any other surveillance measure. The interference complained of relates to the storage of the data set described above and the potential for national authorities to access that data set in certain defined circumstances. Therefore, while the Court is mindful of the circumstances of the data storage at issue and its proximity to telephone communications and the right to correspondence, it considers that the key aspect of the applicants’ complaint is the storage of their personal data and not any particular interference with their correspondence or with their freedom of expression.", "62. The Court is therefore not called upon in the present case to decide whether and to what extent Article 10 of the Convention may be considered to guarantee a right for users of telecommunications services to anonymity (see, regarding the interest of Internet users in not disclosing their identity, Delfi AS v. Estonia [GC], no. 64569/09, § 147, 16 June 2015) and how this right would have to be balanced against other imperatives (see, mutatis mutandis, K.U. v. Finland, no. 2872/02, § 49, 2 December 2008).", "63. In sum, the Court finds it appropriate to examine the applicants’ complaints solely under the right to respect for private life as provided in Article 8 of the Convention.", "2. Temporal scope of the assessment", "64. The Court notes that the applicants’ subscriber data have been temporarily stored by the telecommunications provider since the registration of their SIM cards. It also notes that section 111 of the Telecommunications Act was amended in 2007 and 2016. It observes, however, that in its judgment of 24 January 2012, the Federal Constitutional Court examined the Telecommunications Act as in force on 1 January 2008 and that proceedings concerning the subsequent amendment to the Telecommunications Act of 2016 are still pending before the Federal Constitutional Court (see paragraphs 11 and 28 above). The Court will therefore examine the relevant provisions as in force on 1 January 2008.", "B. Admissibility", "65. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. The parties’ submissions", "(a) The applicants", "66. The applicants argued that the obligation to store their personal data under section 111 of the Telecommunications Act interfered with their right to privacy, as it had forced them to disclose their personal data, which had subsequently been stored. This interference was not justified, in particular since it was disproportionate and not necessary in a democratic society. Firstly, the provision was not a suitable instrument, as the identification process could easily be circumvented by submitting false names or using stolen, second-hand or foreign SIM cards. It was also not necessary as the identification of mobile-telephone users suspected of a criminal offence could easily be accomplished by other investigatory measures. Consequently, the amendment of section 111 of the Telecommunications Act had not led to a reduction in crime.", "67. According to the applicants, the interference was very serious as it constituted mass pre ‑ emptive storage of personal data of everyone who used telecommunications. The provision did not include any prerequisites for storage, but was generally applicable to all mobile-telephone users. The vast majority of affected people were innocent and did not present any danger or risk for public safety or national security. In that regard the applicants submitted that, according to the Federal Network Agency, the number of queried data sets under the automated procedure of section 112 of the Telecommunications Act had risen from 26.62 million in 2008 to 34.83 million in 2015. Moreover, the provision also did not differentiate between “normal” communication and communication that was particularly protected by the Convention, such as between a lawyer and his or her client or a doctor and his or her patient. Furthermore, data storage increased the risk of misuse and data leaks and thereby the risk of identity fraud.", "(b) The Government", "68. The Government conceded that section 111 of the Telecommunications Act had constituted an interference with the applicants’ right to private life. It had obliged their service providers to store their personal data. The Government emphasised that no so-called traffic data – meaning data originating in the course of a communication process – had been stored, only the subscriber information listed above (see paragraph 61 above). Moreover, section 111 had to be read in conjunction with sections 112 and 113 of the Telecommunications Act and the further limiting provisions regulating the access to the stored data, as the authorities retrieving subscriber data needed to have a statutory basis for doing so.", "69. This limited interference had pursued the legitimate aims of public safety, prevention of disorder or crime and the protection of the rights and freedoms of others and had been a suitable instrument to do so, as it had provided security agencies with the possibility to correlate mobile-telephone numbers of prepaid SIM cards to specific individuals. This possibility would contribute to effective law enforcement and serve to avert danger. The possibility of circumventing the provision had been further restricted by the amendment of 2016 (see paragraph 28 above).", "70. The provision at issue also complied with the requirements for protection of personal data as established by the Court in S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008). It limited the amount of data to that which was absolutely necessary for identification. The time-period for data storage was clearly defined and limited to a maximum term not exceeding the term necessitated by the purpose being pursued. Furthermore, sections 112 and 113 of the Telecommunications Act in conjunction with the specific provisions for retrieval constituted effective safeguards against abuse.", "71. It had also to be taken into account that the margin of appreciation afforded to member States was relatively broad, not only because the German authorities had to strike a balance between various competing rights and obligations protected by the Convention (they referred to Evans v. the United Kingdom [GC], no. 6339/05, § 77, 10 April 2007), but also because there was no European consensus as regards the obligation to store subscriber data when acquiring prepaid mobile telephone SIM cards. In sum, the storage of a very minimal set of data, protected by several procedural safeguards, was proportionate in the crucial interests of public safety and prevention of disorder and crime.", "(c) The third-party interveners", "72. The third-party interveners, Privacy International and ARTICLE 19, outlined the significance of anonymity and anonymous speech for a democratic society and citizens’ rights of privacy and freedom of expression. This fundamental role had increasingly been recognised by national courts and international organisations, such as the United Nations and the Council of Europe. In addition the Court itself had confirmed the importance of anonymity in Delfi AS v. Estonia (cited above, §§ 147-48). Moreover, they pointed to the fact that there had been a growing recognition by courts in Europe that blanket, indiscriminate retention of identifying information and traffic data had been disproportionate to the undoubtedly important fight against serious crime. This had also been confirmed by the CJEU in its judgment in Digital Rights Ireland and Seitlinger and Others (see paragraph 51 above).", "2. The Court’s assessment", "(a) General principles", "73. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Uzun v. Germany, no. 35623/05, § 43, 2 September 2010).", "74. In the context of personal data, the Court has pointed out that the term “private life” must not be interpreted restrictively. It has found that the broad interpretation corresponds with that of the Data Protection Convention, the purpose of which is “to secure in the territory of each Party for every individual ... respect for his rights und fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see Amann v. Switzerland [GC], no. 27798/95, § 65, 16 February 2000).", "75. It further follows from the Court’s well-established case-law that where there has been a compilation of data on a particular individual, the processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private-life considerations arise. Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 136-37, 27 June 2017, with further references).", "76. The Court notes that while it has already examined a wide range of interferences with the right to private life under Article 8 of the Convention as a result of the storage, processing and use of personal data – for example, the use of surveillance via GPS in criminal investigations (see Uzun, cited above, and Ben Faiza v. France, no. 31446/12, 8 February 2018), the disclosure of identifying information to law-enforcement authorities by telecommunication providers (see K.U. v. Finland, cited above, and Benedik v. Slovenia, no. 62357/14, 24 April 2018), the indefinite retention of fingerprints, cell samples and DNA profiles after criminal proceedings (see S. and Marper, cited above), the so-called metering or collection of usage or traffic data (see Malone v. the United Kingdom, 2 August 1984, Series A no. 82, and Copland v. the United Kingdom, no. 62617/00, 3 April 2007) or the inclusion of sex offenders in an automated national judicial database subsequent to a conviction for rape (see B.B. v. France, no. 5335/06, 17 December 2009; Gardel v. France, no. 16428/05, ECHR 2009; and M.B. v. France, no. 22115/06, 17 December 2009) – none of the previous cases have concerned the storage of a data set like that in the present case.", "77. An obligation, similar to that in section 111 of the Telecommunications Act, to create databases storing information (first name, patronymic and family name, home address and passport number for natural persons) about all subscribers and providing law-enforcement agencies remote access to the databases was admittedly part of the system of secret surveillance which the Court considered in the case of Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 132-33 and 269-70, ECHR 2015). However, given the further possibilities available to the Russian authorities to intercept telecommunications, the mere obligation to store subscriber information and provide remote access to this database was not decisive for the Court in finding a violation of Article 8 in that case.", "78. In its judgment in S. and Marper (cited above, § 103) the Court held as follows:", "“The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article .... The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored (see Article 5 of the Data Protection Convention ... [in paragraph 47 above]). The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (see notably Article 7 of the Data Protection Convention [in paragraph 47 above]) ....”", "79. The Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it (see Roman Zakharov, cited above, § 232; Liblik and Others v. Estonia, nos. 173/15 and 5 others, § 131, 28 May 2019; and Szabó and Vissy v. Hungary, no. 37138/14, § 57, 12 January 2016).", "80. The breadth of the margin of appreciation varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see S. and Marper, cited above, § 102).", "(b) Application of the above principles to the present case", "(i) Existence of an interference", "81. It is not contested by the parties that the obligation for service providers to store personal data in accordance with section 111 of the Telecommunications Act interfered with the applicants’ right to respect for their private life, since their personal data were stored. In this connection the Court reiterates that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 of the Convention (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). It furthermore takes note of the Federal Constitutional Court’s finding that the extent of protection of the right to informational self-determination under domestic law was not restricted to information which by its very nature was sensitive and that, in view of the possibilities of processing and combining, there is no item of personal data which is in itself – that is, regardless of the context of its use – insignificant (see paragraph 122 of the Federal Constitutional Court’s judgment cited in paragraph 14 above).", "(ii) Justification for the interference", "82. The Court reiterates that an interference with an applicant’s right to respect for his or her private life breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims (see M.N. and Others v. San Marino, no. 28005/12, § 71, 7 July 2015, with further references).", "(α) “In accordance with the law”", "83. According to the Court’s established case ‑ law, the requirement that an interference be “in accordance with the law” does not only mean that the measure in question should have some basis in domestic law, but also that the law should be accessible to the person concerned and foreseeable as to its effects. In the context of, inter alia, storage of personal information it is essential to have clear, detailed rules governing minimum safeguards concerning among other things duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction (see S. and Marper, cited above, § 99, with further references)", "84. The Court finds that the storage of the applicants’ personal data, when acquiring mobile telephone SIM cards, took place on the basis of section 111 of the Telecommunications Act, which was, in so far as the amount of stored data is concerned, sufficiently clear and foreseeable. In addition, the duration of the storage was clearly regulated and the technical side of the storage was, at least after the issuance of the respective regulation and technical directive, clearly laid out.", "85. In so far as safeguards, access of third parties and further use of the stored data are concerned, section 111 of the Telecommunications Act has to be read in conjunction with its sections 112 and 113 and, according to the “double door” analogy used by the Federal Constitutional Court (see paragraph 123 of the Federal Constitutional Court’s judgment cited in paragraph 14 above), in conjunction with the relevant legal basis for individual information requests. The Court considers, however, that the question of foreseeability and whether sufficient detail is contained in these provisions are in the present case closely related to the broader issues of whether the interference was necessary in a democratic society and proportionate. It will therefore assess them further when it comes to those issues (see paragraphs 88-110 below).", "(β) Legitimate aim", "86. Having regard to the context of the data storage at issue and in particular to the purposes of information requests and the authorities entitled to make them under sections 112 and 113 of the Telecommunications Act, the Court accepts the Government’s argument that the interference pursued the legitimate aims of public safety, prevention of disorder or crime and the protection of the rights and freedoms of others.", "87. In this connection the Court notes the Federal Constitutional Court’s explanation in its judgment that access to the information stored is for “the purpose of warding off dangers, prosecuting criminal offences or regulatory offences and performing intelligence duties” (see paragraph 176 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). These purposes are further emphasised in the Telecommunications Act, which states that information requests are permissible in so far as they are necessary to prosecute criminal and regulatory offences, to avert danger and to perform intelligence tasks (see paragraph 31 above).", "(γ) “Necessary in a democratic society”", "88. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and if it is proportionate to the legitimate aim pursued. The Court finds that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today’s European societies, upholding public safety and the protection of citizens constitute “pressing social needs” (compare, mutatis mutandis, Szabó and Vissy, cited above, § 68, and Ramda v. France, no. 78477/11, § 96, 19 December 2017). It also recognises that modern means of telecommunications and changes in communication behaviour require that investigative tools for law enforcement and national security agencies be adapted (see S. and Marper, cited above, § 105).", "89. The Court observes that the Government argued that the possibility of correlating mobile-telephone numbers of prepaid SIM cards to specific individuals was necessary for effective law enforcement and to avert danger. The applicants, however, contested the effectiveness of section 111 of the Telecommunications Act, since there was no empirical evidence that mandatory registration had led to a reduction in crime. Moreover, they argued that the identification process could easily be circumvented by submitting false names or using stolen, second-hand or foreign SIM cards.", "90. The Court acknowledges that pre-registration of mobile-telephone subscribers strongly simplifies and accelerates investigation by law ‑ enforcement agencies and can thereby contribute to effective law enforcement and prevention of disorder or crime. Moreover, it considers that the existence of possibilities of circumventing legal obligations cannot be a reason to call into question the overall utility and effectiveness of a legal provision. Lastly, the Court reiterates that in a national security context, national authorities enjoy a certain margin of appreciation when choosing the means for achieving a legitimate aim and notes that according to the comparative-law report, there is no consensus between the member States as regards the retention of subscriber information of prepaid SIM card customers (see paragraph 58 above). Having regard to that margin of appreciation, the Court accepts that the obligation to store subscriber information under section 111 of the Telecommunications Act was, in general, a suitable response to changes in communication behaviour and in the means of telecommunications.", "91. The question, however, remains whether the interference was proportionate and struck a fair balance between the competing public and private interests.", "92. At the outset the Court has to establish the level of interference with the applicants’ right to private life. In that regard the Court agrees with the Federal Constitutional Court (see paragraphs 138-39 of the Federal Constitutional Court’s judgment cited in paragraph 15 above) that only a limited data set was stored. These data did not include any highly personal information or allow the creation of personality profiles or the tracking of the movements of mobile-telephone subscribers. Moreover, no data concerning individual communication events were stored. The level of interference therefore has to be clearly distinguished from the Court’s previous cases that concerned, for example, “metering” (see Malone and Copland, both cited above), geolocation (see Uzun and Ben Faiza, both cited above), or the storage of health or other sensitive data (see, for example, S. and Marper, cited above, and M.M. v. the United Kingdom, no. 24029/07, 13 November 2012). Moreover, the case has to be distinguished from cases in which the registration in a particular database led to frequent checks or further collection of private information (see Dimitrov-Kazakov v. Bulgaria, no. 11379/03, 10 February 2011, and Shimovolos v. Russia, no. 30194/09, 21 June 2011).", "93. Lastly, in so far as the applicants argued that the interference was severe, because section 111 of the Telecommunications Act created a register of all users of mobile SIM cards, and in that sense was comparable to the data retention at issue in Digital Rights Ireland and Seitlinger and Others, as well as Tele2 Sverige and Tom Watson and Others (see paragraphs 51-52 above), the Court notes that the Directive at issue in those cases applied to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user.", "94. Indeed, the data at issue in the present case bear greater resemblance to those at issue in a different preliminary reference, Ministerio fiscal (see paragraph 54 above). As the CJEU stated in that case, the data in question “do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned”. The CJEU therefore concluded that the access to the data at issue could not be defined as a serious interference with the fundamental rights of the persons whose data were concerned (see paragraph 55 above).", "95. In sum, the Court concludes that the interference was, while not trivial, of a rather limited nature.", "96. As regards safeguards, the Court observes that the applicants have not alleged that the data storage at issue was subject to any technical insecurities. Moreover, the duration of the storage is limited to the expiry of the calendar year following the year in which the contractual relationship ended (section 111(4) of the Telecommunications Act – see paragraph 27 above). This duration of storage does not appear inappropriate, given that investigations into criminal offences may take some time and extend beyond the end of the contractual relationship. Moreover, the stored data appear to be limited to the information necessary to clearly identify the relevant subscriber.", "97. The Court further observes that even though the applicants have only complained about the storage of their personal information under section 111 of the Telecommunications Act, both parties accepted that the data storage had to be assessed in conjunction with sections 112 and 113 of that Act. The Government argued that these sections, in conjunction with other specific provisions for data retrieval, limited access to and use of the data and constituted effective safeguards against abuse. The applicants, however, submitted that each further investigative measure into a person’s conduct – connected to mobile communication – had been based on the information stored under section 111 of the Telecommunications Act and that therefore the possibilities of subsequent use of their personal data had to be taken into account when assessing the proportionality of the provision in relation to data storage. The Court agrees with the parties that, in the present case, it cannot consider the proportionality of the interference without closely assessing the future possible access to and use of the data stored. Therefore, it finds it of relevance to consider the legal basis for information requests and the safeguards available (see, mutatis mutandis, S. and Marper, cited above, §§ 67 and 103, with further references).", "98. Regarding section 112 of the Telecommunications Act, the Court agrees with the Federal Constitutional Court (see paragraph 156 of the Federal Constitutional Court’s judgment cited in paragraph 18 above) that this provision has very much simplified data retrieval for the authorities. The centralised and automated procedure permits a form of access which largely removes practical difficulties of data collection and makes the data available to the authorities at all times without delay. However, the fact that the authorities which can request access are specifically listed in section 112 of the Telecommunications Act constitutes a limiting factor. Even though the list appears broad, all authorities mentioned therein are concerned with law enforcement or the protection of national security.", "99. As regards section 113 of the Telecommunications Act, the Court first notes that the information retrieval is not simplified to the same extent as under section 112, since the authorities have to submit a written request for the information sought. A further difference between sections 112 and 113 of the Telecommunications Act is that the authorities entitled to request access pursuant to the latter provision are identified with reference to the tasks they perform but are not explicitly enumerated. While the Court considers this description by task less specific and more open to interpretation, the wording of the provision is nonetheless detailed enough to clearly foresee which authorities are empowered to request information. In that regard the Court also notes that the Federal Constitutional Court concluded that the limited tasks of the intelligence services justified their wide-ranging legal powers to request information on a pre-emptive basis (see paragraph 177 of the Federal Constitutional Court’s judgment cited in paragraph 21 above).", "100. Concerning both provisions, the Court observes that the stored data are further protected against excessive or improper information requests by the fact that the requesting authority requires an additional legal basis to retrieve the data. As explained by the Federal Constitutional Court through its “double door” analogy (see paragraph 123 of the Federal Constitutional Court’s judgment cited in paragraph 14 above), sections 112 and 113 of the Telecommunications Act only allow the Federal Network Agency or the respective service provider to release the data. However, a further legal provision is required to allow the specified authorities to request the information. Moreover, the retrieval is limited to necessary data and this necessity requirement is safeguarded by a general obligation for the respective authorities retrieving the information to erase, without undue delay, any data they do not need. The Federal Constitutional Court pointed out that the requirement of “necessity” meant in the context of the prosecution of offences that there had to be at least an initial suspicion (see paragraph 177 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). The Court accepts that there are sufficient limitations on the power to request information and that the requirement of “necessity” is not only inherent in the specific legal provisions that are the subject of this complaint but also to German and European data protection law.", "101. In view of these elements, the Court can accept the Federal Constitutional Court’s conclusion that the thresholds provided in section 113 of the Telecommunications Act were still acceptable in the light of constitutional law, taking into account also that the obligation to submit a written request for information was likely to encourage the authority to obtain the information only where it was sufficiently needed (see paragraph 178 of the Federal Constitutional Court’s judgment cited in paragraph 21 above). In this connection the Court also notes that, in practice, manual retrievals did indeed seem to have been made in a limited number of cases compared to the automated requests under section 112 of the Telecommunications Act (see paragraph 13 above).", "102. Lastly, the Court will consider the available possibilities of review and supervision of information requests under sections 112 and 113 of the Telecommunications Act. In Klass and Others v. Germany (6 September 1978, § 55, Series A no. 28) the Court held that a review of interferences with the right to respect for private life under Article 8 of the Convention – in that case interferences which took the form of secret surveillance measures – might come into play at three different stages: when the interference was first ordered, while it was being carried out, or after it had been terminated. In cases where the review was effected without the individual’s knowledge during the first two stages, it was essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual’s rights. On a more general note the Court stated (ibid.):", "“... the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention ... The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.”", "103. It subsequently relied on these principles, in particular the possibility of effective control and review, concerning different interferences with the right to respect for private life under Article 8 of the Convention (see, for example: storing of sensitive personal data in security files, Rotaru v. Romania [GC], no. 28341/95, § 59, ECHR 2000 ‑ V; seizure of bank documents, M.N. and Others, cited above, §§ 73 and 78; decision to override lawyer’s privilege against disclosure of her bank statements in criminal proceedings, Brito Ferrinho Bexiga Villa-Nova v. Portugal, no. 69436/10, § 55, 1 December 2015; telephone tapping, Lambert v. France, 24 August 1998, § 31, Reports of Judgments and Decisions 1998 ‑ V; a system of secret surveillance of mobile-phone communications, Roman Zakharov, cited above, § 233; and strategic monitoring of communication, Weber and Saravia v. Germany (dec.), no. 54934/00, § 117, ECHR 2006-XI). The Court observes, however, that all these cases concerned individualised and more serious and intrusive interferences with the right to respect for private life that cannot be compared to the question of access to data in the present case. In sum, it considers that the level of review and supervision has to be considered an important, but not decisive, element in the proportionality assessment of the collection and storage of such a limited data set.", "104. Turning to the facts of the present case, the Court notes that in principle, subsection 2 of section 113 of the Telecommunications Act clarifies that the responsibility for the legality of the information request lies with the retrieving agency and that the telecommunications providers have no competence to review the admissibility of any request, as long as the information is requested in written form and a legal basis is referred to. Under section 112 of the Telecommunications Act, however, the Federal Network Agency is competent to examine the admissibility of the transmission when there is a special reason to do so.", "105. In addition, each retrieval and the relevant information regarding the retrieval (time, data used in the process, the data retrieved, information clearly identifying the person retrieving the data, requesting authority, its reference number, information clearly identifying the person requesting the data) are recorded for the purpose of data protection supervision. This supervision is conducted by the independent Federal and Länder data protection authorities. The latter are not only competent to monitor compliance with data protection regulations of all authorities involved but they can also be appealed to by anyone who believes that his or her rights have been infringed through the collection, processing or use of his or her personal data by public bodies.", "106. Lastly, the Court notes that the Federal Constitutional Court held that legal redress against information retrieval could be sought under general rules (see paragraph 186 of the Federal Constitutional Court’s judgment cited in paragraph 22 above) – in particular, together with legal redress proceedings against the final decisions of the authorities.", "107. The Court considers that the possibility of supervision by the competent data protection authorities ensures the availability of a review by an independent authority. Moreover, since anyone who believes that his or her rights have been infringed can lodge an appeal, the lack of notification and confidentiality of the retrieval procedure does not raise an issue under the Convention.", "108. Lastly, the Court acknowledges that – as there is no consensus among the member States concerning collection and storage of limited subscriber information (see paragraph 58 above) – member States have a certain margin of appreciation in choosing the means for achieving the legitimate aims of protecting national security and fighting crime, which Germany did not overstep in the present case.", "109. Having regard to the above, the Court concludes that the storage of the applicants’ personal data by their respective service providers pursuant to section 111 of the Telecommunications Act (in its version examined by the Federal Constitutional Court – see paragraph 64 above) was proportionate and therefore “necessary in a democratic society”.", "110. There has accordingly been no violation of Article 8 of the Convention." ]

[ "10. The applicant, Centrum för rättvisa, is a foundation established in 2002. It has its headquarters in Stockholm.", "11. The applicant represents clients in proceedings concerning rights and freedoms under the Convention or related proceedings under Swedish law. It is also involved in education and research projects and participates in the general public debate on issues concerning individuals’ rights and freedoms.", "12. The applicant communicates on a daily basis with individuals, organisations and companies in Sweden and abroad by email, telephone and fax. It asserts that a large part of that communication is particularly sensitive from a privacy perspective. Due to the nature of its function as a non-governmental organisation scrutinising the activities of State actors, it believes that there is a risk that its communications have been or will be intercepted and examined by way of signals intelligence.", "13. The applicant has not brought any domestic proceedings, contending that there is no effective remedy for its Convention complaints." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAW AND PRACTICEGenerally on signals intelligence", "Generally on signals intelligence", "Generally on signals intelligence", "14. Signals intelligence can be defined as intercepting, processing, analysing and reporting intelligence from electronic signals. These signals may be processed to text, images and sound. The intelligence collected through these procedures may concern both the content of a communication and its related communications data (the data describing, for instance, how, when and between which addresses the electronic communication is conducted). The intelligence may be intercepted over the airways – usually from radio links and satellites – and from cables. Whether a signal is transmitted over the airways or through cables is controlled by the communications service providers, that is, the telecom, internet, cable and other such companies which provide various forms of electronic transfer of information. A great majority of the traffic relevant for signals intelligence is cable-based. The term “communications bearers” (or “signal carriers”) refers to the medium used for transmitting one or more signals. Unless indicated below, the regulation of Swedish signals intelligence does not distinguish between the content of communications and their communications data or between airborne and cable-based traffic.", "15. Foreign intelligence is, according to the Foreign Intelligence Act ( Lagen om försvarsunderrättelseverksamhet; 2000:130), conducted in support of Swedish foreign, defence and security policy, and in order to identify external threats to the country. The activities should also assist in Sweden’s participation in international security cooperation. Intelligence under the Act may only be conducted in relation to foreign circumstances (section 1(1)). This does not preclude that some of the foreign circumstances may have ramifications in Sweden, for example, when following the espionage operations of a foreign power targeting Sweden (preparatory works to amended legislation on foreign intelligence, prop. 2006/07:63, p. 43).", "16. The Government determines the direction of the activities; it also decides which authorities may issue more detailed directives and which authority is to conduct the intelligence activities (section 1(2) and 1(3)). The Government issues general tasking directives annually. Foreign intelligence may not be conducted for the purpose of solving tasks in the area of law enforcement or crime prevention, which come under the mandate of the Police Authority, the Security Police and other authorities and which are regulated by different legislation. However, authorities that conduct foreign intelligence may support authorities dealing with law enforcement or crime prevention (section 4). Examples of such support are cryptanalysis and technical help on information security (preparatory works to amended legislation on foreign intelligence, prop. 2006/07:63, p. 136).", "17. The collection of electronic signals is one form of foreign intelligence. It is regulated by the Signals Intelligence Act ( Lagen om signalspaning i försvarsunderrättelseverksamhet; 2008:717), which entered into force on 1 January 2009. Several amendments were made to the Act on 1 December 2009, 1 January 2013, 1 January 2015 and 15 July 2016. Supplementary provisions are found in the Signals Intelligence Ordinance ( Förordningen om signalspaning i försvarsunderrättelseverksamhet; 2008:923). The legislation authorises the National Defence Radio Establishment ( Försvarets radioanstalt; henceforth “the FRA”) to conduct signals intelligence (section 2 of the Ordinance compared to section 1 of the Act).", "18. During signals intelligence all cable-based cross-border communications are transferred to certain points of collection. No information is stored at these points and a limited amount of data traffic is transferred to the FRA by communications bearers (parliamentary committee report SOU 2016:45, p. 107).", "19. The FRA may conduct signals intelligence within the area of foreign intelligence only as a result of a detailed tasking directive issued by the Government, the Government Offices, the Armed Forces or, as from January 2013, the Security Police and the National Operative Department of the Police Authority ( Nationella operativa avdelningen i Polismyndigheten; hereafter “NOA”) (sections 1(1) and 4(1) of the Act) in accordance with the issuer’s precise intelligence requirements. However, the direction of the FRA’s “development activities” may be determined solely by the Government (section 4(2)). A detailed tasking directive determines the direction of the intelligence activities and may concern a certain phenomenon or situation, but it may not solely target a specific natural person (section 4(3)).", "20. The mandate of the Security Police and the NOA to issue detailed tasking directives aims to improve these authorities’ ability to obtain data about foreign circumstances at a strategic level concerning international terrorism and other serious international crime that may threaten essential national interests. At the time of introduction of the new rules, the Government stated in the preparatory works (prop. 2011/12:179, p. 19) that the mandate is in accordance with the prohibition on conducting signals intelligence for the purpose of solving tasks in the area of law enforcement or crime prevention.", "21. According to the Foreign Intelligence Ordinance ( Förordningen om försvarsunderrättelseverksamhet; 2000:131), a detailed tasking directive shall include information about (i) the issuing authority, (ii) the part of the Government’s annual tasking directive it concerns, (iii) the phenomenon or situation intended to be covered, and (iv) the need for intelligence on that phenomenon or situation (section 2a).", "B. Scope of application of signals intelligence", "22. The purposes for which electronic signals may be collected as part of foreign intelligence are specified in the Signals Intelligence Act (section 1 (2)) which provides that signals intelligence may be conducted only to survey:", "1. external military threats to the country;", "2. conditions for Swedish participation in international peacekeeping or humanitarian missions or threats to the safety of Swedish interests in the performance of such operations;", "3. strategic circumstances concerning international terrorism or other serious cross-border crime that may threaten essential national interests;", "4. the development and proliferation of weapons of mass destruction, military equipment and other similar specified products;", "5. serious external threats to society’s infrastructure;", "6. foreign conflicts with consequences for international security;", "7. foreign intelligence operations against Swedish interests; and", "8. the actions or intentions of a foreign power that are of substantial importance for Swedish foreign, security or defence policy.", "23. These eight purposes are further elaborated upon in the preparatory works to the legislation (prop. 2008/09:201, pp. 108-109):", "“The purposes for which permits to conduct signals intelligence may be granted are listed in eight points. The first point concerns external military threats to the country. Military threats include not only imminent threats, such as threats of invasion, but also phenomena that may in the long term develop into security threats. Consequently, the wording covers the surveying of military capabilities and capacities in our vicinity.", "The second point comprises both surveying necessary to provide an adequate basis for a decision whether to participate in international peacekeeping or humanitarian missions and surveying performed during ongoing missions concerning threats to Swedish personnel or other Swedish interests.", "The third point refers to strategic surveying of international terrorism or other serious cross-border crime, such as drug or human trafficking of such severity that it may threaten significant national interests. The task of signals intelligence in relation to such activities is to survey them from a foreign and security policy perspective; the intelligence needed to combat the criminal activity operatively is primarily the responsibility of the police.", "The fourth point addresses the need to use signals intelligence to follow, among other things, activities relevant to Sweden’s commitments in regard to non-proliferation and export control, even in cases where the activity does not constitute a crime or contravenes international conventions.", "The fifth point includes, among other things, serious IT-related threats emanating from abroad. That the threats should be of a serious nature means that they, for example, should be directed towards vital societal systems for energy and water supply, communication or monetary services.", "The sixth point refers to the surveying of such conflicts between and in other countries that may have consequences for international security. It may concern regular acts of war between States but also internal or cross-border conflicts between different ethnic, religious or political groups. The surveying of the conflicts includes examining their causes and consequences.", "The seventh point signifies that intelligence activities conducted against Swedish interests can be surveyed through signals intelligence.", "The eighth point provides the opportunity to conduct signals intelligence against foreign powers and their representatives in order to survey their intentions or actions that are of substantial importance to Swedish foreign, security or defence policy. Such activities may relate only to those who represent a foreign power. Through the condition “substantial importance” it is emphasised that it is not sufficient that the phenomenon is of general interest but that the intelligence should have a direct impact on Swedish actions or positions in various foreign, security or defence policy matters. ...”", "24. The FRA may collect electronic signals also in order to monitor changes in the international signals environment, technical advances and signals protection and to develop the technology needed for signals intelligence (section 1(3)). This is regarded as “development activities” and, according to the relevant preparatory works (prop. 2006/07:63, p. 72), they do not generate any intelligence reports. Signals intercepted in the context of the FRA’s development activities do not interest the authorities for the data they might contain but only for the possibility to analyse the systems and routes through which information is transmitted. The FRA may share experiences gained on technological issues with other authorities. Development activities usually do not focus on communications between individuals, although information on individuals’ identities may be intercepted.", "25. Signals intelligence conducted on cables may only concern signals crossing the Swedish border in cables owned by a communications service provider (section 2). Communications between a sender and receiver within Sweden may not be intercepted, regardless of whether the source is airborne or cable-based. If such signals cannot be separated at the point of collection, the recording of or notes about them shall be destroyed as soon as it becomes clear that such signals have been collected (section 2a).", "26. Interception of cable-based signals is automated and must only concern signals that have been identified through the use of selectors (or “search terms”). Such selectors are also used to identify signals over the airways, if the procedure is automated. The selectors must be formulated in such a way that the interference with personal integrity is limited as far as possible. Selectors directly relating to a specific natural person may only be used if this is of exceptional importance for the intelligence activities (section 3).", "27. The preparatory works to the Signals Intelligence Act (prop. 2006/07:63, p. 90) clarify that the exceptional importance requirement under section 3 is needed in view of the fact that the use of search terms that are attributable to a particular individual, such as personal names, telephone numbers, email or IP addresses, involves special risks from a privacy protection perspective. The use of such search terms should only be considered under special conditions and should be preceded by a thorough necessity assessment, notably, as to whether the information which can thereby be obtained is of such importance that it justifies the measure. As an example, the text refers to the following hypothetical situation: a national crisis caused by an IT attack against systems of crucial importance to society where immediate action needs to be taken to identify the individual actors.", "28. After the signals have been intercepted they are processed, which means that they are, for example, subjected to cryptanalysis or translation. Then the information is analysed and reported to the authority that gave the FRA the mission to collect the intelligence in question.", "29. The process has been described by the respondent Government as comprising six stages, as follows:", "1. a choice is made of segments of the signals intelligence environment that are most relevant;", "2. selectors are applied automatically to signals in the chosen segments in order to intercept and gradually reduce what is collected;", "3. the data is further processed through automatic and manual means using, among others, cryptoanalysis, structuring and language translation;", "4. the processed information is analysed by an analyst in order to identify intelligence within;", "5. a report is written and disseminated to selected recipients of foreign intelligence; and", "6. feedback on the use and effects of the intelligence provided is requested and shared with those involved in the process.", "C. Authorisation of signals intelligence", "30. For all signals intelligence, including the development activities, the FRA must apply for a permit to the Foreign Intelligence Court ( Försvarsunderrättelsedomstolen ). The application shall contain the mission request that the FRA has received, with information on the relevant detailed tasking directive and the need for the intelligence sought. Also, the communications bearers to which the FRA requires access have to be specified, along with the selectors or categories of selectors that will be used. Finally, the application must state the duration for which the permit is requested (section 4a).", "31. A permit may only be granted if the mission is in accordance with the provisions of the Foreign Intelligence Act and the Signals Intelligence Act, if the purpose of the interception of signals cannot be met in a less interfering manner, if the mission can be expected to yield information whose value is clearly greater than the possible interference with personal integrity, if the selectors or categories of selectors are in accordance with the Signals Intelligence Act and if the application does not concern solely a specific natural person (section 5).", "32. If granted, the permit shall specify the mission for which signals intelligence may be conducted, the bearers to which the FRA will have access, the selectors or categories of selectors that may be used, the duration of the permit and other conditions necessary to limit the interference with personal integrity (section 5a).", "33. The FRA itself may decide to grant a permit, if the application for a permit from the Foreign Intelligence Court might cause delay or other inconveniences of essential importance for one of the specified purposes of the signals intelligence. If the FRA grants a permit, it has to report to the court immediately and the court shall without delay decide in the matter. The court may revoke or amend the permit (section 5b).", "34. The composition of the Foreign Intelligence Court and its activities are regulated by the Foreign Intelligence Court Act ( Lagen om Försvarsunderrättelsedomstol; 2009:966). The court consists of one president, one or two vice-presidents and two to six other members. The president is a permanent judge, nominated by the Judges Proposals Board ( Domarnämnden ) and appointed by the Government. The vice-presidents, who must be legally trained and have previous experience as judges, and the other members, who are required to have special expertise of relevance for the court’s work, are appointed by the Government on four-year terms. The applications for signals intelligence permits are discussed during hearings, which may be held behind closed doors, if it is clear that information classified as secret would be exposed as a result of a public hearing. During the court’s examination, the FRA as well as a privacy protection representative ( integritetsskyddsombud ) are present. The representative, who does not represent any particular person but the interests of individuals in general, monitors integrity issues and has access to the case file and may make statements. Privacy protection representatives are appointed by the Government for a period of four years and must be or have been permanent judges or attorneys. The court may hold a hearing and decide on an application without the presence of a representative only if the case is of such urgency that a delay would severely compromise the purpose of the application. The court’s decisions are final.", "D. The duration of signals intelligence", "35. A permit may be granted for a specific period of time, maximum six months. An extension may, after a renewed examination, be granted for six months at a time (Signals Intelligence Act, section 5a).", "E. Procedures to be followed for storing, accessing, examining, using and destroying the intercepted data", "36. The Foreign Intelligence Inspectorate ( Statens inspektion för försvarsunderrättelseverksamheten (SIUN); see further paragraphs 50-54 below) oversees access to the communications bearers. Communications service providers are obliged to transfer cable-based signals crossing the Swedish borders to “collaboration points” agreed upon with the Inspectorate. The Inspectorate, in turn, provides the FRA with access to bearers in so far as such access is covered by a signals intelligence permit and, in so doing, implements the permits issued by the Foreign Intelligence Court (Chapter 6, section 19a of the Electronic Communications Act ( Lagen om elektronisk kommunikation; 2003:389)). The Council on Legislation ( Lagrådet ), the body giving opinions on request by the Government or a Parliamentary committee on certain draft bills, has expressed the view that an interference with private life and correspondence already arises at this point, because of the State obtaining access to the telecommunications (prop. 2006/07:63, p. 172).", "37. According to the Signals Intelligence Act, intercepted data must be destroyed immediately by the FRA if it (i) concerns a specific natural person and lacks importance for the signals intelligence, (ii) is protected by constitutional provisions on secrecy for the protection of anonymous authors and media sources, (iii) contains information shared between a suspect and his or her legal counsel and is thus protected by attorney-client privilege, or (iv) involves information given in a religious context of confession or individual counselling, unless there are exceptional reasons for examining the information (section 7).", "38. If communications have been intercepted between a sender and receiver who are both in Sweden, despite the prohibition on such interception, they shall be destroyed as soon as the domestic nature of the communications has become evident (section 2a).", "39. If a permit urgently granted by the FRA (see paragraph 21 above) is revoked or amended by the Foreign Intelligence Court, all intelligence collected which is thereby no longer authorised must be immediately destroyed (section 5b(3)).", "40. The FRA Personal Data Processing Act ( Lagen om behandling av personuppgifter i Försvarets radioanstalts försvarsunderrättelse- och utvecklingsverksamhet; 2007:259) contains provisions on the treatment of personal data within the area of signals intelligence. The Act entered into force on 1 July 2007, with amendments effective from 30 June 2009, 15 February 2010 and 1 March 2018. The purpose of the Act is to protect against violations of personal integrity (Chapter 1, section 2). The FRA shall ensure, inter alia, that personal data is collected only for certain expressly stated and justified purposes. Such purpose is either determined by the direction of the foreign intelligence activities through a detailed tasking directive or by what is necessary in order to follow changes in the signals environment, technical advances and signals protection. Also, the personal data treated has to be adequate and relevant in relation to the purpose of the treatment. No more personal data than what is necessary for that purpose may be processed. All reasonable efforts have to be made to correct, block and obliterate personal data that is incorrect or incomplete (Chapter 1, sections 6, 8 and 9).", "41. Personal data may not be processed solely because of what is known of a person’s race or ethnicity, political, religious or philosophical views, membership of a union, health or sexual life. If, however, personal data is treated for a different reason, this type of information may be used if it is absolutely necessary for the treatment. Information about a person’s physical appearance must always be formulated in an objective way with respect for human dignity. Intelligence searches may only use the above-mentioned personal indicators as selectors if this is absolutely necessary for the purpose of the search (Chapter 1, section 11).", "42. Personnel at the FRA who process personal data go through an official security clearance procedure and are subject to confidentiality with regard to data to which secrecy applies. They could face criminal sanctions if tasks relating to the processing of personal data are mismanaged (Chapter 6, section 2).", "43. Personal data that has been subjected to automated processing is to be destroyed as soon as it is no longer needed (Chapter 6, section 1).", "44. Further provisions on the treatment of personal data are laid down in the FRA Personal Data Processing Ordinance ( Förordningen om behandling av personuppgifter i Försvarets radioanstalts försvars ­ underrättelse- och utvecklingsverksamhet; 2007:261). It provides, inter alia, that the FRA may keep databases for raw material containing personal data. Raw material is unprocessed information which has been collected through automated treatment. Personal data in such databases shall be destroyed within one year from when it was collected (section 2).", "F. Conditions for communicating the intercepted data to other parties", "45. The intelligence collected is to be reported to the authorities concerned, as determined under the Foreign Intelligence Act (Signals Intelligence Act, section 8).", "46. The Government Offices, the Armed Forces, the Security Police, the NOA, the Inspectorate of Strategic Products ( Inspektionen för strategiska produkter ), the Defence Material Administration ( Försvarets materialverk ), the Defence Research Agency ( Totalförsvarets forskningsinstitut ), the Civil Contingencies Agency ( Myndigheten för samhällsskydd och beredskap ) and the Swedish Customs ( Tullverket ) may have direct access to completed intelligence reports to the extent the FRA so decides (section 9 of the FRA Personal Data Processing Ordinance). However, to date, no decisions permitting direct access have been taken by the FRA.", "47. The FRA may also grant the Security Police and the Armed Forces direct access to data which constitute analysis results in a data collection for analyses and which is needed for the authorities to be able to make strategic assessments of the terrorist threat against Sweden and Swedish interests (Chapter 1, section 15 of the FRA Personal Data Processing Act, and section 13a of the Ordinance).", "48. According to the preparatory works (prop 2017/18:36), the above-mentioned access is given within the framework of cooperation between the FRA, the Security Police and the Armed Forces in a working group called the National Centre for Assessment of Terrorist Threats ( Nationellt centrum för terrorhotbedömning; “NCT”) where a number of analysts from the three authorities work together and write reports containing strategic assessments of terrorist threats. With the FRA’s permission and as long as the data is relevant for such terrorist threat assessments, the NCT analysts have direct access to “analysis results” contained in the FRA databases. The analysts do not, however, have direct access to the FRA’s databases to conduct their own free searches. Furthermore, while the information made available to the analysts through direct access may contain personal data, the assessments made by the NCT are of a strategic, general nature and are not, as such, directed at individual persons.", "49. Personal data may be communicated to other States or international organisations only if this is not prevented by secrecy and if necessary for the FRA to perform its activities within international defence and security cooperation. The Government may adopt rules or decide in a specific case to allow such communication of personal data also in other cases, where necessary for the activities of the FRA (Chapter 1, section 17 of the FRA Personal Data Processing Act). The FRA may disclose personal data to a foreign authority or an international organisation if it is beneficial for the Swedish government ( statsledningen ) or Sweden’s comprehensive defence strategy ( totalförsvaret ); information so communicated must not harm Swedish interests (section 7 of the FRA Personal Data Processing Ordinance).", "G. Supervision of the implementation of signals intelligence", "50. The Foreign Intelligence Act (section 5) and the Signals Intelligence Act (section 10) provide that an authority is to oversee the foreign intelligence activities in Sweden and verify that the FRA’s activities are in compliance with the provisions of the Signals Intelligence Act. The supervisory authority – the Foreign Intelligence Inspectorate – is, among other things, tasked with monitoring the implementation of the Foreign Intelligence Act and the associated Ordinance and reviewing whether foreign intelligence activities are performed in compliance with the applicable directives (section 4 of the Foreign Intelligence Inspectorate Instructions Ordinance ( Förordningen med instruktion för Statens inspektion för försvarsunderrättelseverksamheten; 2009:969)). It also reviews compliance with the Signals Intelligence Act by examining in particular the selectors used, the destruction of intelligence and the communication of reports; if an inspection reveals that a particular intelligence collection is incompatible with a permit, the Inspectorate may decide that the operation shall cease or that the intelligence shall be destroyed (section 10 of the Signals Intelligence Act). The FRA shall report to the Inspectorate the selectors which directly relate to a specific natural person (section 3 of the Signals Intelligence Ordinance).", "51. The Foreign Intelligence Inspectorate is led by a board whose members are appointed by the Government for terms of at least four years. The president and the vice-president shall be or have been permanent judges. Other members are selected from candidates proposed by the party groups in the Parliament (section 10 (3) of the Signals Intelligence Act).", "52. Any opinions or suggestions for measures arising from the Inspectorate’s inspections shall be forwarded to the FRA, and if necessary also to the Government. The Inspectorate also submits annual reports on its inspections to the Government (section 5 of the Foreign Intelligence Inspectorate Instructions Ordinance), which are made available to the public. Furthermore, if the Inspectorate notices potential crimes, it shall report the matter to the Prosecution Authority ( Åklagarmyndigheten ), and, if deficiencies are discovered that may incur liability for damages for the State, a report shall be submitted to the Chancellor of Justice ( Justitiekanslern ). A report may also be submitted to the Data Protection Authority ( Datainspektionen ), which is the supervisory authority on the treatment of personal data by the FRA (section 15).", "53. From the establishment of the Inspectorate in 2009 until 2017 the Inspectorate conducted 102 inspections in total. Those resulted in 15 opinions submitted to the FRA and one to the Government. No inspections have revealed reasons to cease an intelligence collection or to destroy the results. According to the Inspectorate’s annual reports, which contain brief descriptions of the inspections, those have included numerous detailed examinations of the selectors used, the destruction of intelligence, the communication of reports, the treatment of personal data and the overall compliance with the legislation, directives and permits relevant to the signals intelligence activities. For instance, between 2010 and 2014 the use of selectors was inspected on seventeen occasions, which led to one opinion and a proposal for changes to the FRA’s processing routines. During the same period the destruction of data related to signals intelligence was audited on nine occasions. Those also resulted in one opinion, in 2011, inviting the FRA to amend its internal regulations, which it did the same year. During 2011 the Inspectorate also verified whether the FRA was conducting data collection for other countries in accordance with the law, which did not lead to any opinion being issued. An inspection in 2014 concerned a general review of the FRA’s cooperation with other States and international organisations in intelligence matters. It did not give rise to any opinion or suggestion to the FRA. In 2015 and 2016 an overall review to assess compliance with the limitations stated in permits issued by the Foreign Intelligence Court resulted in one observation. In 2016 and 2017 the Inspectorate carried out a detailed inspection of the treatment by the FRA of personal data. The inspection concerned the processing of sensitive personal data in connection with strategic circumstances relating to international terrorism and other serious cross-border crime threatening significant national interests. The inspection did not give rise to any opinion or suggestion. However, during that year, one opinion was submitted to the Government following an inspection of whether the FRA’s intelligence activities complied with the tasking directives given. During the years 2009-2017 the Inspectorate found reason to make a report to another authority – the Data Protection Authority – on one occasion, concerning the interpretation of a legal provision. In its annual reports, the Inspectorate has noted that it has been given access to all the information necessary for its inspections.", "54. The supervisory activities of the Foreign Intelligence Inspectorate have been audited by the National Audit Office ( Riksrevisionen ), a body answerable to Parliament. In a report published in 2015 the Office noted that the FRA had routines in place for handling the Inspectorate’s opinions and that the supervision helped develop the activities of the FRA. Suggestions were dealt with in a serious manner and, when called for, gave rise to reforms. With the exception of one case when the FRA referred the matter to the Government, the FRA took the action decided by Inspectorate. At the same time the Office criticised the Inspectorate’s lack of documentation of inspections and the fact that there were no clearly specified goals for the inspections.", "55. Within the FRA there is a Privacy Protection Council tasked with continuously monitoring measures taken to ensure protection of personal integrity. The members are appointed by the Government. The Council reports its observations to the FRA management or, if the Council finds reasons for it, to the Inspectorate (section 11 of the Signals Intelligence Act).", "56. Further provisions on supervision are found in the FRA Personal Data Processing Act. The FRA shall appoint one or several data protection officers and report the appointment to the Data Protection Authority (Chapter 4, section 1). The data protection officer is tasked with independently monitoring that the FRA treats personal data in a legal and correct manner and point out any deficiencies. If deficiencies are suspected and no correction is made, a report shall be submitted to the Data Protection Authority (Chapter 4, section 2).", "57. The Data Protection Authority, which is an authority under the Government, has, on request, access to the personal data that is processed by the FRA and to documentation on the treatment of personal data along with the security measures taken in this regard as well as access to the facilities where personal data is processed (Chapter 5, section 2). If the Authority finds that personal data is or could be processed illegally, it shall try to remedy the situation by communicating its observations to the FRA (Chapter 5, section 3). It may also apply to the Administrative Court ( förvaltningsrätten ) in Stockholm to have illegally processed personal data destroyed (Chapter 5, section 4). According to copies of an email exchange of April 2019 between the applicant and the Administrative Court, there was no trace in that court’s electronic records of the latter possibility having been used by the Data Protection Authority.", "H. Notification of secret surveillance measures", "58. If selectors directly related to a specific natural person have been used, he or she is to be notified by the FRA, according to the Signals Intelligence Act. The notification shall contain information on the date and purpose of the measures. Such notification shall be given as soon as this can be done without detriment to the foreign intelligence activities, but no later than one month after the signals intelligence mission has been concluded (section 11a).", "59. However, the notification may be delayed if secrecy so demands, in particular defence secrecy or secrecy for the protection of international relations. If, due to secrecy considerations, no notification has been given within a year from the conclusion of the mission, the person does not have to be notified. Furthermore, notification shall not be given if the measures solely concern the conditions of a foreign power or the relationship between foreign powers (section 11b).", "60. In its 2010 report, the Data Protection Authority noted, inter alia, that the procedure for notification to individuals had never been used by the FRA, due to secrecy considerations (see paragraph 75 below).", "I. Remedies", "61. The Signals Intelligence Act provides that the Foreign Intelligence Inspectorate, at the request of an individual, must investigate if his or her communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with the law. The Inspectorate shall notify the individual that such an investigation has been carried out (section 10a). A request can be made by legal and natural persons regardless of nationality and residence. During the period 2010-2017, 132 requests were handled and no unlawfulness was established. In 2017, ten such requests were processed; in 2016 the number was 14. The Inspectorate’s decision following a request is final.", "62. Under the FRA Personal Data Processing Act, the FRA is also required to provide information upon request. Once per calendar year, an individual may demand information on whether personal data concerning him or her is being or has been processed. If so, the FRA must specify what information on the individual is concerned, from where it was collected, the purpose of the treatment and to which recipients or categories of recipients the personal data is or was reported. The information is normally to be given within one month from the request (Chapter 2, section 1). However, this right to information does not apply if disclosure is prevented by secrecy considerations (Chapter 2, section 3).", "63. Following a request from an individual who has had personal data registered, the FRA shall promptly correct, block or destroy such data that has not been processed in accordance with law. The FRA shall also notify any third party who has received the data, if the individual so requests or if substantial harm or inconvenience could be avoided through a notification. No such notification has to be given if it is impossible or would involve a disproportionate effort (Chapter 2, section 4).", "64. The FRA’s decisions on disclosure and corrective measures in regard to personal data may be appealed against to the Administrative Court in Stockholm (Chapter 6, section 3). According to copies of an email exchange of April 2019 between the applicant and the Administrative Court, there was no trace in that court’s electronic records of that possibility having been used.", "65. The State is liable for damages following a violation of personal integrity caused by treatment of personal data not in accordance with the FRA Personal Data Processing Act (Chapter 2, section 5). A request for damages shall be submitted to the Chancellor of Justice.", "66. In addition to the above remedies, laid down in the legislation relating to signals intelligence, Swedish law provides for a number of other means of scrutiny and complaints mechanisms. The Parliamentary Ombudsmen ( Justititeombudsmannen ) supervise the application of laws and regulations in public activities; courts and authorities are obliged to provide information and opinions at the request of the Ombudsmen (Chapter 13, section 6 of the Instrument of Government – Regeringsformen ), including access to minutes and other documents. The Ombudsmen shall ensure, in particular, that the courts and authorities observe the provisions of the Instrument of Government on objectivity and impartiality and that citizens’ fundamental rights and freedoms are not encroached upon in public activities (section 3 of the Parliamentary Ombudsmen Instructions Act – Lagen med instruktion för Riksdagens ombudsmän; 1986:765). The supervision, under which the Foreign Intelligence Court and the FRA come, is conducted by means of examining complaints from the public and through inspections and other investigations (section 5). The examination is concluded by a decision in which, although not legally binding, the opinion of the Ombudsman is given as to whether the court or authority has contravened the law or otherwise taken a wrongful or inappropriate action; the Ombudsman may also initiate criminal or disciplinary proceedings against a public official who has committed a criminal offence or neglected his or her duty in disregarding the obligations of the office (section 6).", "67. With a mandate similar to the Parliamentary Ombudsmen, the Chancellor of Justice scrutinises whether officials in public administration comply with laws and regulations and otherwise fulfil their obligations (section 1 of the Chancellor of Justice Supervision Act – Lagen om justitiekanslerns tillsyn; 1975:1339). The Chancellor does so by examining individual complaints or conducting inspections and other investigations, which could be directed at, for instance, the Foreign Intelligence Court and the FRA. According to copies of an email exchange of April 2019 between the applicant and the office of the Chancellor of Justice, twelve such complaints were received in 2008 and one in 2013. Following examination, none of those had been judged to require action.", "68. At the request of the Chancellor, courts and authorities are obliged to provide information and opinions as well as access to minutes and other documents (sections 9 and 10). The decisions of the Chancellor of Justice are similar in nature to the decisions of the Parliamentary Ombudsmen, including their lack of legally binding power. By tradition, however, the opinions of the Chancellor and the Ombudsmen command great respect in Swedish society and are usually followed (see Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 118, ECHR 2006-VII). The Chancellor has the same power as the Ombudsmen to initiate criminal or disciplinary proceedings (sections 5 and 6).", "69. The Chancellor of Justice is also authorised to determine complaints and claims for damages directed against the State, including compensation claims for alleged violations of the Convention. The Supreme Court and the Chancellor of Justice have developed precedents in recent years, affirming that it is a general principle of law that compensation for Convention violations can be ordered without direct support in Swedish statute to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages (see Lindstrand Partners Advokatbyrå AB v. Sweden, no. 18700/09, §§ 58-62 and 67, 20 December 2016, with further references). On 1 April 2018, through the enactment of a new provision – Chapter 3, section 4 – of the Tort Liability Act ( Skadeståndslagen; 1972:207), the right to compensation for violations of the Convention was codified.", "70. In addition to its above-mentioned supervisory functions under the Foreign Intelligence Inspectorate Instructions Ordinance and the FRA Personal Data Processing Act (see paragraphs 52, 56 and 57 above), the Data Protection Authority is generally entrusted with protecting individuals against violations of their personal integrity through the processing of personal data, under the Act with Supplementary Provisions to the EU General Data Protection Regulation ( Lagen med kompletterande bestämmelser till EU:s dataskyddsförordning ) which entered into force on 25 May 2018, the same day as the new EU regulation it supplements (see paragraph 94 below). In regard to the signals intelligence conducted by the FRA, the Personal Data Act ( Personuppgiftslagen; 1998:204) continues to apply, although it is otherwise replaced by the new EU Regulation and the supplementary act. It gives the Data Protection Authority the same general supervisory task. In performing this task, the Authority may receive and examine individual complaints.", "J. Secrecy at the FRA", "71. The Public Access to Information and Secrecy Act ( Offentlighets ‑ och sekretesslagen; 2009:400) contains a specific provision on the FRA’s signals intelligence activities. Secrecy applies to information on an individual’s personal or economic circumstances, unless it is evident that the information can be disclosed without the individual concerned or any other person closely related to him or her being harmed. The presumption is for secrecy (Chapter 38, section 4).", "72. According to the Act, secrecy also generally applies to foreign intelligence activities in regard to information concerning another State, international organisation, authority, citizen or legal person in another State, if it can be presumed that a disclosure will interfere with Sweden’s international relations or otherwise harm the country (Chapter 15, section 1).", "73. Secrecy further applies to information on activities related to the defence of the country or the planning of such activities or to information that is otherwise related to the country’s comprehensive defence strategy, if it can be presumed that a disclosure will harm the country’s defence or otherwise endanger national security (Chapter 15, section 2).", "74. Information which is protected by secrecy under the Public Access to Information and Secrecy Act may not be disclosed to a foreign authority or an international organisation unless (i) such disclosure is permitted by an express legal provision (cf. section 7 of the FRA Personal Data Processing Ordinance, paragraph 34 above), or (ii) the information in an analogous situation may be communicated to a Swedish authority and the disclosing authority finds it evident that the communication of the information to the foreign authority or the international organisation is consistent with Swedish interests (Chapter 8, section 3 of the Act).", "K. The reports of the Data Protection Authority", "75. On 12 February 2009 the Government ordered the Data Protection Authority to examine the handling of personal data at the FRA from an integrity perspective. In its report, published on 6 December 2010, the Authority stated that its conclusions were overall positive. Issues relating to the processing of personal data and to personal integrity were given serious consideration by the FRA and a considerable amount of time and resources were spent on creating routines and educating its personnel in order to minimise the risk of unwarranted interferences with personal integrity. Moreover, no evidence had been found which indicated that the FRA was handling personal data for purposes not authorised by the legislation in force. However, the Authority noted, inter alia, that there was a need to improve the methods for separating domestic and cross-border communications. Even if the FRA had implemented mechanisms in that area, there was no guarantee that domestic communications were never intercepted, and, although the occasions had been very few, such communications had in fact been intercepted. The Authority further noted that the procedure for notification to individuals (paragraphs 58-60 above) had never been used by the FRA, due to secrecy considerations.", "76. A second report was issued by the Authority on 24 October 2016. Again, the Authority found no evidence that personal data had been collected for other purposes than those stipulated for the signals intelligence activities. It also noted that the FRA continuously reviewed whether data intercepted was still needed for those purposes. A similar review was made concerning the communications bearers from which the FRA obtained intelligence. Moreover, there was nothing to indicate that the provisions on destruction of personal data had been disregarded (see paragraphs 37-39 above). However, the FRA was criticised for not adequately monitoring logs used to detect unwarranted use of personal data, a shortcoming that had been pointed out already in 2010.", "L. The report of the Signals Intelligence Committee", "77. On 12 February 2009 the Government also decided to appoint a committee predominantly composed of members of parliament, the Signals Intelligence Committee ( Signalspaningskommittén ), with the task of monitoring the signals intelligence conducted by the FRA in order to examine the implications for personal integrity. The report was presented on 11 February 2011 ( Uppföljning av signalspaningslagen; SOU 2011:13). The Committee’s examination focused primarily on signals intelligence conducted over the airways, as such activities on cable-based traffic had not yet commenced on a larger scale.", "78. The Committee concluded that concerns of personal integrity were taken seriously by the FRA and formed an integral part of the development of its procedures. It noted, however, that there were practical difficulties in separating domestic cable-based communications from those crossing the Swedish border. Any domestic communications that were not separated at the automated stage were instead separated manually at the processing or analysing stage. The Committee further observed that the selectors used for communications data were less specific than those used for interception of the content of a communication and that, consequently, a larger number of individuals could have such data stored by the FRA.", "79. Another finding in the report was that the FRA’s development activities (see paragraph 24 above) could lead to non-relevant communications being intercepted and possibly read or listened to by FRA personnel. However, the Committee noted that the development activities were directly essential for the FRA’s ability to conduct signals intelligence. Moreover, information obtained through the development activities could be used in regular intelligence activities only if such use conformed with the purposes established by law and the relevant tasking directives issued for the signals intelligence.", "80. Like the Data Protection Authority, the Committee pointed out that, in reality, the obligation on the FRA to notify individuals who had been directly and personally subjected to secret surveillance measures was very limited due to secrecy; it concluded therefore that this obligation served no purpose as a guarantee for legal certainty or against integrity interferences. The Committee found, however, that, in particular, the authorisation procedure before the Foreign Intelligence Court, in deciding on permits to conduct signals intelligence measures (see paragraphs 30-34 above), and the supervisory functions performed by the Foreign Intelligence Inspectorate (see paragraphs 36 and 50-54 above) and the Privacy Protection Council (see paragraph 55 above) provided important protection for individuals’ personal integrity. It noted, in this respect, that, although the Privacy Protection Council formed part of the FRA, it acted in an independent manner.", "relevant INTERNATIONAL lawThe United Nations", "The United Nations", "The United Nations", "81. Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, reads as follows:", "“The General Assembly,", "...", "4. Calls upon all States:", "...", "( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law;", "( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data ...”", "The Council of EuropeThe Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108)", "The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108)", "The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 and its Additional Protocol (CETS No. 108)", "82. The Convention, in force for Sweden since 1 October 1985, sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. It provides, in so far as relevant, as follows:", "Preamble", "“The member States of the Council of Europe, signatory hereto,", "Considering that the aim of the Council of Europe is to achieve greater unity between its members, based in particular on respect for the rule of law, as well as human rights and fundamental freedoms;", "Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing;", "Reaffirming at the same time their commitment to freedom of information regardless of frontiers;", "Recognising that it is necessary to reconcile the fundamental values of the respect for privacy and the free flow of information between peoples,", "Have agreed as follows:”", "Article 1 – Object and purpose", "“The purpose of this Convention is to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (“data protection”).”", "Article 8 – Additional safeguards for the data subject", "“Any person shall be enabled:", "a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention;", "d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”", "Article 9 – Exceptions and restrictions", "“1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this article.", "2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "...”", "Article 10 – Sanctions and remedies", "“Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.”", "83. The Explanatory Report to the above-mentioned Convention explains the following as regards its Article 9:", "“...", "55. Exceptions to the basic principles for data protection are limited to those which are necessary for the protection of fundamental values in a democratic society. The text of the second paragraph of this article has been modelled after that of the second paragraphs of Articles 6, 8, 10 and 11 of the European Human Rights Convention. It is clear from the decisions of the Commission and the Court of Human Rights relating to the concept of ‘necessary measures’ that the criteria for this concept cannot be laid down for all countries and all times, but should be considered in the light of the given situation in each country.", "56. Littera a in paragraph 2 lists the major interests of the State which may require exceptions. These exceptions are very specific in order to avoid that, with regard to the general application of the convention, States would have an unduly wide leeway.", "States retain, under Article 16, the possibility to refuse application of the convention in individual cases for important reasons, which include those enumerated in Article 9.", "The notion of ‘State security’ should be understood in the traditional sense of protecting national sovereignty against internal or external threats, including the protection of the international relations of the State...”", "84. The Additional Protocol to the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181), in force for Sweden since 1 July 2004, provides as follows, in so far as relevant:", "Article 1 – Supervisory authorities", "“1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.", "2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.", "b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.", "3. The supervisory authorities shall exercise their functions in complete independence.", "4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.", "...”", "Article 2 – Transborder flows of personal data to a recipient which is not subject to the jurisdiction of a Party to the Convention", "“1. Each Party shall provide for the transfer of personal data to a recipient that is subject to the jurisdiction of a State or organisation that is not Party to the Convention only if that State or organisation ensures an adequate level of protection for the intended data transfer.", "2. By way of derogation from paragraph 1 of Article 2 of this Protocol, each Party may allow for the transfer of personal data:", "a. if domestic law provides for it because of:", "– specific interests of the data subject, or", "– legitimate prevailing interests, especially important public interests, or", "b. if safeguards, which can in particular result from contractual clauses, are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law.”", "Recommendation of the Committee of Ministers of the Council of Europe on the protection of personal data in the area of telecommunication services", "85. Recommendation No. R (95) 4 of the Committee of Ministers on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995, reads, insofar as relevant, as follows:", "“2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate:", "a. the exercise of the data subject’s rights of access and rectification;", "b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it;", "c. storage or destruction of such data.", "If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.”", "The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies", "86. In this report, published in December 2015, the Venice Commission noted, at the outset, the value that bulk interception could have for security operations, since it enabled the security services to adopt a proactive approach, looking for hitherto unknown dangers rather than investigating known ones. However, it also noted that intercepting bulk data in transmission, or requirements that telecommunications companies store and then provide telecommunications content data or metadata to law ‑ enforcement or security agencies involved an interference with the privacy and other human rights of a large proportion of the population of the world. In this regard, the Venice Commission considered that the main interference with privacy occurred when stored personal data were accessed and/or processed by the agencies. For this reason, the computer analysis (usually with the help of selectors) was one of the important stages for balancing personal integrity concerns against other interests.", "87. According to the report, the two most significant safeguards were the authorisation (of collection and access) and the oversight of the process. It was clear from the Court’s case-law that the latter had to be performed by an independent, external body. While the Court had a preference for judicial authorisation, it had not found this to be a necessary requirement. Rather, the system had to be assessed as a whole, and where independent controls were absent at the authorisation stage, particularly strong safeguards had to exist at the oversight stage. In this regard, the Venice Commission considered the example of the system in the United States, where authorisation was given by the Foreign Intelligence Surveillance Court. However, it noted that despite the existence of judicial authorisation, the lack of independent oversight of the conditions and limitations set by the court was problematic.", "88. Similarly, the Commission observed that notification of the subject of surveillance was not an absolute requirement of Article 8 of the Convention, since a general complaints procedure to an independent oversight body could compensate for non-notification.", "89. The report also considered internal controls to be a “primary safeguard”. Recruitment and training were key issues; in addition, it was important for the agencies to build in respect for privacy and other human rights when promulgating internal rules.", "90. The report also considered the position of journalists. It accepted that they were a group which required special protection, since searching their contacts could reveal their sources (and the risk of discovery could be a powerful disincentive to whistle-blowers). Nevertheless, it considered there to be no absolute prohibition on searching the contacts of journalists, provided that there were very strong reasons for doing so. It acknowledged, however, that the journalistic profession was not one which was easily identified, since NGOs were also engaged in building public opinion and even bloggers could claim to be entitled to equivalent protections.", "91. Finally, the report considered briefly the issue of intelligence sharing, and in particular the risk that States could thereby circumvent stronger domestic surveillance procedures or any legal limits which their agencies might be subject to as regards domestic intelligence operations. It considered that a suitable safeguard would be to provide that the bulk material transferred could only be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques.", "European union LAWCharter of Fundamental Rights of the European Union", "Charter of Fundamental Rights of the European Union", "Charter of Fundamental Rights of the European Union", "92. Articles 7, 8 and 11 of the Charter provide as follows:", "Article 7 – Respect for private and family life", "“ Everyone has the right to respect for his or her private and family life, home and communications.”", "Article 8 – Protection of personal data", "“1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified.", "3. Compliance with these rules shall be subject to control by an independent authority. ”", "Article 11 – Freedom of expression and information", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "2. The freedom and pluralism of the media shall be respected.”", "European Union directives and regulations relating to protection and processing of personal data", "93. The Data Protection Directive (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), adopted on 24 October 1995, regulated for many years the protection and processing of personal data within the European Union. As the activities of Member States regarding public safety, defence and State security fell outside the scope of Community law, the Directive did not apply to these activities (Article 3(2)).", "94. The General Data Protection Regulation, adopted in April 2016, superseded the Data Protection Directive and became enforceable on 25 May 2018. The regulation, which is directly applicable in Member States, contains provisions and requirements pertaining to the processing of personally identifiable information of data subjects inside the European Union, and applies to all enterprises, regardless of location, doing business with the European Economic Area. Business processes that handle personal data must be built with data protection by design and by default, meaning that personal data must be stored using pseudonymisation or full anonymization, and use the highest-possible privacy settings by default, so that the data are not available publicly without explicit consent, and cannot be used to identify a subject without additional information stored separately. No personal data may be processed unless it is done under a lawful basis specified by the regulation, or if the data controller or processor has received explicit, opt-in consent from the data’s owner. The data owner has the right to revoke this permission at any time.", "95. A processor of personal data must clearly disclose any data collection, declare the lawful basis and purpose for data processing, how long data are being retained, and if they are being shared with any third-parties or outside of the European Union. Users have the right to request a portable copy of the data collected by a processor in a common format, and the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities centre around regular or systematic processing of personal data, are required to employ a data protection officer (DPO), who is responsible for managing compliance with the GDPR. Businesses must report any data breaches within 72 hours if they have an adverse effect on user privacy.", "96. The Privacy and Electronic Communications Directive (Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector), adopted on 12 July 2002, states, in recitals 2 and 11:", "“(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter.", "(11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.”", "The Directive further provides, in so far as relevant:", "Article 1 – Scope and aim", "“1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.", "2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.", "3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.”", "Article 15 – Application of certain provisions of Directive 95/46/EC", "“1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.”", "97. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. Prior to the judgment of 2014 declaring it invalid (see the paragraph below), it provided, inter alia, as follows:", "Article 1 - Subject matter and scope", "“1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.", "2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.”", "Article 3 – Obligation to retain data", "“1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.", "...”", "Relevant case-law of the Court of Justice of the European Union (“CJEU”) Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238)", "Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238)", "Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C-293/12 and C-594/12; ECLI:EU:C:2014:238)", "98. In a judgment of 8 April 2014 the CJEU declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain the data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to protection of personal data under Article 8 of the Charter.", "99. The access of the competent national authorities to the data constituted a further interference with those fundamental rights, which the CJEU considered to be “particularly serious”. The fact that data were retained and subsequently used without the subscriber or registered user being informed was, according to the CJEU, likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality.", "100. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime.", "101. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued.", "102. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.", "Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C ‑ 203/15 and C ‑ 698/15; ECLI:EU:C:2016:970)", "103. In Secretary of State for the Home Department v. Watson and Others, the applicants had sought judicial review of the legality of section 1 of the United Kingdom Data Retention and Investigatory Powers Act 2014 (“DRIPA”), pursuant to which the Secretary of State could require a public telecommunications operator to retain relevant communications data if he or she considered it necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (h) of section 22(2) of the Regulation of Investigatory Powers Act 2000 (“RIPA”). The applicants claimed, inter alia, that section 1 was incompatible with Articles 7 and 8 of the Charter and Article 8 of the Convention.", "104. By judgment of 17 July 2015, the High Court held that the Digital Rights judgment laid down “mandatory requirements of EU law” applicable to the legislation of Member States on the retention of communications data and access to such data. Since the CJEU, in that judgment, held that Directive 2006/24 was incompatible with the principle of proportionality, national legislation containing the same provisions as that directive could, equally, not be compatible with that principle. In fact, it followed from the underlying logic of the Digital Rights judgment that legislation that established a general body of rules for the retention of communications data was in breach of the rights guaranteed in Articles 7 and 8 of the Charter, unless that legislation was complemented by a body of rules for access to the data, defined by national law, which provided sufficient safeguards to protect those rights. Accordingly, section 1 of DRIPA was not compatible with Articles 7 and 8 of the Charter as it did not lay down clear and precise rules providing for access to and use of retained data and access to that data was not made dependent on prior review by a court or an independent administrative body.", "105. On appeal by the Secretary of State, the Court of Appeal sought a preliminary ruling from the CJEU.", "106. Before the CJEU this case was joined with the request for a preliminary ruling from the Administrative Court of Appeal ( kammarrätten ) in Stockholm in Case C-203/15 Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in which some fifteen EU Member States intervened, the CJEU gave judgment on 21 December 2016. The CJEU held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, had to be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, was not restricted solely to fighting serious crime, where access was not subject to prior review by a court or an independent administrative authority, and where there was no requirement that the data concerned should be retained within the European Union.", "107. The CJEU declared the Court of Appeal’s question whether the protection afforded by Articles 7 and 8 of the Charter was wider than that guaranteed by Article 8 of the Convention inadmissible.", "108. Following the handing down of the CJEU’s judgment, the case was relisted before the Court of Appeal. On 31 January 2018 it granted declaratory relief in the following terms: that section 1 of DRIPA was inconsistent with EU law to the extent that it permitted access to retained data where the object pursued by access was not restricted solely to fighting serious crime; or where access was not subject to prior review by a court or independent administrative authority.", "Ministerio Fiscal (Case C-207/16; ECLI:EU:C:2018:788)", "109. This request for a preliminary ruling arose after Spanish police, in the course of investigating the theft of a wallet and mobile telephone, asked the investigating magistrate to grant them access to data identifying the users of telephone numbers activated with the stolen telephone during a period of twelve days prior to the theft. The investigating magistrate rejected the request on the ground, inter alia, that the acts giving rise to the criminal investigation did not constitute a “serious” offence. The referring court subsequently sought guidance from the CJEU on fixing the threshold of seriousness of offences above which an interference with fundamental rights, such as competent national authorities’ access to personal data retained by providers of electronic communications services, may be justified.", "110. On 2 October 2018 the Grand Chamber of the CJEU ruled that Article 15(1) of Directive 2002/58/EC, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, had to be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entailed an interference with their fundamental rights which was not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime. In particular, it indicated that:", "“In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’.", "By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally.”", "111. It did not consider access to the data which were the subject of the request to be a particularly serious interference because it:", "“only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.”", "Maximillian Schrems v. Data Protection Commissioner (Case C ‑ 362/14; ECLI:EU:C:2015:650 )", "112. This request for a preliminary ruling arose from a complaint against Facebook Ireland Ltd which was made to the Irish Data Protection Commissioner by Mr. Schrems, an Austrian privacy advocate. Mr. Schrems challenged the transfer of his data by Facebook Ireland to the United States and the retention of his data on servers located in that country. The Data Protection Commissioner rejected the complaint since, in a decision of 26 July 2000, the European Commission had considered that the United States ensured an adequate level of protection of the personal data transferred (“the Safe Harbour Decision”).", "113. In its ruling of 6 October 2015, the CJEU held that the existence of a Commission decision finding that a third country ensured an adequate level of protection of the personal data transferred could not eliminate or even reduce the powers available to the national supervisory authorities under the Charter or the Data Protection Directive. Therefore, even if the Commission had adopted a decision, the national supervisory authorities had to be able to examine, with complete independence, whether the transfer of a person’s data to a third country complied with the requirements laid down by the Directive.", "114. However, only the CJEU could declare a decision of the Commission invalid. In this regard, it noted that the safe harbour scheme was applicable solely to the United States’ undertakings which adhered to it, and United States’ public authorities were not themselves subject to it. Furthermore, national security, public interest and law enforcement requirements of the United States prevailed over the safe harbour scheme, so that United States’ undertakings were bound to disregard, without limitation, the protective rules laid down by the scheme where they conflicted with such requirements. The safe harbour scheme therefore enabled interference by United States’ public authorities with the fundamental rights of individuals, and the Commission had not, in the Safe Harbour Decision, referred either to the existence, in the United States, of rules intended to limit any such interference or to the existence of effective legal protection against the interference.", "115. As to whether the level of protection in the United States was essentially equivalent to the fundamental rights and freedoms guaranteed within the EU, the CJEU found that legislation was not limited to what was strictly necessary where it authorised, on a generalised basis, storage of all the personal data of all the persons whose data were transferred from the EU to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down for determining the limits of the access of the public authorities to the data and of their subsequent use. Therefore, under EU law legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications had to be regarded as compromising the essence of the fundamental right to respect for private life. Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, compromised the essence of the fundamental right to effective judicial protection.", "116. Finally, the Court found that the Safe Harbour Decision denied the national supervisory authorities their powers where a person called into question whether the decision was compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals. The Commission had not had competence to restrict the national supervisory authorities’ powers in that way and, consequently, the CJEU held the Safe Harbour Decision to be invalid.", "Data Protection Commissioner v Facebook Ireland and Maximillian Schrems Case (C-311/18; ECLI:EU:C:2020:559)", "117. Following the judgment of the CJEU of 6 October 2015, the referring court annulled the rejection of Mr Schrems’ complaint and referred that decision back to the Commissioner. In the course of the Commissioner’s investigation, Facebook Ireland explained that a large part of personal data were transferred to Facebook Inc. pursuant to the standard data protection clauses set out in the annex to Commission Decision 2010/87/EU, as amended.", "118. Mr Schrems reformulated his complaint, claiming, inter alia, that the United States’ law required Facebook Inc. to make the personal data transferred to it available to certain United States’ authorities, such as the National Security Agency (“the NSA”) and the Federal Bureau of Investigation. Since those data were used in the context of various monitoring programmes in a manner incompatible with Articles 7, 8 and 47 of the Charter, Decision 2010/87/EU could not justify the transfer of those data to the United States. On this basis, he asked the Commissioner to prohibit or suspend the transfer of his personal data to Facebook Inc.", "119. In a draft decision published on 24 May 2016, the Commissioner took the provisional view that the personal data of European Union citizens transferred to the United States were likely to be consulted and processed by the United States’ authorities in a manner incompatible with Articles 7 and 8 of the Charter and that United States’ law did not provide those citizens with legal remedies compatible with Article 47 of the Charter. The Commissioner found that the standard data protection clauses in the annex to Decision 2010/87/EU were not capable of remedying that defect, since they did not bind the United States’ authorities.", "120. Having considered the United States’ intelligence activities under section 702 of FISA and Executive Order 12333, the High Court concluded that the United States carried out mass processing of personal data without ensuring a level of protection essentially equivalent to that guaranteed by Articles 7 and 8 of the Charter; and that European Union citizens did not have available to them the same remedies as citizens of the United States, with the consequence that United States’ law did not afford European Union citizens a level of protection essentially equivalent to that guaranteed by Article 47 of the Charter. It stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling. It asked, inter alia, whether European Union law applied to the transfer of data from a private company in the European Union to a private company in a third country; if so, how the level of protection in the third country should be assessed; and whether the level of protection afforded by the United States respected the essence of the rights guaranteed by Article 47 of the Charter.", "121. In a judgment of 16 July 2020 the CJEU held that the General Data Protection Regulation (“GDPR”) applied to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, those data were liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security. Moreover, the appropriate safeguards, enforceable rights and effective legal remedies required by the GDPR had to ensure that data subjects whose personal data were transferred to a third country pursuant to standard data protection clauses were afforded a level of protection essentially equivalent to that guaranteed within the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer had to take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country.", "122. Furthermore, unless there was a valid Commission adequacy decision, the competent supervisory authority was required to suspend or prohibit a transfer of data to a third country if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, the standard data protection clauses adopted by the Commission were not or could not be complied with in that third country and the protection of the data transferred (as required by European Union law) could not be ensured by other means.", "123. In order for the Commission to adopt an adequacy decision, it had to find, duly stating reasons, that the third country concerned ensured, by reason of its domestic law or its international commitments, a level of protection of fundamental rights essentially equivalent to that guaranteed in the European Union legal order. In the CJEU’s view, the Safe Harbour decision was invalid. Section 702 of the Foreign Intelligence Security Act (“FISA”) did not indicate any limitations on the power it conferred to implement surveillance programmes for the purposes of foreign intelligence or the existence of guarantees for non-US persons potentially targeted by those programmes. In those circumstances, it could not ensure a level of protection essentially equivalent to that guaranteed by the Charter. Furthermore, as regards the monitoring programmes based on Executive Order 12333, it was clear that that order also did not confer rights which were enforceable against the United States’ authorities in the courts.", "Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others (Case C-623/17; ECLI:EU:C:2020:790) and La Quadrature du Net and Others, French Data Network and Others and Ordre des barreaux francophones et germanophone and Others (Cases C-511/18, C-512/18 and C-520/18; ECLI:EU:C:2020:791)", "124. On 8 September 2017 the United Kingdom Investigatory Powers Tribunal (“IPT”) gave judgment in the case of Privacy International, which concerned the acquisition by the intelligence services of bulk communications data under section 94 of the Telecommunications Act 1984 and bulk personal data. The IPT found that, following their avowal, the regimes were compliant with Article 8 of the Convention. However, it identified the following four requirements which appeared to flow from the CJEU judgment in Watson and Others and which seemed to go beyond the requirements of Article 8 of the Convention: a restriction on non-targeted access to bulk data; a need for prior authorisation (save in cases of validly established emergency) before data could be accessed; provision for subsequent notification of those affected; and the retention of all data within the European Union.", "125. On 30 October 2017 the IPT made a request to the CJEU for a preliminary ruling clarifying the extent to which the Watson requirements could apply where the bulk acquisition and automated processing techniques were necessary to protect national security. In doing so, it expressed serious concern that if the Watson requirements were to apply to measures taken to safeguard national security, they would frustrate them and put the national security of Member States at risk. In particular, it noted the benefits of bulk acquisition in the context of national security; the risk that the need for prior authorisation could undermine the intelligence services’ ability to tackle the threat to national security; the danger and impracticality of implementing a requirement to give notice in respect of the acquisition or use of a bulk database, especially where national security was at stake; and the impact an absolute bar on the transfer of data outside the European Union could have on Member States’ treaty obligations.", "126. A public hearing took place on 9 September 2019. The Privacy International case was heard together with cases C‑511/18 and C‑512/18, La Quadrature du Net and Others, and C‑520/18, Ordre des barreaux francophones et germanophone and Others, which also concerned the application of Directive 2002/58 to activities related to national security and the combating of terrorism. Thirteen States intervened in support of the States concerned.", "127. Two separate judgments were handed down on 6 October 2020. In Privacy International the CJEU found that national legislation enabling a State authority to require providers of electronic communications services to forward traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security fell within the scope of the Directive on privacy and electronic communications. The interpretation of that Directive had to take account of the right to privacy, guaranteed by Article 7 of the Charter, the right to protection of personal data, guaranteed by Article 8, and the right to freedom of expression, guaranteed by Article 11. Limitations on the exercise of those rights had to be provided for by law, respect the essence of the rights, and be proportionate, necessary, and genuinely meet the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. Furthermore, limitations on the protection of personal data must apply only in so far as is strictly necessary; and in order to satisfy the requirement of proportionality, the legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose personal data are affected have sufficient guarantees that data will be protected effectively against the risk of abuse.", "128. In the opinion of the CJEU, national legislation requiring providers of electronic communications services to disclose traffic data and location data to the security and intelligence agencies by means of general and indiscriminate transmission – which affected all persons using electronic communications services – exceeded the limits of what was strictly necessary and could not be considered to be justified as required by the Directive on privacy and electronic communications read in light of the Charter.", "129. However, in La Quadrature du Net and Others the CJEU confirmed that while the Directive on privacy and electronic communications, read in light of the Charter, precluded legislative measures which provided for the general and indiscriminate retention of traffic and location data, where a Member State was facing a serious threat to national security that proved to be genuine and present or foreseeable, it did not preclude legislative measures requiring service providers to retain, generally and indiscriminately, traffic and location data for a period limited to what was strictly necessary, but which could be extended if the threat persisted. For the purposes of combating serious crime and preventing serious threats to public security, a Member State could also provide - if it was limited in time to what was strictly necessary - for the targeted retention of traffic and location data, on the basis of objective and non-discriminatory factors according to the categories of person concerned or using a geographical criterion, or of IP addresses assigned to the source of an Internet connection. It was also open to a Member State to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication, without the retention being subject to a specific time limit.", "130. Furthermore, the Directive on privacy and electronic communications, read in light of the Charter, did not preclude national rules which required providers of electronic communications services to have recourse, first, to the automated analysis and real-time collection of traffic and location data, and secondly, to the real-time collection of technical data concerning the location of the terminal equipment used, where it was limited to situations in which a Member State was facing a serious threat to national security that was genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review by a court or independent administrative body whose decision was binding; and where recourse to the real-time collection of traffic and location data was limited to persons in respect of whom there was a valid reason to suspect that they were involved in terrorist activities and was subject to a prior review carried out either by a court or by an independent administrative body whose decision was binding.", "RELEVANT COMPARATIVE LAW AND PRACTICEContracting StatesOverview", "Contracting StatesOverview", "Overview", "Contracting StatesOverview", "Overview", "Overview", "131. At least seven Contracting States (being Finland, France, Germany, the Netherlands, Sweden, Switzerland and the United Kingdom) officially operate bulk interception regimes over cables and/or the airways.", "132 In one additional State (Norway) a draft law is being debated: if enacted, it will also authorise bulk interception.", "133. The bulk interception regime in the United Kingdom is described in detail in the Court’s judgment in the case of Big Brother Watch and Others v. the United Kingdom (nos. 58170/13 and 2 others, 25 May 2021).", "134. As regards intelligence sharing agreements, at least thirty-nine Contracting States have either concluded intelligence sharing agreements with other States, or have the possibility for such agreements. Two expressly prohibit and two expressly permit the State to ask a foreign power to intercept material on their behalf. In the remaining States, the position on this issue is not clear.", "135. Finally, in most States the applicable safeguards are broadly the same as for domestic operations, with various restrictions on the use of the received data and in some cases an obligation to destroy them if they became irrelevant.", "Judgment of the German Federal Constitutional Court of 19 May 2020 (1 BvR 2835/17)", "136. In this judgment, the Constitutional Court considered whether the Federal Intelligence Service’s powers to conduct strategic (or “signals”) intelligence on foreign telecommunications were in breach of the fundamental rights contained in the Basic Law (Grundgesetz).", "137. The regime in question involved the interception of both content and related communications data and aimed only to monitor foreign telecommunications outside of German territory. Such surveillance could be carried out for the purpose of gaining information about topics determined by the Federal Government’s mandate to be significant for the State’s foreign and security policy. It could, however, also be used to target specific individuals. The admissibility and necessity of the orders to conduct such surveillance was controlled by an Independent Panel. According to the Constitutional Court’s judgment, interception was followed by a multi-stage, fully automated filtering and evaluation process. For this purpose, the Federal Intelligence Service used a six-digit number of search terms which were subject to control by an internal sub-unit responsible for ensuring that the link between the search terms employed and the purpose of the data request was explained in a reasonable and comprehensive manner. After the application of the automated filtering process, intercepted material was either deleted or stored and sent for evaluation by an analyst.", "138. The sharing of intercept material with foreign intelligence services was accompanied by a cooperation agreement which had to include usage restrictions and assurances to ensure that data were handled and deleted in accordance with the rule of law.", "139. The Constitutional Court held that the regime in question was not compliant with the Basic Law. While it acknowledged the overriding public interest in effective foreign intelligence gathering, it nevertheless considered, inter alia, that the regime was not restricted to sufficiently specific purposes; that it was not structured in a way that allowed for adequate oversight and control; and that various safeguards were lacking, particularly with respect to the protection of journalists, lawyers and other persons whose communications required special confidentiality protection.", "140. Regarding the sharing of intelligence obtained through foreign surveillance, the court again found the safeguards to be lacking. In particular, it was not specified with sufficient clarity when weighty interests might justify data transfers. In addition, while the court did not consider it necessary for a recipient State to have comparable rules on the processing of personal data, it nevertheless considered that data could only be transferred abroad if there was an adequate level of data protection and there was no reason to fear that the information would be used to violate fundamental principles of the rule of law. More generally, in the context of intelligence sharing, the court considered that cooperation with foreign States should not be used to undermine domestic safeguards and if the Federal Intelligence Service wished to use search terms provided to it by a foreign intelligence service it should first confirm the existence of the necessary link between the search terms and the purpose of the data request and that the resulting data did not disclose a particular need for confidentiality (for example, because they concerned whistle-blowers or dissidents). Although the court did not exclude the possibility of the bulk transfer of data to foreign intelligence services, it found that this could not be a continuous process based on a single purpose.", "141. Finally, the court found that the surveillance powers under review also lacked an extensive independent and continual oversight serving to ensure that the law was observed and compensating for the virtual absence of safeguards commonly guaranteed under the rule of law. The legislator had to provide for two different types of oversight, which had also to be reflected in the organisational framework: firstly, a body resembling a court, tasked with conducting oversight and deciding in a formal procedure providing ex ante or ex post legal protection; and secondly, an oversight that was administrative in nature and could, on its own initiative, randomly scrutinise the entire process of strategic surveillance as to its lawfulness. In the Constitutional Court´s view, certain key procedural steps would, in principle, require ex ante authorisation by a body resembling a court, namely: the formal determination of the various surveillance measures (exemptions in cases of urgency were not ruled out); the use of search terms, insofar as these directly targeted individuals who might pose a danger and were thus of direct interest to the Federal Intelligence Service; the use of search terms that directly targeted individuals whose communications required special confidentiality protection; and sharing the data of journalists, lawyers and other professions meriting special confidentiality protection with foreign intelligence services.", "The United States of America", "142. The United States’ intelligence services operate the Upstream programme pursuant to section 702 of the Foreign Intelligence Surveillance Act (“FISA”).", "143. The Attorney General and Director of National Intelligence make annual certifications authorising surveillance targeting non-U.S. persons reasonably believed to be located outside the U.S. They do not have to specify to the Foreign Intelligence Surveillance Court (“FISC”) the particular non-U.S. persons to be targeted, and there is no requirement to demonstrate probable cause to believe that an individual targeted is an agent of a foreign power. Instead, the section 702 certifications identify categories of information to be collected, which have to meet the statutory definition of foreign intelligence information. Authorised certifications have included information concerning international terrorism, and the acquisition of weapons of mass destruction.", "144. Pursuant to the authorisation, the NSA, with the compelled assistance of service providers, copies and searches streams of Internet traffic as data flows across the Internet. Both telephone calls and Internet communications are collected. Prior to April 2017 the NSA acquired Internet transactions that were “to”, “from”, or “about” a tasked selector. A “to” or “from” communication was a communication for which the sender or a recipient was a user of a section 702 tasked selector. An “about” communication was one in which the tasked selector was referenced within the acquired Internet transaction, but the target was not necessarily a participant in the communication. Collection of “about” communications therefore involved searching the content of communications traversing the Internet. However, from April 2017 onwards the NSA have not been acquiring or collecting communications that are merely “about” a target. In addition the NSA stated that, as part of this curtailment, it would delete the vast majority of previously acquired Upstream Internet communications as soon as practicable.", "145. Section 702 requires the Government to develop targeting and minimization procedures which are kept under review by the FISC.", "146. Executive Order 12333, which was signed in 1981, authorises the collection, retention and dissemination of information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation. Surveillance of foreign nationals under Executive Order 12333 is not subject to domestic regulation under FISA. It is not known how much data are collected under Executive Order 12333, relative to those collected under section 702.", "THE LAW", "PRELIMINARY ISSUE: DATE OF ASSESSMENT", "147. Before the Chamber the applicant sought a ruling on the Convention compatibility of the relevant Swedish legislation as it applied during three distinct periods (see paragraph 82 of the Chamber judgment). The Chamber decided to focus on the Swedish legislation as it stood at the time of its examination of the case (see paragraphs 96-98 of the Chamber judgment).", "148. Before the Grand Chamber, the applicant did not reiterate its request concerning the three periods but relied in its submissions on, inter alia, developments from 2018 and 2019 post-dating the Chamber’s examination of the case.", "149. The Government considered that, having regard to the Court’s case law according to which “the content and scope of the “case” referred to the Grand Chamber are ... delimited by the Chamber’s decision on admissibility”, the Grand Chamber’s review should be limited to the Swedish legislation as it stood at the time of the Chamber’s examination.", "150. The Grand Chamber agrees with the Chamber that it cannot be the Court’s task, when reviewing the relevant law in abstracto, as in the present case, to examine compatibility with the Convention before and after every single legislative amendment.", "151. The temporal scope of the Grand Chamber’s examination is therefore limited to the Swedish law and practice as it stood in May 2018, at the time of the Chamber examination.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "152. The applicant complained that the relevant legislation and practice in Sweden on bulk interception of communications, also referred to as signals intelligence, were in violation of its right to respect for private life and correspondence protected by Article 8 of the Convention. The Government contested that argument.", "153. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Government’s preliminary objection on victim status", "1. The Chamber judgment", "154. Applying the criteria set out in Roman Zakharov v. Russia ([GC], no. 47143/06, ECHR 2015), and Kennedy v. the United Kingdom (no. 26839/05, 18 May 2010), the Chamber considered that the contested legislation on signals intelligence instituted a system of secret surveillance that potentially affected all users and that no domestic remedy provided detailed grounds in response to a complainant who suspects that he or she has had his or her communications intercepted. In these circumstances, the Chamber considered an examination of the relevant legislation in abstracto to be justified and concluded that the applicant could claim to be the victim of a violation of the Convention, even though it was unable to allege that it had been subjected to a concrete measure of interception. For the same reasons the Chamber concluded that the mere existence of the contested legislation amounted in itself to an interference with the applicant’s rights under Article 8.", "2. The parties’ submissions before the Grand Chamber", "(a) The Government", "155. The Government stated that the applicant did not belong to a “group of persons or entities targeted by the legislation” on signals intelligence within foreign intelligence.", "156. In the Government’s view, furthermore, the contested legislation did not directly affect all users of mobile telephone services and the internet since it was restricted to foreign intelligence, and thereby foreign circumstances.", "157. Referring to the six stages of signals intelligence activities as described by them (see paragraph 29 above), the Government claimed that the applicant’s telephone and internet communications were unlikely to be affected for the following reasons: the majority of purely domestic communications would not pass the hand-over points in cross-border cables; even if that happened, the selectors used to identify relevant signals are designed with great precision as regards targeted foreign phenomena and the selectors are subject to approval by the Foreign Intelligence Court; as a result of the above, the applicant’s communications are unlikely to be sifted out in the above automatic processing; any data passing through the communications bearers that has not been selected disappears without any possibility to be reproduced and examined by the FRA; even if the applicant’s data or communications reached the third stage in the bulk interception process, there will be then further refining through automatic and manual means and the risk of the applicant’s communication being retained for further scrutiny beyond that stage is virtually non-existent.", "158. In the Government’s view, there is no interference with Article 8 rights until the stage when an analytical examination of selected signals is possible.", "159. The Government were also of the view that Swedish law affords effective remedies for a person who suspects that he or she was subjected to signals interception measures, including the possibility to file a request with the Foreign Intelligence Inspectorate and, as a result, obtain a notification whether or not any improper data collection has taken place. In the Government’s view, the Chamber’s insistence that there should be, in addition to the above, “detailed grounds” given in response, was not based on earlier case-law and unduly expanded the relevant requirements.", "160. On this basis the Government considered that the applicant might only claim to be a victim of a violation occasioned by the mere existence of impugned legislation if it was able to show that, due to its “personal” situation, it was potentially at risk of being subjected to signals intelligence measures. That was far from being so. Quite to the contrary, the applicant’s telephone and internet communications were unlikely to be intercepted and sifted and, in any event, the risk that they would be retained for further scrutiny beyond the automatic processing stage was virtually non-existent.", "161. The Government thus requested the Grand Chamber to declare the application inadmissible for lack of victim status or to find that there was no interference with the applicant’s Article 8 rights.", "162. As to other admissibility issues, the Government stated that they did not have objections regarding the exhaustion of domestic remedies.", "(b) The applicant", "163. The applicant considered that the relevant two conditions for claiming victim status in applications concerning the very existence of a legal regime for secret surveillance, as enunciated in Roman Zakharov (cited above), were satisfied in the present case.", "164. In particular, the Signals Intelligence Act permits the interception of any communications travelling along the cables that cross the Swedish border, or that are transmitted via the airways, and therefore, according to the applicant, directly affects all users of such communication services. Even though only communications relating to foreign circumstances are allowed to be intercepted, virtually all users of communications services may engage in cross-border communications, either deliberately by contacting a foreign recipient or inadvertently through communicating via a server located abroad. Also, the Signals Intelligence Act permits interception for development purposes unrelated to foreign circumstances.", "165. The applicant also submitted that there is no effective remedy at the national level for the applicant or for anyone suspecting that they may have been subject to bulk interception by the Swedish authorities. Therefore, the applicant must be able to have its case examined by the Court and can claim that the very existence of the impugned regime amounts to an interference with its Article 8 rights.", "3. The Court’s assessment", "166. As the Court noted in Kennedy and Roman Zakharov (both cited above), in cases concerning secret measures, there are special reasons justifying the Court’s departure from its general approach, according to which individuals cannot challenge before it a domestic law in abstracto. The principal reason is to ensure that the secrecy of surveillance measures should not result in them being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court (see Roman Zakharov, cited above, § 169).", "167. It is now settled case-law that several criteria apply in assessing whether an applicant may claim to be the victim of a violation of his or her Convention rights allegedly occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures. Those criteria were formulated as follows in Roman Zakharov (cited above, § 171):", "“Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his communications intercepted.", "Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. ...[W]here the domestic system does not afford an effective remedy to the person who suspects that he was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified... In such circumstances the threat of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court, and an exception to the rule denying individuals the right to challenge a law in abstracto is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him.", "By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.”", "168. Applying those criteria to the present case, the Court agrees with the Government that the applicant does not belong to a group of persons or entities targeted by the Swedish signal intelligence legislation and measures. Indeed, the applicant has not made such a claim.", "169. It must be seen, therefore, whether, as alleged by the applicant, the impugned legislation institutes a system of secret surveillance that potentially affects all persons communicating over the telephone or using the internet.", "170. In this regard, it is clear that communications or communications data of any person or entity in Sweden may happen to be transmitted via intercepted communications bearers and may thus be subject to at least the initial stages of automatic processing by the FRA under the contested legislation.", "171. The Government’s arguments that signals intelligence is restricted to foreign threats and circumstances and that therefore there is virtually no risk of the applicant’s communications being retained for further scrutiny beyond the automatic processing stage in bulk interception are relevant in the assessment of the intensity and proportionality of the interference with Article 8 rights, including the safeguards built into the impugned signals interception regime, but are not decisive with regard to the applicant’s victim status under Article 34 of the Convention. Any other approach risks rendering the access to the Convention complaints’ procedure conditional on proving that one’s communications are of interest for agencies tasked with foreign intelligence – an almost impossible task, having regard to the secrecy inherent in foreign intelligence activities.", "172. In these circumstances, the Court must have regard to the remedies available in Sweden to persons who suspect that they were subjected to measures under the Signals Intelligence Act in order to assess whether, as maintained by the applicant, the threat of surveillance can be claimed in itself to restrict free communication, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8.", "173. In this regard, the Court observes that, in practice, persons affected by bulk interception activities do not receive notification. On the other hand, in reaction to a request by anyone, regardless of nationality and residence, the Foreign Intelligence Inspectorate must investigate if the person’s communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with law. The Inspectorate has the power to decide that the signals intelligence operation shall cease or that the intelligence shall be destroyed. Any person may also seek the involvement of the Parliamentary Ombudsmen and the Chancellor of Justice in a number of circumstances.", "174. The applicant alleged, however, that the only information that might be given by the Inspectorate, without any reasons for the conclusions reached and in the form of a final decision not amenable to appeal, was that there had been an unlawful action. No other remedy could result in the complainant obtaining additional information on the circumstances of a possible interception and use of his or her communications or related data or about the nature of the unlawful action, if it occurred.", "175. In the context of the issue of victim status, without prejudice to the conclusions to be drawn in respect of the substantive requirements of Article 8 § 2 and Article 13 in the present case, the Court notes that the domestic remedies available in Sweden to persons who suspect that they are affected by bulk interception measures are subject to a number of limitations. In the Court’s view, even if these limitations are to be considered inevitable or justified, the practical result is that the availability of remedies cannot sufficiently dispel the public’s fears related to the threat of secret surveillance.", "176. It follows that it is not necessary to examine whether the applicant, due to its personal situation, is potentially at risk of seeing its communications or related data intercepted and analysed.", "177. On the basis of the above considerations the Court finds that an examination of the relevant legislation in abstracto is justified. The Government’s objection that the applicant may not claim to be the victim of a violation of his or her Convention rights allegedly occasioned by the mere existence of Swedish bulk interception legislation and activities is therefore rejected.", "Merits The Chamber judgment", "The Chamber judgment", "The Chamber judgment", "178. The Chamber found that the surveillance system clearly had a basis in domestic law and was justified by national security interests. Indeed, given the present-day threats of global terrorism and serious cross-border crime, as well as the increased sophistication of communications technology, the Court held that Sweden had considerable power of discretion (“a wide margin of appreciation”) to decide on setting up such a system of bulk interception. The State’s discretion in actually operating such an interception system was narrower, however, and the Court had to be satisfied that there were adequate and effective guarantees against abuse. It assessed the minimum safeguards to avoid abuse of power, as developed in its case-law and, in particular, in Roman Zakharov (cited above; see paragraphs 99-115 of the Chamber judgment).", "179. Overall, while the Chamber found some areas where there was scope for improvement of the system, notably the regulation of the communication of personal data to other States and international organisations and the practice of not giving public reasons following a review of individual complaints (see paragraphs 150, 173 and 177 of the Chamber judgment), it considered that the system revealed no significant shortcomings in its structure and operation. In this context, it noted that the regulatory framework had been reviewed several times with a view to enhancing protection of privacy and that it had in effect developed in such a way that it minimised the risk of interference with privacy and compensated for the lack of openness of the system (see paragraphs 180 and 181 of the Chamber judgment).", "180. More specifically, the scope of the interception and the treatment of intercepted data were clearly defined in law; the duration of the measures were clearly regulated (any permit was valid for a maximum of six months and renewal required a new review); the authorisation procedure was detailed and entrusted to a judicial body, the Foreign Intelligence Court; there were several independent bodies, in particular the Foreign Intelligence Inspectorate and the Data Protection Authority, tasked with the supervision and review of the system; and, on request, the Inspectorate had to investigate individual complaints of intercepted communications, as did the Parliamentary Ombudsmen and the Chancellor of Justice (see paragraphs 116-47 and 153-78 of the Chamber judgment).", "181. The Chamber therefore found that the Swedish system of signals intelligence provided adequate and sufficient guarantees against arbitrariness and the risk of abuse. The relevant legislation met the “quality of law” requirement and the interference could be considered as being “necessary in a democratic society”. Furthermore, the structure and operation of the system were proportionate to the aim sought to be achieved. The Chamber pointed out, however, that its examination had been made in abstracto and did not preclude a review of the State’s liability under the Convention where, for example, the applicant has been made aware of an actual interception (see paragraphs 179-81 of the Chamber judgment).", "The parties’ submissions", "(a) The applicant", "(i) The applicant’s view on the standard to be applied", "182. According to the applicant, bulk interception regimes are inherently incompatible with the Convention. In Klass and Others v. Germany (6 September 1978, § 51, Series A no. 28) and Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 174-75, 24 May 2011), the Court had considered “exploratory” or “general surveillance” as problematic. As regards untargeted interception, solely regimes far more confined in scope than the Swedish regime had been found to be compatible with the Convention. Seeing that FRA could gain access to virtually all cable-based communisations crossing the Swedish border, the amount of intimate, private and privileged data that could be surveyed under the Swedish signals intelligence regime was far greater. Therefore, the applicant considered that only targeted and smaller-scale untargeted interception regimes could fall within the State’s margin of appreciation. Any other approach risked leading to inconsistent case-law having regard to the Court’s approach to other Convention issues, such as blanket retention of fingerprints and DNA profiles, dealt with in S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, § 115, ECHR 2008).", "183. If the Court considered that bulk interception activities may be justified under the Convention, the applicant submitted that robust minimum safeguards were imperative. The factors outlined in Roman Zakharov (cited above, § 238) could serve as an initial framework, but untargeted surveillance entailed elevated privacy risks and required these standards to be adapted.", "184. In particular, the main elements of the regime should be set out in sufficient detail in statute law. That would ensure that it is the representative of the people who strike the balance between the competing interests.", "185. As regards prior authorisation, while it accepted that the body entrusted with this task in Sweden is a judicial one, the applicant invited the Court to move one step further in its case-law and hold that prior authorisation must always be judicial.", "186. In addition, in the applicant’s view, the authorising body should be capable of verifying the existence of a reasonable suspicion in relation to any person singled out or targeted. The applicant found unconvincing the Chamber’s departure, in the present case and in Big Brother Watch and Others v. the United Kingdom, nos. 58170/13 and 2 others, 13 September 2018, from this allegedly established requirement. The use of personalised selectors to single out and collect data on an individual, albeit in the bulk interception context, should be subject to the same threshold as applied to targeted interception. Otherwise, such selectors can be used as a work-around method for targeting individuals.", "187. If there are no predefined targets, on the other hand, the authorising body should be capable of verifying that personal data is used in selectors only to the extent that it is material to a narrowly specified foreign intelligence objective. The latter is necessary because the use of selectors relating to specific individuals exposes them to distinct privacy risks, including about intimate matters and opinions.", "188. In the applicant’s view, furthermore, the authorising judicial body should be provided with an indication of how the data will be analysed and used (for example, via pattern-based or subject-based analysis, and whether profiles of individuals will be compiled).", "189. As regards supervision at the stages of carrying out the surveillance activities and after they have been terminated, the applicant accepted that the Swedish oversight bodies meet the requirement of sufficient independence from the executive.", "190. However, the oversight body must be vested with sufficient powers to issue legally binding decisions, including stopping and remedying breaches and seeking the liability of those responsible for such breaches. It should have access to classified documents and its functioning should be open to public scrutiny. The supervision powers should concern both content and communications data and should be exercised at the stages when collected communications are subject to automated computer analysis, where a human analyst works on them and where information is communicated to national authorities, foreign Governments or international organisations. Storage of data at each stage should also be supervised.", "191. In the applicant’s view, in addition, individuals must dispose of effective remedies which may take three forms: post-fact notification of the subject of surveillance, a possibility to request information about the surveillance or the existence of a body that can examine complaints without requiring the individual to submit evidence.", "192. As regards transmitting intercepted material to foreign actors, the applicant underlined that Contracting States do not have unfettered discretion as they cannot outsource data processing and analysis in such a manner as to avoid responsibility under the Convention. The applicant considered that the minimum standards must include accessible legal provisions, clear legal conditions for sharing, including a duty to take reasonable steps to ensure that the receiving party protects the data with similar safeguards as those applicable at home and sufficient supervisory and remedial mechanisms.", "(ii) The applicant’s analysis of the impugned Swedish regime", "193. Applying these standards to the impugned Swedish regime, the applicant stated that the general scope of application of the FRA’s powers is sufficiently constrained with the exception of the wide discretion it enjoys regarding its development activities. However, the applicant expressed concern that since 1 January 2013 the Security Police and the National Operative Department of the Police Authority (the “NOA”) had been empowered to issue tasking directives for signals intelligence, and that as of 1 March 2018, the Security Police might be granted direct access to the FRA’s databases with analysis material. The risk of signals intelligence being used outside the scope of foreign intelligence activities must be sufficiently contained by clear legal provisions and effective supervision.", "194. The applicant also alleged that while warrants under the Swedish Signals Intelligence Act have a clear expiry date, there is no requirement that a warrant must be cancelled if collection of communication under the warrant ceases to be necessary.", "195. The applicant further considered that the scope of judicial review by the authorising body in Sweden, the Foreign Intelligence Court, was too narrow to be effective. In particular, the existence of a reasonable suspicion in relation to a person who is singled out is not verified and the “exceptional importance” criterion, justifying selectors relating directly to an individual, only refers to selectors employed in the automated collection of data, not to the stage when the collected data is further searched. Also, the Foreign Intelligence Court is not required to review the intended subsequent use of the collected data and, indeed, the warrant request does not specify how the data will be analysed – for example, via subject-based data mining or through compilation of profiles of individuals.", "196. As regards storing, accessing, examining, using and destroying intercepted data, the applicant identified two major flaws in the Swedish system: lack of legal obligation for the FRA to keep detailed records of the interception, use and communication of data, for which it had been repeatedly criticised by the Swedish Data Protection Authority, and lack of rules specifically adapted to bulk interception as opposed to general rules on data processing. The applicant was further concerned that as of 1 March 2018 the Security Police may be granted direct access to FRA’s databases with analysis material.", "197. The applicant also alleged that legal persons did not enjoy adequate protection since the FRA Data Processing Act only applies to intercept material containing personal data. This allegedly resulted in a situation where material not containing personal data may be kept forever and used for purposes incompatible with the original purpose of collection.", "198. The applicant criticised the following features of the existing supervision system. First, while the Inspectorate may decide that an operation shall cease or that the collected intelligence must be destroyed if it finds incompatibility with a warrant granted by the Foreign Intelligence Court, it does not have the power to issue binding decisions where the warrant is deemed unlawful. The Inspectorate cannot grant compensation or seek the liability of those responsible for breaches. Second, neither the Data Protection Authority, nor the Chancellor of Justice or the Ombudsmen may issue legally binding decisions. The Data Protection Authority may only apply to the Administrative Court in Stockholm to have illegally processed data destroyed. Furthermore, none of the complaints that have been submitted to the Chancellor and the Ombudsmen in relation to the FRA’s activities has been successful. Those bodies are not specialised in the FRA’s activities and do not possess the knowledge and capacity to supervise them effectively.", "199. The applicant made the following submissions as regards the remedies available under the impugned Swedish regime.", "First, in its view the notification provided for under section 11(a) of the Signals Intelligence Act only concerns natural persons, not organisations, and may be disapplied if required for reasons of secrecy, which has happened invariably in practice. This remedy was therefore “theoretical and illusory”. The possibility to request the FRA to inform an individual whether personal data concerning him or her had been processed was also subject to the secrecy rule and the Administrative Court that examines ensuing appeals would not have access to secret documents and would be unable to review the FRA’s assessment on whether secrecy applies. This remedy too is unavailable to legal persons as the applicant.", "Second, the applicant referred to powers of the IPT in the United Kingdom to hear complaints of unlawful interception without the need for the complainant to prove that they had been subject to surveillance. The IPT, an independent judicial body, had access to secret documents, could take binding decisions and award compensation. Its decisions were published. The applicant submitted that a similar remedy was lacking in Sweden.", "Third, as regards the possibility under Swedish law to ask the Inspectorate to investigate whether an individual’s communications have been intercepted, the applicant noted that the Inspectorate did not inform the individual concerned of its findings and only sent standardised replies that no unlawful surveillance had taken pace. The applicant reiterated their view that the Inspectorate had no power to control compliance with the law and the Constitution and could not order the payment of compensation.", "Fourth, the applicant considered that seeking compensation from the Chancellor of Justice was not an effective remedy because: (i) the individual bears the burden to prove that there had been unlawful surveillance; (ii) compensation without erasing the unlawfully processed data could not be regarded as an effective remedy; (iii) to date the Chancellor, who enjoys discretion as to which complaints to review, had dismissed all complaints concerning the FRA’s activities; (iv) the Government had not shown the effectiveness of this remedy, seeing that it is unclear what action must be undertaken by the Chancellor upon receipt of a report from the Inspectorate informing about actions of the FRA that may give rise to a claim of damages: in particular, if the Chancellor were to provide the individual with an opportunity to claim damages, that would require advising him or her of the unlawful conduct of the FRA which could be precluded by secrecy.", "Fifth, in the absence of notification or access to documents it is virtually impossible for an individual to discharge the burden of proof in a civil action for damages.", "Sixth, the Ombudsmen could not order any redress and no examples of the effectiveness of this remedy have been shown.", "Seventh, the procedure according to which the FRA could correct or destroy unlawfully processed personal data was dependent on the individual’s knowledge that data had been processed and was ineffective due to the secrecy requirement. Also, the Administrative Court has never received applications form the Data Protection Authority seeking the erasure of unlawfully processed data.", "Finally, the possibility to seek prosecution was also dependent on the individual knowing of relevant wrongdoing and thus ineffective.", "200. On the issue of transfers of intercepted data to foreign third parties, the applicant submitted that the deficiencies in the Swedish legal regime and practice were glaring. The legal limitations on such transfers consisted of nothing more than a vague and broadly defined obligation to act in the national interest. There was no requirement that possible harm to the individual is to be taken into account or that the recipient is to be required to protect the data with similar safeguards as those applicable in Sweden.", "201. The applicant disagreed with the finding of the Chamber that the above shortcomings were counterbalanced by the supervisory mechanisms of the Swedish system. It considered that this supervision was inadequate and in any event did not cover the transfer of intercepted data to foreign parties. The FRA was merely required to inform the Inspectorate of the principles governing its cooperation with foreign parties, identify the countries or international organisations to which data was transferred and provide general details of operations. As the Inspectorate monitors the FRA’s activities for compliance with existing legal requirements and the law allows excessive discretion to the FRA in this area, even the most stringent policing by the Inspectorate could do little to provide safeguards against abuse. In the applicant’s view, the arrangements described above cannot constitute a practice compatible with the Convention as they allow to simply outsource otherwise unlawful activities without appropriate limits safeguarding fundamental rights.", "(b) The Government", "202. The Government submitted that the purpose of signals intelligence was to obtain information and identify phenomena of relevance for foreign intelligence. Foreign intelligence was essential for Sweden’s national security and also relevant with regard to Sweden’s positive obligations under the Convention to protect the lives and safety of the public.", "203. In the Government’s view, owing to the fact that the Court’s case-law setting out minimum safeguards for secret surveillance measures concerns, with the exception of the present case and Big Brother Watch, criminal investigations, some of the minimum safeguards required by the Court presuppose a link to a certain individual or to a certain place. This is very different from signals intelligence, which cannot be used to investigate criminal offences and one of the duties of the Foreign Intelligence Court is to ensure that it is not so used. Signals intelligence as part of foreign intelligence may in many cases target specific individuals’ communications but the individuals are most often not of interest per se : they are only carriers of information.", "204. It was necessary, therefore, to adapt the relevant requirements, including by reformulating some of the criteria set out in the Court’s case-law as follows: introducing the criterion “the circumstances in which the measures may be used” instead of “the nature of the offences” and “categories of persons targeted”. Also, account must be taken of the fact that national security threats are by their nature variable and difficult to define in advance.", "205. The Government strongly disagreed with the applicant who had claimed, on the basis of Roman Zakharov (cited above) and Szabó and Vissy v. Hungary (no. 37138/14, 12 January 2016), that the existence of a reasonable suspicion was required at least when selectors linked to a specific individual were used. In the Government’s view no such requirement could be deducted from the above-cited case-law. The Government supported the Chamber’s reasoning in paragraph 317 in Big Brother Watch, where the Court held that the requirements of “reasonable suspicion” and “subsequent notification” are incompatible with bulk interception regimes.", "206. The Government further asserted that bulk interception in Sweden was regulated by a comprehensive legal regime that was based on published legal provisions and provided for significant safeguards, including independent supervision, covering both surveillance activities related to communications data and to the content of communications. The law clearly delimited the scope of the surveillance activities, the mandate given to the competent authorities in this regard and the manner of its exercise.", "207. As regards the FRA’s development activities, the Government emphasised that they are rigorously regulated and subject to all substantive and procedural requirements applicable to signals intelligence in general. In development activities, which are crucial to permit the FRA to adjust its tools, systems and methods to an ever-changing signals environment and technical developments, it is the flow of traffic and the systems through which information is transmitted that are of interest. To maintain the FRA’s capabilities, it would be far too restrictive if development activities were only allowed for the eight purposes that circumscribe signals intelligence.", "208. There was, furthermore, a prior authorisation procedure before the Foreign Intelligence Court, whose president is a permanent judge and the other members are appointed by the Government on four-year terms. In the exceptional cases of urgency when the FRA may itself grant a signals intelligence permit, that court must be immediately notified and it may modify or revoke the permit, with the consequence that collected data must be destroyed. If the permit granted by the FRA, not by the court, contains access to certain communications bearers, such access can only be realised by the Swedish Foreign Intelligence Inspectorate which will have the possibility to estimate the relevant legal aspects.", "209. The Foreign Intelligence Court holds public hearings except when required by secrecy considerations. The Government submitted that the latter limitation on transparency was justified and was compensated by safeguards, such as the presence of a privacy protection representative at the court’s private hearings. The representative defends the public interest, is given full access to case documents and can make statements. He or she is a permanent judge or a former permanent judge or a member of the Swedish Bar Association.", "210. The Government emphasised that the FRA must seek a permit in respect of each mission and must specify the assignment, the bearers to which access is sought and the selectors or at least the categories of selectors to be used. The court examines not only the formal lawfulness but also the proportionality to the expected interference. The permit must specify all parameters, including the conditions needed to limit such interference.", "211. As regards safeguards on the duration of the interception, Swedish law limited it to six months, subject to extension following full review by the Foreign Intelligence Court. Also, interception is discontinued if a tasking directive is revoked or expires, if interception is not in accordance with the permit and if it is no longer needed.", "212. Adequate safeguards also exist in respect of the procedures for storing, accessing, examining, using and destroying intercepted data. These safeguards include limiting processing to what is adequate and relevant to its purpose, vetting of staff and their duty of confidentiality and sanctions in case of mismanagement of data. Also, intelligence must be destroyed immediately in a number of circumstances, including, inter alia, where it concerns constitutionally protected media sources or legal professional privilege in relations between a criminal suspect and his lawyer. Moreover, if the intercepted communications prove to be entirely domestic, the intercepted data must also be destroyed.", "213. As regards the conditions for communicating the intercepted data to other parties, the FRA has a regulated obligation to report to the Swedish authorities concerned but ensures that personal data is only reported if it is of relevance for the purposes for which foreign intelligence may be conducted. Compliance with this requirement is monitored by the Foreign Intelligence Inspectorate.", "214. The Government emphasised that despite the provision allowing the FRA to give direct access to its completed intelligence reports to the Government Offices, the Armed Forces, the Security Police and three other bodies, no decisions permitting such access have yet been taken by the FRA. The Government clarified in addition that, since 1 March 2018, under section 15 of the FRA Personal Data Protection Act, the Security Police and the Armed Forces may be granted direct access to data that constitutes the analysis results in a data compilation for analyses, so as to allow these two authorities to be able to make strategic assessments of terrorist threats. This changes nothing with regard to the prohibition to use signals intelligence within foreign intelligence for the purposes of investigating criminal offences.", "215. Finally, with regard to communication of personal data to other States and to international organisations, the Government disagreed with the Chamber which had found shortcomings in the relevant legal regime (see paragraph 150 of the Chamber judgment). They submitted, inter alia, that the FRA must report to the Ministry of Defence before it establishes and maintains cooperation with other states and international organisations and inform the ministry about important issues that occur in the process of such cooperation. Furthermore, the FRA must inform the Swedish Foreign Intelligence Inspectorate of the principles that apply to its relevant cooperation and provide details of the countries and organisations with which such cooperation takes place. When cooperation is established, the FRA must inform the Inspectorate of the scope of the cooperation and, where deemed warranted, of the results, experience and continued direction of the cooperation.", "216. The Government also pointed to the fact that in international cooperation data is exclusively communicated to parties that are themselves engaged in foreign intelligence, which meant that it is in the recipient’s interest to protect the data received. The trust between the parties is based on a mutual interest in maintaining the security of the data. Also, the FRA’s general guidelines stipulate that international cooperation is conditional on the receiving State respecting Swedish legislation. Foreign partners receive information and training on the relevant content of Swedish legislation. As the Inspectorate has a clear mandate to control the FRA’s international cooperation, any change to its internal guidelines would not go unnoticed. There are therefore clear safeguards against circumventing Swedish law.", "217. In the Government’s view, Sweden’s system of supervision on signals intelligence offered important safeguards. The Foreign Intelligence Inspectorate is independent, has access to all relevant documents, examines the selectors used and has the power to decide that data collection must cease or the data collected be destroyed if the terms of the relevant permit have not been complied with. The Inspectorate also ensures that the FRA is only provided access to communications bearers insofar as such access is covered by a permit. The Inspectorate submits annual public reports and is subject to audit by the National Audit Office and supervision by the Parliamentary Ombudsmen and the Chancellor of Justice. As regards personal data, the Swedish Data Protection Authority has general supervisory functions. In the Government’s view, this kind of supervision by independent non-judicial bodies is adequate and in conformity with the Court’s case-law.", "218. The Government submitted that between 2009 and 2018 the Inspectorate had conducted 113 audits of the FRA resulting in 18 opinions. At least seventeen of these audits served, inter alia, to control that the FRA was using selectors in a way compatible with the permit issued by the Foreign Intelligence Court and at least nine audits included issues of data destruction. A number of audits also concerned the FRA’s handling of personal data. Only very few observations or opinions ensued from the audits. During the same time period, the Inspectorate carried out 141 controls at the request of an individual on whether his or her communications had been the subject of unlawful signals intelligence. None of those showed improper signals collection. There were also several thematic reviews of the FRA’s activities, such as on compliance with the limits imposed by the permits.", "219. The Government also submitted that there are several remedies by which an individual may initiate an examination of the lawfulness of measures taken during the operation of the signals intelligence system. These include a request to the Inspectorate which may result in notification whether anything improper had taken place, a request to the FRA on whether personal data concerning him or her has been processed, applications to the Parliamentary Ombudsmen, the Chancellor of Justice and the Data Protection Authority, an action for damages and reporting a matter for prosecution. Some of these remedies are not dependent on prior notification being made to an individual. While systematic notification was impossible, it is significant that the FRA is obliged to inform a natural person if selectors directly related to him or her have been used, except where secrecy applies.", "220. The Government also stated that no distinction is made in Swedish law on bulk interception between content and communications data, all safeguards applying equally to both. In practice, using communications data to discover unknown threats requires putting together various pieces of such data to establish a picture from which conclusions can be drawn. This requires that the selectors used for intercepting communications data are less specific than those used for the content of communications and that data is available for examination by an analyst over a period of time. No other differences exist.", "221. In conclusion, the Government submitted that the impugned regime on signals intelligence within foreign intelligence reveals no significant shortcomings in its structure and operation. The risk of interference with privacy is minimised and sufficient guarantees against arbitrariness are in place. The regime as a whole is lawful and proportionate to the legitimate aim of protecting national security.", "Third intervening parties", "(a) The Government of the Republic of Estonia", "222. The Estonian Government considered that the criteria for the assessment of the Convention compatibility of secret surveillance regimes, as developed in the Court’s case-law, needed adaptation to reflect the specific nature of bulk interception of communications as a foreign intelligence activity. The differences between such an activity and surveillance in the criminal investigation context must be taken into account. Foreign intelligence aims at detecting threats to national security and is therefore broader in its scope. Also, it is a long-term activity that requires a higher level of secrecy over a very long period of time.", "223. On this basis, the Estonian Government, referring to the criteria for assessment used in Roman Zakharov (cited above, § 231), agreed with the Chamber that the “nature of the offences” and “reasonable suspicion” criteria were not appropriate and stated that, instead of the “categories of people” criterion, domestic law should indicate “the fields in which bulk interception of cross-border communications may be used to gather intelligence”. As to notification of affected persons, in the view of the intervening Estonian Government no such obligation should be imposed because of the importance of secrecy in foreign intelligence.", "(b) The Government of the French Republic", "224. The French Government, emphasising the importance of bulk interception activities for the identification of unknown threats, considered that the criteria for assessing their Convention compatibility, as developed in Weber and Saravia v. Germany ((dec.), no. 54934/00, ECHR 2006 ‑ XI) and Roman Zakharov (cited above), were relevant in the present case. However, in their view, there should be no “reasonable suspicion” requirement, having regard to the specific nature of bulk interception operations, which are different from the secret surveillance of a specific individual.", "225. The French Government further considered that States enjoy a wide margin of appreciation in operating bulk interception regimes and that the assessment whether the applicable guarantees against abuse were sufficient must always be made in concreto, having regard to the relevant legislation seen as a whole. The Chamber in the present case had done exactly that, noting that despite the fact that some improvements were desirable, the Swedish system as a whole did not disclose significant shortcomings. However, in the case of Big Brother Watch and Others (cited above), the Chamber had applied a stricter scrutiny and unjustifiably found violations of Articles 8 and 10 of the Convention. The French Government advocated against the latter approach. In particular, they considered that a bulk interception regime that did not include judicial pre-authorisation was compatible with Article 8 as long as there was a mechanism for a posteriori supervision by an independent body.", "226. The French Government also expressed the view, supported by references to case-law, that the interception and processing of communications data interfered with privacy rights in a less significant manner than the interception and processing of the content of communications and that, therefore, should not be subject to the same guarantees for the protection of the right to private life.", "227. As regards intelligence sharing, the French Government stressed the importance of secrecy and the fact that the procedures and guarantees applied can vary from one State to another. They further elaborated on several relevant criteria, in particular, in the context of receiving and using intercepted data from foreign partners.", "(c) The Government of the Kingdom of the Netherlands", "228. The Government of the Kingdom of the Netherlands submitted that bulk interception was necessary to identify hitherto unknown threats to national security. In order to protect national security, intelligence services needed the tools to investigate emerging threats in a timely and effective manner. For this they needed the powers necessary to enable them to detect and/or prevent not only terrorist activities (such as planning of attacks, recruitment, propaganda and funding), but also intrusive State or non-State actors’ cyber activities aimed at disrupting democracy (for example, by influencing national elections or obstructing investigations by national and international organisations). An example of this was the attempted hacking of the investigation of the use of chemical weapons in Syria by the Organisation for the Prohibition of Chemical Weapons in The Hague. Moreover, the increasing dependency of vital sectors on digital infrastructures meant that such sectors, including water management, energy, telecoms, transport, logistics, harbours and airports, were increasingly vulnerable to cyber-attacks. The consequences of disruption in such sectors would have a deep impact on society, far beyond the substantial monetary damage.", "229. A complicating factor in all of this was the development of new means of digital communication and the exponential increase of data that was transmitted and stored globally. In many instances the nature and origin of a particular threat was unknown and the use of targeted interception was not feasible. However, while bulk interception was not as tightly defined as targeted interception, it was never completely untargeted. Rather, it was applied for specific aims.", "230. In the intervening Government’s view, there was no need for additional or updated minimum requirement; the minimum safeguards; those previously identified by the Court were sufficiently robust and “future proof”. The additional requirements proposed by the applicant – in particular, the requirement to demonstrate “reasonable suspicion” – would unacceptably reduce the effectiveness of the intelligence services without providing any meaningful additional protection of individuals’ fundamental rights.", "231. Furthermore, according to the intervening Government, it was still relevant to distinguish between content and communications data, as the content of communications was likely to be more sensitive than communications data. The intervening Government also agreed with the Chamber that it was wrong automatically to assume that bulk interception constituted a greater intrusion into the private life of an individual than targeted interception, since once targeted interception takes place it was likely that all, or nearly all, of the intercepted communications would be analysed. This was not true of bulk interception, where restrictions on the examination and use of data determined the intrusiveness of the interception on the individuals’ fundamental rights.", "232. Finally, the intervening Government submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception in view of the high degree of uncertainty regarding the source of a threat. Ex post oversight provided sufficient safeguards.", "(d) The Government of the Kingdom of Norway", "233. The Norwegian Government submitted that, with regard to the decision of States to introduce and operate some form of bulk interception regime for national security purposes, the margin of appreciation had to be wide. This was because intelligence services had to keep pace with the rapid advances in information and communications technology. Hostile actors changed their devices and digital identities at a pace which made it difficult to track them over time. It was also difficult to discover and counteract hostile cyber operations in a timely manner without tools capable of discovering anomalies and relevant signatures. It was therefore without doubt that modern capacities like bulk interception were needed in order to find unknown threats operating in the digital domain and to enable the services to discover and follow relevant intelligence threats.", "234. As a consequence, the Court’s oversight should be based on an overall assessment of whether the procedural safeguards against abuse which are in place are sufficient and adequate. It should therefore avoid enumerated and absolute requirements. It should also not apply criteria that would undermine indirectly the wide margin of appreciation afforded to States in deciding to operate a bulk interception regime for national security reasons. A “reasonable suspicion” or “subsequent notification” requirement would have this effect.", "235. Finally, the Norwegian Government encouraged the Court to refrain from importing concepts and criteria from the CJEU. First of all, at the relevant time nineteen Council of Europe Contracting States were not members of the European Union. Secondly, while the Convention and the Charter of Fundamental Rights had many features in common, there were also differences, most notably Article 8 of the Charter which contained a right to the protection of personal data. The CJEU also formulated “proportionality” differently, using a “strict necessity” method which did not compare to that used by the Court.", "The Court’s assessment", "(a) Preliminary remarks", "236. The present complaint concerns the bulk interception of cross-border communications by the intelligence services. While it is not the first time the Court has considered this kind of surveillance (see Weber and Saravia and Liberty and Others, both cited above), in the course of the proceedings it has become apparent that the assessment of any such regime faces specific difficulties. In the current, increasingly digital, age the vast majority of communications take digital form and are transported across global telecommunications networks using a combination of the quickest and cheapest paths without any meaningful reference to national borders. Surveillance which is not targeted directly at individuals therefore has the capacity to have a very wide reach indeed, both inside and outside the territory of the surveilling State. Safeguards are therefore pivotal and yet elusive. Unlike the targeted interception which has been the subject of much of the Court’s case-law, and which is primarily used for the investigation of crime, bulk interception is also – perhaps even predominantly – used for foreign intelligence gathering and the identification of new threats from both known and unknown actors. When operating in this realm, Contracting States have a legitimate need for secrecy which means that little if any information about the operation of the scheme will be in the public domain, and such information as is available may be couched in terminology which is obscure and which may vary significantly from one State to the next.", "237. While technological capabilities have greatly increased the volume of communications traversing the global Internet, the threats being faced by Contracting States and their citizens have also proliferated. These include, but are not limited to, global terrorism, drug trafficking, human trafficking and the sexual exploitation of children. Many of these threats come from international networks of hostile actors with access to increasingly sophisticated technology enabling them to communicate undetected. Access to such technology also permits hostile State and non-State actors to disrupt digital infrastructure and even the proper functioning of democratic processes through the use of cyberattacks, a serious threat to national security which by definition exists only in the digital domain and as such can only be detected and investigated there. Consequently, the Court is required to carry out its assessment of Contracting States’ bulk interception regimes, a valuable technological capacity to identify new threats in the digital domain, for Convention compliance by reference to the existence of safeguards against arbitrariness and abuse, on the basis of limited information about the manner in which those regimes operate.", "(b) The existence of an interference", "238. The Government considered that there was no interference with the applicant’s Article 8 rights since it did not belong to a group of persons or entities targeted by the relevant legislation and in view of the fact that it was highly unlikely that the applicant’s communications would be subject to analytical examination, there allegedly being no interference with Article 8 rights at the preceding stages of bulk interception of communications as it functioned in Sweden.", "239. The Court views bulk interception as a gradual process in which the degree of interference with individuals’ Article 8 rights increases as the process progresses. Bulk interception regimes may not all follow exactly the same model, and the different stages of the process will not necessarily be discrete or followed in strict chronological order. Nevertheless, subject to the aforementioned caveats, the Court considers that the stages of the bulk interception process which fall to be considered can be described as follows:", "(a) the interception and initial retention of communications and related communications data (that is, the traffic data belonging to the intercepted communications);", "(b) the application of specific selectors to the retained communications/related communications data;", "(c) the examination of selected communications/related communications data by analysts; and", "(d) the subsequent retention of data and use of the “final product”, including the sharing of data with third parties.", "240. At what the Court has taken to be the first stage, electronic communications (or “packets” of electronic communications) will be intercepted in bulk by the intelligence services. These communications will belong to a large number of individuals, many of whom will be of no interest whatsoever to the intelligence services. Some communications of a type unlikely to be of intelligence interest may be filtered out at this stage.", "241. The initial searching, which is mostly automated, takes place at what the Court has taken to be the second stage, when different types of selectors, including “strong selectors” (such as an email address) and/or complex queries are applied to the retained packets of communications and related communications data. This may be the stage where the process begins to target individuals through the use of strong selectors.", "242. At what the Court has taken to be the third stage, intercept material is examined for the first time by an analyst.", "243. What the Court has taken to be the final stage is when the intercept material is actually used by the intelligence services. This may involve the creation of an intelligence report, the sharing of the material with other intelligence services within the intercepting State or even the transmission of material to foreign intelligence services.", "244. The Court considers that Article 8 applies at each of the above stages. While the initial interception followed by the immediate discarding of parts of the communications does not constitute a particularly significant interference, the degree of interference with individuals’ Article 8 rights will increase as the bulk interception process progresses. In this regard, the Court has clearly stated that even the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116), and that the need for safeguards will be all the greater where the protection of personal data undergoing automatic processing is concerned (see S. and Marper, cited above, § 103). The fact that the stored material is in coded form, intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons, can have no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000 ‑ II and S. and Marper, cited above, §§ 67 and 75). Finally, at the end of the process, where information about a particular person will be analysed or the content of the communications is being examined by an analyst, the need for safeguards will be at its highest. This approach of the Court is in line with the finding of the Venice Commission, which in its report on the Democratic Oversight of Signals Intelligence Agencies considered that in bulk interception the main interference with privacy occurred when stored personal data were processed and/or accessed by the agencies (see paragraphs 86-91 above).", "245. Thus, the degree of interference with privacy rights will increase as the process moves through the different stages. In examining whether this increasing interference was justified, the Court will carry out its assessment of the relevant Swedish regime on the basis of this understanding of the nature of the interference.", "(c) Whether the interference was justified", "(i) General principles relating to secret measures of surveillance, including the interception of communications", "246. Any interference with an individual’s Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim (see Roman Zakharov, cited above, § 227; see also Kennedy, cited above, § 130). The wording “in accordance with the law” requires the impugned measure to have some basis in domestic law (as opposed to a practice which does not have a specific legal basis – see Heglas v. the Czech Republic, no. 5935/02, § 74, 1 March 2007). It must also be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228; see also, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, § 52; S. and Marper, cited above, § 95; and Kennedy, cited above, § 151).", "247. The meaning of “foreseeability” in the context of secret surveillance is not the same as in many other fields. In the special context of secret measures of surveillance, such as the interception of communications, “foreseeability” cannot mean that individuals should be able to foresee when the authorities are likely to resort to such measures so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov, cited above, § 229; see also Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; Leander, cited above, § 51; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007). Moreover, the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 230; see also, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).", "248. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements. The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236; and Kennedy, cited above, § 155).", "249. In this regard it should be reiterated that in its case-law on the interception of communications in criminal investigations, the Court has developed the following minimum requirements that should be set out in law in order to avoid abuses of power: (1) the nature of offences which may give rise to an interception order; (2) a definition of the categories of people liable to have their communications intercepted; (3) a limit on the duration of interception; (4) the procedure to be followed for examining, using and storing the data obtained; (5) the precautions to be taken when communicating the data to other parties; and (6) the circumstances in which intercepted data may or must be erased or destroyed (see Huvig, cited above, § 34; Valenzuela Contreras, cited above, § 46; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76). In Roman Zakharov (cited above, § 231) the Court confirmed that the same six minimum safeguards also applied in cases where the interception was for reasons of national security; however, in determining whether the impugned legislation was in breach of Article 8, it also had regard to the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (see Roman Zakharov, cited above, § 238).", "250. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights. In a field where abuse in individual cases is potentially so easy and could have such harmful consequences for democratic society as a whole, the Court has held that it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Roman Zakharov, cited above, § 233; see also Klass and Others, cited above, §§ 55 and 56).", "251. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is a relevant factor in assessing the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of surveillance powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Roman Zakharov, cited above, § 234; see also Klass and Others v, cited above, § 57; and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that he or she has been subject to surveillance can apply to courts, whose jurisdiction does not depend on notification to the surveillance subject of the measures taken (see Roman Zakharov, cited above, § 234; see also Kennedy, cited above, § 167).", "252. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has recognised that the national authorities enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security (see Weber and Saravia, cited above, § 106).", "253. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security (and other essential national interests) may undermine or even destroy the proper functioning of democratic processes under the cloak of defending them, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; and Kennedy, cited above, §§ 153 and 154).", "(ii) Whether there is a need to develop the case-law", "254. In Weber and Saravia and kingdom and Others (cited above) the Court accepted that bulk interception regimes did not per se fall outside the States’ margin of appreciation. In view of the proliferation of threats that States currently face from networks of international actors, using the Internet both for communication and as a tool, and the existence of sophisticated technology which would enable these actors to avoid detection, the Court considers that the decision to operate a bulk interception regime in order to identify threats to national security or against essential national interests is one which continues to fall within this margin.", "255. In both Weber and Saravia and Liberty and Others (cited above) the Court applied the above-mentioned six minimum safeguards developed in its case-law on targeted interception. However, while the bulk interception regimes considered in those cases were on their face similar to that in issue in the present case, both cases are now more than ten years old, and in the intervening years technological developments have significantly changed the way in which people communicate. Lives are increasingly lived online, generating both a significantly larger volume of electronic communications, and communications of a significantly different nature and quality, to those likely to have been generated a decade ago. The scope of the surveillance activity considered in those cases would therefore have been much narrower.", "256. This is equally so with related communications data. It appears that greater volumes of communications data are currently available on an individual relative to content, since every piece of content is surrounded by multiple pieces of communications data. While the content might be encrypted and, in any event, may not reveal anything of note about the sender or recipient, the related communications data could reveal a great deal of personal information, such as the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. Furthermore, any intrusion occasioned by the acquisition of related communications data will be magnified when they are obtained in bulk, since they are now capable of being analysed and interrogated so as to paint an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with.", "257. More importantly, however, in Weber and Saravia and Liberty and Others (both cited above), the Court did not expressly address the fact that it was dealing with surveillance of a different nature and scale from that considered in previous cases. Nonetheless, targeted interception and bulk interception are different in a number of important respects.", "258. To begin with, bulk interception is generally directed at international communications (that is, communications physically travelling across State borders), and while the interception and even examination of communications of persons within the surveilling State might not be excluded, in many cases the stated purpose of bulk interception is to monitor the communications of persons outside the State’s territorial jurisdiction, which could not be monitored by other forms of surveillance. For example, the German system aims only to monitor foreign telecommunications outside of German territory (see paragraph 137 above).", "259. Moreover, as already noted, the purposes for which bulk interception may be employed would appear to be different. In so far as the Court has considered targeted interception, it has, for the most part, been employed by respondent States for the purposes of investigating crime. However, while bulk interception may be used to investigate certain serious crimes, Council of Europe member States operating a bulk interception regime appear to use it for the purposes of foreign intelligence gathering, the early detection and investigation of cyberattacks, counter-espionage and counter-terrorism (see paragraphs 131-146 above).", "260. While bulk interception is not necessarily used to target specified individuals, it evidently can be – and is – used for this purpose. However, when this is the case, the targeted individuals’ devices are not monitored. Rather, individuals are “targeted” by the application of strong selectors (such as their email addresses) to the communications intercepted in bulk by the intelligence services. Only those “packets” of the targeted individuals’ communications which were travelling across the bearers selected by the intelligence services will have been intercepted in this way, and only those intercepted communications which matched either a strong selector or complex query could be examined by an analyst.", "261. As with any interception regime, there is of course considerable potential for bulk interception to be abused in a manner adversely affecting the right of individuals to respect for private life. While Article 8 of the Convention does not prohibit the use of bulk interception to protect national security and other essential national interests against serious external threats, and States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary, for these purposes, in operating such a system the margin of appreciation afforded to them must be narrower and a number of safeguards will have to be present. The Court has already identified those safeguards which should feature in a Convention-compliant targeted interception regime. While those principles provide a useful framework for this exercise, they will have to be adapted to reflect the specific features of a bulk interception regime and, in particular, the increasing degrees of intrusion into the Article 8 rights of individuals as the operation moves through the stages identified in paragraph 239 above.", "(iii) The approach to be followed in bulk interception cases", "262. It is clear that the first two of the six “minimum safeguards” which the Court, in the context of targeted interception, has found should be defined clearly in domestic law in order to avoid abuses of power (that is, the nature of offences which may give rise to an interception order and the categories of people liable to have their communications intercepted: see paragraph 249 above), are not readily applicable to a bulk interception regime. Similarly, the requirement of “reasonable suspicion”, which can be found in the Court’s case-law on targeted interception in the context of criminal investigations is less germane in the bulk interception context, the purpose of which is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence. Nevertheless, the Court considers it imperative that when a State is operating such a regime, domestic law should contain detailed rules on when the authorities may resort to such measures. In particular, domestic law should set out with sufficient clarity the grounds upon which bulk interception might be authorised and the circumstances in which an individual’s communications might be intercepted. The remaining four minimum safeguards defined by the Court in its previous judgments — that is, that domestic law should set out a limit on the duration of interception, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which intercepted data may or must be erased or destroyed — are equally relevant to bulk interception.", "263. In its case-law on targeted interception, the Court has had regard to the arrangements for supervising and reviewing the interception regime (see Roman Zakharov, cited above, §§ 233-34). In the context of bulk interception the importance of supervision and review will be amplified, because of the inherent risk of abuse and because the legitimate need for secrecy will inevitably mean that, for reasons of national security, States will often not be at liberty to disclose information concerning the operation of the impugned regime.", "264. Therefore, in order to minimise the risk of the bulk interception being abused, the Court considers that the process must be subject to “end-to-end safeguards”, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the bulk operation are being defined; and that the operation should be subject to supervision and independent ex post facto review. In the Court’s view, these are fundamental safeguards which will be the cornerstone of any Article 8 compliant bulk interception regime (see also the report of the Venice Commission, at paragraph 86 above, which similarly found that two of the most significant safeguards in a bulk interception regime were the authorisation and oversight of the process).", "265. Turning first to authorisation, the Grand Chamber considers that while judicial authorisation is an “important safeguard against arbitrariness” it is not a “necessary requirement”. Nevertheless, bulk interception should be authorised by an independent body; that is, a body which is independent of the executive.", "266. Furthermore, in order to provide an effective safeguard against abuse, the independent authorising body should be informed of both the purpose of the interception and the bearers or communication routes likely to be intercepted. This would enable the independent authorising body to assess the necessity and proportionality of the bulk interception operation and also to assess whether the selection of bearers is necessary and proportionate to the purposes for which the interception is being conducted.", "267. The use of selectors – and strong selectors in particular – is one of the most important steps in the bulk interception process, as this is the point at which the communications of a particular individual may be targeted by the intelligence services. However, the Court notes that the intervening Government of the Netherlands have submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception (see paragraphs 228-232 above). In the United Kingdom, the IPT found that the inclusion of the selectors in the authorisation would “unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic” (see Big Brother Watch and Others, cited above, § 49).", "268. Taking into account the characteristics of bulk interception (see paragraphs 258 and 259 above), the large number of selectors employed and the inherent need for flexibility in the choice of selectors, which in practice may be expressed as technical combinations of numbers or letters, the Court would accept that the inclusion of all selectors in the authorisation may not be feasible in practice. Nevertheless, given that the choice of selectors and query terms determines which communications will be eligible for examination by an analyst, the authorisation should at the very least identify the types or categories of selectors to be used.", "269. Moreover, enhanced safeguards should be in place when strong selectors linked to identifiable individuals are employed by the intelligence services. The use of every such selector must be justified – with regard to the principles of necessity and proportionality – by the intelligence services and that justification should be scrupulously recorded and be subject to a process of prior internal authorisation providing for separate and objective verification of whether the justification conforms to the aforementioned principles.", "270. Each stage of the bulk interception process – including the initial authorisation and any subsequent renewals, the selection of bearers, the choice and application of selectors and query terms, and the use, storage, onward transmission and deletion of the intercept material – should also be subject to supervision by an independent authority and that supervision should be sufficiently robust to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; and Kennedy, cited above, §§ 153 and 154). In particular, the supervising body should be in a position to assess the necessity and proportionality of the action being taken, having due regard to the corresponding level of intrusion into the Convention rights of the persons likely to be affected. In order to facilitate this supervision, detailed records should be kept by the intelligence services at each stage of the process.", "271. Finally, an effective remedy should be available to anyone who suspects that his or her communications have been intercepted by the intelligence services, either to challenge the lawfulness of the suspected interception or the Convention compliance of the interception regime. In the targeted interception context, the Court has repeatedly found the subsequent notification of surveillance measures to be a relevant factor in assessing the effectiveness of remedies before the courts and hence the existence of effective safeguards against the abuse of surveillance powers. However, it has acknowledged that notification is not necessary if the system of domestic remedies permits any person who suspects that his or her communications are being or have been intercepted to apply to the courts; in other words, where the courts’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his or her communications (see Roman Zakharov, cited above, § 234; and Kennedy, cited above, § 167).", "272. The Court considers that a remedy which does not depend on notification to the interception subject could also be an effective remedy in the context of bulk interception; in fact, depending on the circumstances it may even offer better guarantees of a proper procedure than a system based on notification. Regardless of whether material was acquired through targeted or bulk interception, the existence of a national security exception could deprive a notification requirement of any real practical effect. The likelihood of a notification requirement having little or no practical effect will be more acute in the bulk interception context, since such surveillance may be used for the purposes of foreign intelligence gathering and will, for the most part, target the communications of persons outside the State’s territorial jurisdiction. Therefore, even if the identity of a target is known, the authorities may not be aware of his or her location.", "273. The powers and procedural guarantees an authority possesses are relevant in determining whether a remedy is effective. Therefore, in the absence of a notification requirement it is imperative that the remedy should be before a body which, while not necessarily judicial, is independent of the executive and ensures the fairness of the proceedings, offering, insofar as possible, an adversarial process. The decisions of such authority shall be reasoned and legally binding with regard, inter alia, to the cessation of unlawful interception and the destruction of unlawfully obtained and/or stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII and also Leander, cited above, §§ 81-83 where the lack of power to render a legally binding decision constituted a main weakness in the control offered).", "274. In the light of the above, the Court will determine whether a bulk interception regime is Convention compliant by conducting a global assessment of the operation of the regime. Such assessment will focus primarily on whether the domestic legal framework contains sufficient guarantees against abuse, and whether the process is subject to “end-to-end safeguards” (see paragraph 264 above). In doing so, it will have regard to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92).", "275. In assessing whether the respondent State acted within its margin of appreciation (see paragraph 256 above), the Court would need to take account of a wider range of criteria than the six Weber safeguards. More specifically, in addressing jointly “in accordance with the law” and “necessity” as is the established approach in this area (see Roman Zakharov, cited above, § 236; and Kennedy, cited above, § 155), the Court will examine whether the domestic legal framework clearly defined:", "The grounds on which bulk interception may be authorised;", "The circumstances in which an individual’s communications may be intercepted;", "The procedure to be followed for granting authorisation;", "The procedures to be followed for selecting, examining and using intercept material;", "The precautions to be taken when communicating the material to other parties;", "The limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed;", "The procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance;", "The procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.", "276. Despite being one of the six Weber criteria, to date the Court has not yet provided specific guidance regarding the precautions to be taken when communicating intercept material to other parties. However, it is now clear that some States are regularly sharing material with their intelligence partners and even, in some instances, allowing those intelligence partners direct access to their own systems. Consequently, the Court considers that the transmission by a Contracting State to foreign States or international organisations of material obtained by bulk interception should be limited to such material as has been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. First of all, the circumstances in which such a transfer may take place must be set out clearly in domestic law. Secondly, the transferring State must ensure that the receiving State, in handling the data, has in place safeguards capable of preventing abuse and disproportionate interference. In particular, the receiving State must guarantee the secure storage of the material and restrict its onward disclosure. This does not necessarily mean that the receiving State must have comparable protection to that of the transferring State; nor does it necessarily require that an assurance is given prior to every transfer. Thirdly, heightened safeguards will be necessary when it is clear that material requiring special confidentiality – such as confidential journalistic material – is being transferred. Finally, the Court considers that the transfer of material to foreign intelligence partners should also be subject to independent control.", "277. For the reasons identified at paragraph 256 above, the Court is not persuaded that the acquisition of related communications data through bulk interception is necessarily less intrusive than the acquisition of content. It therefore considers that the interception, retention and searching of related communications data should be analysed by reference to the same safeguards as those applicable to content.", "278. That being said, while the interception of related communications data will normally be authorised at the same time the interception of content is authorised, once obtained they may be treated differently by the intelligence services. In view of the different character of related communications data and the different ways in which they are used by the intelligence services, as long as the aforementioned safeguards are in place, the Court is of the opinion that the legal provisions governing their treatment may not necessarily have to be identical in every respect to those governing the treatment of content.", "(iv) The Court’s assessment of the case at hand", "(α) Preliminary remarks", "279. As noted by the Chamber, it has not been disputed by the parties that the Swedish signals intelligence activities have a basis in domestic law (see paragraph 111 of the Chamber judgment). It is further undisputed that the impugned signals intelligence regime pursues legitimate aims in the interest of national security by supporting Swedish foreign, defence and security policy and identifying external threats to the country. Therefore, following the approach outlined above, it remains to be considered whether the domestic law was accessible and contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”.", "280. Bulk interception of electronic signals within foreign intelligence in Sweden is regulated in several pieces of legislation, the main ones being the Foreign Intelligence Act and the associated Ordinance, the Signals Intelligence Act and Ordinance, the Foreign Intelligence Court Act and the FRA Personal Data Processing Act and Ordinance. Additional relevant provisions on, in particular, some aspects of the functioning of the applicable supervision mechanisms and remedies are to be found in the Foreign Intelligence Inspectorate Instructions Ordinance, the Parliamentary Ombudsmen Instructions Act and the Chancellor of Justice Supervision Act (see paragraphs 14-74 above).", "281. It has not been disputed that all these provisions are publicly available. The Court would accept, therefore, that the domestic law was adequately “accessible”.", "282. Turning next to the question whether the law contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”, the Court will address in subsections (β) – () each of the eight requirements set out in paragraph 275 above.", "283. In the present case it will do so simultaneously with respect to the interception of the contents of electronic communications and related communications data. This approach is justified by the fact, undisputed between the parties, that under the Swedish signals intelligence regime, the same legal provisions, procedures and safeguards concerning the interception, retention, examining, use and storing of electronic signals apply without distinction both to communications data and to the content of communications. Under the Swedish regime no particular separate issue arises, therefore, with regard to the use of communications data in bulk interception operations.", "(β) The grounds on which bulk interception may be authorised", "284. As noted by the Chamber, according to the Signals Intelligence Act signals intelligence may be conducted only to monitor:", "1. external military threats to the country;", "2. conditions for Swedish participation in international peacekeeping or humanitarian missions or threats to the safety of Swedish interests in the performance of such operations;", "3. strategic circumstances concerning international terrorism or other serious cross-border crime that may threaten essential national interests;", "4. the development and proliferation of weapons of mass destruction, military equipment and other similar specified products;", "5. serious external threats to society’s infrastructure;", "6. foreign conflicts with consequences for international security;", "7. foreign intelligence operations against Swedish interests; and", "8. the actions or intentions of a foreign power that are of substantial importance for Swedish foreign, security or defence policy (see paragraph 22 above).", "285. The preparatory works to the Signal Intelligence Act contain further elaboration of the meaning of these eight purposes (see paragraph 23 above). In the Court’s view, the level of detail and the terms used circumscribe the area in which bulk interception may be used with sufficient clarity, having regard, in particular, to the fact that the impugned regime aims at uncovering unknown foreign threats whose nature may vary and evolve with time.", "286. The Court observes that while section 4 of the Foreign Intelligence Act excludes the conduct of signals intelligence within foreign intelligence to solve tasks in the area of law enforcement or crime prevention, one of the eight purposes listed above concerns “serious cross-border crime” such as, according to the preparatory works, “drug or human trafficking of such severity that it may threaten significant national interests” (see paragraph 23 above).", "287. The preparatory works clarify that the aim in this regard is to survey terrorism or other cross-border crime from the perspective of Sweden’s foreign and security policy, not to combat criminal activity operatively (ibid). It is undisputed that information obtained through the impugned regime of signals intelligence cannot be used in criminal proceedings. As explained by the Government, tasking directives for signals intelligence may not be issued to investigate criminal offences and when the FRA reports intelligence to other agencies it stipulates that the intelligence may not be used in criminal investigations. In the light of the above, the Court does not share the concerns expressed by the applicant regarding the fact that since 1 March 2018 certain police departments may issue tasking directives and that the Security Police might be granted access to the FRA’s analysis material (see above paragraphs 193 in fine and 196 in fine ). It finds convincing the Government’s clarification that access may only be granted to “data that constitutes the analysis results” so as to allow strategic assessments and that the prohibition on using signals intelligence within foreign intelligence for the purposes of investigating criminal offences fully applies (see paragraph 214 above).", "288. In sum, the grounds upon which bulk interception can be authorised in Sweden are clearly circumscribed so as to permit the necessary control at the authorisation and operation stage and ex post facto supervision.", "(γ) The circumstances in which an individual’s communications may be intercepted", "289. In a bulk interception regime the circumstances in which communications might be intercepted will be very broad, as it is the communications bearers that are targeted rather than the devices from which the communications are sent, or the senders or recipients of the communications. The circumstances in which communications may be examined will be narrower, but compared to targeted interception this category will still be relatively wide, since bulk interception may be used for a more varied range of purposes, and communications may be selected for examination by reference to factors other than the identity of the sender or recipient.", "290. As regards interception, signals intelligence conducted on fibre optic cables may only concern communications crossing the Swedish border. Also, and regardless of whether the source is airborne or cable-based, communications between a sender and a receiver in Sweden may not be intercepted (see paragraph 25 above). The Government have admitted, however, that separating “domestic” from “foreign” traffic is not always possible in the initial interception stages, as confirmed in the 2011 report of the Signals Intelligence Committee (see paragraphs 77-80 above; see also the reports of the Data Protection Authority, paragraphs 75-76 above).", "291. It is true that the FRA may also intercept signals as part of its development activities, which may lead to data not relevant for the regular foreign intelligence being intercepted. It appears from the report of the Signals Intelligence Committee (see paragraphs 77-80 above), that signals intercepted as part of the FRA’s development activities can be used, including by being “read” and stored, for technological development purposes regardless of whether they fall within the categories defined under the eight foreign intelligence purposes.", "292. The Court observes, however, that signals intercepted in the context of the FRA’s development activities do not interest the authorities for the data they might contain but only for the possibility they afford to analyse the systems and routes through which information is transmitted. In the Court’s view, the respondent Government’s explanation about the need for such an arrangement (see paragraph 207 above) is satisfactory. The examples given (the need to monitor the traffic between certain countries in order to identify bearers with relevant traffic; the need to identify trends such as new types of signals and signals protection) appear convincing: the authorities must be able to react to the evolution in technology and communication practices and, for that reason, may need to monitor very large segments of the international signals traffic. The degree of interference with individuals’ Article 8 rights engendered by such activities appears to be of a very low intensity having regard to the fact that the data thereby obtained is not in a form destined to generate intelligence.", "293. In addition, it is undisputed that any information that may happen to emerge from signals intercepted for technological development purposes cannot be used as intelligence information unless such use is in conformity with the eight purposes and the applicable tasking directives (see paragraph 79 above). Moreover, development activities can be undertaken only under a permit issued by the Foreign Intelligence Court and are supervised by the Inspectorate, including for compliance with the law and the tasking directives approved by the Foreign Intelligence Court. In these circumstances the Court is satisfied that the legal framework within which the FRA’s development activities are conducted contains safeguards capable of preventing attempts to circumvent the legal restrictions related to the grounds for which signals intelligence may be used.", "294. In view of the above the Court can accept that the legal provisions on bulk interception in Sweden set out with sufficient clarity the circumstances in which communications may be intercepted.", "(δ) The procedure to be followed for granting authorisation", "295. Under Swedish law, every signals intelligence mission to be conducted by the FRA must be authorised in advance by the Foreign Intelligence Court. Where this procedure might cause delay or other inconveniences of essential importance for one of the specified purposes of the signals intelligence, the FRA may itself grant a permit and notify the Foreign Intelligence Court immediately, which triggers the permit’s rapid review by that court. The court has the power to modify or revoke it if necessary (see paragraphs 30-33 above).", "296. There is no doubt that the Foreign Intelligence Court meets the requirement of independence from the executive. In particular, its president and vice-presidents are permanent judges and, while all members are appointed by the Government, they have legally defined four-year terms of office. Also, it is undisputed that neither the Government or Parliament nor other authorities may interfere with the court’s decision-making, which is legally binding.", "297. As noted by the Chamber, for reasons of secrecy the Foreign Intelligence Court has never held a public hearing and all its decisions are confidential. However, Swedish law provides for the mandatory presence of a privacy protection representative at that court’s sessions, except in urgent cases. The representative, who is a judge, a former judge or an attorney, acts independently and in the public interest but not in the interest of any affected private individual. He or she has access to all the case documents and may make statements (see paragraph 34 above). In the Court’s view, having regard to the imperative need for secrecy, in particular at the stages of initial authorisation and conducting signals intelligence, the arrangement described above contains relevant safeguards against arbitrariness and must be accepted as an inevitable limitation on the authorisation procedure’s transparency.", "298. The Court further observes that when applying for a permit the FRA must specify the need for the intelligence sought, the communications bearers to which access is needed and the selectors – or at least the categories of selectors – that will be used. This should lead to examination whether the mission is compatible with applicable legislation, including the eight purposes for which signals intelligence may be undertaken, and whether the intelligence collection is proportional to the resultant interference with private life (see paragraphs 30-33 above).", "299. Importantly, section 3 of the Signals Intelligence Act requires that the selectors must be formulated in such a way that the interference with personal integrity is limited as far as possible (see paragraph 26 above), which implies necessity and proportionality analysis. Compliance with this requirement at the authorisation phase is within the competence of the Foreign Intelligence Court. That court’s decision, taken in proceedings with the participation of a privacy protection representative, is binding. This is an important safeguard built into the Swedish bulk interception system.", "300. The Court further observes that Swedish law provides for a form of special prior authorisation of strong selectors in that the Foreign Intelligence Court verifies whether, as required by section 3 of the Signals Intelligence Act, the use of selectors directly related to a specific natural person is of “exceptional importance” for the intelligence activities. The interpretation of section 3 of the Signals Intelligence Act in the practice of the Foreign Intelligence Court has not been explained to the Court, nor how section 3 interacts with section 5 of the same Act, which indicates that the judicial authorisation may at least in some cases concern “categories of selectors” rather than individual selectors. If such a case would occur, namely individual selectors not being approved by the Foreign Intelligence Court, the question would arise whether a process of prior internal authorisation providing for separate and objective verification is in place (see paragraph 269 above). However, having regard to the independence of the Foreign Intelligence Court and the applicable procedural guarantees in proceedings before it, the “exceptional importance” standard at the authorisation stage is capable of providing relevant enhanced protection against the arbitrary use of selectors linked to identified individuals.", "301. The Swedish system of authorisation has its inherent limits. For example, it may be difficult for the Foreign Intelligence Court to appreciate the proportionality aspect where only categories of selectors are specified in the FRA’s request for a permit, or where the indicated selectors are several thousand in number or are expressed as technical combinations of numbers or letters.", "302. However, for the purposes of the Court’s analysis, at this stage the relevant point is that the Swedish authorisation system offers a judicial ex ante review of permit requests which is comprehensive, in the sense that the aim of the mission and the bearers and categories of selectors to be used are subject to control, and is sufficiently detailed in respect of secret bulk signals intelligence as part of foreign intelligence. Such a review offers a significant safeguard against, notably, the launch of abusive or clearly disproportionate bulk interception operations. Importantly, it also sets the framework within which a concrete operation must unfold and the limits whose observance then becomes the object of the applicable supervision and ex post facto control mechanisms.", "(ε) The procedures to be followed for selecting, examining and using intercept material", "303. It transpires from the material in the Court’s possession that in Sweden the interception of cable-based electronic signals is automated and the interception of such signals over the airways may be either automated or manual. Automated interception over the airways is a process that is identical to the process of interception of signals passing through cross-border cables.", "304. As regards the use of non-automated interception and searches of electronic signals over the airways, the Swedish Government clarified before the Grand Chamber that it is primarily used for near real-time reporting of foreign military activities and is done by an operator who listens in real time to military radio transmissions on selected radio frequencies or looks at a screen where the energy from a signal in electronic form is visualised and then records relevant parts for analysing and reporting. The applicant did not comment in reply.", "305. Even assuming that the interception of foreign military radio frequencies may affect Article 8 rights in rare cases, the Court notes that this aspect of the Swedish signals intelligence regime is covered by the same procedures and safeguards as applicable to interception and use of cable-based communications.", "306. Turning to the procedure for examination of the intercepted material, the Court notes that, as explained by the respondent Government, the FRA processes the data through automated and manual means, using, among other techniques, cryptoanalysis, structuring and language translation. Thereafter, the processed information is analysed by an analyst in order to identify intelligence therein. The next step consists in the elaboration of a report which is disseminated to selected recipients of foreign intelligence (see paragraphs 18 and 29 above).", "307. In the Court’s view, it is significant that at the examination stage the FRA is under an obligation to discard intercepted domestic communications immediately once identified (see paragraph 38 above).", "308. Despite the fact that the distinction between domestic and foreign communications may not be waterproof and the prohibition to intercept the former apparently cannot prevent it from happening in the automatic stage of capturing signals, the exclusion of domestic traffic from the scope of signals intelligence must be seen as a significant limitation on the authorities’ discretion and as a safeguard against abuse. The limitation in question sets the framework within which the authorities are allowed to operate and provides the existing pre-authorisation, supervision and control mechanisms with an important criterion related to the operation’s lawfulness and the protection of the rights of individuals. In particular, it is clear that the choice of communications bearers and categories of selectors – which is subject to control by the Foreign Intelligence Court (see paragraph 30 above) – must be in conformity with the above-mentioned exclusion of domestic communications.", "309. As already noted above (see paragraph 300), the practice of the Foreign Intelligence Court regarding the pre-authorisation of selectors or categories of selectors directly linked to identifiable individuals has not been presented to the Court. The Court notes, however, the Government’s position that logs and records are systematically kept by the FRA throughout the process, from the collection of data to the final reporting, communicating to other parties and destruction. All searches made by analysts are recorded. When the search is made in a data compilation containing personal data the record includes the selectors used, the time, the name of the analyst and the justification for the search, including the detailed tasking directive which is the reason for the search. In addition to the logs, records are kept of decisions taken in the course of the signals intelligence process.", "310. The applicant did not dispute the above but considered that (i) it had not been shown that logs were sufficiently detailed and (ii) the FRA’s record-keeping practices, not being prescribed by law, were at the mercy of internal procedures and discretion.", "311. The Court considers that the obligation to keep logs and detailed record of each step in bulk interception operations, including all selectors used, must be set out in domestic law. The fact that in Sweden it appears in internal instructions only is undoubtedly a shortcoming. However, having regard, in particular, to the existence of oversight mechanisms covering all aspects of the FRA’s activities, there is no reason to consider that detailed logs and records are not kept in practice or that the FRA could proceed to changing its internal instructions arbitrarily and removing its obligation in that regard. While it is true that in 2010 and 2016 the Swedish Data Protection Authority criticised an aspect of the FRA’s practices of keeping logs, this only concerned the manner in which the FRA monitored logs used to detect unwarranted use of personal data (see paragraph 76 above). Furthermore, the Government clarified that since 1 January 2018 logs which were previously kept by separate “system owners” within the FRA are being sent to a central function, thus improving their monitoring. This change had been reported to the Swedish Data Protection Authority, which had not requested further action and had closed the file.", "312. Swedish law affords specific protection of personal data, including data that may reveal aspects of natural persons’ private life or communications. In the context of signals intelligence, the FRA Personal Data Processing Act imposes on the FRA the obligation to ensure that personal data is collected only for the authorised purposes expressly determined through tasking directives and within the limits of the permit issued by the Foreign Intelligence Court. As noted by the Chamber, the personal data treated also has to be adequate and relevant in relation to the purpose of the treatment. No more personal data than what is necessary for that purpose may be processed. All reasonable efforts have to be made to correct, block and obliterate personal data which is incorrect or incomplete in relation to the purpose (see paragraph 40 above). The FRA staff treating personal data are security cleared, subject to confidentiality and under an obligation to handle the personal data in a safe manner. Also, they could face criminal sanctions if tasks relating to the treatment of personal data are mismanaged (see paragraph 42 above).", "313. The applicant criticised the fact that the safeguards mentioned in the preceding paragraph only apply to intercepted material containing “information that is directly or indirectly related to a natural living person”. The applicant deduced from this fact that legal persons were left unprotected.", "314. The Court observes, however, that there is nothing to suggest that the protection guaranteed by the FRA Personal Data Processing Act and the FRA Personal Data Processing Ordinance does not apply to the content of communications exchanged by legal persons such as the applicant whenever those include “information that is directly or indirectly related to a natural living person”. Furthermore, it must be noted that most legal requirements and safeguards provided for in the above-mentioned legislation would normally be of value to natural persons only. For example, the Act in question prohibits processing of personal data solely because of what is known of a person’s race or ethnicity, political, religious or philosophical views, membership of a union, health or sexual life. It provides for a special requirement limiting the keeping of material containing personal data and for sanctions for mismanagement of personal data. It guarantees specific monitoring of personal data treatment and sets out the powers of the Data Protection Authority in this regard. In other words, the Act in question adds another layer of protection, tailored to the specificities of personal data, to the already existing safeguards that are applicable to information concerning natural and legal persons alike.", "315. This approach, which takes into account the special sensitivity of personal data, does not seem to be problematic and does not mean that the communications of legal persons are left unprotected by safeguards. Contrary to the applicant’s claim, there is nothing in the relevant legislation suggesting that intercept material not containing personal data can be used for purposes incompatible with the original purpose of the interception, as approved by the Foreign Intelligence Court.", "316. In sum, the Court is satisfied that the legislation on selecting, examining and using intercepted data provides adequate safeguards against abuse that may affect Article 8 rights.", "(στ) The precautions to be taken when communicating the material to other parties", "317. As regards communication of data from the FRA to other Swedish Government bodies, the Court observes that the very purpose of signals intelligence is to obtain information that is useful for the mission of relevant sectors of Government. The circle of domestic authorities that may be given such information in Sweden is narrow and includes above all the Security Police and the Armed Forces. The FRA may grant these bodies direct access to data that constitutes the results of analysis in a data compilation, to enable them to make assessments of terrorist threats at strategic level. This is done, in particular, in the framework of a tripartite working group of analysts from the FRA, the Security Police and the Armed Forces, called the National Centre for Assessment of Terrorist Threats. The Court considers that the above regime is clearly circumscribed and does not appear to generate a particular risk of abuse.", "318. The Court further notes that the Chamber expressed concerns as regards the Swedish arrangements on communicating data to foreign Governments or international organisations, pointing to three issues: (a) that the legislation does not require consideration of possible harm to the individual concerned when making a decision about sharing; (b) that there is no provision requiring the recipient State or organisation to protect the data with the same or similar safeguards as those applicable under Swedish law and; (c) that the possibility to communicate data when necessary for “international defence and security cooperation” opens up for a rather wide scope of discretion. The Chamber nevertheless considered that the supervisory mechanisms sufficiently counterbalanced these regulatory shortcomings (see paragraph 150 of the Chamber judgment).", "319. Before the Grand Chamber the Government essentially disputed that there were areas of concern, emphasising that international cooperation was limited to exchanges with trusted foreign partners and was monitored by the Inspectorate, whereas the applicant considered that the discretion granted to the FRA was too broad and that the existing supervisory mechanisms did not counterbalance the identified shortcomings, there being no legal requirements in respect of which compliance could be supervised (see the parties’ positions in more detail in paragraphs 200, 201, 215 and 216 above).", "320. The Court points out at the outset that in the present case it is not dealing with a concrete occurrence of, for example, the disclosure or use, by a foreign Government or organisation, of personal data transmitted to them by the Swedish authorities. Indeed, no examples about such disclosures or use have been submitted to the Court. Nonetheless, insofar as the possibility of transmitting intelligence to foreign parties is part of the Swedish bulk interception regime and activities whose very existence can be seen as interfering with Article 8 rights, the Court, having regard to the applicant’s complaints, must review the Swedish intelligence transmission regime and its functioning for their compliance with the requirements of quality of the law and necessity in a democratic society. The applicant’s complaints relate solely to the sending of intelligence to foreign parties and do not concern the receipt of foreign intelligence and its use by the Swedish authorities.", "321. It is undisputed that Contracting States may need to transmit to foreign services intelligence obtained through bulk interception of communications for a variety of reasons, including warning foreign Governments about threats, soliciting their help in identifying and dealing with threats or enabling international organisations to act in exercise of their mandate. International cooperation is crucial for the effectiveness of the authorities’ efforts to detect and thwart potential threats to Contracting States’ national security.", "322. The Court observes that the possibility for the FRA to share intelligence it has obtained with foreign partners is provided for in Swedish law, which also sets out the relevant general purpose (see paragraphs 49 and 74 above). It is to be observed, however, that the level of generality of the terms used cannot but lead to the conclusion that the FRA may send intelligence abroad whenever this is considered to be in the national interest.", "323. Having regard to the unpredictability of situations that may warrant cooperation with foreign intelligence partners, it is understandable that the precise scope of intelligence sharing cannot be circumscribed in law through, for example, exhaustive and detailed lists of such situations or the types of intelligence or content that can be transmitted. The applicable legal regulation and practice must operate, however, in a manner capable of limiting the risk of abuse and disproportionate interference with Article 8 rights.", "324. In this regard the Court notes, first, that in so far as the intelligence transmitted to foreign services is in the form of information obtained by the FRA through its bulk interception activities, it is necessarily the product of legally regulated procedures to which all relevant safeguards apply. This includes the procedural guarantees, such as the authorisation by the Foreign Intelligence Court and the supervision by the Inspectorate (see paragraphs 295-302 above and 345-353 below), and the substantive limitations, such as those regarding the grounds on which interception of signals can be ordered, the searching, in particular through selectors identifying an individual, and all further examination (see paragraphs 284-288 and 303-316 above). As already seen, the above mentioned procedures involve an assessment of necessity and proportionality with regard to, in particular, Article 8 Convention rights. Therefore, the safeguards internally applicable in Sweden in the process of obtaining the intelligence that may later be transmitted to a foreign partner also limit, at least to a certain extent, the risk of adverse consequences that may ensue after the transmission has taken place.", "325. The Court also notes that the supervision mechanisms provided for under the Personal Data Processing Act, specifically tailored to the protection of personal data, apply to all activities of the FRA (see paragraphs 56 above).", "326. In the Court’s view, despite the above considerations, the absence, in the relevant signals intelligence legislation, of an express legal requirement for the FRA to assess the necessity and proportionality of intelligence sharing for its possible impact on Article 8 rights is a substantial shortcoming of the Swedish regime of bulk interception activities. It appears that, as a result of this state of the law, the FRA is not obliged to take any action even in situations when, for example, information seriously compromising privacy rights is present in material to be transmitted abroad without its transmission being of any significant intelligence value. Furthermore, despite the fact that the Swedish authorities obviously lose control over the shared material once it has been sent out, no legally binding obligation is imposed on the FRA to analyse and determine whether the foreign recipient of intelligence offers an acceptable minimum level of safeguards (see paragraph 276 above).", "327. The Government’s answer to these concerns was essentially that intelligence cooperation with foreign services inevitably functions on the basis of a shared interest in preserving the secrecy of information and that this practical reality limited the risks of abuse.", "328. The Court finds the above-mentioned approach insufficient as a safeguard. The Government have not identified any obstacles against setting out clearly in domestic law an obligation for the FRA or another relevant body to balance the necessity of transmitting intelligence abroad against the need to protect the right to respect for private life. By comparison, the Court notes that, for example, the relevant regime in the United Kingdom includes an obligation to take reasonable steps to ensure that the foreign authorities would maintain the necessary procedures to safeguard the intercepted material and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary (see paragraph 7.5 of the United Kingdom Interception of Communications Code of Practice, quoted in Big Brother Watch and Others, cited above, § 96).", "329. It is true that in 2014 the Inspectorate undertook a general review of the FRA’s cooperation with other States and, between 2009 and 2017, repeatedly inspected other relevant aspects of its activities, including the treatment of personal data and the communication of its reports (see paragraph 53 above). However, since the Inspectorate’s role is to exercise control for lawfulness, in the absence of an express legal obligation for the FRA to consider privacy concerns or seek at least some safeguards in this regard from foreign partners before sending them intelligence, it is not unreasonable to consider, as the applicant did, that the Inspectorate does not monitor possible risks or disproportionate consequences of intelligence sharing on Article 8 Convention rights. The respondent Government have failed to convince the Court that this is done in practice on the basis of, for example, constitutional or other general fundamental rights provisions. It follows that, unlike the Chamber, the Grand Chamber cannot accept that the shortcomings in the regulatory framework are sufficiently counterbalanced by the supervisory elements of the Swedish regime.", "330. In sum, the absence of a requirement in the Signals Intelligence Act or other relevant legislation that consideration be given to the privacy interests of the individual concerned when making a decision about intelligence sharing is a significant shortcoming of the Swedish regime, to be taken into account in the Court’s assessment of its compatibility with Article 8 of the Convention.", "(ζ) The limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed", "331. The duration of bulk interception operations is, of course, a matter for the domestic authorities to decide. There must, however, be adequate safeguards, such as a clear indication in domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Roman Zakharov, cited above, § 250).", "332. Under section 5(a) of the Signals Intelligence Act a permit may be granted for a maximum of six months. This period may be extended, for six months at a time, following a new full examination of the relevant conditions for the granting of a permit by the Foreign Intelligence Court. Therefore, as noted by the Chamber, Swedish law gives a clear indication of the period after which a permit will expire and of the conditions under which it may be renewed.", "333. As also noted by the Chamber, however, there is no provision obliging the FRA, the authorities mandated to issue detailed tasking directives or the Foreign Intelligence Court to cancel a signals intelligence mission if the conditions for it have ceased to exist or the measures themselves are no longer necessary.", "334. Before the Grand Chamber, the applicant considered that the lack of provision for the cancellation of permits when no longer needed opened the door to excessive and inappropriate surveillance for several months until the warrant eventually expired on its own. In the applicant’s view, this shortcoming was very significant, given the sheer volume of information that could be obtained through bulk interception in that time. The Government stated that an interception operation would be discontinued if it was no longer needed, if a tasking directive was revoked or if it was not in accordance with the permit.", "335. The Court is of the view that an express provision on discontinuation of bulk interception when no longer needed would have been clearer than the existing arrangement in Sweden according to which, apparently, permits may or may not be cancelled when circumstances warranting such a cancellation come to light in the period before the expiry of their six months’ validity.", "336. The significance of this shortcoming should, however, not be overestimated, in the Court’s view, for two main reasons. First, Swedish law provides for relevant mechanisms, such as the possibility for the requesting authority to revoke a tasking directive and for supervision by the Inspectorate, both of which can lead to the cancellation of a bulk interception mission when the conditions for it have ceased to exist or it is no longer needed. Second, by the nature of things, in the context of signals intelligence within foreign intelligence the implementation of a legal requirement to cancel a permit when no longer needed must in all likelihood be heavily dependent on internal operative assessments involving secrecy. Therefore, in the specific context of bulk interception for foreign intelligence purposes, the existence of supervision mechanisms with access to all internal information must generally be seen as providing similar legislative safeguards against abuse related to the duration of interception operations.", "337. For the reasons set out above, the Court finds that Swedish law satisfies the requirements concerning duration of bulk interception of communications.", "338. The Chamber made the following findings concerning the circumstances in which intercept data must be erased and destroyed, at paragraphs 145 and 146 of its judgment:", "“145. Contrary to the applicant’s claim, there are several provisions regulating the situations when intercepted data has to be destroyed. For example, intelligence must be destroyed immediately if it 1) concerns a specific natural person and has been determined to lack importance for the purpose of the signals intelligence, 2) is protected by constitutional provisions of secrecy for the protection of anonymous authors or media sources, 3) contains information shared between a criminal suspect and his or her counsel and is thus protected by attorney-client privilege, or 4) involves information given in a religious context of confession or individual counselling, unless there are exceptional reasons for examining the information ... Moreover, if communications have been intercepted between a sender and receiver both in Sweden, despite the ban on the interception of such communications, they must be destroyed as soon as their domestic nature has become evident ... Also, where a temporary permit granted by the FRA has been revoked by the Foreign Intelligence Court, all intelligence collected on the basis of that permit must be immediately destroyed ...", "146. Although the FRA may maintain databases for raw material containing personal data up to one year, it has to be kept in mind that raw material is unprocessed information. That is, it has yet to be subjected to manual treatment. The Court accepts that it is necessary for the FRA to store raw material before it can be manually processed. At the same time, the Court stresses the importance of deleting such data as soon as it is evident that it lacks pertinence for a signals intelligence mission.”", "339. The Grand Chamber endorses this analysis in principle but also considers it important to point to the fact that it has insufficient information about certain aspects of the manner in which the rules on destruction of intercept material are applied in practice.", "340. Certainly, the Inspectorate’s supervision powers include the monitoring of the FRA’s practice on destroying intercept material and this aspect of its activities has already been the subject of inspections (see paragraph 53 above). This is an important safeguard for the proper application of the existing rules.", "341. However, before the Grand Chamber the applicant pointed to the fact that the limits on the storing of intercept material and the requirements mentioned by the Chamber about destroying it did not apply to material which does not contain personal data. The Government did not address this issue specifically.", "342. In the Court’s view, while there is clear justification for special requirements regarding the destruction of material containing personal data, there must also be a general legal rule governing the destruction of other material obtained through bulk interception of communications, where keeping it may affect, for example, the right of respect for correspondence under Article 8, including concerning legal persons as the applicant. As a very minimum, as also stressed by the Chamber, there should be a legal requirement to delete intercepted data that has lost pertinence for signals intelligence purposes. The Government have not shown that the Swedish regulatory framework covers this aspect. However, while observing that there is only a narrow set of circumstances in which it could happen that none of the specific rules on destruction of intercept material noted in the preceding paragraphs would apply, the Court notes this point as a procedural shortcoming in the regulatory framework.", "343. Finally, the Court does not have sufficient information as to the manner in which the necessity to keep or destroy material containing personal data is assessed in practice and as to whether unprocessed intercept material is always stored for the maximum period of one year or the necessity of continued storage is regularly reviewed, as it should be. This makes it difficult to arrive at comprehensive conclusions covering all aspects of the storage and deletion of intercept material. In the context of its analysis on the ex post facto review in the Swedish bulk interception system, the Court will return to the question what conclusions could be drawn from the fact that it has insufficient information on the above point and other aspects of the functioning of the Swedish system.", "344. In sum, for the purposes of the present stage of the analysis, while the Court noted in the preceding paragraph a procedural shortcoming that needs to be addressed, it considers that, as a whole, the circumstances in which the intercept material has to be destroyed are clear under Swedish law.", "(η) Supervision", "345. Under Swedish law the task of overseeing foreign intelligence activities in general and signals intelligence in particular is entrusted mainly to the Foreign Intelligence Inspectorate. Further supervisory functions, albeit with lesser powers, are exercised by the Data Protection Authority.", "346. Noting that the Inspectorate’s board is presided over by permanent judges or former judges and that its members, appointed for terms of at least four years by the Government, are selected from candidates proposed by the party groups in the Parliament, the Court is satisfied that the Inspectorate’s role is that of an independent control mechanism.", "347. The Inspectorate has wide-ranging powers covering the operation of signal intelligence activities from beginning to end. In particular, it is tasked with granting the FRA access to communications bearers after verifying that the requested access corresponds to the permit issued by the Foreign Intelligence Court (Chapter 6, section 19a of the Electronic Communications Act). The Inspectorate reviews all other aspects of the FRA’s activities, including the interception, analysis, use and destruction of material. Importantly, it can scrutinise the selectors used (section 10 of the Signals Intelligence Act) and enjoys access to all relevant documents of the FRA (see paragraphs 50-53 above).", "348. It appears therefore that the Inspectorate has the powers and tools necessary to assess not only compliance with the formal requirements of Swedish law but also to examine aspects of the proportionality of the interference with individual rights that may be occasioned by signals intelligence activities. It is noteworthy in this regard that its inspections included numerous detailed examinations of, in particular, the selectors used (see paragraph 53 above).", "349. The applicant pointed to the fact that some of the acts issued by the Inspectorate are in the form of opinions and recommendations, rather than legally binding decisions, and apparently considered that this weakened substantially the real impact of the Inspectorate’s work.", "350. The Court notes that under section 10 of the Signals Intelligence Act the Inspectorate, when it finds evidence of improper signals collection, has the power to decide, with legally binding effect, that the collection must cease or that recordings or notes of collected data must be destroyed. On certain other issues, such as potential civil liability of the State with respect to a person or organisation or where there is an indication that a criminal offence may have been committed, the Inspectorate has a duty to report to the competent authorities with which the power to take legally binding decisions lies. The Court considers the above arrangement to be satisfactory. While it is true that there appears to be no legal possibility under Swedish law for the enforcement of the Inspectorate’s recommendations when it seeks the evolution or correction of practices by the FRA, the Court observes that, according to the conclusions of the National Audit Office which audited the Inspectorate in 2015, the FRA had routines in place for handling the Inspectorate’s opinions, the latter’s suggestions were dealt with in a serious manner and, when called for, gave rise to reforms. The action decided by the Inspectorate had been taken, with the exception of one case when the FRA had referred the matter to the Government (see paragraph 54 above).", "351. Furthermore, the information available to the Court concerning the inspections conducted by the Inspectorate confirms that not only in theory but also in practice it actively reviews FRA’s actions both on a general systematic basis and also by themes. In particular, over a period of eight years the Inspectorate has undertaken 102 inspections, including detailed examinations of the selectors used, the destruction of intelligence, the communication of reports, cooperation with other States and international organisations, the processing of personal data and the overall compliance with the legislation, directives and permits relevant to the signals intelligence activities. These resulted in several opinions and suggestions to the FRA and one opinion submitted to the Government. The effect of the Inspectorate’s activity is illustrated by the fact that, for example, when it suggested in 2011 some amendments to the FRA’s internal rules concerning destruction of data, these were introduced the same year (see paragraph 53 above).", "352. Finally, the Inspectorate issues annual reports which are made available to the public and its activities have been the object of audits by the National Audit Office (see paragraphs 53 and 54 above).", "353. In these circumstances, there is no reason to doubt that Swedish law and practice secure an effective supervision on signal intelligence activities in Sweden. In the Court’s view, the Inspectorate’s role, coupled with the judicial pre-authorisation procedure before the Foreign Intelligence Court, form together a functioning safeguard against abuse at the crucial stages of the signals intelligence process – before and during the process of interception, analysis, use and destruction of the information obtained.", "(θ) Ex post facto review", "354. It appears undisputed that, due to secrecy, no use has ever been made in practice of the theoretical possibility under the Signals Intelligence Act to notify natural persons when selectors directly related to them have been employed (see paragraphs 58, 59, 75 in fine and 80 above).", "355. In the Court’s view, it is clear that notifying affected individuals in the context of the Swedish system of signals intelligence as part of foreign intelligence, if at all technically possible, might have far-reaching consequences that are difficult to foresee in advance. As already noted (see paragraph 272 above) a remedy which does not depend on notification to the interception subject could be an effective remedy in the context of bulk interception. The Court therefore accepts the respondent State’s approach in this regard as being legitimate. However, the absence of a functioning notification mechanism should be counterbalanced by the effectiveness of the remedies that must be available to individuals who suspect that their communications may have been intercepted and analysed.", "356. The Court notes in this regard that the Signals Intelligence Act provides for ex post facto review on the initiative of individuals or legal persons without them having to demonstrate that they may have been affected by a bulk interception operation. In reaction to a request by anyone, regardless of nationality and residence, the Foreign Intelligence Inspectorate must investigate if the person’s communications have been intercepted through signals intelligence and, if so, verify whether the interception and treatment of the information have been in accordance with the law. As already noted (see paragraph 350 above), the Inspectorate has the power to decide that the signals intelligence operation shall cease or that the intelligence shall be destroyed.", "357. The applicant pointed out that there is no possibility for an individual to be informed of whether his or her communications have actually been intercepted or, generally, to be given reasoned decisions. Under the relevant domestic law the Inspectorate informs the complainant only that an investigation has been carried out (see paragraph 61 above).", "358. It transpires from the material available to the Court (see, in particular, paragraphs 61 and 203 above) that the Inspectorate regularly examines the requests submitted to it by individuals.", "359. However, while it is true that the Inspectorate is an independent body, the Court observes that, having regard to that body’s duty to supervise and monitor the FRA’s activities, which includes taking or authorising operational decisions such as those concerning access to the signal carriers, use of selectors, analysis, use and destruction of intercept material (see paragraphs 50-53 above), the Inspectorate’s additional role of ex post facto review on request from individuals may lead to situations where it will have to assess its own activities in supervising bulk interception by the FRA. In the conditions of secrecy, which legitimately characterise the relevant procedures, and failing a legal obligation for the Inspectorate to provide reasons to the individual concerned, there may be doubts as to whether the Inspectorate’s examination of individual complaints in such situations affords adequate guarantees of objectivity and thoroughness. It cannot be excluded that the dual role of the Inspectorate may generate conflicts of interest and, therefore, the temptation to overlook an omission or misconduct in order to avoid criticism or other consequences.", "360. The Court does not disregard in this respect the fact that the Inspectorate is itself subject to audits (paragraph 54 above), which could in principle be seen as a relevant safeguard. It notes, however, that the Government have not provided any information demonstrating that the audits conducted so far covered the Inspectorate’s investigations undertaken at the requests of individuals seeking information as to whether their communications had been intercepted by the FRA. It appears that there is no legal obligation for the National Audit Office – which is responsible for auditing a significant number of administrative bodies in various sectors – to conduct such specific audits and to do so regularly. In these circumstances and having regard to the structural issue noted in the preceding paragraph, the Court is not convinced that the potential possibility of the National Audit Office examining the Inspectorate’s handling of individuals’ complaints is sufficient.", "361. Furthermore, in the Court’s view, a system of ex post facto review that does not produce reasoned decisions in response to complaints submitted by individuals, or at least decisions that contain reasons accessible to security-cleared special counsel, is too dependent on the initiative and perseverance of appointed officials operating away from the public eye. With regard to the Swedish system, the Court notes that no details are communicated to the complainant as to the content and outcome of the investigation conducted by the Inspectorate and, hence, the Inspectorate seems to be afforded wide discretion. A reasoned decision has the undeniable advantage of providing publicly available guidance on the interpretation of the applicable legal rules, the limits to be observed and the manner in which the public interest and individual rights are to be balanced in the specific context of bulk interception of communications. As noted by the Court in Kennedy (cited above, § 167), the publication of such legal rulings enhanced the level of scrutiny in this area. These observations lead the Court to consider that the above-mentioned features of the Swedish system do not offer a sufficient basis for public confidence that abuses, if they occur, will be unveiled and remedied.", "362. It is true that individuals can turn to the Parliamentary Ombudsmen and the Chancellor of Justice, who can scrutinise the authorities’ actions for, inter alia, lawfulness and possible encroachment upon fundamental rights and freedoms. The Chancellor and the Ombudsmen have the power to initiate criminal or disciplinary proceedings (see paragraphs 66-68 above). While these are relevant complaint mechanisms, the Court notes that they do not seem to have been used frequently in the context of bulk interception of communications (see above, paragraph 67 in fine ). In any event, it is of the view that a legal procedure before an independent body, which in so far as possible offers an adversarial process resulting in reasoned and legally binding decisions, is an essential element of an effective ex post facto review. However, these conditions were met neither by the Chancellor not the Ombudsmen.", "363. Finally, the Court agrees with the applicant that the remedy available in the United Kingdom before the IPT (see Big Brother Watch and Others, cited above, §§ 413-15), illustrates that it is possible to reconcile legitimate security concerns and the need to ensure a reliable ex post facto control of bulk interception activities.", "364. In sum, the Inspectorate’s dual role and the absence of a possibility for members of the public to obtain reasoned decisions in some form in response to inquiries or complaints regarding bulk interception of communications, elements that are not in line with the requirements of an effective ex post facto review, must be seen as a shortcoming of the Swedish regime, to be taken into account in the Court’s assessment of its compatibility with Article 8 of the Convention. In the Court’s view, the above-mentioned shortcoming is particularly relevant having regard to the fact that the Court has insufficient information about the practice of the Foreign Intelligence Court on judicial pre-authorisation of strong selectors or categories of selectors (see paragraph 300 above) and on the manner in which the legal requirements on destruction of intercept material are applied in practice (see paragraph 343 above). This undoubtedly exacerbates the uncertainty for the individuals concerned as to whether arbitrariness or abuse concerning them might have occurred.", "(ι) Conclusion", "365. The Court is in no doubt that bulk interception is of vital importance to Contracting States in identifying threats to their national security. This has been recognised, in particular, by the Venice Commission (see paragraph 86 above). It appears that, in present-day conditions, no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power.", "366. The Court further reiterates that it is not its role to prescribe an ideal model for signals intelligence but rather to review for Convention compliance the existing legal and practical arrangements, which vary conceptually and functionally from one Contracting Party to another. In this exercise, the Swedish signals intelligence model and its safeguards against abuse must be seen as one whole.", "367. The review of the Swedish bulk interception system in the present case has revealed that it is based on detailed legal rules, is clearly delimited in scope and provides for safeguards. The grounds upon which bulk interception can be authorised in Sweden are clearly circumscribed, the circumstances in which communications might be intercepted and examined are set out with sufficient clarity, its duration is legally regulated and controlled and the procedures for selecting, examining and using intercepted material are accompanied by adequate safeguards against abuse. The same protections apply equally to the content of intercepted communications and communications data.", "368. Crucially, the judicial pre-authorisation procedure as it exists in Sweden and the supervision exercised by an independent body in Sweden serve in principle to ensure the application of the domestic legal requirements and the Convention standards in practice and to limit the risk of disproportionate consequences affecting Article 8 rights. Notably, regard must be had to the fact that in Sweden the limits to be observed in each bulk interception mission, as well as its lawfulness and proportionality in general, are the subject matter of judicial pre-authorisation proceedings before the Foreign Intelligence Court, which sits in the presence of a privacy protection representative defending the public interest.", "369. The Court noted three shortcomings in the Swedish bulk interception regime: the absence of a clear rule on destroying intercepted material which does not contain personal data (see paragraph 342 above); the absence of a requirement in the Signals Intelligence Act or other relevant legislation that, when making a decision to transmit intelligence material to foreign partners, consideration is given to the privacy interests of individuals (see paragraphs 326-330 above); and the absence of an effective ex post facto review (see paragraphs 359-364 above).", "370. As regards the first of these shortcomings, its potential for causing adverse consequences on Article 8 rights is limited by the fact that Swedish law provides for clear rules on the destruction of intercept material in a number of circumstances and, above all, when it contains personal data.", "371. However, the Court considers that the second shortcoming may potentially lead to very significant adverse consequences for affected individuals or organisations. As noted, the above-mentioned shortcoming may allow information seriously compromising privacy rights or the right to respect for correspondence to be transmitted abroad mechanically, even if its intelligence value is very low. Such transmission may therefore generate clearly disproportionate risks for Article 8 Convention rights. Furthermore, no legally binding obligation is imposed on the FRA to analyse and determine whether the foreign recipient of intelligence offers an acceptable minimum level of safeguards.", "372. Finally, the Inspectorate’s dual role and the absence of a possibility for members of the public to obtain reasoned decisions in some form in response to inquiries or complaints regarding bulk interception of communications weakens the ex post facto control mechanism to an extent that generates risks for the observance of the affected individuals’ fundamental rights. Moreover, the lack of an effective review at the final stage of interception cannot be reconciled with the Court’s view that the degree of interference with individuals’ Article 8 rights increases as the process advances (see paragraphs 239 and 245 above) and falls short of the requirement of “end-to-end” safeguards (see paragraph 264 above).", "373. The Court is satisfied that the main features of the Swedish bulk interception regime meet the Convention requirements on quality of the law and considers that the operation of this regime at the time of the Chamber examination was therefore in most aspects kept within the limits of what is “necessary in a democratic society”. It finds, however, that the shortcomings mentioned in the preceding paragraphs are not sufficiently compensated by the existing safeguards and that, therefore, the Swedish bulk interception regime oversteps the margin of appreciation left to the authorities of the respondent State in that regard. The Court reiterates that there is considerable potential for bulk interception to be abused in a manner adversely affecting the rights of individuals to respect for private life (see paragraph 261 above). Therefore, having regard to rule of law principle, which is expressly mentioned in the Preamble to the Convention and is inherent in the object and purpose of Article 8 (see Roman Zakharov, cited above, § 228), the Court considers that the Swedish bulk interception regime, when viewed as a whole, did not contain sufficient “end-to-end” safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse.", "(d) Conclusion on Article 8", "374. Having regard to the above conclusion concerning the lawfulness and justification of the impugned bulk interception regime, the Court finds that in the present case there has been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "375. The applicant complained that the remedies available under the Swedish bulk interception regime were insufficient and did not meet the requirements of Article 13 of the Convention. That provision reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "376. The Chamber found that no separate issue arose under that provision (see paragraph 184 of the Chamber judgment).", "377. The Grand Chamber adopts the same conclusion, having regard to its finding above that there has been a violation of Article 8.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "378. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "379. The applicant stated that a finding of a violation would constitute sufficient redress. The Government agreed.", "380. The Court accordingly makes no award under this head.", "Costs and expenses", "381. The applicant claimed 544,734 Swedish crowns (“SEK”) for 217 hours of legal work in the Chamber proceedings and 190 hours of legal work in the Grand Chamber proceedings (407 hours in total) at hourly rates ranging from SEK 1,302 to SEK 1,380.", "382. The applicant also claimed travel and accommodation expenses for the attendance of its three representatives at the hearing before the Grand Chamber on 10 July 2019. These expenses amounted to SEK 8,669 for flight tickets and SEK 8,231 for hotel accommodation (SEK 16,900 in total). The applicant submitted copies of the relevant invoices.", "383. The total amount claimed by the applicant was thus SEK 561,634 (the equivalent of approximately EUR 52,625).", "384. The Government stated that they did not object to the claims made by the applicant but considered that if only one of the Convention Articles covered by the complaint is found to be violated the reimbursement should be reduced accordingly.", "385. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in the Court’s possession and the above criteria and noting, in addition, that a violation of the Convention was found in respect of the applicant’s main complaint, the complaint under Article 8, the Court considers it reasonable to award EUR 52,625 to cover costs and expenses under all heads.", "Default interest", "386. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The four applicants are two lawyers and two non-governmental organisations related to them.", "3. The first applicant, Mr Ekimdzhiev, was born in 1964 and lives in Plovdiv. He is a lawyer whose practice includes acting as counsel in various domestic cases and representing applicants before this Court.", "4. The second applicant, the Association for European Integration and Human Rights, was founded in 1998 and has its registered office in Plovdiv. The first applicant, Mr Ekimdzhiev, is the chairman of its board.", "5. The third applicant, Mr A.E. Kashamov, was born in 1971 and lives in Sofia. He is also a lawyer whose practice includes acting as counsel in various domestic cases and representing applicants before this Court.", "6. The fourth applicant, the Access to Information Foundation, was set up in 1997 and has its registered office in Sofia. The third applicant, Mr A.E. Kashamov, is the head of its in-house legal team.", "7. The first and second applicants were initially represented before the Court by Ms S. Stefanova and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by, respectively, Ms T. Ekimdzhieva and Ms M. Dokova-Kostadinova, likewise lawyers practising in Plovdiv.", "8. The third applicant was represented by Mr A.A. Kashamov, a lawyer practising in Sofia. The fourth applicant was represented by the third applicant, Mr A.E. Kashamov.", "9. The Government were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice.", "10. The applicants asserted that the nature of their activities put them at risk of both secret surveillance and of having their communications data accessed by the authorities under the laws authorising that in Bulgaria. They did not allege that they had in fact been placed under surveillance or had had their communications data accessed by the authorities." ]

[ "RELEVANT BULGARIAN LAW AND PRACTICE", "SPECIAL MEANS OF SURVEILLANCEMeaning of the term “special means of surveillance” and most common types of surveillance techniques", "Meaning of the term “special means of surveillance” and most common types of surveillance techniques", "Meaning of the term “special means of surveillance” and most common types of surveillance techniques", "11. In Bulgaria, the umbrella term “special means of surveillance” comprises electronic or mechanical devices enabling the preparation of evidential materials (video and audio recordings, photographs and marked objects) and the covert techniques for using those devices (section 2(1) and (2) of the Special Surveillance Means Act 1997 and Article 172 § 1 of the Code of Criminal Procedure). Those techniques are (a) visual surveillance, (b) eavesdropping and tapping, (c) tracking, (d) covertly intruding (into vehicles or premises), (e) marking and checking correspondence or computerised information, (f) controlled delivery, (g) pseudo-transactions, and (h) the use of undercover agents (section 2(3) of the 1997 Act and Article 172 § 1 of the Code). Sections 5 to 10c define each of those techniques. Section 6 in particular clarifies that tapping and eavesdropping include the interception of both telephone and electronic communications.", "12. According to the annual reports published by the National Bureau for Control of Special Means of Surveillance (see paragraphs 14, 16 and 108 below) since 2014, the techniques which are used most often are (a) visual surveillance and (b) tapping and eavesdropping:", "Year", "Visual surveillance", "Tapping or eavesdropping", "2014", "2,773 (24.94%)", "4,927 (44.33%)", "2015", "1,417 (20.25%)", "3,848 (54.97%)", "2016", "1,865 (21.56%)", "4,717 (54.80%)", "2017", "1,699 (21.23%)", "4,470 (55.86%)", "2018", "1,669 (19.39%)", "5,124 (59.53%)", "2019", "1,628 (19.22%)", "5,076 (59.92%)", "2020", "1,372 (18.27%)", "4,594 (61.19%)", "General outline and evolution of the relevant legislation", "13. Special means of surveillance were first regulated in Bulgaria with the Special Means of Surveillance Act 1994, in force until 1997. Currently, the law governing special means of surveillance is chiefly set out in the Special Means of Surveillance Act 1997, as amended, Articles 172-177 of the Code of Criminal Procedure, as amended, sections 304-310 of the Electronic Communications Act 2007, as amended, and the internal rules of the National Bureau for Control of Special Means of Surveillance, whose most recent version was adopted in October 2016.", "14. In December 2008, following the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007), in which the Court found breaches of Article 8 and 13 of the Convention, the 1997 Act was extensively amended. The explanatory notes to the amendment bill referred to that judgment and the need to bring the Act into line with the requirements of the Convention. Along with a host of other changes, the amendment created a National Bureau for Control of Special Means of Surveillance (“the National Bureau”), an independent authority whose five members were to be elected by Parliament and whose task was to oversee the use of special means of surveillance and the storing and destruction of material obtained through such means, and to protect individuals against the unlawful use of such means.", "15. In October 2009, however, before the National Bureau could start operating, Parliament enacted further amendments to the 1997 Act, abolishing the Bureau and replacing it with a special parliamentary subcommittee. The amendments came into effect in November 2009. For further details on these amendments and the committee’s work in 2011, see Hadzhiev v. Bulgaria (no. 22373/04, §§ 26-28, 23 October 2012), and Lenev v. Bulgaria (no. 41452/07, §§ 81-83, 4 December 2012).", "16. A further amendment to the 1997 Act which came into effect in August 2013 re-established the National Bureau as an “independent State authority” (see paragraphs 108 to 123 below). Its five members were elected by Parliament in December 2013, and it began its work in the beginning of 2014. The special parliamentary subcommittee became a full committee and continued to exist alongside the Bureau (see paragraph 125 below).", "17. The relevant provisions of all enactments cited in paragraph 13 above, and of all other relevant provisions mentioned in the text, are set out below as they stood on 7 December 2021.", "Situations which may trigger the use of special means of surveillance", "18. Special means of surveillance may be used if that is necessary to prevent or detect one or more of the “serious intentional offences” (Article 93 § 7 of the Criminal Code defines a “serious” offence as one punishable by more than five years’ imprisonment) listed in an exhaustive manner in section 3(1) of the 1997 Act and Article 172 § 2 of the Code of Criminal Procedure, which refer either to the chapters in the Criminal Code in which the provisions defining those offences are contained or to the provisions themselves. [1] Those include various offences against the Republic (such as attempted coup d’état, treason, espionage and sabotage); terrorist offences, including preparatory ones; murder; causing grievous bodily harm; abduction; rape and some other sexual offences; human trafficking; vote buying and some other electoral offences; theft; robbery; embezzlement; fraud; blackmail; dealing in stolen goods; money laundering; various economic, credit and customs offences; aggravated forgery; aggravated misuse of public office; perverting the course of justice; bribery; being the leader or member of a criminal gang; some aggravated computer offences; arson; some transport offences; some ecological offences; various narcotic drugs offences; disclosing official secrets; desertion in wartime and various military offences; unlawfully dealing in nuclear materials; and various offences against peace and humanity.", "19. According to the National Bureau’s annual reports, the two offences which have given rise to the highest number of instances of surveillance since 2014 were those under Article 321 of the Criminal Code (being the leader or a member of a criminal gang, which, regardless of its place of commission within Bulgaria, has been within the jurisdiction of the Specialised Criminal Court since that court’s creation in 2011-12 – see paragraph 46 below) and under Article 354a of the Code (dealing in narcotic drugs, which, if committed by criminal gangs, has likewise been within the jurisdiction of the Specialised Criminal Court since its creation in 2011-12):", "Year", "Criminal gangs", "Narcotic drugs", "2014", "20.90%", "29.30%", "2015", "34.15%", "19.00%", "2016", "42.05%", "14.00%", "2017", "43.52%", "14.63%", "2018", "53.17%", "14.28%", "2019", "48.78%", "14.91%", "2020", "51.11%", "13.86%", "20. The additional condition is that special means of surveillance may be used to prevent or detect one or more of those offences only if the requisite intelligence cannot be obtained by other means, or if doing so would entail exceptional difficulties (section 3(1) in fine of the 1997 Act).", "21. When deployed to prevent or detect such offences, special means of surveillance are to be used to obtain evidence about them (section 3(2)).", "22. Special means of surveillance may also be used for activities relating to national security (section 4 of the 1997 Act). [2] The Government submitted that in practice national security was never cited as a standalone ground for surveillance, and that surveillance applications were always also based on the need to prevent or detect an offence. They cited two statements drawn up by the National Bureau and the State Agency for National Security for the purposes of the present proceedings. In its statement, the Bureau said that in its inspections it had found that authorities seeking the use of special means of surveillance always referred to a relevant offence. In its statement, the State Agency for National Security said that owing to the manner in which section 14(1) and (3) of the 1997 Act (see paragraphs 39 and 41 below) was to be construed, surveillance applications always had to refer to a relevant offence.", "Persons who or objects which can be subjected to secret surveillanceGeneral rules", "General rules", "General rules", "23. By section 12(1) to (3) of the 1997 Act, special means of surveillance may be used with respect to (a) persons suspected of, or unwittingly used for, the preparation or commission of one or more of the above-mentioned “serious intentional offences”; (b) persons or objects related to national security; (c) objects necessary to identify such persons; (d) persons who have agreed to being placed under surveillance to protect their life or property; or (e) a witness in criminal proceedings who has agreed to being placed under surveillance in order to expose the commission of one of the offences listed in section 12(3) by another (those include terrorist offences, hostage holding, human trafficking, taking and giving a bribe, and being the leader or member of a criminal gang).", "24. According to the National Bureau’s annual reports, the number of persons placed under surveillance each year since 2011 were as follows:", "Year", "Persons placed under surveillance", "Of those, of their own volition", "2011", "8,184", "not specified", "2012", "5,902", "not specified", "2013", "4,452", "not specified", "2014", "4,202", "162", "2015", "2,638", "79", "2016", "2,749", "73", "2017", "2,748", "55", "2018", "3,046", "62", "2019", "3,310", "not specified", "2020", "3,042", "not specified", "25. According to the National Bureau’s annual reports, the number of cases in which the authorities had placed under surveillance objects with a view to identifying persons (see paragraph 23 (c) above) were as follows:", "Year", "Number of cases in which objects were placedunder surveillance for identification purposes", "2014", "645", "2015", "299", "2016", "340", "2017", "261", "2018", "279", "2019", "259", "2020", "172", "Rules relating to lawyer-client communications", "26. By section 33(1) of the Bar Act 2004, lawyers’ papers, files, electronic documents, computer equipment and other data carriers are “inviolable” and are not subject to inspection, copying, checks or seizure. By section 33(2), correspondence between lawyers and clients, regardless of the means of communication, electronic or otherwise, is not subject to inspection, copying, checks or seizure either. By section 33(3), conversations between a lawyer and a client cannot be intercepted and recorded, and any possible recordings of such conversations cannot be used as evidence and are subject to immediate destruction. By Article 136 § 2 of the Code of Criminal Procedure, the use of special means of surveillance with respect to lawyers is subject to the requirements of the 2004 Act. The Supreme Court of Cassation has held that in spite of the literal terms of section 33(3) of the 2004 Act, the prohibition which it lays down is not necessarily absolute in all cases, in view of, among other things, the public interest in detecting offences committed by lawyers (see реш. № 211 от 08.04.2019 г. по н. д. № 1009/2018 г., ВКС, III н. о.). The 1997 Act does not contain any provisions specifically dealing with the surveillance of lawyers or the interception of their communications as a result of the surveillance of their clients.", "27. The issue appears to have been touched upon solely in an instruction issued by the Chief Prosecutor on 11 April 2011 in the exercise of his power under section 138(4) (since August 2016, section 138(6)) of the Judiciary Act 2007 to make instructions governing the work of the prosecuting authorities. The instruction’s preamble said that its issuing was necessary to halt inconsistent practices and avert breaches of section 33 of the 2004 Act (see paragraph 26 above).", "28. Point 12 of the instruction says that special means of surveillance can be used with respect to lawyers only if there is information which can provide grounds for a reasonable suspicion that they have, alone or with others, committed an offence. The surveillance request must expressly mention that the surveillance will be directed against a lawyer.", "29. Point 13 of the instruction says that if in the course of a surveillance operation the authorities record the conversation of a lawyer with a client or with another lawyer, and that conversation touches upon a client’s defence, they must not prepare evidentiary material on its basis, unless the surveillance reveals that the lawyer has him- or herself engaged in criminal activity.", "30. It does not seem that the instruction has been published by the Prosecutor’s Office. On 13 April 2011 the Chief Prosecutor did, however, send a copy of it to the Supreme Bar Council, and in June 2011 the Supreme Bar Council published it in issue 5-6/2011 of its journal, “Lawyers’ Review” ( Адвокатски преглед ) ( link ).", "Authorisation proceduresAuthorities entitled to request secret surveillance", "Authorities entitled to request secret surveillance", "Authorities entitled to request secret surveillance", "31. Only a limited number of authorities may seek the use of special means of surveillance and draw on the intelligence obtained thereby, within the spheres of their respective competencies.", "32. Outside the framework of already pending criminal proceedings, the use of such means may only be sought by: (a) various directorates of the Ministry of Internal Affairs (national police, fight against organised crime, border police, internal affairs, regional directorates and various specialised directorates); (b) the territorial directorates and units of the State Agency for National Security; (c) the military-intelligence and military-police services attached to the Minister of Defence; (d) the Intelligence Agency; (e) regional prosecutor’s offices (only in relation to serious electoral offences); and (f) the specialised anti-corruption directorate [3] (section 13(1) of the 1997 Act).", "33. In the course of criminal proceedings, that may be done by the public prosecutor in charge of supervising the pre-trial investigation (section 13(2) of the 1997 Act and Article 173 § 1 of the Code of Criminal Procedure).", "34. For the prevention of terrorist offences (including preparatory ones), the request may be made by the Chief Prosecutor, the head of State Agency for National Security, the head of the Intelligence Agency, the head of the military intelligence service (or their duly authorised deputies), or the chief secretary of the Ministry of Internal Affairs (section 13(4) of the 1997 Act).", "35. Special rules govern offences alleged to have been committed by court presidents, judges, public prosecutors or investigators (section 13(3) of the 1997 Act and Article 174 § 5 of the Code of Criminal Procedure).", "36. No other authorities may seek the use of special means of surveillance (section 13(6) of the 1997 Act).", "37. The application must originate from the head of the respective authority; if it is made by a public prosecutor, he or she must notify the head of the respective prosecutor’s office (sections 13(5) and 14(1) of the 1997 Act and Article 173 § 1 in fine of the Code of Criminal Procedure).", "38. According to the National Bureau’s annual reports, the respective share of surveillance applications were as follows:", "Year", "Ministry of Internal Affairs", "State Agencyfor National Security", "Prosecuting authorities", "Other authorities", "2014", "43.40%", "31.50%", "24.90%", "0.20%", "2015", "50.29%", "19.16%", "30.05%", "0.51%", "2016", "56.22%", "10.08%", "33.39%", "0.32%", "2017", "56.50%", "6.41%", "36.94%", "0.15%", "2018", "60.78%", "4.82%", "34.27%", "0.66%", "2019", "53.73%", "5.69%", "37.95%", "2.63%", "2020", "51.12%", "7.28%", "36.98%", "3.70%", "Content of an application for secret surveillance", "(a) The application itself", "39. Surveillance applications made outside the framework of already pending criminal proceedings must be duly reasoned and set out (a) a full account of the circumstances giving cause to suspect that a relevant offence is being prepared or committed or has been committed, including when it comes to national security within the meaning of section 4 of the 1997 Act (see paragraph 22 above); (b) a full account of the steps already taken and the results of any previous preliminary inquiries or investigations; (c) data permitting the identification of the target (person or object); (d) the intended duration of the surveillance and reasons why that duration is necessary; (e) the intended surveillance techniques; (f) reasons why the intelligence cannot be obtained by other means or an account of the exceptional difficulties which that would entail; and (g) the official who will be informed of the results of the surveillance (section 14(1) of the 1997 Act).", "40. Surveillance applications made in the course of criminal proceedings must also be duly reasoned and set out (a) information about the offence under investigation; (b) an account of all earlier investigatory steps and their results; (c) data permitting the identification of the target (person or object); (d) the intended surveillance techniques; (e) the intended duration of the surveillance and reasons why it is necessary; and (f) reasons why the intelligence cannot be obtained by other means or an account of the exceptional difficulties which that would entail (Article 173 § 2 of the Code of Criminal Procedure).", "41. Surveillance applications relating to terrorist offences (including preparatory ones) must set out (a) the circumstances which give cause to suspect that a relevant offence is being prepared or committed or has been committed; (b) if available, data permitting the identification of the target (person or object); (c) the intended duration of the surveillance; (d) the intended surveillance techniques; and (e) the official who will be informed of the results of the surveillance (section 14(3) of the 1997 Act).", "42. Renewal applications must additionally contain a full account of any surveillance results obtained so far (section 21(3) of the 1997 Act and Article 173 § 6 of the Code of Criminal Procedure).", "43. Applications concerning the surveillance or people for their own benefit, or of cooperating witnesses (see paragraph 23 (d) and (e) above), must be accompanied by their written consent (section 14(2) of the 1997 Act and Article 175 § 5 of the Code of Criminal Procedure).", "(b) Materials supporting the application", "44. For applications made outside criminal proceedings, the rule is that the requesting authority must enclose all materials on which its application is based (section 15(3) of the 1997 Act). [4] For applications made in the course of criminal proceedings, the rule is that the judge competent to issue the surveillance warrant may request those materials (Article 174 § 4 of the Code of Criminal Procedure). [5] It is unclear whether there is a difference in practice.", "45. The National Bureau’s annual report for 2017 – the only one to have touched upon the point – said (at p. 19) that in that year 2% of the applications made by the Ministry of Internal Affairs, 4% of those made by the prosecuting authorities, and 4% of those made by the State Agency for National Security had been refused because they had not presented all materials on which those applications had been based. According to the same report, the percentage of applications refused for that reason during the two preceding years had been 2.5% for the Ministry and 5% for the Agency in 2015, and 6% for the Agency in 2016.", "Authorities competent to issue secret surveillance warrants", "46. As a rule, surveillance warrants may be issued only by the presidents of the Sofia City Court, of the respective regional or military courts, and of the Specialised Criminal Court (which was created in 2011 and started its work in the beginning of 2012), or an expressly authorised deputy (section 15(1) and (2) of the 1997 Act and Article 174 §§ 1-3 of the Code of Criminal Procedure). The word “respective” – specifically added to section 15(1) of the 1997 Act in 2013 to prevent the risk of forum-shopping by the relevant authorities – has been construed by the courts to mean the court which would be competent ratione materiae, personae and loci to try the alleged offence in relation to which surveillance is being sought (see реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final).", "47. Special rules govern offences allegedly committed by judges, public prosecutors or investigators: in those cases the warrant may be issued by the presidents of the Sofia Court of Appeal, the Military Court of Appeal or the Specialised Criminal Court of Appeal, or a duly authorised deputy, depending on which court would be competent to try the criminal case (section 15(4)(1) of the 1997 Act and Article 174 § 5 of the Code of Criminal Procedure). If the offence is alleged to have been committed by one of those presidents or deputies, the warrant may be issued by the Vice ‑ President of the Supreme Court of Cassation in charge of its Criminal Division (section 15(4)(2) of the 1997 Act and Article 174 § 6 of the Code of Criminal Procedure).", "48. Compliance with those jurisdictional rules has been held to be an essential safeguard against unlawful surveillance (see реш. № 365 от 14.02.2014 г. по в. н. о. х. д. № 653/2013 г., САС, upheld by реш. № 189 от 03.02.2015 г. по н. д. № 515/2014 г., ВКС, II н. о.).", "49. According to the National Bureau’s annual reports (and, for the period 2011-14, the annual reports of the respective courts), the surveillance warrants issued by the presidents or vice-presidents of the four courts which had issued the largest number of those in 2015 were as follows:", "Year", "Sofia City Court", "Specialised Criminal Court", "Plovdiv Regional Court", "Stara Zagora Regional Court", "2011", "6,008 (44.10%)", "not applicable [6]", "not specified", "872 (6.40%)", "2012", "5,556 [7]", "550", "not specified", "498", "2013", "4,324", "687", "not specified", "332", "2014", "2,298 (41.01%)", "1,011 (18.04%)", "not specified", "not specified", "2015", "837 (21.38%)", "1,049 (26.79%)", "461 (11.78%)", "240 (6.13%)", "2016", "90 (1.91%)", "2,179 (46.25%)", "485 (10.30%)", "385 (8.17%)", "2017", "196 (4.24%)", "1,808 (39.10%)", "339 (7.33%)", "320 (6.92%)", "2018", "190 (3.57%)", "2,524 (47.71%)", "333 (6.25%)", "258 (4.84%)", "2019", "146 (2.71%)", "3,006 (55.71%)", "355 (6.58%)", "271 (5.02%)", "2020", "120 (2.40%)", "2,798 (55.93%)", "422 (8.43%)", "206 (4.12%)", "50. In its annual report for 2016 (at p. 13), the National Bureau noted that although it was getting the largest number of surveillance applications in the country, the Specialised Criminal Court was not adequately staffed and resourced to deal with them properly. An inspection by the Bureau had revealed that that court was not in a position to process correctly the enormous volume of documents relating to such applications. The Bureau drew attention to the problem in its report for 2017 as well (at p. 16). In its report for 2019, the Bureau noted (at p. 16) that the large number of surveillance applications received by the Specialised Criminal Court on the one hand enabled the relevant judges to gain more experience, but on the other hand led to excessive workload, which was conducive to errors. That finding was repeated in the report for 2020 (at p. 27).", "Manner of examination of secret surveillance applications", "(a) Relevant statutory provisions and case-law", "51. Surveillance applications made outside the framework of already pending criminal proceedings must be examined by the competent court president or vice-president on the papers within forty-eight hours, [8] and that president or vice-president can either issue a warrant or refuse the application, and must give reasons for his or her decision (section 15(1) in fine of the 1997 Act). For terrorist offences, the time-limit for decision is twenty-four hours (section 15(2) of the 1997 Act). When the application is made in the course of criminal proceedings, the law does not lay down a time-limit for ruling on it, [9] but likewise requires a reasoned decision (Article 174 § 4 of the Code of Criminal Procedure).", "52. Decisions to allow or refuse a surveillance application cannot be challenged before the administrative courts by way of a claim for judicial review (see опр. № 11281 от 28.10.2015 г. по адм. д. № 10354/2015 г., ВАС, V о.).", "(b) Information about the courts’ practices relating to the examination of secret surveillance applications emerging from the National Bureau’s annual reports", "53. From the National Bureau’s annual reports for 2015 (at pp. 16 and 25), 2016 (at pp. 15-16 and 26), 2017 (at pp. 17 and 27) and 2020 (at p. 29), it emerges that in practice surveillance applications are sometimes allowed in part and refused in part: only as regards certain surveillance techniques, or as regards certain offences, if the application concerns several, or for a shorter duration than requested.", "54. From the National Bureau’s annual reports for 2015 (at p. 16), 2016 (at p. 16), 2017 (at pp. 17-19), 2018 (at pp. 15-16), 2019 (at p. 17) and 2020 (at pp. 22-34 and 29) it further emerges that when they refused applications, the judges explained concretely their reasons for doing so: that the application did not originate from a competent authority; that it was not addressed to a competent court; that it did not relate to a relevant offence; that it did not contain enough information to ground a suspicion that the intended surveillance target has been implicated in an offence, or enough reasons why the warrant was to be issued; that it did not explain why a particular surveillance technique was necessary; that (for renewal applications) it did not set out the results already obtained; or that it sought authorisation for surveillance outside the statutory time-limits. According to the Bureau’s annual report for 2020 (at p. 9), the largest number of refusals during that year had been based on the absence of enough information in the surveillance application that the intended targets were implicated in an offence.", "55. According to the National Bureau’s annual reports, the judicial decisions to allow or refuse an application for a surveillance warrant each year since 2014 were as follows:", "Year", "Applications allowed", "Applications refused", "2014", "7,604 (98.07%) [10]", "150 (1.93%)", "2015", "4,034 (85.52%)", "683 (14.48%)", "2016", "4,885 (80.16%)", "1,209 (19.84%)", "2017", "4,624 (77.86%)", "1,315 (22.14%)", "2018", "5,328 (87.36%)", "771 (12.64%)", "2019", "5,396 (89.35%)", "643 (10.65%)", "2020", "5,003 (93.20%)", "365 (6.80%)", "(c) Other official accounts of the courts’ practices", "(i) In the Sofia City Court in 2013-17", "(α) Criminal and disciplinary proceedings against the President of the Sofia City Court", "56. In early 2015 the President of the Sofia City Court, who had taken up her duties in 2011, was charged with wilfully issuing surveillance warrants in the absence of the legal prerequisites. She was suspended from her posts as court president and judge, and in March 2015 resigned from the post of president. In early 2016 she was convicted of deliberately authorising the surveillance of an automated centralised police information system operated by the Ministry of Internal Affairs by the Ministry’s internal security department for a period exceeding the statutory maximum, contrary to Article 284c of the Criminal Code (see paragraph 145 below). She was, however, acquitted of the additional charge that the police information system in question was not a proper “object” of surveillance within the meaning of section 12(1) of the 1997 Act (see paragraph 23 (c) above). The first-instance judgment, which was classified (прис. № 1 от 15.01.2016 г. по н. о. х. д. № С-61/2015 г., СГС) concerned a warrant which she had issued in March 2014. It was fully upheld on appeal (see реш. № 42 от 10.01.2017 г. по в. н. о. х. д. № 50/2016 г., САС (apparently not published), and реш. № 57 от 19.04.2017 г. по н. д. № 161/2017 г., ВКС, I н. о.).", "57. Parallel to that, in March 2015 the Minister of Justice asked the Supreme Judicial Council to open disciplinary proceedings against the (by then former) President of the Sofia City Court and dismiss her from her post as a judge as well, based on allegations that she had rendered the system of prior judicial authorisations of secret surveillance in the Sofia City Court ineffective. The Supreme Judicial Council at first refused to open such proceedings, but on an application by the Minister in August 2015 the Supreme Administrative Court quashed that refusal (see опр. № 9195 от 03.08.2015 г. по адм. д. № 5340/2015 г., ВАС, VI о.), and the Supreme Judicial Council did open such proceedings. They were later stayed to await the determination of the criminal charges against the (by then former) court president (see paragraph 56 above). In May 2017, after her conviction had become final, the Supreme Judicial Council dismissed her from her post as a judge as well.", "58. According to a declaration drawn up by the 2013-18 chairperson of the National Bureau (see paragraphs 109 and 112 below) in February 2020 for the purposes of the present proceedings, and produced by the applicants, the deputies of that President of the Sofia City Court had made “four times as many” violations of the same nature but had not been brought to account for any of them.", "(β) April 2017 report by the Vice-Presidents of the Sofia City Court", "59. In an ad hoc report published in April 2017, two Vice-Presidents of the Sofia City Court recorded a number of shortcomings in the way in which that court had handled surveillance applications addressed to it until about mid-2015. Some of those shortcomings were: (a) between 2009 and mid-2014 the relevant registers had been kept in a way not permitting to see which judge had dealt with a given application; (b) the record-keeping relating to such applications had been highly unsatisfactory; (c) many applications had been allowed even though they had not contained any factual data enabling an assessment of their well-foundedness; (d) there had been many cases of duplication of applications and warrants issued in relation to the same person on the same day; (e) surveillance had been allowed many times with respect to foreign embassies, in breach of international diplomatic law; (f) many applications not referring to any criminal offence, or referring to irrelevant offences, had been allowed; (g) many applications which should have been addressed to other courts had been allowed; (h) until April 2015 all decisions allowing surveillance applications had not contained any reasons; (i) between April and August 2015 those decisions had, with a few exceptions, given only blanket and generalised reasons; (j) in many cases, the surveillance warrants had not been drawn up by the judges but by the requesting authority, and the judges had simply signed them; (k) until April 2015, the post-surveillance reports required to be submitted by surveillance authorities (see paragraph 106 below) had not been brought to the attention of judges, and they had not taken any steps to review them; and (l) the competent judges had, in breach of their duties, failed to exercise any control over the destruction of irrelevant surveillance information.", "60. The report went on to describe the steps taken after August 2015 to remedy those shortcomings and ensure the effective examination of all surveillance applications, such as: improved record-keeping; insisting in all cases that the requesting authority provide all materials supporting its application, and actual review of those materials by the judge; giving full reasons both when allowing and when refusing applications, including on whether the information in the supporting materials permitted a conclusion that the intended surveillance target was implicated in a relevant offence; and full control over the post-surveillance reports and the destruction of irrelevant surveillance materials.", "(γ) Examples of surveillance warrants issued by the Sofia City Courtin 2012-13", "61. By way of example, the applicants submitted two surveillance warrants issued by the (then) President of the Sofia City Court in December 2012 and February 2013. Both were templates not mentioning any data about the specific case or about the people to be placed under surveillance, save for a reference to the number and date of the surveillance application, and both authorised the use of several surveillance techniques (visual surveillance, eavesdropping and tapping, and tracking), all for the maximum statutory time-limit of sixty days. [11]", "(ii) In the Specialised Criminal Court in 2015-19", "62. In his annual report for 2015, the President of the Specialised Criminal Court said (at pp. 1-2) that in the middle of the year the number of incoming surveillance applications had dramatically increased – according to him owing to the transfer of jurisdiction to try offences against the Republic (see paragraph 18 above) from the Sofia City Court to his court in June 2015. He and his deputy had thus been faced with a massive increase in their workload (see the table under paragraph 49 above). That is why he had asked the Supreme Judicial Council to appoint a second vice-president of the court.", "63. In her annual report for 2018, the President ad interim of the Specialised Criminal Court said (at pp. 7-8) that her and her two deputies’ had again faced a massive workload relating to surveillance applications, which had increased even more during that year (see the table under paragraph 49 above). The annual report for 2019 contained similar findings (at p. 5).", "64. In a June 2019 judgment (прис. № 34 от 24.06.2019 г. по н. о. х. д. № 1907/2014 г., СпНС, unclear whether final), the Specialised Criminal Court described in some detail the content of eleven warrants issued either by the Vice-President of the Sofia City Court or the President or Vice-President of the Specialised Criminal Court in 2011-12. It noted that all of them were pre-printed forms with completely blanket contents and without any reference to the specific case to which they related except to the number of the surveillance application. The court further found that all those warrants had in fact been drawn up by others and simply signed by the respective judges, and concluded that there was no basis on which to accept that those judges had in fact verified the legal prerequisites for issuing the warrants.", "65. In a December 2019 judgment (прис. № 55 от 09.12.2019 г. по н. о. х. д. № 1590/2019 г., СпНС), the Specialised Criminal Court made similar findings about nineteen surveillance warrants issued by the President and the two Vice-Presidents of that court in 2017-18. The court noted that all of the surveillance applications pursuant to which the warrants had been issued had contained detailed reasons why they were to be allowed. By contrast, the warrants themselves were all one-page documents which did not contain any reference (save for a reference to the numbers of the applications) to the individual cases to which they related, and which were couched in terms general enough to be capable of relating to any possible surveillance application under of the 1997 Act or under the Code of Criminal Procedure. Only the operative provisions of each of the warrants mentioned that the case concerned an alleged offence under Article 321 of the Criminal Code (see paragraph 19 above). All but one had allowed surveillance for the maximum statutory duration of two months, and all had authorised the use of several surveillance techniques: visual surveillance; eavesdropping and tapping; tracking; and marking and checking correspondence or computerised information (see paragraph 11 above). It was thus impossible to speculate about whether the judges who had issued the warrants had in fact reviewed the applications for them (although the absence of review could not be presumed). The court also noted that its statistics for 2017-18 showed that it had on average received twelve or thirteen applications a day in 2017, and thirteen or fourteen applications a day in 2018, and that the practice of not giving individualised reasons was general. Based on its findings about the lack of proper reasons in the warrants, the court excluded the resulting evidence.", "66. In February 2021 the Specialised Criminal Court of Appeal quashed that latter judgment. It held, among other things, that it could not be expected that in a decision to issue a surveillance warrant a judge would comment on the evidence. Neither the 1997 Act nor the Code of Criminal Procedure required that. All that the judge examining a surveillance application had to check was whether the formal requirements to allow it were in place (see реш. № 260002 от 10.02.2021 г. по в. н. о. х. д. № 245/2020 г., АСпНС, final).", "67. Several leaks which emerged in the first half of 2021 suggested that between July 2020 and February 2021 many opposition politicians and journalists, as well as hundreds of participants in the 2020 anti-government protests in Bulgaria had been unjustifiably placed under secret surveillance on the basis of warrants issued by the Specialised Criminal Court in connection with allegations that they would attempt to carry out a coup d’état. When he spoke about the matter in Parliament on 28 July 2021, the Minister of Internal Affairs stated, among other things, that he had at his disposal documents showing that at least 123 protesters had been placed under surveillance on the basis of warrants issued by the Specialised Criminal Court, and expressed serious misgivings about the lawfulness of that surveillance, which in his view had been authorised uncritically by that court. In July 2021 Parliament set up an ad hoc committee to investigate the matter. The committee adopted its report on 13 September 2021; it has so far remained classified. On 15 September 2021 Parliament approved the report at a plenary sitting closed to the public.", "(iii) Generally", "68. In a February 2014 judgment, the Sofia Court of Appeal held that the use of boilerplate templates for decisions to issue surveillance warrants could be accepted, since, unlike the reasons to refuse a surveillance application, the reasons to allow one did not in practice vary (see реш. № 365 от 14.02.2014 г. по в. н. о. х. д. № 653/2013 г., САС, upheld by реш. № 189 от 03.02.2015 г. по н. д. № 515/2014 г., ВКС, II н. о.).", "(d) Public reporting requirements", "69. The presidents of regional and appellate courts and the President of the Supreme Court of Cassation must set out in the annual reports of their courts (a) the number of warrants issued and (b) the number of evidentiary materials drawn up based on that surveillance (section 29(8) of the 1997 Act).", "Further vetting by the authorities deploying special means of surveillance", "70. The only authorities having the power to deploy special means of surveillance are (a) the Technical Operations Agency attached to the Council of Ministers, (b) the Technical Operations Directorate of the State Agency for National Security, (c) the Intelligence Agency and the intelligence services of the Ministry of Defence (within their specific spheres of competence), and (d) (but only as regards undercover agents, controlled deliveries and pseudo-transactions) the Ministry of Internal Affairs (section 20(1) and (2) of the 1997 Act and Article 175 § 1 of the Code of Criminal Procedure). The explanatory notes to the 2013 bill (no. 354-01-19 ) which brought about the amendment to the 1997 Act which led to that position said that the reason to entrust most surveillance operations to a specialised structure separate from the Ministry of Internal Affairs was to ensure that those deploying special means of surveillance would be detached from those requesting them, and act independently and as a further safeguard against abuse.", "71. When they receive a surveillance warrant, the head of the Technical Operations Agency, the head of the State Agency for National Security, the Secretary General of the Ministry of Internal Affairs, or a duly authorised deputy, as the case may be, must issue a follow-up order for the surveillance to go ahead (section 16(1) and (2) of the 1997 Act and Article 175 § 2 of the Code of Criminal Procedure). That additional step may be skipped in urgent cases, but the head of the respective authority, or the duly authorised deputy, must then be informed immediately (section 17 of the 1997 Act).", "72. According to the National Bureau’s annual reports, that additional step was skipped in the following number of cases:", "Year", "Follow-up order by head of respective authority skipped", "2014", "742 (17.70%)", "2015", "604 (22.09%)", "2016", "685 (25.28%)", "2017", "640 (23.29%)", "2018", "607 (19.93%)", "2019", "548 (16.56%)", "2020", "435 (14.38%)", "73. Those surveillance authorities must not go ahead with the surveillance or must discontinue it if (a) the surveillance warrant has been issued with respect to an offence which is not among those listed in section 3(1) of the 1997 Act, or if (b) the surveillance application or the surveillance warrant contain obvious mistakes (section 22(3)(1) and (3)(2) of the 1997 Act). In such situations, the surveillance authority must notify the requesting authority and the judge who has issued the surveillance warrant. The judge must then cancel, vary or maintain the warrant, as the case may require, send his or her decision to the surveillance authority, and inform the requesting authority. If the judge varies or maintains the warrant, the surveillance operation must go ahead (section 22(5) of the 1997 Act).", "74. In its annual report for 2015, the National Bureau said (at p. 17) that even before the amendments to the 1997 Act which introduced that additional safeguard had come into force in June and September 2015, it had instructed the surveillance authorities not to proceed with surveillance if they spotted such mistakes in surveillance applications or warrants.", "75. According to the National Bureau’s annual reports for 2016 (at p. 17), 2018 (at p. 17) and 2019 (at pp. 18-19), the surveillance authorities had triggered that additional safeguard in the following number of cases:", "Year", "Referrals under section 22(3) of the 1997 Act", "2016", "9", "2018", "3", "2019", "4", "76. The Bureau’s annual reports for 2014, 2015, 2017 and 2020 do not contain such information.", "Retrospective authorisation in urgent cases", "77. If there is an immediate risk that a serious intentional offence (among those listed in section 3(1) of the 1997 Act – see paragraph 18 above) is about to be committed, or a risk of an immediate threat to national security, special means of surveillance may be deployed without a judicial warrant, by order of the head of the Technical Operations Agency, the head of the State Agency for National Security, or the Secretary General of the Ministry of Internal Affairs (section 18(1) of the 1997 Act). The surveillance operation must stop if the competent judge has not issued a warrant within twenty-four hours; that judge must also decide whether any already obtained information is to be kept or destroyed (section 18(2)). If issued, the warrant retrospectively validates the surveillance steps taken before it has been issued (section 18(3)).", "78. According to the National Bureau’s annual reports, each year that urgent procedure was used with respect to the following number of persons:", "Year", "Persons placed under surveillance without a prior warrant", "2014", "125 (3.00%)", "2015", "29 (1.10%)", "2016", "49 (1.78%)", "2017", "28 (1.02%)", "2018", "7 (0.23%)", "2019", "15 (0.45%)", "2020", "4 (0.13%)", "Maximum duration of secret surveillance", "79. By section 21(1) and (2) of the 1997 Act and Article 175 §§ 3 and 4 of the Code of Criminal Procedure, the maximum amount of time during which special means of surveillance may be used is:", "(a) up to twenty days, when used to identify persons (see paragraph 23 (c) above); this may be prolonged, by way of renewal applications, for up to a total of sixty days;", "(b) up to two years, when used in relation to activities pertaining to national security (see paragraph 23 (b) above), to prevent serious intentional offences against the Republic; this may be prolonged, by way of renewal applications, for up to a total of three years;", "(c) up to two months in all other cases (see paragraph 23 (a), (d) and (e) above); this may be prolonged, by way of renewal applications, for up to a total of six months. [12]", "80. In its annual report for 2018, the National Bureau said that the two ‑ year duration of the time-limit for surveillance on national-security grounds (see paragraph 79 (b) above) was one of the possible reasons for the reduced number of surveillance applications made by the State Agency for National Security since 2015 (see the table under paragraph 38 above).", "81. The time-limit starts to run from the date set out in the surveillance warrant (section 21(4) of the 1997 Act).", "Situations in which secret surveillance must be stopped", "82. By section 22(1), (2) and (3) of the 1997 Act and Article 175 § 6 of the Code of Criminal Procedure, apart from the (special) cases when the surveillance authority must stop the surveillance if it finds that it concerns an irrelevant offence or that the surveillance application or warrant are tainted by an obvious mistake (see paragraph 73 above), the surveillance authority must stop the surveillance if (a) its permitted duration has expired; (b) its aims have been attained; (c) it does not yield results; (d) there is a risk that the techniques used for it will be revealed; or (e) it has become impossible.", "83. In each of those cases, the surveillance authority must notify the judge who has issued the warrant (section 22(4) of the 1997 Act and Article 175 § 7 of the Code of Criminal Procedure). Section 22(4) requires notification to the requesting authority as well. Article 175 § 7 requires the notification to set out reasons in all possible cases, whereas section 22(4) only requires reasons if the surveillance has been stopped because (a) there was a risk that the techniques used for it would be revealed or (b) it has become impossible.", "Processing of information obtained through special means of surveillancePurposes for which the information may be used", "Purposes for which the information may be used", "Purposes for which the information may be used", "84. The general rule is that information obtained through special means of surveillance may only be used to prevent, detect or prove criminal offences, or to protect national security (section 32 of the 1997 Act).", "85. Using such information for another purpose is a criminal offence, which is aggravated if committed by a public official who has obtained access to the information by virtue of his or her office (Article 145a §§ 1 and 2 of the Criminal Code). It appears that so far there has been only one conviction under that provision, that of a high-ranking police officer who was leaking surveillance data to journalists and others (see прис. № 58 от 11.06.2014 г. по н. о. х. д. № 457/2012 г., ОС-Велико Търново, upheld in relevant part by реш. № 149 от 31.07.2015 г. по в. н. о. х. д. № 389/2014 г., АС-Варна, appeal on points of law withdrawn: see опр. Р-12 от 19.01.2016 г. по н. д. № 1372/2015 г., ВКС, III н. о.).", "Means of acquiring electronic communications", "86. For electronic communications, all communications service providers in the country are under a duty to enable the two main surveillance authorities (the Technical Operations Agency and Technical Operations Directorate of the State Agency for National Security – see paragraph 70 above) to have real-time access to all communications passing through their networks, so that those could be intercepted in line with the 1997 Act (section 304 of the Electronic Communications Act 2007). Communications service providers have the same duty to the courts and the investigating authorities (Article 172 § 3 of the Code of Criminal Procedure). They must at their own expense install and operate interfaces which can automatically intercept and securely transmit communications to the surveillance authorities (sections 305(1), 308 and 309 of the 2007 Act).", "Stages of processing", "(a) “Primary recording” and “derivative data carrier”", "87. Each covert surveillance technique (except the use of undercover agents – see реш. № 112 от 02.06.2016 г. по в. н. о. х. д. № 81/2016 г., ВтАС, upheld by реш. № 198 от 05.12.2016 г. по н. д. № 766/2016 г., ВКС, I н. о.) must result in a recording of the information obtained by it: a photograph, a video-recording, or an audio-recording (sections 11 and 24 of the 1997 Act).", "88. The surveillance authority must keep the “primary recording” for as long as the surveillance operation is under way (section 25(6) of the 1997 Act). That “primary recording” is used to create a “derivative data carrier”, which the surveillance authority must send to the requesting authority, along with (if requested by the latter) any photographs, records, blueprints or plans (section 25(1), (4) and (5)).", "89. The “derivative data carrier” may be in writing or in another (in practice electronic) form (section 25(1) of the 1997 Act). If technically feasible, it must be made available to the requesting authority via an automated network (section 25(2)). Its content must fully match that of the “primary recording” (section 25(3)).", "(b) Evidentiary material", "90. If, based on that “derivative data carrier”, the requesting authority finds that the surveillance has yielded useful information, it must immediately (and in any event not more than ten days after the surveillance has ended) advise the surveillance authority to prepare evidentiary material ( веществени доказателствени средства ) on the basis of the “primary recording” (sections 26 and 27(2) of the 1997 Act). Although the 1997 Act does not specify what exactly that evidentiary material consists of, from the criminal courts’ case-law it transpires that it is computer files containing audio- or video-recordings, as the case may be (see, for instance, прис. № 50 от 03.06.2011 г. по н. о. х. д. № 424/2011 г., ОС-Варна, upheld in relevant part by реш. № 157 от 21.11.2011 г. по в. н. о. х. д. № 313/2011 г., ВнАС, and then by реш. № 83 от 19.06.2012 г. по н. д. № 3135/2011 г., ВКС, II н. о.; реш. № 172 от 18.04.2012 г. по н. д. № 398/2012 г., ВКС, I н. о.; прис. № 56 от 16.11.2016 г. по н. о. х. д. № 379/2014 г., ОС-Плевен, upheld by реш. № 124 от 03.05.2017 г. по в. н. о. х. д. № 69/2017 г., ВтАС, apparently not appealed against; and реш. № 1 от 17.02.2017 г. по н. д. № 1143/2016 г., ВКС, III н. о.). That evidentiary material is not to be confused with physical evidence ( веществени доказателства ), and the court trying a criminal case cannot therefore lawfully order its destruction (see опр. № 145 от 17.06.2016 г. по в. ч. н. д. № 156/2016 г., ОС-Видин). When the surveillance authority prepares that evidentiary material, it must draw up a record setting out the time, place and physical conditions of the surveillance, the equipment and techniques used, any data obtained about the target, and the text of the evidentiary material (sections 27(1) and 29(4) of the 1997 Act and Article 132 § 2 of the Code of Criminal Procedure). In that record, it must also refer to the surveillance application, the surveillance warrant, and the follow-up order (and to the consent of the target, if the surveillance was carried out to protect a person or with respect to a cooperating witness) (section 29(3) of the 1997 Act and Article 132 § 3 of the Code of Criminal Procedure). Although the 1997 Act does not say that in terms, in practice that evidentiary material may not reproduce all parts of the “primary recording” (see, for instance, реш. № 384 от 08.07.2017 г. по в. н. о. х. д. № 1182/2016 г., САС, upheld by реш. № 314 от 25.01.2018 г. по н. д. № 1118/2017 г., ВКС, I н. о.). This also appears to follow from the rule that any parts of the “primary recording” which are not used for its preparation must be destroyed (see paragraph 94 below).", "91. The evidentiary material must be prepared in two copies, one of which must be sent under seal to the requesting authority, and the other, again under seal, to the judge who issued the surveillance warrant. That must happen not more than twenty-four hours after they are prepared (section 29(1) of the 1997 Act and Article 176 § 1 of the Code of Criminal Procedure). The requesting authority may require additional copies of that material (section 29(1) in fine and Article 176 § 2).", "92. Evidentiary material received by the requesting authority must be kept by it until criminal proceedings are opened in connection with it; when such proceedings are opened, the material is to be kept by the prosecutor’s office and the court dealing with the case (section 31(1) and (2) of the 1997 Act). The Act does not lay down any rules on how that material is to be stored. According to the Government, the matter was regulated by internal rules of the relevant authorities, except for cases in which the material was for some reason regarded as classified, in which case its storage was governed by the relevant provisions of the Protection of Classified Information Act 2002 (see paragraphs 102 and 103 below). According to the Government, once criminal proceedings were opened, the evidentiary material was stored in accordance with the rules on the storage of evidence by the prosecuting authorities and the courts. Article 125 § 3 of the Code of Criminal Procedure provides that evidentiary material prepared on the basis of surveillance is to be placed in the case file of the criminal case. Neither the Rules on the administrative services of the courts, issued by the Supreme Judicial Council in 2017, nor the Rules on the administrative services of the prosecutor’s offices, issued by the Supreme Judicial Council in 2013, which govern the storage of case files by, respectively, the courts and the prosecuting authorities, contain provisions specifically dealing with the storage or destruction of evidentiary material prepared on the basis of surveillance.", "93. According to the National Bureau’s annual reports, the number of evidentiary materials produced on the basis of information obtained through surveillance and the ratio between those evidentiary materials and the number of persons placed under surveillance each year was as follows:", "Year", "Number of evidentiary materials", "Ratio relative to the number of persons placed under surveillance", "2010", "3,461", "60.06%", "2011", "3,603", "44.02%", "2012", "3,347", "56.71%", "2013", "1,602", "48.38%", "2014", "1,084", "24.46%", "2015", "1,677", "57.10%", "2016", "1,431", "46.33%", "2017", "1,670", "55.52%", "2018", "1,714", "56.27%", "2019", "1,124", "33.96%", "2020", "1,089", "36.01%", "(c) Destruction of irrelevant information", "94. If evidentiary material is prepared, (a) any parts of the “primary recording” which are not used for its preparation and (b) the “derivative data carrier” must be destroyed, both by the surveillance and by the requesting authority, within ten days after the end of the surveillance. That must be done and recorded by three-member commissions appointed by the heads of the respective authorities (section 31(3) of the 1997 Act).", "95. If, conversely, the surveillance has not yielded any useful information, the surveillance authority does not have to prepare evidentiary material and must destroy any information obtained within ten days, in the same way as that set out in paragraph 94 above (section 28 read in conjunction with section 31(3) of the 1997 Act).", "96. There are three reported cases in which police officers were given disciplinary punishments for failing to ensure the timely destruction of surveillance information (see реш. № 2466 от 11.10.2013 г. по адм. д. № 1804/2013 г., АдмС-Варна; реш. № 100 от 20.03.2019 г. по адм. д. № 708/2018 г., АдмС-Добрич; and реш. № 101 от 20.03.2019 г. по адм. д. № 709/2018 г., АдмС-Добрич).", "97. In all cases in which the destruction of surveillance information is legally required, the surveillance authority must within seven days send the record attesting the destruction to the requesting authority, along with the surveillance application and the surveillance warrant (section 31(4) of the 1997 Act). The requesting authority must then keep those (section 31(5)).", "98. By way of exception to the normal destruction rules, any information obtained through surveillance on national-security grounds must be kept by the relevant requesting authority (the respective directorate of the State Agency for National Security, the military intelligence service attached to the Minister of Defence, and the National Intelligence Service) for fifteen years after the end of the surveillance (section 31(6) of the 1997 Act). It must after that be destroyed by a special three-member commission appointed by the head of the respective authority (section 31(7)).", "99. All of the above rules on the destruction of information apparently apply only when the surveillance has taken place outside the framework of already pending criminal proceedings. When it has taken place in the course of criminal proceedings, the rule is that when the surveillance ends, the judge who has issued the warrant must be informed of its results. If any information obtained as a result of the surveillance is not used to prepare evidentiary material, that judge must order its destruction (Article 175 § 7 of the Code of Criminal Procedure). In its reports for 2015 (at p. 23), 2016 (at p. 21), 2019 (at p. 20) and 2020 (at p. 36), the National Bureau noted that the discrepancy between the two regimes sometimes caused delays in the destruction.", "Rules on the permissible uses of surplus surveillance information", "100. If the surveillance yields results which surpass the purpose for which it was originally sought, the head of the Technical Operations Agency or of the State Agency for National Security (depending on which one of the two has carried out the surveillance) must inform the relevant requesting authority of those surplus results within twenty-four hours (section 30(1) of the 1997 Act). The requesting authority must in turn inform the relevant authority within a further twenty-four hours (section 30(2)). A special rule governs the situation when the surplus results relate to the officer who has requested the surveillance or a superior of that officer: in that case, the head (or an expressly authorised deputy) of the relevant surveillance authority (the Technical Operations Agency, the State Agency for National Security, or the Ministry of Internal Affairs) must immediately send the surplus surveillance materials to the Chief Prosecutor or an expressly authorised deputy (section 30(3)).", "101. Such surplus results may be used as evidence in criminal proceedings only if they concern another relevant serious intentional offence (Article 177 §§ 2 and 3 of the Code of Criminal Procedure).", "Relevant provisions of the Protection of Classified Information Act 2002", "102. Information about special means of surveillance (technical devices and/or the manner in which they have been used) used in the manner provided for by law is a State secret (point 6 of part II of Schedule No. 1 to the Protection of Classified Information Act 2002). Until 2013, so was information obtained as a result of the use of such means (point 8 of part II of Schedule No. 1). In 2013, point 8 was repealed.", "103. In a 2014 interpretative decision dealing chiefly with the question whether the public could be excluded from hearings in criminal cases in which evidence obtained through special means of surveillance was being presented (тълк. реш. № 4 от 03.12.2014 г. по т. д. № 4/2014 г., ВКС, ОСНК), the Supreme Court of Cassation noted, among other things, that the effect of the repeal of point 8 was that the fact that evidentiary material had been prepared on the basis of information obtained through special means of surveillance was no longer in itself sufficient to treat that evidentiary material as classified information, even if it mentioned the type of means (visual surveillance, tapping, tracking, and so on) used to obtain the information.", "104. In a statement enclosed with the Government’s observations, the Technical Operations Agency (see paragraph 70 (a) above) said that according to its interpretation, the effect of point 6 of part II of Schedule No. 1 to the Protection of Classified Information Act 2002 was that both the “primary recording” obtained as a result of surveillance and the “derivative data carrier” were classified information (see paragraphs 87 and 88 above).", "Authorities supervising the use of special means of surveillanceJudges who have issued the surveillance warrants", "Judges who have issued the surveillance warrants", "Judges who have issued the surveillance warrants", "105. As noted in paragraph 83 above, when a surveillance operation ends, for whatever reason, the surveillance authority must notify judge who has issued the surveillance warrant.", "106. Within one month after the end of a surveillance operation, the requesting authority must report to that judge. The report must specify the type of special means of surveillance used, the beginning and end of the surveillance, and whether the surveillance operation has resulted in the preparation of evidentiary material or whether the information obtained has been destroyed (section 29(7) of the 1997 Act). If evidentiary material has been prepared on the basis of the information obtained as a result of the surveillance (see paragraph 90 above), a copy of that evidentiary material, and of the accompanying records, must be sent, under seal, to that judge (see paragraph 91 above).", "107. As noted in paragraph 99 above, for surveillance in the course of criminal proceedings, the judge who has issued the warrant must be informed immediately after the end of the surveillance, and if the information obtained thereby is not used to prepare evidentiary material, he or she must order its destruction. The same judge must also receive a sealed copy of any evidentiary material resulting from a surveillance operation within twenty-four hours of its preparation (see paragraph 91 above).", "National Bureau", "108. The National Bureau – which was re-established as an “independent State authority” in 2013, was first elected in December 2013, and started its work in the beginning of 2014 (see paragraph 16 above) – is tasked with (a) supervising the procedures for authorising, deploying and using special means of surveillance, and the storage and destruction of the information obtained by such means, and with (b) protecting the rights of the persons affected by the unlawful use of such means (section 34b(1) of the 1997 Act). It is a permanent body assisted by its own administration (section 34b(4)). According to the Bureau’s annual reports, in 2014-15 its administration had consisted of fifteen employees; in 2016-20, that number was reduced to fourteen; they all have the requisite security clearance (“top secret”). The Bureau must report annually to Parliament (section 34b(7)).", "(a) Manner of election and term of office of the National Bureau’s members", "(i) Statutory provisions", "109. The National Bureau has a chairperson, a deputy chairperson and three members, all elected by Parliament for five-year terms (section 34c(1) of the 1997 Act). They must have at least eight years of legal experience or experience in the law-enforcement or the security services, and must obtain the highest possible security clearance – “top secret” (section 34c(2) of the 1997 Act). Security clearances for that highest level of classification are issued after a special vetting procedure which must be carried out by the State Agency for National Security (section 49(1) and (2) of the Protection of Classified Information Act 2002). [13]", "110. After the nominations for members of the National Bureau are received by Parliament (the 1997 Act does not say who can make those nominations, but both in 2013 and in 2018 each of the nominations was made by a different parliamentary group, based on special rules of procedure adopted by Parliament on each of those occasions), the head of the specialised parliamentary committee sends all materials about the nominee to the State Agency for National Security for a security vetting, which must be completed within a month. After that the parliamentary committee examines the nominations within seven days, and then interviews the nominees considered eligible, and within a further seven days submits a report. After that Parliament votes on each of the nominees individually, and then chooses which ones among them will become chairperson and deputy chairperson. They are then all sworn in (section 34d of the 1997 Act).", "111. After the end of their term of office, the members of the National Bureau they must be restored to their previous posts (section 34c(4)). Their terms of office may be terminated prematurely by Parliament if (a) they resign, (b) they have been in fact unable to carry out their duties for three months in a row, (c) they have ceased being eligible to occupy their post, or (d) they have been declared in conflict of interests following an official procedure under the special anti-corruption legislation (section 34c(6)).", "(ii) Members of the National Bureau in 2013-18 and since 2018", "112. Three out of the five original members of the National Bureau, elected in 2013, including its chairperson and its deputy chairperson, had legal education and legal experience. Only one of the members elected in December 2018 (who was a member during the 2013-18 term as well) had legal education and experience (as a lawyer in private practice). According to the Bureau’s official website, [14] immediately before his election to the post in December 2018 the current chairperson had worked for ten years (2008-18) at the State Agency for National Security; the deputy chairperson elected in 2018 had also been employed for twenty-six years (1981-2007) by the security services; and one of the regular members had worked for many years (1983-2009) at the Ministry of Internal Affairs.", "113. For the three regular members of the National Bureau, the current term of office (2018-23) is their second; all three were members in 2013-18 as well.", "114. The National Bureau’s original deputy chairperson, elected in 2013, had his term of office prematurely terminated by Parliament in March 2018 on the ground that he had ceased being eligible to be a member of the Bureau (see paragraph 111 (c) above) because in July 2017 the State Agency for National Security had revoked his security clearance (it later transpired that the reason cited for the revocation had been that he had disclosed information about the use of special means of surveillance to several people, in breach of the legal requirement to keep such information secret), and in January 2018 the Supreme Administrative Court had finally upheld that revocation. [15]", "115. In early June 2021 the National Bureau’s deputy chairperson elected in 2018 was placed under various sanctions by the authorities of the United States of America pursuant to section 1(a)(ii)(B)(1) of Executive Order 13818 (Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption), issued in 2017, and to section 7031(c) (Anti ‑ Kleptocracy and Human Rights) of the annual Department of State, Foreign Operations, and Related Programs Appropriations Act owing, respectively, to his being “responsible for or complicit in, or ha[ving] directly or indirectly engaged in ... corruption”, and to his being “involved in significant corruption”. In mid-June 2021 he resigned from his post, and on 28 July 2021 Parliament unanimously accepted his resignation.", "(b) Powers of the National Bureau", "(i) To access materials", "116. When carrying out its duties, the National Bureau may (a) seek relevant information from the authorities entitled to request surveillance, the judges dealing with surveillance applications, and the surveillance authorities, and (b) inspect the materials (surveillance applications, warrants and follow-up orders and records relating to the destruction of surveillance information) and registers kept by those authorities (section 34f(1)(1) and (1)(2) of the 1997 Act).", "117. Both the members of the National Bureau and its employees can access (a) any documents relating to the use or deployment of special means of surveillance, (b) any documents relating to the storage or the destruction of materials obtained through such means, and (c) any premises containing such documents (section 34f(4) of the 1997 Act).", "118. In its report for 2017, the National Bureau said (at p. 23) that the State Agency for National Security was not allowing it to inspect the materials which had prompted the surveillance applications made by it. The Agency was thus preventing effective supervision by the Bureau, since one of the aspects of that supervision was whether surveillance applications were based on genuine suspicions of criminal conduct. The Bureau also said (at p. 24) that owing to the many instances of provision of incorrect information by the Technical Operations Agency, in 2014-17 it had had to make repeat requests for information to that Agency in about 200 individual cases. It was hard for the Bureau to ascertain whether that had been a deliberate obstruction intended to conceal irregularities.", "119. In November 2015 the Chief Prosecutor issued an instruction to all prosecutors about the manner in which the National Bureau was to be provided access to materials held by the prosecuting authorities in the course of its inspections. According to point 7 of that instruction (as partly amended in April 2019), members of the Bureau and its employees were to be given access to: surveillance applications, information notes enclosed with those, surveillance warrants (or judicial decisions to refuse to issue such warrants), follow-up surveillance orders, requests to stop surveillance, post-surveillance reports, documents attesting that surveillance material has been destroyed or that evidentiary material had been produced pursuant to it, relevant registers, internal organisational materials, and other relevant documents issued by the authorities requesting surveillance, the judges authorising it, or the surveillance authorities. By point 8 of the instruction (as partly amended in April 2019), members of the Bureau and its employees could not be given access to any case file materials which fell outside the strict bounds of the Bureau’s competence – that is, materials not among those exhaustively listed in point 7. They could thus not see the entire case files of any preliminary or criminal investigations held by the prosecuting authorities, or assess the materials which had served to support a surveillance application or the results or evidence obtained through surveillance (points 8.1 and 8.2 of the instruction). Any requests by them for access to evidentiary material in the course of an inspection were subject to approval by the competent prosecutor (point 8.3 of the instruction).", "(ii) To give instructions and set standards", "120. The National Bureau may give binding instructions to the relevant authorities (section 34f(1)(3)). It may also set standards and templates for the relevant registers and for the handling of the relevant materials (section 34f(2) and (3)).", "121. According to its annual reports, throughout its existence the National Bureau has given the following number of instructions:", "Year", "Number of instructions", "2014", "3", "2015", "49", "2016", "3", "2017", "3", "2018", "1", "2019", "7", "2020", "2", "(iii) To bring irregularities to the attention of the competent authorities", "122. If the National Bureau finds that special means of surveillance have been used or deployed unlawfully, or that the materials obtained through such means have been stored or destroyed unlawfully, it must bring the matter to the attention of the prosecuting authorities and inform the heads of the relevant requesting and surveillance authorities (section 34f(5) of the 1997 Act).", "123. If the National Bureau finds that a judge has unlawfully authorised the use of special means of surveillance, it must bring the matter to the attention of the prosecuting authorities and inform the Supreme Judicial Council and the Minister of Justice (section 34f(6) of the 1997 Act).", "(iv) Number of inspections by the National Bureau", "124. According to the National Bureau’s annual reports, it carried out the following number of inspections each year since 2014:", "Year", "Number of inspections", "2014", "“more than” 200", "2015", "242", "2016", "287", "2017", "323", "2018", "133", "2019", "230", "2020", "240", "Parliamentary committee", "125. The other body which has the task of supervising the procedures for authorising, deploying and using special means of surveillance, and the storage and destruction of the information obtained by such means, is a standing parliamentary committee – the Parliamentary Committee for Control of the Security Services, of the Application and Use of Special Means of Surveillance, and of Access to the Data under the Electronic Communications Act (section 34h(1) of the 1997 Act, Rule 18 § 1 (4)(a) of the 2017-21 Rules of the National Assembly (superseded by Rule 21 § 7 of the 2021 Rules), and Rule 17 § 1 (9)(a) of the Committee’s Rules). The Committee must report to Parliament on those matters each year (Rule 18 § 2 (1) of the 2017-21 Rules of the National Assembly, and Rule 17 § 1 (10)(a) of the Committee’s Rules). It has the power to subpoena officials (section 34h(2) of the 1997 Act). It is also involved in the election of the members of the National Bureau (see paragraph 110 above), and supervises the Bureau itself (Rule 5 § 7 of the Committee’s Rules).", "(a) Manner of election of the Committee’s members", "126. The Committee has nine members, who come from all parliamentary groups, pro rata the number of their members (Rule 4 of the Committee’s Rules).", "(b) Powers of the Committee", "127. The Committee can (a) examine complaints by individuals and organisations about irregularities in the work of the security services, and (b) refer matters to the prosecuting authorities, if it establishes illegalities as a result of its inspections or on the basis by individual complaints (Rule 17 § 1 (11) and (12) of the Committee’s Rules).", "128. According to its annual reports, the Committee had received three complaints in 2014, six complaints in 2015, four complaints in 2016, seven complaints in 2017, and four complaints in 2018. Only the report for 2018 made it clear how many of those complaints had related specifically to secret surveillance (the Committee has other competences as well – see paragraphs 205 to 211 below). The Committee’s annual reports for 2016, 2017, 2018 and 2019 do not mention any inspections carried out by it. The annual report of the Specialised Criminal Court for 2016 mentions (at p. 2) that in July of that year the Committee had carried out a routine inspection there and had not found any irregularities.", "Notification of persons placed under secret surveillance", "129. The general rule is that all persons who have learned about the use of special means of surveillance must not divulge that information (section 33 of the 1997 Act).", "130. The National Bureau must, however, on its own initiative notify individuals who have been placed under secret surveillance unlawfully (section 34g(1) of the 1997 Act). But such notification is not required if (a) it may defeat the purpose of the surveillance, (b) reveal the techniques or equipment used to carry out the surveillance, or (c) entail a risk to the life of an undercover agent or his or her relatives or friends (section 34g(2)). The law does not lay down any requirements about the wording or content of the notification. In a statement drawn up for the purposes of these proceedings, the National Bureau said that according to its internal rules the notification specifies: (a) the number of the surveillance application; (b) the requesting authority; (c) the number of the surveillance warrant; (d) the authority which has issued that warrant; and (e) the period during which there has been unlawful surveillance.", "131. In three examples provided by the applicants, and apparently relating to situations under section 34g(2) of the 1997 Act, the notifications by the National Bureau read:", "“The [National Bureau] carried out an inspection pursuant to your complaint no. ..., and came to a decision, and I therefore inform you, pursuant to section 34g(1) of [the 1997 Act], that you have not been subjected unlawfully to special means of surveillance.”", "132. In one of those cases, it later transpired that there had in fact been surveillance and irregularities in it, on whose basis the relevant court excluded the resulting evidence from the criminal case against the targets of the surveillance (see прис. № 13 от 09.03.2018 г., н. о. х. д. № 727/2015 г., ОС-Хасково, unclear whether final; according to the Government, the appeal proceedings are still pending).", "133. In two decisions given in 2016 (unpublished since both cases were classified; copies were provided by the applicants: опр. № 18 от 26.04.2016 г. по адм. д. № С-2/2016 г., ВАС, VII о., and опр. № 28 от 09.06.2016 г. по адм. д. № С-14/2016 г.), the Supreme Administrative Court held that those notifications by the National Bureau were not amenable to judicial review.", "134. The 1997 Act does not require the National Bureau to respond to complaints by individuals, but in practice invariably investigates them, and is required to do so under rule 8(1)(9)(a) of its Internal Rules, so long as the complaints are “reasoned”.", "135. According to the National Bureau’s annual reports, it has received the following number of complaints and has made the following number of notifications under section 34g of the 1997 Act:", "Year", "Complaints", "Notifications", "2014", "27", "4", "2015", "108", "10", "2016", "86", "5", "2017", "133", "2 (to the same individual)", "2018", "110", "–", "2019", "46 (10 of which invalid and not acted on)", "2", "2020", "45 (14 of which invalid and not acted on)", "–", "Civil liability of the authorities for unlawful secret surveillance", "136. Section 2(1)(7) of the State and Municipalities Liability for Damage Act 1988, added in March 2009, provides that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance.", "137. Some case-law has already accumulated under that provision.", "138. The courts have so far clarified that:", "(a) section 2(1)(7) applies only prospectively, for secret surveillance which has taken place after its entry into force (see реш. № 61 от 05.03.2012 г. по гр. д. № 536/2011 г., ВтАС, appeal on points of law not admitted by опр. № 1435 от 15.12.2012 г. по гр. д. № 815/2012 г., ВКС, III г. о.);", "(b) a claim for damages under section 2(1)(7) cannot be brought against the court which has issued the surveillance warrant but, as the case may be, against (i) the authority which has applied for the warrant, if it has been issued; (ii) the authority which has deployed special means of surveillance, if no warrant has been applied for or has been refused, or the authority has unlawfully proceeded without a warrant (under the provision of the 1997 Act, section 18, which authorises that in urgent cases – see paragraph 77 above); or (iii) the authority which has used the surveillance materials (see опр. № 3658 от 10.08.2015 г. по гр. д. № 126/2015 г., ОС ‑ Благоевград, upheld by опр. № 2987 от 28.10.2015 г. по в. ч. гр. д. № 3999/2015 г., САС, appeal on points of law not admitted by опр. № 89 от 01.04.2016 г. по ч. гр. д. № 240/2016 г., ВКС, I г. о.; опр. № 240 от 28.03.2016 г. по в. ч. гр. д. № 171/2016 г., ОС ‑ Перник, appeal on points of law not admitted by опр. № 344 от 19.09.2016 г. по ч. гр. д. № 3228/2016 г., ВКС, III г. о.; опр. от 06.01.2017 г. по гр. д. № 5567/2016 г., СГС, upheld by опр. № 1284 от 12.04.2017 г. по в. ч. гр. д. № 1349/2017 г., САС, appeal on points of law not admitted by опр. № 303 от 22.08.2017 г. по ч. гр. д. № 2731/2017 г., ВКС, III г. о.; and реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.);", "(c) it is for the claimant to specify, in the statement of claim, which authority has used special means of surveillance with respect to him or her, and to direct the claim against that authority (see опр. № 778 от 06.03.2018 г. по в. гр. д. № 1063/2018 г., САС, unclear whether final);", "(d) a civil court dealing with a claim for damages under section 2(1)(7) can rely on the National Bureau’s findings of fact but is not bound by the Bureau’s assessment of whether the surveillance was unlawful (see № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.);", "(e) the mere authorisation to use special means of surveillance can be grounds for liability under section 2(1)(7); their subsequent deployment goes only to the quantum of damages (see № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.);", "(f) liability under section 2(1)(7) can arise if the surveillance warrant has been issued in relation to an offence which by law cannot be prevented or investigated through such means, or the application for a warrant has been made by an incompetent authority or was incomplete, but not if the application has been duly made, since the civil courts dealing with claims for damages under that provision cannot gainsay whether the judges who have issued a surveillance warrant have correctly assessed the need for surveillance on the facts (ibid., and реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.);", "(g) failure to comply with the rules governing the timely destruction of surveillance information (see paragraphs 94 and 95 above) is not in itself grounds for liability under section 2(1)(7) (see реш. № 6303 от 10.10.2018 г. по гр. д. № 11689/2016 г., СГС (final), rectified with реш. № 3 от 02.01.2019 г. по гр. д. № 11689/2016 г., СГС); and", "(h) the limitation period for bringing a claim under section 2(1)(7) (five years – section 110 of the Obligations and Contracts Act 1950; see also Harizanov v. Bulgaria (dec.), no. 53626/14, § 52, 5 December 2017) starts to run when the person concerned is notified by the National Bureau that he or she has been placed under surveillance unlawfully (see paragraph 130 above), because without such notification that person had no means of vindicating his or her rights (see реш. № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.).", "139. The only form of relief available in proceedings under the 1988 Act is money damages (sections 4(1) and 8(1)). In cases under section 2(1)(7), the courts have so far awarded damages ranging from 2,000 to 27,000 Bulgarian levs (BGN) (1,023 to 13,805 euros (EUR)) in respect of various instances of unlawful use of special means of surveillance:", "(a) use of such means in relation to offences in respect of which this is not authorised by the law and in the absence of sufficient factual justification in the surveillance application (see реш. № 1811 от 21.07.2017 г. по в. гр. д. № 615/2017 г., САС, upheld by реш. № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о., and реш. № 1960 от 30.07.2019 г. по гр. д. № 2052/2018 г., САС, appeal on points of law not admitted by опр. № 424 от 15.05.2020 г. по гр. д. № 4684/2019 г., ВКС, III г. о.);", "(b) obtaining a warrant for renewed surveillance without fresh justification and surveillance beyond the time-limits (see реш. № 2808 от 04.05.2018 г. по гр. д. № 11366/2016 г., СГС, upheld by реш. № 1034 от 01.05.2019 г. по в. гр. д. № 5808/2018 г., САС, unclear whether final);", "(c) obtaining a surveillance warrant from an incompetent judge and without providing sufficient justification in the surveillance application (see реш. № 12538 от 22.12.2020 г. по в. гр. д. № 1690/2020 г., САС, appeal on points of law not admitted by опр. № 60753 от 04.11.2021 г. по гр. д. № 1845/2021 г., ВКС, III г. о.);", "(d) obtaining a surveillance warrant from an incompetent judge and surveillance outside the relevant time-limit (see реш. № 312 от 16.10.2020 г. по гр. д. № 238/2020 г., ОС-Бургас, upheld by реш. № 13 от 19.02.2021 г. по в. гр. д. № 474/2020 г., АС-Бургас, appeal on points of law not admitted by опр. № 60653 от 12.10.2021 г. по гр. д. № 1872/2021 г., ВКС, IV г. о.), and реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final);", "(e) obtaining a surveillance warrant without providing enough factual data in the initial application (and in a renewal application) and without having enough information that the person sought to be placed under the surveillance could in fact be suspected of an offence (see реш. № 6303 от 10.10.2018 г. по гр. д. № 11689/2016 г., СГС (final), rectified with реш. № 3 от 02.01.2019 г. по гр. д. № 11689/2016 г., СГС);", "(f) obtaining a surveillance warrant solely on the basis of an anonymous signal and without detailing the previous, if any, steps in the investigation (see реш. № 7225 от 20.11.2018 г. по в. гр. д. № 16408/2017 г., СГС (final), overturning реш. № 192358 от 11.08.2017 г., по гр. д. № 13365/2016 г., СРС);", "(g) surveillance outside the relevant time-limit (see реш. № 8690 от 21.12.2017 г. по гр. д. № 6213/2017 г., СГС, upheld by реш. № 1536 от 01.06.2018 г. по в. гр. д. № 1509/2018 г., САС, upheld by реш. № 293 от 17.03.2020 г. по гр. д. № 3963/2018 г., ВКС, IV г. о.).", "(h) surveillance for the purpose of tracing a fugitive, that not being among the situations envisaged under the 1997 Act (see реш. № 1360 от 12.01.2017 г. по гр. д. № 781/2015 г., РС-Перник, upheld by реш. № 173 от 23.06.2017 г. по в. гр. д. № 237/2017 г., ОС-Перник, upheld, with an increase of the award of damages, by реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.).", "140. In all those cases, the claimants had been notified by the National Bureau that they had been subjected to unlawful surveillance, and the courts had before them information from the Bureau, and in some cases also surveillance materials adduced as evidence in criminal proceedings against the people concerned. In its annual report for 2016, the Bureau said (at p. 25) that it had provided the civil courts with materials from its inspections pursuant to requests made by them in such cases.", "141. In a March 2018 decision, the Sofia Court of Appeal held, among other things, that under the general rule of affirmanti incumbit probatio, in proceedings under section 2(1)(7) of the 1988 Act the burden was on claimants to show which authority had used special means of surveillance unlawfully with respect to them, and was thus a proper defendant to their claim (see опр. № 778 от 06.03.2018 г. по в. гр. д. № 1063/2018 г., САС, unclear whether final).", "142. In a recent case in which the use of special means of surveillance was not apparent from the materials in the criminal proceedings against the claimant, the courts dismissed the claim under section 2(1)(7) of the 1988 Act as unproven, noting that it was for the claimant to make out her assertion that such means had been used with respect to her (see реш. oт 31.12.2019 г. по гр. д. 31075/2015 г., СРС, upheld by реш. № 260651 от 29.01.2021 г. по в. гр. д. № 6434/2020 г., СГС, appeal on points of law apparently pending).", "143. In a June 2020 decision, the Burgas Regional Court held that a claim under section 2(1)(7) of the 1988 Act could be brought only if the use of special means of surveillance with respect to the claimant was apparent either from the materials adduced as evidence in a criminal case or from a notification by the National Bureau (see опр. № 1786 от 26.06.2020 г. по гр. д. № 1037/2020 г., ОС-Бургас, apparently final).", "144. In an April 2021 judgment, the Sofia City Court held that since the National Bureau, when notifying the claimant, had not given an account of the content of the surveillance applications or the surveillance warrants, there was no basis on which to find that the use of special means of surveillance had been unlawful. The court hence dismissed the claim (see реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final).", "Criminal liability of officials for unlawful secret surveillance", "145. By Article 284c of the Criminal Code, added in 2009, it is an offence for an official unlawfully to authorise or order the use of special means of surveillance, or use them, or store information acquired through them. There has so far been only one reported conviction under that provision (see paragraph 56 above).", "DISCLOSURE OF DOCUMENTS IN CIVIL PROCEEDINGS", "146. Article 190 § 1 of the Code of Civil Procedure provides that a party may ask the court to order the opposing party to disclose a document held by it, if it explains to the court why that document is relevant for its case. If the opposing party fails to disclose the document, the court may draw adverse inferences (Article 190 § 2 read in conjunction with Article 161). The opposing party may refuse to disclose a document if (a) its contents relate to its private or family life, or (b) its disclosure would bring that party or its relatives into disrepute or trigger a criminal prosecution against them (Article 191 § 1). If those considerations apply only to a part of the document, the opposing party may be ordered to present an excerpt (Article 191 § 2).", "147. Article 192 § 1 of the Code provides that a party may ask the court to order a third party to present a document in its possession. If that third party does not present the document without justification, it may be fined by the court, and is liable towards the party which has requested the document for any damage resulting from its non-presentation (Article 192 § 3).", "148. According to a leading practical treatise on civil procedure, a party’s request for the disclosure of a document under Articles 190 or 192 must, as far as practicable, spell out its type, date, author and other distinguishing features. It is furthermore impermissible to require the opposing party or a third party to create, for the purposes of the proceedings, a document which does not already exist (see Граждански процесуален кодекс, Приложен коментар, ИК „Труд и право“, 2017 г., p. 318).", "149. Article 186 of the same Code provides that a court hearing a civil case may request a public authority to provide official documents or give the party which intends to rely on those documents a judicial certificate which that party can present to the relevant public authority with a view to obtaining those documents. The relevant public authority is bound to either issue those documents or explain the reasons why it cannot do so.", "150. It does not appear that there are any reported decisions under Articles 186, 190 or 192 of the Code of Civil Procedure in relation to cases under section 2(1)(7) of the 1988 Act (see paragraphs 136 to 144 above).", "RETENTION AND ACCESSING OF COMMUNICATIONS DATAGeneral evolution of the legal regime", "General evolution of the legal regime", "General evolution of the legal regime", "151. The regime for retention and subsequent accessing of communications data for law-enforcement purposes was introduced when section 251 of the Electronic Communications Act 2007 came into force in May 2007, and when the Minister of Internal Affairs and the head of the State Agency for Information Technologies and Communications issued, based on a statutory delegation in section 251(2), Regulations no. 40 of 7 January 2008 “on the categories of data and the manner in which it is to be retained and made available by enterprises offering public communications networks or services for national-security purposes and the detection of offences”.", "152. Those provisions were put in place to transpose the so-called Data Retention Directive (see paragraph 232 below) (paragraph 4 of the Regulations’ transitional and concluding provisions).", "153. Regulation 5 of Regulations no. 40 of 2008 was quashed by the Supreme Administrative Court in December 2008 following a challenge by the fourth applicant, the Access to Information Foundation (see реш. № 13627 от 11.12.2008 г. на ВАС по адм. д. № 11799/2008 г., ВАС, петчл. с-в, ДВ, бр. 108/2008 г.).", "154. With effect from March 2009, Parliament amended section 251 of the 2007 Act, removing the statutory delegation enabling the issuing of regulations pursuant to it. The status of Regulations no. 40 of 7 January 2008, which have not been formally repealed, is thus unclear.", "155. In early 2010 Parliament added new sections 250a-250f, 251a, 261a-261b, 327(4)-(7), and 332a to the 2007 Act, and amended section 251. This was again done with a view to transposing the Data Retention Directive (paragraph 10 of the additional provisions of the February 2010 Act for the amendment of the 2007 Act).", "156. Following a legal challenge brought by the Ombudsman of the Republic in April 2014, in the wake of the judgment of the Court of Justice of the European Union (“CJEU”) holding the Data Retention Directive invalid (see paragraph 233 below), in mid-March 2015 the Constitutional Court declared sections 250a-250f, 251 and 251a of the 2007 Act unconstitutional as a whole (see реш. № 2 от 12.03.2015 г. по к. д. № 8/2014 г., КС, обн., ДВ, бр. 23/2015 г.).", "157. In reaction to that judgment, in late March 2015 Parliament added new sections 251b-251i to the 2007 Act, and a new Article 159a to the Code of Criminal Procedure. They have been amended several times since then. In 2016, a new section 251d 1 was added.", "158. In March 2020, following the outbreak of the COVID-19 pandemic, Parliament amended sections 251b(2), 251c(2), 251d(5) and 251d 1 (1), (3) and (4) of the 2007 Act to make it possible to use retained location (cell ID) data to enforce quarantine and isolation measures for people who are ill with or are carriers of a number of contagious diseases, including COVID-19.", "159. In November 2020 the Constitutional Court declared the amendment unconstitutional as a whole (see реш. № 15 от 17.11.2020 г. по к. д. № 4/2020 г., КС, обн., ДВ, бр. 101/2020 г.). It held, with reference to, among other things, the CJEU’s case-law in that domain (see paragraphs 233 and 240 to 243 below), that resorting to the general retention of location (cell ID) data for six months and the consequent possibility for the authorities to access it to enforce measures intended to prevent the spread of infectious diseases disproportionately interfered with the constitutional right to privacy.", "The regime as it stands at present", "160. All legal provisions cited below are set out as they stood on 7 December 2021.", "Types of communications data subject to retention", "161. All electronic communications service providers in Bulgaria must retain, for six months, the following types of communications data for all of their users: (a) data necessary to trace and identify the source of a communication; (b) data necessary to identify the destination of a communication; (c) data necessary to identify the date, time and duration of a communication; (d) data necessary to identify the type of a communication; (e) data necessary to identify the user’s communication equipment or what purports to be that equipment; and (f) the cell ID for mobile communication equipment (section 251b(1) of the 2007 Act). Section 251i defines in detail what each of those types of data consist of for fixed and mobile telephony, and Internet access, email and Internet telephony. Those provisions reproduce nearly verbatim the wording of Article 5 of the Data Retention Directive (see paragraph 232 below). Communications service providers which fail to comply with this data-retention obligation are liable to a pecuniary sanction ranging from BGN 3,000 to BGN 25,000 (section 327(4) of the 2007 Act).", "162. According to the annual reports of the Commission for Protection of Personal Data (see paragraphs 198 to 203 below), the overall number of communications service providers in Bulgaria and the number of such providers reporting to the Commission about data retention each year since 2015 [16] was as follows:", "Year", "Overall number of communications service providers", "Communications service providers reporting to the Commission", "2015", "1,160", "77 [17]", "2016", "1,143", "104", "2017", "not specified", "93", "2018", "not specified", "117", "2019", "not specified", "99", "Purposes for which that data is retained", "163. Such data is retained for (a) national-security purposes; (b) the prevention, detection or investigation of “serious” criminal offences [18] (including, following a January 2018 amendment, the prevention of “serious offences” of corruption by a special commission); (c) the tracing of people who have been finally sentenced to imprisonment with respect to a serious criminal offence or who have fallen or could fall in a situation which puts their life or health at risk; and (d) (this applies solely to cell ID) the carrying out of search-and-rescue operations with respect to people in distress (section 251b(2) of the 2007 Act and Article 159 § 2 of the Code of Criminal Procedure).", "Rules on the processing of the retained data by the communications service providers", "164. The retained data must be processed and kept by the communications service providers in line with the rules on the protection of personal data (section 251b(4) of the 2007 Act).", "165. Communications service providers must ensure that the retained data is: (a) of the same quality and subject to the same security and protection as the data on their networks; (b) subject to appropriate technical and organisational measures to protect it against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure; (c) subject to appropriate technical and organisational measures to ensure that it can be accessed by specially authorised personnel only; and (d) destroyed at the end of the period of retention, except as specifically provided for by law (section 261a(2) of the 2007 Act).", "Destruction of retained data which has not been accessed by the authorities", "166. Communications service providers must destroy the retained data immediately after the expiry of the six-month time-limit for its retention, and send a record attesting that destruction to the Commission for Protection of Personal Data (see paragraphs 198 to 203 below) not later than the fifth day of the respective month (section 251g(1) of the 2007 Act). The Commission can control whether that duty has been complied with (see paragraph 204 (b) below).", "Authorisation procedure", "(a) Authorities entitled to seek access", "167. Only a limited number of authorities may seek access to the retained data, within the spheres of their respective competencies.", "168. Outside the framework of already pending criminal proceedings, such access may be sought only by: (a) the specialised directorates and the territorial directorates and units of the State Agency for National Security; (b) various directorates of the Ministry of Internal Affairs (national police, fight against organised crime, border police, internal affairs, and the regional directorates); (c) the military-intelligence and military-police services attached to the Minister of Defence; (d) the Intelligence Agency; (e) the specialised anti-corruption directorate; [19] and (f) (as regards cell ID data needed for search-and-rescue operations – see paragraphs 161 (f) and 163 (d) above) the Fire Safety and Civil Protection Directorate of the Ministry of Internal Affairs, including its territorial units (section 251c(1) and (2) of the 2007 Act). If access is sought by a foreign authority, the request must be made through a central or specialised directorate of the State Agency for National Security or the Ministry of Internal Affairs (section 251h(2)).", "169. In the course of criminal proceedings, access may sought by the court hearing the case (if it is already at the trial or appeal stages) or by the public prosecutor in charge of supervising the pre-trial investigation (Article 159a § 1 of the Code of Criminal Procedure).", "170. According to the annual reports of the parliamentary committee overseeing the system (see paragraphs 205 to 211 below), the number of access applications per year in 2015-19 was as follows:", "Year", "Access applicationsoutside criminal proceedings", "Access applicationsby public prosecutors", "2015", "12,948", "13,354", "2016", "15,805", "24,758", "2017", "13,233", "25,252", "2018", "10,603", "22,563", "2019", "13,108", "18,883", "(b) Content of the access application", "171. Access applications made outside the context of pending criminal proceedings must be reasoned and set out (a) the legal grounds and the purpose for which access is being sought; (b) the number of the case file in connection with which access is being sought; (c) if available, information about the user(s) whose data is being sought; (d) the data which must be provided; (e) the period of time with respect to which data is being sought, which must be “reasonable” and “necessary to attain the purpose” for which the access application is being made; (f) a full account of the circumstances which show that the data is needed for a relevant purpose; and (g) the official to whom the data must be made available (section 251c(3) of the 2007 Act).", "172. Access applications made by a public prosecutor in the course of criminal proceedings must likewise be reasoned and set out (a) information about the alleged offence in connection with which access is being sought; (b) a description of the circumstances underlying the access application; (c) information about the user(s) whose data is being sought; (d) the “reasonable” period of time with respect to which data is being sought; and (e) the investigating authority to which the data must be made available (Article 159a § 3 of the Code of Criminal Procedure).", "(c) Authorities competent to issue access warrants", "173. Outside the framework of already pending criminal proceedings, the warrant may be issued by the president of the district court which is territorially competent with respect to the place where the requesting authority is located, or a judge to whom its president has delegated that power (section 251d(1) of the 2007 Act).", "174. If the access application concerns alleged terrorist offences (including preparatory ones), the warrant may be issued only by the President of the Specialised Criminal Court or a judge to whom he or she has delegated that power (section 251d(2) of the 2007 Act).", "175. If the access application has been made at the request of a foreign authority, the warrant must be issued by the Sofia City Court or a judge to whom he or she had delegated that power (section 251h(2) of the 2007 Act).", "176. Special rules govern the accessing of retained communications data relating to district court presidents or their relatives, or the President of the Specialised Criminal Court or his or her relatives (except if access to the data is being sought for a search-and-rescue operation): in those cases the warrant may be issued by, respectively, the respective regional court president or the President of the Specialised Criminal Court of Appeal (section 251d(4) of the 2007 Act).", "177. If the access application has been made by a public prosecutor in the course of criminal proceedings, the warrant may be issued by a judge of the competent first-instance court (Article 159a § 1 of the Code of Criminal Procedure).", "(d) Manner of examination of access applications", "178. When access is sought in connection with an alleged terrorist offence, the access warrant must be issued within twenty-four hours of the receipt of the access application (section 251d(3) of the 2007 Act). Neither the 2007 Act nor Article 159a of the Code of Criminal Procedure lay down express time-limits for the examination of access applications in other cases.", "179. When relating to an access application made outside the framework of already pending criminal proceedings, the decision to issue a warrant must be reasoned, and the warrant must set out (a) the data which must be provided; (b) the period of time with respect to which data is to be provided, which must be “reasonable” and “necessary to attain the purpose” for which the access application has been made; and (c) the official to whom the data is to be made available (section 251d(6) of the 2007 Act).", "180. When relating to an access application made in the course of criminal proceedings, the decision to issue a warrant must likewise be reasoned and set out (a) the data which must be provided; (b) the period of time with respect to which data is to be provided, which must be “reasonable”; and (c) the investigating authority to which the data is to be made available (Article 159a §§ 1 and 4 of the Code of Criminal Procedure).", "181. All district courts, the Specialised Criminal Court and the Sofia City Court must record their decisions to allow or refuse access applications in non-public registers (sections 251d(7) and 251h(2) in fine of the 2007 Act).", "182. According to the annual reports of the parliamentary committee overseeing the system (see paragraph 205 to 211 below), the judicial decisions to allow or refuse access application each year in 2015-19 were as follows:", "Year", "Access warrants issued", "Access applications refused", "2015", "25,303 [20]", "2,911", "2016", "39,990", "3,479", "2017", "38,492", "2,762", "2018", "33,835", "2,287", "2019", "29,325", "2,666", "(e) Retrospective authorisation in urgent cases", "183. In cases of an immediate danger of the commission of a terrorist offence (including a preparatory one), access may be provided without a prior judicial warrant (section 251d 1 (1) of the 2007 Act). In those cases, the (direct) access request must set out (a) the legal ground for access; (b) the data which is to be made available; (c) the period of time with respect to which data is to be provided, which must be “reasonable”; and (d) the official to whom the data is to be made available (section 251d 1 (2)).", "184. The head of the requesting authority must then immediately inform the relevant judge of the access, send him or her the access request, and explain the reasons why direct access had been necessary. Those reasons must include a full account of the circumstances which caused the authority to think that a terrorist offence was imminent (section 251d 1 (3) of the 2007 Act).", "185. If the judge does not approve the access request within twenty-four hours, any data made available pursuant to the direct access request must be destroyed by the authority which has received them, and the communications service provider must be informed of that (section 251d 1 (4) of the 2007 Act). If the judge approves the access request, that validates all steps already taken with respect to it (section 251d 1 (5)).", "186. The annual report of the parliamentary committee overseeing the system (see paragraphs 205 to 211 below) for 2019 – the only one which mentioned the point – said (at p. 11), that during that year the courts had approved 317 such direct access requests made in urgent cases.", "Procedure for accessing retained data", "187. Communications service providers must arrange for the possibility to receive access requests, including direct access requests, round the clock (section 251e(1) of the 2007 Act). They must keep the relevant authorities apprised of their access correspondents (section 251e(1)). Failure to do so may result in a pecuniary sanction ranging from BGN 2,000 to BGN 12,000 (section 327(5)).", "188. In regular cases, the communications service providers must provide the data as quickly as possible and in any event within seventy-two hours of receiving the access request. However, the Minister of Internal Affairs or the head of the State Agency for National Security, or their duly authorised deputies, may fix a shorter time-limit in a given case. In cases concerning alleged terrorist offences, the data must be provided immediately (section 251f(2) of the 2007 Act). Failure to do so may result in a pecuniary sanction ranging from BGN 10,000 to BGN 25,000, and from BGN 15,000 to BGN 50,000 in repeat cases (section 327(6) and (7)). When it comes to search-and-rescue operations, access must be provided immediately and in any event not later than two hours of receipt of the access request; if the life or health of the people concerned are at serious risk, the Minister of Internal Affairs or a duly authorised official may fix a shorter time (section 251f(3)).", "189. All access requests must be recorded by the communications service providers in a special non-public register (section 251f(1) in fine of the 2007 Act). Only duly authorised employees may deal with access requests (section 251f(4)). The document setting out the data sought by the authorities must be signed by the head of the communications service provider or a duly authorised employee, likewise recorded in a special register, and sent directly to the designated official (section 251f(5)).", "190. If technically feasible, all those exchanges of documents between the authorities and communications service providers must be done electronically (section 251f(6) of the 2007 Act).", "191. If requested by the relevant authority and authorised by the relevant judge, retained data which has been accessed by it may be kept by the communications service provider for a maximum of three months of the date on which it was accessed (section 251f(7) of the 2007 Act).", "192. According to the annual reports of the Commission for Protection of Personal Data (see paragraphs 198 to 203 below), the number of instances in which retained communications data had been provided to the authorities and the number of access requests not met each year since 2010 [21] was as follows:", "Year", "Instances of access provided", "Access requests not met", "2010", "38,861", "920", "2011", "74,296", "1,376", "2012", "91,159", "1,083", "2013", "96,652", "1,606", "2014", "107,769", "705", "2015", "70,543", "2,783", "2016", "64,959", "546", "2017", "65,073", "347", "2018", "56,527", "416", "2019", "47,553", "291", "Storage of retained data accessed by the authorities", "193. Neither the 2007 Act nor the Code of Criminal Procedure contain provisions spelling out how retained communications data accessed by the authorities is to be stored by them. A perusal of judicial decisions mentioning such data suggests that when used in the course of criminal proceedings, it is kept in the case file of the respective case (see, for instance, прис. № 4 от 19.01.2018 г. по н. о. х. д. № 234/2017 г., ОС-Хасково; прис. № 32 от 10.09.2019 г. по н. о. х. д. № 475/2018 г., ОС-Стара Загора; and прис. № 34 от 11.12.2019 г. по н. о. х. д. № 650/2019 г., ОС-София). Neither the Rules on the administrative services of the courts, issued by the Supreme Judicial Council in 2017, nor the Rules on the administrative services of the prosecutor’s offices, issued by the Supreme Judicial Council in 2013, which govern the storage of case files by, respectively, the courts and the prosecuting authorities, contain special rules on the storage of communications data featuring in a case file.", "Destruction of retained data accessed by the authorities", "194. If they do not use it to open criminal proceedings, the authorities must destroy the communications data which they have accessed within three months of receiving it. The destruction is to be done by a three-member commission appointed by the head of the respective authority. The commission must draw up a record attesting the destruction and send it immediately to the judge who has issued the access warrant. That record must be registered in the warrants register kept by the respective court (see paragraph 181 above) (section 251g(2) of the 2007 Act).", "195. If the competent judge does not validate retrospectively access to the retained data accessed by the authorities without a prior warrant under the urgent procedure (see paragraphs 183 to 185 above), that data must be destroyed immediately in the same way (section 251g(3) of the 2007 Act).", "196. Communications data accessed in the course of criminal proceedings which turns out to be irrelevant or unhelpful for establishing the facts of the case must likewise be destroyed. That is done on the basis of an order of the judge who has issued the access warrant (made on a proposal by the public prosecutor in charge of the case), in accordance with rules laid down by the Chief Prosecutor (those rules do not appear to be publicly available). Within seven days of the destruction, the communications service providers and the public prosecutor in charge of the case must send records attesting the destruction to the judge who has issued the access warrant (Article 159a § 6 of the Code of Criminal Procedure).", "Authorities supervising the retention of and the access to communications data", "(a) Judges who have issued the respective access warrants", "197. As noted in paragraphs 194, 195 and 196 in fine above, the judge who has issued the access warrant must be informed of the destruction of any irrelevant or unhelpful communications data by the relevant law ‑ enforcement authority.", "(b) Commission for Protection of Personal Data", "198. The Commission for Protection of Personal Data oversees the retention of communications data for law-enforcement purposes by the communications service providers (section 261a(1) and (2) of the 2007 Act). By section 262 of the 2007 Act, as amended in February 2019, the Commission’s supervision of the processing of personal data caused by the retention and accessing of communications data must be carried out in line with the requirements of the General Data Protection Regulation (“GDPR” – see paragraphs 234 to 237 below) and the Protection of Personal Data Act 2002 (see paragraphs 218 and 225 below).", "199. The same Commission is also generally competent to oversee the processing of personal data by non-judicial authorities for law-enforcement purposes (see paragraph 225 below).", "(i) Manner of election and term of office of the Commission’s members", "200. The Commission, which is an “independent supervisory authority”, consists of a chairperson and four members, all elected by Parliament following a proposal by the Council of Ministers for a term of five years, renewable once (sections 6(1) and 7(1) and (2) of the Protection of Personal Data Act 2002). They must have university education in computer science, information technology or law (section 8(1)(1)). The chairperson must be a qualified lawyer (section 8(3)). Parliament may terminate their term of office prematurely only in a limited number of situations: criminal conviction, grave misconduct, incapacity to carry out their duties for more than six months, or duly established conflict of interests (section 8(4)(2)).", "(ii) Powers of the Commission under the 2007 Act", "(α) To obtain information", "201. The Commission may request communications service providers to provide it with any information relevant to its mandate in that domain (section 261a(3)(1) of the 2007 Act). Communications service providers must also provide it annually with statistical information about (a) the number of cases in which the authorities have accessed retained communications data, (b) the time elapsed between the date on which the data were retained and the date on which the competent authority requested access to it, and (c) the number of cases in which access requests have been impossible to meet (section 261a(4)). The Commission must report that statistical information annually to Parliament and to the European Commission [22] (section 261a(5)).", "202. The Commission may also check how communications service providers comply with their duties to communicate personal data breaches to users (see paragraph 214 below) (section 261d(2) of the 2007 Act), and inspect the technical and organisational measures taken by communications service providers for storing retained communications data (section 261d(3)).", "(β) To give instructions and recommendations", "203. The Commission may give binding instructions, which must be complied with immediately (section 261a(3)(2) of the 2007 Act). Those instructions may in particular be on when and how communications service providers must communicate personal data breaches to affected persons (section 261d(1)). It may also recommend best practices on the level of security when storing retained communications data (section 261d(3) in fine ).", "(γ) To impose sanctions", "204. The Commission may sanction communications service providers who have not complied with their duties to (a) communicate a personal data breach to the persons affected by it (see paragraph 214 below) or (b) destroy retained communications data within the statutory time-limit (see paragraph 166 above) (sections 261d(2) in fine and 323a of the 2007 Act).", "(c) Parliamentary committee", "205. The same standing parliamentary committee which is in charge of overseeing secret surveillance – the Parliamentary Committee for Control of the Security Services, of the Application and Use of Special Means of Surveillance, and of Access to the Data under the Electronic Communications Act (see paragraph 125 above) – is also tasked with overseeing the retention and accessing of communications data. It oversees not only communications service providers but also the authorities entitled to access the data and the procedures whereby they seek and obtain access to it, and must ensure that individual rights and freedoms are protected against unlawful access (section 261b(1) of the 2007 Act, and Rule 18 §§ 1(4)(b) and 2(2) of the 2017-21 Rules of the National Assembly). The Committee must report each year about any inspections which it has carried out (section 261b(2)(4)).", "(i) Manner of election of the Committee’s members", "206. This is set out in paragraph 126 above.", "(ii) Powers of the Committee under the 2007 Act", "(α) To obtain information", "207. The Committee may: (a) request communications service providers, the authorities entitled to access retained data (see paragraphs 168 and 169 above) and the Commission for Protection of Personal Data to provide it with any information relevant to its mandate; (b) check the way in which retained data, access applications and access warrants are being kept, and the way in which retained data is being destroyed; and (c) access the premises of relevant authorities or communications service providers (section 261b(2)(1) to (2)(3) of the 2007 Act). The Ministry of Internal Affairs, the State Agency for National Security, the Intelligence Agency and the Chief Prosecutor must provide the Committee statistics about the annual number of access requests, access warrants, and instances of accessing and destruction of data (section 261b(3)).", "208. In its annual report for 2017, the Committee noted that experts employed by it had carried out 302 inspections in courts and law ‑ enforcement authorities. Those inspections had revealed (a) diverging practices in the courts in relation to access requests, and (b) a failure on the part of the public prosecutors in charge of the respective criminal cases to comply with their duty under Article 159a § 6 of the Code of Criminal Procedure to propose to the competent judges to order the destruction of accessed communications data which had turned out to be irrelevant or unhelpful (see paragraph 196 above). The report also noted various instances in which the legal requirements for access had not been complied with.", "209. In its annual report for 2018, the Committee noted that experts employed by it had carried out 229 inspections, and had again seen various diverging practices, as well as failures by the prosecuting authorities to destroy irrelevant communications data on the basis that that data might turn out to be helpful at a later stage of the investigation. The report again noted various instances in which the legal requirements for access had not been complied with.", "210. In its annual report for 2019, the Committee noted that experts employed by it had carried out 136 inspections, and had once again seen various diverging practices, as well as failures by the prosecuting authorities to propose to the competent judges to order the destruction of irrelevant communications data (see paragraph 208 (b) above). The report again noted various instances in which the legal requirements for access had not been complied with.", "(β) To give instructions", "211. The Committee may give instructions designed to improve the procedures for processing and destruction of the retained data (section 261b(2)(4) in fine of the 2007 Act).", "(iii) To bring irregularities to the attention of the competent authorities", "212. If the Committee finds that retained communications data has been used, stored or destroyed unlawfully, it must bring the matter to the attention of the prosecuting authorities, and inform the heads of the relevant access-requesting authorities and communications service providers. Those heads must report back to the Committee on the steps taken to remedy those irregularities (section 261b(4) of the 2007 Act).", "Notification arrangements", "(a) In cases of unlawful access or attempted access", "213. If the Committee finds that someone’s retained communications data has been accessed or sought to be accessed unlawfully, it must notify that individual (section 261b(5) of the 2007 Act). Such notification is not required if it would risk defeating the purpose(s) under section 251b(2) of the 2007 Act for which the data has been accessed or sought to be accessed (see paragraph 163 above).", "(b) In cases of a personal data breach", "214. If a communications service provider becomes aware of a personal data breach, it must inform the Commission for Protection of Personal Data within three days (section 261c(1) the 2007 Act). If the breach can affect negatively the personal data or the private life of a user or another person, the provider must communicate it to them (section 261c(2)), but may omit doing so if it satisfies the Commission that it has put in place appropriate technical and organisational protection measures in relation to the personal data affected by the breach – such as technical measures making the data unintelligible to anyone not authorised to access it (section 261c(3)). If the provider has not itself communicated the breach, the Commission, having reviewed its potential negative consequences, may nevertheless require the provider to communicate the breach to the affected persons (section 261c(4)). Section 261c(5) sets out the minimum content of the communication.", "RELEVANT DATA PROTECTION PROVISIONS", "215. All legal provisions cited below, which came into force in February 2019, are set out as they stood on 7 December 2021.", "Field of application", "216. The provisions of the Protection of Personal Data Act 2002 apply only to individuals (natural persons), regardless of whether they concern the processing of personal data falling under the GDPR (see paragraph 234 below) or the processing of such data by the authorities for law-enforcement purposes (section 1(1) and (2)). They do not apply to processing of such data for defence or national security purposes either, unless expressly provided elsewhere (section 1(5)).", "On the processing of personal data by private personsLimitations on the rights of data subjects", "Limitations on the rights of data subjects", "Limitations on the rights of data subjects", "217. A controller or processor of personal data may restrict, wholly or in part, the access, rectification, erasure and other rights of the data subject, as laid down in Articles 12 to 22 of the GDPR, or eschew the duty under Article 34 of the GDPR to communicate a personal data breach to the data subject, if the exercise of those rights or the performance of that duty would create a risk for, among others, (a) national security, (b) public security, or (c) the prevention, investigation, detection or prosecution of criminal offences (section 37a(1) of the Protection of Personal Data Act 2002, which echoes Article 23 § 1 of the GDPR – see paragraph 234 below).", "Remedies", "218. Data subjects considering that their rights under the GDPR or the 2002 Act have been breached may complain to the Commission for Protection of Personal Data, and seek judicial review of its decision (section 38(1) and (7) of the 2002 Act, which echoes Article 77 § 1 and Article 78 §§ 1 and 2 of the GDPR – see paragraph 236 below). Data subjects may also seek judicial review of the actions or decisions of the data controller or processor, or damages from them, in case they have processed their personal data unlawfully (section 39(1) and (2) of the 2002 Act, which echoes Articles 79 § 1 and 82 § 1 of the GDPR – see paragraphs 237 and 238 below).", "On the processing of personal data by the competent authoritiesfor law-enforcement purposesConditions on which such processing is lawful", "Conditions on which such processing is lawful", "Conditions on which such processing is lawful", "219. Processing of personal data by the competent law-enforcement authorities is lawful if it is (a) necessary for the prevention, investigation, detection or prosecution of a criminal offence and is (b) based on a statute or statutory instrument or on a provision of European Union law specifying the purposes of the processing and the categories of personal data to be processed (section 49 of the 2002 Act, transposing Article 8 of Directive (EU) 2016/680 – see paragraph 239 below). Such data must, among other things, (a) be processed in a manner ensuring its appropriate security, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, (b) not be processed in a manner incompatible with the explicit legitimate purposes for which it has been collected, and (c) kept in a form which permits the identification of data subjects for no longer than is necessary for the purposes for which they are processed (section 45(1)(2), (1)(5) and (1)(6), transposing Article 4 § 1 (b), (e) and (f) of the Directive).", "Possible limitations on the rights of data subjects", "220. A data controller may delay or refuse (wholly or in part) to provide the data subject with information about data processing for law-enforcement purposes and the data subject’s rights in relation to that processing if that is necessary to, among other things, (a) avoid obstructing official or legal inquiries, investigations or procedures; (b) avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences; (c) protect public security; or (d) protect national security (section 54(3) of the 2002 Act, transposing Article 13 § 3 of Directive (EU) 2016/680). When the obstacle ceases to exist, the data controller must provide the requested information within two months (section 54(4) of the 2002 Act).", "221. The data subject’s rights of access to, rectification, erasure and restriction of the processing of his or her personal data may be limited on the same grounds (sections 55(3) and 56(6) of the 2002 Act, transposing Articles 14, 15 §§ 1 and 2, and 16 § 4 of Directive (EU) 2016/680). When the obstacle ceases to exist, the data controller must provide the requested information within two months (sections 55(3) in fine and 56(6) in fine read in conjunction with section 54(4) of the 2002 Act). In any event, the controller must restrict the processing of personal data rather than altogether erase it if that data has to be maintained for the purposes of evidence (section 56(4)(2), transposing Article 16 § 3 (b) of the Directive).", "222. If access to personal data is restricted under those provisions, the controller must inform the data subject of the restriction and the reasons for it within two months, but may omit doing so if that would defeat the purpose of the restriction (section 55(4) of the 2002 Act, transposing Article 15 § 3 of Directive (EU) 2016/680). In that case, the controller must document the factual or legal reasons on which that decision is based, and make those reasons available to the supervisory authorities (the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council (section 55(5), transposing Article 15 § 4 of the Directive).", "223. If rectification, erasure or restriction of the processing of personal data is refused under the above provisions, the controller must inform the data subject of the restriction and the reasons for it within two months, but may omit doing so if that would defeat the purpose of the refusal. In that case, the data controller must provide the reasons for the refusal to the data subject within two months after the obstacle ceases to exist (section 56(7) of the 2002 Act, transposing Article 16 § 4 of Directive (EU) 2016/680).", "224. In all those cases of limitation on the rights of data subjects, they may exercise their rights indirectly, through the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council (depending on whether the data are being processed by a judicial or a non-judicial authority – see paragraph 225 below). If they receive such a complaint, those authorities must check whether the limitation was lawful (section 57(1) of the 2002 Act, transposing Article 17 § 1 of Directive (EU) 2016/680). They must inform the data subject at least that all necessary checks have taken place, and of his or her right to seek a judicial remedy (section 57(2), transposing Article 17 § 3 of the Directive).", "Supervisory authorities", "225. The Commission for Protection of Personal Data supervises the processing of personal data for law-enforcement purposes by all authorities except the courts and the prosecuting and investigating authorities. The processing of personal data for law-enforcement purposes by the courts and the prosecuting and investigating authorities is supervised by the Inspectorate attached to the Supreme Judicial Council (section 78 of the 2002 Act, transposing Article 41 of Directive (EU) 2016/680).", "226. In carrying out that supervision, the Commission and the Inspectorate must, among other things, (a) examine complaints by data subjects, (b) check the lawfulness of the data processing in cases in which the data subject’s rights have been restricted (see paragraphs 220 to 223 above), and (c) inform the data subject within three months of the outcome of the verification or of the reasons why one has not been carried out (section 79(1)(5) and (1)(6) of the 2002 Act, transposing Article 46 § 1 (f) and (g) of Directive (EU) 2016/680).", "Remedies", "227. Data subjects are entitled to the same remedies for alleged breaches of their rights by law-enforcement authorities as they are for alleged breaches of their rights by private persons (see paragraph 218 above) (section 82(1) of the 2002 Act, transposing Articles 52 § 1 and 54 of Directive (EU) 2016/680).", "RELEVANT DECISIONS OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE", "228. The Committee of Ministers of the Council of Europe has so far examined the execution of the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above) in March 2013, June 2017 and June 2019. The Committee is supervising that execution under its enhanced procedure, and the proceedings before it are still pending.", "229. In its three decisions adopted so far in the course of that supervision ( CM/Del/Dec(2013)1164/8; CM/Del/Dec(2017)1288/H46-7; and CM/Del/ Dec(2019)1348/H46-5 ), the Committee noted the improvements resulting from the legislative reforms undertaken by the Bulgarian authorities in that domain, but also highlighted, inter alia, the following (outstanding) points of concern or uncertainty in relation to the general measures required to execute that judgment:", "(a) the lack of clarity about whether surveillance could be used to protect national security if those to be placed under surveillance were not suspected of a criminal offence;", "(b) the practical capacity of the courts receiving a high volume of surveillance applications – in particular the Specialised Criminal Court (see the table under paragraph 49 above) – to deal with those properly;", "(c) the maximum duration of the initial authorisation of surveillance on national-security grounds (two years – see paragraph 79 (b) above);", "(d) the lack of sufficient publicly available details about the procedures for screening and destroying information obtained through surveillance, and preserving its confidentiality and integrity (see paragraphs 87 to 99 above);", "(e) the qualifications of the members of the National Bureau and their independence with respect to the authorities which they are tasked with overseeing (see paragraphs 109 and 112 in fine above); the possibility for the Bureau to access all materials which it needs to carry out its tasks, including the materials on which surveillance applications are based (see paragraphs 118 and 119 above); and the competence of the Bureau to notify legal persons – as opposed to individuals only – of unlawful surveillance (see paragraph 130 above); and", "(f) the fact-finding capabilities of the civil courts in proceedings under section 2(1)(7) of the 1988 Act in situations in which the claimants have not been notified (or have learned otherwise) that they have been subjected to surveillance (see paragraphs 140 to 144 above), and the lack of certainty about the courts’ powers to order the destruction of surveillance materials.", "RELEVANT EUROPEAN UNION LAW", "E-PRIVACY DIRECTIVE", "230. By Article 15 § 1 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (“E-Privacy Directive”), Member States may adopt legislative measures providing for the retention of communications data for a limited period, if that is justified by the need to “safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system”.", "231. By Article 15 § 2 of the same Directive, read in conjunction with Article 94 § 2 of the GDPR, all provisions of the GDPR on judicial remedies relating to the processing of personal data apply with regard to national provisions adopted pursuant to the E-Privacy Directive.", "DATA RETENTION DIRECTIVE", "232. Article 3 read in conjunction with Article 5 and Article 6 of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (“Data Retention Directive”) required Member States to adopt measures to ensure that certain categories of communications data generated or processed by providers of (a) publicly available electronic communications services or of (b) public communications networks within their jurisdiction were retained for periods ranging between six months and two years.", "233. In a judgment of 8 April 2014, Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238) the CJEU held that Directive invalid as a whole, on the basis that it required a disproportionate interference with the rights to respect for private life and communications, protected under Article 7 of the Charter of Fundamental Rights of the European Union, and with the right to right to protection of personal data under Article 8 of the Charter. First, the Directive required the retention of all traffic data and applied to all means of electronic communication. Secondly, the Directive did not lay down substantive and procedural conditions governing access by the authorities to the retained data or to its subsequent use, and did not make such access dependent on a prior review by a court or by an independent administrative body whose decision could limit access to the data and its use to what was strictly necessary. Thirdly, the Directive required that all data be retained for a period of at least six months, without distinguishing between categories of data on the basis of its possible usefulness or the persons concerned. Lastly, the Directive did not set out sufficient safeguards for the effective protection of the retained data against the risk of abuse or against unlawful access and use.", "GENERAL DATA PROTECTION REGULATION", "234. Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” – “GDPR”) applies to “natural persons”, and does not cover the processing of personal data which concerns legal persons (recital 14). By its Article 23 § 1, Member State legislation may restrict the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34 “when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard”, among other things, (a) national security, (b) public security, and (c) the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.", "235. If relevant, any such legislation must, among other things, provide for the right of data subjects to be informed about the restriction, unless that may be prejudicial to its purpose (Article 23 § 2 (h) of the GDPR).", "236. Each data subject is entitled to lodge a complaint with a supervisory authority if he or she “considers that the processing of personal data relating to him or her infringes [the GDPR]” (Article 77 § 1 of the GDPR).", "237. Each data subject is also entitled, in the same circumstances, to an effective judicial remedy (Article 79 § 1 of the GDPR).", "238. Any person who has suffered material or non-material damage as a result of an infringement of the GDPR is entitled to compensation from the controller or processor (Article 82 § 1 of the GDPR). Article 82 §§ 2 to 4 govern the modalities under which such compensation may be sought.", "LAW-ENFORCEMENT DIRECTIVE", "239. Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data governs the processing of the personal data of “natural persons” by the competent authorities for the purposes of “the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security” (Articles 1 § 1 and 2 § 1). It had to be transposed by May 2018 (Article 63 § 1). Bulgaria did so, by way of an amendment to the 2002 Act, in March 2019 (see paragraphs 219 to 227 above).", "CJEU CASE-LAW ON ARTICLE 15 § 1 OF THE E-PRIVACY DIRECTIVE", "240. In a judgment of 21 December 2016 ( Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970), given pursuant to preliminary references by the Administrative Court of Appeal of Stockholm, Sweden, and the Court of Appeal of England and Wales, the CJEU held that national legislation providing for the general retention of all traffic and location data for the purpose of fighting crime was impermissible under Article 15 § 1 of the E-Privacy Directive (see paragraph 230 above). Article 15 § 1 also precluded legislation permitting the authorities to access retained data if, so far as relevant for the purposes of the present case, (a) the objective was not restricted to fighting serious crime, and (b) such access was not subject to prior review by a court or an independent authority. The CJEU based those conclusions on, among other things, the E ‑ Privacy Directive’s overall structure, including the general principle of confidentiality of communications laid down by it, and the requirement of strict necessity under European Union law for any limitations on the protection of personal data. Lastly, the CJEU declined to answer a question about whether the protection conferred by Articles 7 and 8 of the Charter, as construed by it, was wider than that under Article 8 of the Convention. It noted, among other things, that European Union law could give more extensive protection than the Convention, and that Article 8 of the Charter concerned a right (the protection of personal data) which had no equivalent in the Convention.", "241. In a judgment of 2 October 2018 ( Ministerio Fiscal, C-207/16, EU:C:2018:788), given pursuant to a preliminary reference by the Provincial Court of Tarragona, Spain, the CJEU held that the interference entailed by access to retained names and addresses to identify the owners of SIM cards activated with a stolen mobile telephone was not sufficiently serious, and was thus permissible under Article 15 § 1 of the E-Privacy Directive even if not justified by the need to fight “serious” crime.", "242. In a judgment of 6 October 2020 ( La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791), given pursuant to preliminary references by the French Council of State and the Belgian Constitutional Court, the CJEU, among other things, confirmed its position in Tele2 Sverige and Watson and Others (see paragraph 240 above) that Article 15 § 1 of the E-Privacy Directive precluded the general retention of traffic and location data for the purpose of fighting serious crime, and held that this provision permitted solely a targeted retention of such data, limited on the basis of objective and non-discriminatory factors. By contrast, Article 15 § 1 did not preclude the general retention of (a) IP addresses assigned to the source of an Internet connection, and (b) data relating to the civil identity of users of communications systems. General retention of traffic and location data – for a (renewable) period limited to what was strictly necessary – was, however, permissible if a State was facing a genuine and serious national-security threat which was present or foreseeable. But the decision citing such a threat to require general retention had to be subject to effective review, either by a court or by an independent administrative body whose decision was binding. That review had to extend also to whether the conditions and safeguards which had to be laid down were observed.", "243. In another judgment of 6 October 2020 ( Privacy International, C‑623/17, EU:C:2020:790), given pursuant to a preliminary reference by the United Kingdom’s Investigatory Powers Tribunal, the CJEU held, among other things, that Article 15 § 1 of the E-Privacy Directive precluded legislation enabling an authority to require communications service providers to carry out a general transmission of traffic and location data to the security and intelligence agencies for the purpose of safeguarding national security.", "244. In a judgment of 2 March 2021 ( Prokuratuur, C‑746/18, EU:C:2021:152 ), given pursuant to a preliminary reference by the Supreme Court of Estonia, the CJEU reiterated that Article 15 § 1 of the E-Privacy Directive permitted access to retained traffic or location data for the purpose of fighting crime only when it came to serious crime or serious threats to public security, regardless of the length of the period in respect of which access was sought and the quantity or nature of the data available in respect of that period. The CJEU went on to hold that the power to examine access requests could not be given to a prosecutor’s office, since its tasks of directing pretrial proceedings and prosecuting affected its independence vis-à-vis the parties to the criminal proceedings.", "245. Three preliminary references concerning the compatibility of the German and Irish laws requiring the general retention of communications data with Article 15 § 1 of the E-Privacy Directive, made respectively by the German Federal Administrative Court in October 2019 and by the Supreme Court of Ireland in March 2020 ( SpaceNet, C-793/19; Telekom Deutschland, C-794/19; and Commissioner of the Garda Síochána and Others, no. C-140/20) are still pending.", "THE LAW", "SECRET SURVEILLANCE", "246. The applicants complained that the system of secret surveillance in Bulgaria did not meet the requirements of Article 8 of the Convention, and that they did not have effective remedies in that respect, in breach of Article 13 of the Convention.", "247. In the light of the Court’s case-law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 307, ECHR 2015), the complaint falls to be examined solely under Article 8 of the Convention, which provides, so far as relevant:", "“1. Everyone has the right to respect for his private ... life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) Victim status of the applicants", "(i) The Government", "248. The Government submitted that the applicants could not claim to be victims of a violation of their right to respect for their private life or correspondence. That was because under Bulgarian law only people suspected of serious criminal offences could be placed under surveillance, even when national security was at stake. Nothing suggested that any of applicants fell into that category, and that possibility was altogether inconceivable for the two applicant organisations, since in Bulgaria legal persons could not bear criminal liability.", "249. Moreover, none of the applicants, who had the requisite expertise, had asked the National Bureau whether special means of surveillance had been used with respect to them. Nor had the two individual applicants tried to bring a claim under section 2(1)(7) of the 1988 Act, which could be brought even without a notification by the Bureau that special means of surveillance had been used against them. Both of those were effective remedies. It followed that the applicants had to show that they were at risk of surveillance owing to their personal situation – something which they had not done, and which was hard to believe, since nothing suggested that they could be suspected of any of the criminal offences justifying surveillance in Bulgaria.", "(ii) The applicants", "250. The applicants replied that under the system of secret surveillance in Bulgaria the communications of anyone in the country could be intercepted, for several reasons. First, the laws permitting surveillance were couched in broad and vague terms, especially as regards the notion of national security. Secondly, many authorities could request surveillance, and the prosecuting authorities could uncontrollably open criminal proceedings against anyone. Thirdly, authorisation procedures were routinely flouted. Lastly, oversight by the National Bureau was ineffective in practice, which had made it pointless for the applicants to complain to it, especially since they could be subjected to surveillance indirectly, through the placing of contacts of theirs under surveillance. They had not brought a claim under section 2(1)(7) of the 1988 Act since it would have been ineffective in their situation, and was moreover not available to the two applicant organisations, since it was open only to individuals. It was thus unnecessary for any of them to show that they were at risk of being subjected to surveillance owing to their personal situation.", "(b) Exhaustion of domestic remedies", "251. Based on the considerations summarised in paragraph 249 above, the Government further argued that the applicants had not exhausted domestic remedies.", "252. The applicants replied that, for the reasons summarised in paragraph 250 above, the remedies suggested by the Government were not effective in their situation.", "The Court’s assessment", "(a) Whether the complaint is “substantially the same”", "253. The first question which arises is whether the present complaint is “substantially the same” as that examined in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007). The Court must deal with the point on its own initiative, since it marks out the limits of its competence (see Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 55, 15 June 2017).", "254. The Court finds this not to be so, for the following reasons.", "255. It is true that two of the applicants – Mr Ekimdzhiev and the Association for European Integration and Human Rights – are the same as in that earlier case, and that the gist of their grievance here, as formulated by them, is identical to the gist of the grievance examined there. The present complaint is, however, not based on the same facts. In that earlier case, the Court scrutinised the system of secret surveillance in Bulgaria as it stood in mid-2007, whereas in the case at hand it must scrutinise that system as it stands now (see paragraph 293 below). The relevant statutory and regulatory provisions in Bulgaria have evolved considerably since 2007, as has the manner of their application (see in particular paragraphs 13 to 16 above). All that is “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 64-65, ECHR 2009, and Ivanţoc and Others v. Moldova and Russia, no. 23687/05, § 93, 15 November 2011). Admittedly, that expression must be construed to mean relevant new factual information (see Harkins, cited above, § 50). But in cases such as the one at hand, where the complaint is based on the state of the domestic law rather than on its application in a specific instance, that domestic law and the way it is applied in general is the main fact under examination.", "(b) Whether the Court is prevented from examining the complaint by Article 46 of the Convention", "256. The second question which arises is whether the Court is prevented from examining the complaint by Article 46 of the Convention. That point, which goes to the Court’s jurisdiction, must likewise be examined on its own initiative. It is closely linked with the issue examined in paragraphs 253 to 255 above.", "257. The Committee of Ministers’ ongoing review of the Bulgarian laws and practices relating to secret surveillance in the exercise of its task of supervising the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraphs 228 and 229 above) is no bar to the admissibility of the complaint. The Court’s task in this case is not to assess whether the general measures taken by the Bulgarian authorities were sufficient to discharge their duty under Article 46 § 1 of the Convention to abide by that judgment; the Court has no jurisdiction to do so (see Ivanţoc and Others, cited above, § 91). Its task here is rather to examine whether the complaint that the system of secret surveillance in Bulgaria, as it stands now – granted, partly as a result of general measures taken to abide by Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 14 above) – falls short of the requirements of Article 8 of the Convention is admissible and well-founded. Although that examination may in practice overlap or even in parts coincide with the supervision carried out by the Committee of Ministers, that does not take the complaint outside the Court’s jurisdiction. The Committee of Ministers’ role in the execution of the Court’s judgments does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the earlier judgment and, as such, form the subject of a new application with which the Court may deal (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 62; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 33, ECHR 2015; and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 47 (b), 11 July 2017). In this context, “new issue” connotes the existence of “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), § 63; Ivanţoc and Others, § 85; and Moreira Ferreira, § 47 (d), all cited above). But, as noted in paragraph 255 above, such “relevant new information” is present in this case (compare, mutatis mutandis, with Mehemi v. France (no. 2), no. 53470/99, §§ 43-44, ECHR 2003-IV; Wasserman v. Russia (no. 2), no. 21071/05, §§ 34-37, 10 April 2008; Liu v. Russia (no. 2), no. 29157/09, §§ 62-67, 26 July 2011; Ivanţoc and Others, cited above, §§ 89-95; and V.D. v. Croatia (no. 2), no. 19421/15, §§ 49-54, 15 November 2018).", "258. The Court therefore has jurisdiction to examine the complaint.", "(c) The applicants’ victim status and exhaustion of domestic remedies", "259. The Government’s objections that the applicants cannot claim to be victims of a violation and that they have not exhausted domestic remedies are both so closely linked to the substance of the applicants’ complaint that they must be joined to its merits (see Roman Zakharov, cited above, § 150).", "(d) Conclusion about the admissibility of the complaint", "260. The complaint is, moreover, not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.", "MeritsThe applicants’ victim status and the existence of an interference", "The applicants’ victim status and the existence of an interference", "The applicants’ victim status and the existence of an interference", "(a) The parties’ submissions", "261. The parties’ submissions on these points are summarised in paragraphs 248 to 250 above.", "(b) The Court’s assessment", "(i) General principles", "262. The general principles on when applicants may claim that they are victims of an interference with their rights under Article 8 of the Convention owing to the mere existence of domestic laws or practices permitting secret surveillance were clarified in Roman Zakharov (cited above, § 171) and more recently reiterated in Centrum för rättvisa v. Sweden ([GC], no. 35252/08, § 167, 25 May 2021).", "(ii) Application of those principles", "(α) Scope of the relevant law", "263. Under the terms of section 12 of the 1997 Act, special means of surveillance can be used with respect to, inter alia, (a) persons suspected of, or unwittingly used for, the preparation or commission of one or more of the serious offences listed in section 3(1) of the 1997 Act; (b) persons or objects related to national security; and (c) objects necessary to identify such persons (see paragraph 23 above). The wording of section 12 thus suggests that national security can be a standalone ground for resorting to secret surveillance; this also follows from section 4 (see paragraph 22 above). But even if it is accepted that, as asserted by the Government with reference to the wording of section 14 of the 1997 Act (see paragraph 22 above), under Bulgarian law national security cannot be a standalone ground for resorting to secret surveillance, it remains the case that theoretically any individual in the country can be suspected of being involved, wittingly or unwittingly, in the planning or commission of a relevant criminal offence, and thus be him- or herself subjected to surveillance. It is also readily apparent that, regardless of whether they have themselves been placed under surveillance, individuals – or legal persons – can have their communications intercepted indirectly, as a result of the surveillance of another individual falling in one of the categories laid down in section 12 of the 1997 Act. It follows that all four applicants, including the two applicant organisations, may possibly be affected by the contested legislation. It is true that some surveillance techniques, such as visual surveillance and tracking (see paragraph 11 above), cannot be applied to legal persons as such. But it appears that in many cases the surveillance warrants authorise the use of those techniques alongside other surveillance techniques, such as tapping, which can affect the communications of legal persons (see paragraphs 61 and 65 above).", "(β) Availability of an effective remedy", "264. The next question is whether there exists in Bulgaria an effective remedy which can alleviate the suspicion among the general public that secret surveillance powers are being abused.", "265. In 2009 Bulgaria put in place a dedicated remedy in respect of secret surveillance, in the form of a claim for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above). The Court has recognised that such a claim is an effective remedy for people who have already learned that they have been subjected to surveillance as a result of criminal proceedings, in cases when the surveillance has taken place after the entry into force of that provision (see Harizanov v. Bulgaria (dec.), no. 53626/14, §§ 94-99, 5 December 2017).", "266. But that only concerns situations in which the surveillance has yielded information which has led to the production of evidentiary material later used – and hence disclosed – in criminal proceedings. Throughout the past decade, the instances of surveillance which have led to the production of such evidentiary material have ranged from about 24% to about 60% (see the table under paragraph 93 above). And it is far from certain that in all of those cases such evidentiary material has later led to the bringing of charges, and has thus been disclosed to the persons concerned in the context of criminal proceedings.", "267. It appears that in all cases in which that has not happened, the only (lawful) way in which the people concerned can learn that they have been subjected to surveillance is a notification by the National Bureau. But the 1997 Act does not require that all such people be notified. Irrespective of whether it investigates on its own initiative or pursuant to a complaint by someone suspecting that he or she has been subjected to surveillance, the Bureau is only required to notify people subjected to surveillance unlawfully (as determined by it), and even then only if that notification would not defeat the purpose of the surveillance or reveal the technical or operational means whereby it has been carried out (see paragraph 130 above). In practice, the Bureau notifies few people, if any, each year, even in comparison to the number of complaints it receives (see the table under paragraph 135 above). It appears that in other cases it simply informs the people who have applied to it that they have not been subjected to unlawful surveillance, without specifying whether that means that (a) no surveillance has taken place, that (b) it has taken place but was lawful, or (c) that it was indeed unlawful but should not be revealed because doing so would defeat its purpose or reveal the technical or operational means whereby it has been carried out (see paragraph 131 above). In hypothesis (c), the wording of the Bureau’s notification, as transpiring from the three examples made available to the Court (see paragraph 131 above), would in fact be misleading since there has been unlawful surveillance but there are grounds to conceal that it has taken place. The recipients of such notifications have no means of challenging them and thus obtaining more information (see paragraph 133 above).", "268. Moreover, contrary to what was asserted by the Government, it does not seem that proceedings for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above) are, as matters stand, available to people who have not been notified by the National Bureau that they have been subjected to surveillance or have learned about that surveillance as a result of criminal proceedings in which its results have been used. It is true that section 2(1)(7) does not by its terms elevate such notification into a condition for the admissibility of such claims. But although that provision has already been in effect for more than twelve years, no cases have been reported in which claims under it have been successfully brought blindly, in the absence of prior notification by the Bureau or of information about surveillance which has emerged in criminal proceedings (see paragraph 140 above). Indeed, the apparently limited fact-finding capabilities of the civil courts in proceedings under section 2(1)(7) have already been noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (f) above).", "269. The manner in which the Bulgarian courts have applied the rules of evidence in such cases suggests that absence of a notification by the National Bureau or of information about surveillance which has emerged in criminal proceedings is likely to be an unsurmountable obstacle to pursuing such claims (see paragraphs 141, 142 and 144 above). That was recognised, even if indirectly, by the Supreme Court of Cassation, which held that the limitation period for bringing such a claim starts to run when the person concerned is notified by the Bureau, because without such notification that person has no means of vindicating his or her rights (see paragraph 138 (h) above). In a recent case, the Burgas Regional Court even expressly held that a claim under section 2(1)(7) of the 1988 Act could be brought only if the use of special means of surveillance with respect to the claimant was apparent either from the materials adduced as evidence in a criminal case or from a notification by the Bureau (see paragraph 143 above).", "270. In the absence of reported decisions by the Bulgarian courts, it is not for this Court to say whether or how the rules of civil procedure in Bulgaria which govern the disclosure of documents by the opposing party, by a third party or by a public authority (see paragraphs 146 to 150 above) can be applied in such cases. It was for the Government to explain that point, and as far as possible support their explanations with concrete examples (see, mutatis mutandis, Roman Zakharov, cited above, § 295, and Mustafa Sezgin Tanrıkulu v. Turkey, no. 27473/06, §§ 28-29, 18 July 2017). It suffices to note that for twelve years there have apparently been no cases in which those procedural tools have been deployed to overcome the absence of a prior notification by the National Bureau or of information about surveillance which has emerged in criminal proceedings.", "271. Another obstacle for those wishing to bring such a claim blindly is identifying the correct defendant, which must be done at the outset of the proceedings (see paragraph 138 (c) above), but may nevertheless be impossible in the absence of any information about which authority has requested the surveillance or has carried it out (see, mutatis mutandis, Ribcheva and Others v. Bulgaria, nos. 37801/16 and 2 others, § 149 in fine, 30 March 2021).", "272. A further limitation of the remedy under section 2(1)(7) of the 1988 Act lies in the degree of scrutiny applied by the courts when hearing such claims. The Supreme Court of Cassation has held that when deciding such claims the courts cannot inquire whether the judges who have issued a surveillance warrant have correctly assessed the need to do so (see paragraph 138 (f) above). That means the courts may check for formal deficiencies but cannot delve into the most important issues – whether the surveillance whose lawfulness is being challenged before them was based on a reasonable suspicion and amounted to a proportionate interference with the claimant’s rights under Article 8 of the Convention. This limitation deprives this safeguard from much of its efficacy.", "273. Lastly, as is apparent from the provision’s wording (see paragraph 136 above), such claims are not open to legal persons.", "274. Owing to all of these limitations, the remedy provided by section 2(1)(7) of the 1988 Act cannot sufficiently dispel the public’s misgivings about the threat of abusive secret surveillance.", "275. Nor can those misgivings be dispelled by other possible remedies. The Government did not argue, and there is no indication, that there have so far been any instances in which someone has been able to obtain the destruction of data obtained through surveillance in reliance on section 56(6) in fine of the 2002 Act, amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 221 above), to obtain redress by way of a complaint to the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council under section 57 of that Act (see paragraph 224 above), or to obtain redress by way of a judicial remedy under section 82(1) of the 2002 Act, both likewise added in 2019 (see paragraph 227 above). It is true that those provisions are novel, and that they are part of a branch of law which has only developed relatively recently. But in the absence of any information about the way in which they can operate with respect to data obtained by way of secret surveillance (contrast the circumstances in Tretter and Others v. Austria (dec.) [Committee], no. 3599/10, §§ 10-14 and 43-46, 29 September 2020), it is not for the Court to speculate on the point. Those remedies are, moreover, not available to legal persons (see paragraphs 216 and 239 above).", "(γ) Conclusion", "276. In view of the above considerations, there is no need to check whether the applicants are at risk of having their communications intercepted owing to their personal situation (see, mutatis mutandis, Centrum för rättvisa, cited above, §§ 175-76).", "277. It follows that an examination of the relevant laws and practices in the abstract is justified. It also follows that the Government’s objection that the applicants may not claim to be victims of a violation of Article 8 of the Convention allegedly caused by the mere existence of laws permitting secret surveillance, which was joined to the merits (see paragraph 259 above), must be rejected.", "Justification for the interference", "(a) The parties’ submissions", "(i) The applicants", "278. The applicants submitted that the legislation governing secret surveillance, as applied in practice by the authorities, did not provide enough guarantees against the abusive surveillance of anyone in Bulgaria.", "279. In their view, the notion of national security, as understood in Bulgaria, was too vague, and permitted even legitimate political activities by the opposition to be seen as sufficient grounds for surveillance. The maximum possible length of the initial authorisation in such cases – two years – rendered all other safeguards nugatory. The clause authorising surveillance without prior judicial authorisation in urgent cases was also particularly prone to abuse. The number of authorities which could request surveillance outside the framework of already pending criminal proceedings had increased throughout the years. For their part, the prosecuting authorities could obtain abusive and arbitrary surveillance in criminal proceedings by opening them without proper justification, which could not be controlled by the courts at the pre-trial stage or engage the personal liability of the public prosecutors doing so. The genuineness of the risk of such abuses had been illustrated by the publication in February 2020, on the initiative of the Chief Prosecutor, of intercepted conversations between the President of the Republic, who enjoyed full immunity from prosecution, and the commander of the Air Force.", "280. Many of the safeguards surrounding the authorisation procedure were in practice not adhered to, as recorded in several reports and publications. The courts often issued surveillance warrants without properly checking whether it was justified to do so – a practice which had reached its highpoint in the warrant in relation to which the 2011-15 President of the Sofia City Court had been criminally convicted. Judicial oversight of the storage and destruction of surveillance materials was also ineffective.", "281. Oversight by the National Bureau was likewise ineffective. Most of the Bureau’s current members had come from the security services and did not have proper legal qualifications. Owing to the requirement to undergo security vetting by the State Agency for National Security and keep their security clearance throughout their term of office, Bureau members could lose their posts as a result of steps taken by that Agency, which was one of the authorities which most often requested surveillance. That risk was not merely theoretical, as illustrated by the case of the Bureau’s first deputy chairperson. This had seriously affected the Bureau’s independence and had marginalised it, especially in the last few years. Several interviews and declarations of the Bureau’s first chairperson had highlighted the weakening of its role and of its supervision over the prosecuting authorities and the State Agency for National Security. Another issue had been the illegal curtailing of the possibility for the Bureau to access materials held by the prosecuting authorities. Lastly, the Bureau checked solely the surveillance’s formal legality, and only notified those concerned if they had been subjected to it unlawfully. That explained the small number of notifications made by the Bureau, which was insignificant if compared to the number of surveillance operations.", "282. The dedicated remedy, a claim under section 2(1)(7) of the 1988 Act, was not available to legal persons, and, as illustrated by the courts’ case-law, only worked when the Bureau had notified those concerned of unlawful surveillance. In such proceedings, the courts could not obtain the primary materials and had to rely on information provided by the Bureau.", "(ii) The Government", "283. The Government pointed out that most rules governing the use of special means of surveillance were contained in legislative enactments. Those enactments and all relevant regulations had been published. There were also internal rules on the procedures for storing and destroying materials obtained via surveillance and the resulting evidence. The National Bureau supervised whether those rules were in line with the relevant statutes and regulations.", "284. The law furthermore laid down an exhaustive list of offences which could trigger surveillance. Although it also provided that it could be employed to protect national security, in the courts’ practice that was not a standalone ground to authorise surveillance; even when national security was at stake, this could be done only to prevent or investigate one of the offences listed in the law, which was a safeguard against abusive interpretations of the notion of national security. The law also specified the categories of persons who could be subjected to surveillance, as well as the grounds and conditions on which, and the purposes for which, surveillance could be authorised and carried out.", "285. Surveillance was subject to prior judicial authorisation except in urgent cases – an exception to which the authorities resorted sparingly. Even in those cases, surveillance had to be validated retrospectively by a judge within twenty-four hours, and that judge could also assess whether it had been justified to resort to the urgent procedure. To obtain a warrant, the relevant authority had to make a reasoned application, and when examining that application the judge could request all supporting materials. The decision to issue a surveillance warrant had to be reasoned, and the judge reviewed whether all legal requirements were in place – including whether it was justified to resort to surveillance – on the basis of all materials in the case file rather than simply those provided by the requesting authority. That was a strong safeguard against frivolous or unfounded surveillance applications based on trumped-up charges. By law, the judge had up to forty-eight hours to consider the application, which was enough to permit proper review. That was important for courts receiving many surveillance applications.", "286. The law set out clearly the maximum duration for which surveillance could be authorised. Although the maximum statutory periods for surveillance on national-security grounds were long – initially up to two years and altogether up to three years – in practice the courts never issued surveillance warrants for periods exceeding six months.", "287. The judges who had authorised the surveillance could then oversee the way in which it had been carried out, since the requesting authority had to report to them and provide all surveillance results and any evidence produced on their basis. Judges could also seek additional materials. That form of ongoing supervision supplemented that by the National Bureau.", "288. The statutory rules governing the screening, processing, storage and destruction of surveillance materials were sufficiently precise, and were supplemented by internal rules which were subject to supervision by the National Bureau. The general position was that any materials not used for evidence were to be destroyed quickly, the only exception being those relating to offences against national security, which were to be kept for fifteen years. Although the various rules, which differed depending on whether the materials contained classified information, had not been codified in a single enactment, they were all clear enough and contained sufficient safeguards against abuse.", "289. As regards the National Bureau, its members were elected by and only accountable to Parliament. They had to meet stringent requirements and have high professional qualifications. Even if some of those members had no legal education or experience, that did not mean that they were not suitably qualified. It was true that upon nomination all members had to undergo security vetting by the State Agency for National Security, but that was inevitable when it came to sensitive information, and any revocation of their security clearance was amenable to judicial review. The Bureau had extensive inspection powers and could give instructions to the relevant authorities, which it did regularly, including with respect to the State Agency for National Security. No incidents casting doubt on the independence or integrity of any Bureau members had been brought to the attention of Parliament. Additional supervision of the system was ensured by the parliamentary committee.", "290. Lastly, both the notification procedure and its limitations were fully consistent with the requirements of the Court’s case-law. Legal persons could obtain such notification as well, as illustrated by a case relating to a mobile telephone line subscribed by a bank in which the National Bureau had investigated a complaint about alleged tapping of that line by the bank’s management. The dedicated remedy – a claim under section 2(1)(7) of the 1988 Act – worked well when there had been notification by the Bureau, but could operate properly also in the absence of such notification, although there had so far been no such cases. Notification was not a formal prerequisite for bringing such a claim, and anyone could bring one simply on the basis of a suspicion of having been subjected to surveillance. If the claimant was unable to adduce evidence of that, the court dealing with the case could request such evidence from the relevant authorities or order the Bureau to investigate the case and report back. Legal persons could also use that remedy and obtain an award of damages.", "(b) The Court’s assessment", "(i) General principles", "291. The general principles governing the question when secret measures of surveillance, including the interception of communications, can be justified under Article 8 § 2 of the Convention were set out in detail in Roman Zakharov (cited above, §§ 227-34, 236, 243, 247, 250, 257-58, 275, 278 and 287-88). Many of those principles were recently reiterated, although in relation to a somewhat different context – bulk interception – in Centrum för rättvisa (cited above, §§ 246-53) and Big Brother Watch and Others v. the United Kingdom ([GC], nos. 58170/13 and 2 others, §§ 332-39, 25 May 2021).", "292. It is not necessary to repeat all of them here, except to emphasise that the overarching requirement is that a secret surveillance system must contain effective guarantees – especially review and oversight arrangements – which protect against the inherent risk of abuse and which keep the interference which such a system entails with the rights protected by Article 8 of the Convention to what is “necessary in a democratic society”.", "293. In cases such as the present one, in which the applicants complain in the abstract about a system of secret surveillance rather than of specific instances of such surveillance, the relevant national laws and practices are to be scrutinised as they stand when the Court examines the admissibility of the application rather than as they stood when it was lodged (see Centrum för rättvisa, § 151, and Big Brother Watch and Others, § 270, both cited above). The other point of particular relevance to this case is that the assessment of whether the laws at issue offer effective guarantees must be based not only the laws as they exist in the statute book, but also on (a) the actual operation of the surveillance regime, and (b) the existence or absence of evidence of actual abuse (see Centrum för rättvisa, § 274, and Big Brother Watch and Others, § 360, both cited above).", "(ii) Application of those principles", "294. In Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 79-84) the Court examined the system of secret surveillance in Bulgaria, as in force in mid-2007. It found that the procedure for authorising surveillance, if strictly adhered to, offered sufficient protection against arbitrary or indiscriminate surveillance. It went on to find deficiencies in relation to the following points: (a) lack of review by an independent body of the implementation of surveillance measures or of whether the material obtained through such measures would be destroyed within the time-limits if the surveillance had proved fruitless; (b) lack of sufficient safeguards in respect of surveillance on national security grounds and outside the context of criminal proceedings; (c) lack of regulations specifying with an appropriate degree of precision the manner of screening of surveillance materials, or the procedures for preserving their integrity and confidentiality and the procedures for their destruction; (d) lack of an independent body overseeing the functioning of the system of secret surveillance; (e) lack of independent control over the use of materials falling outside the scope of the original surveillance application; and (f) lack of notification of the persons concerned under any circumstances (ibid., §§ 85-91). On that basis, the Court concluded that Bulgarian law did not provide sufficient guarantees against the risk of abuse inherent in any system of secret surveillance (ibid., § 93).", "295. Since that judgment, and partly it seems as a result of it, Bulgarian law governing secret surveillance had evolved considerably. All the same, the Committee of Ministers has not yet adopted a final resolution concluding that its functions relating to the supervision of the execution of that judgment have been completed; it has identified several outstanding points of concern in relation to the general measures taken by the Bulgarian authorities to implement that judgment (see paragraphs 228 and 229 above). For its part, the Court must, as already noted, examine not whether the Bulgarian authorities have executed that judgment, but whether the relevant Bulgarian law, as it stands now, meets the requirements of Article 8 of the Convention (see paragraph 257 above).", "(α) Accessibility of the law", "296. All statutory provisions governing secret surveillance in Bulgaria, as well as the internal rules of the National Bureau for Control of Special Means of Surveillance (see paragraph 13 above), have been officially published and are thus accessible to the public. By contrast, the internal storage and destruction rules mentioned by the Government (see paragraphs 283 and 288 above) have apparently not been made accessible to the public.", "297. For its part, the Chief Prosecutor’s instruction governing the deliberate or accidental use of special means of surveillance with respect to lawyers, although not published by the authorities, was published in the Supreme Bar Council’s journal (see paragraphs 27 to 30 above). It can be accepted that this made it sufficiently accessible for the persons that it concerns – practising lawyers such as the first and third applicants and organisations specialising in legal issues such as the second and fourth applicants (see, mutatis mutandis, Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173, and Autronic AG v. Switzerland, 22 May 1990, § 57, Series A no. 178).", "(β) Grounds on which secret surveillance may be resorted to and persons who can be placed under surveillance", "298. The relevant issue in relation to the grounds on which secret surveillance may be resorted to and the persons who can be placed under surveillance is whether the law authorising or permitting surveillance lays down with sufficient clarity (a) the nature of the offences and other grounds which may give rise to surveillance and (b) the categories of persons who may be placed under surveillance.", "299. In Bulgaria, the law sets outs in an exhaustive manner the serious intentional criminal offences which can trigger the use of special means of surveillance (see paragraph 18 above). Moreover, it specifies that such means can be used only if there are grounds to suspect that such an offence is being planned, or is being or has been committed, and only if other methods of detection or investigation would be unlikely to succeed (see paragraphs 18 and 20 above). The law is thus sufficiently clear on that point (see Roman Zakharov, cited above, § 244). Indeed, it is clearer than when the Court first examined it and found it adequate in this respect in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 10 and 79). Although the types of offences falling into that list are varied, it appears that in practice in the vast majority of cases the authorities resort to surveillance in relation to the offences of (a) being the leader or member of a criminal gang and of (b) dealing in narcotic drugs (see the table under paragraph 19 above).", "300. It is true that the law says that special means of surveillance can also be used for “activities relating to national security” (see paragraph 22 above). In the absence of more detailed information about the practice of the relevant Bulgarian courts and authorities on that point, it is difficult to check whether, as asserted by the Government (see paragraph 22 above), national security can never be a standalone ground for surveillance in Bulgaria. The statutory requirement that each surveillance application contain a full account of the circumstances which give cause to suspect that a relevant offence is being prepared or committed or has been committed, including when it comes to national security (see paragraph 39 above), and the wording of the provision which lays down the time-limit for using special means of surveillance to protect national security, which appears to link that with the prevention of offences against the Republic (see paragraph 79 (b) above) appear to support the Government’s submission. It remains unclear, however, how those provisions are being applied in practice. The lack of clarity on this point was already noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (a) above).", "301. But even if it is accepted that under Bulgarian law the protection of national security can be a standalone ground for secret surveillance, that does not in itself contravene Article 8 of the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, § 84; Centrum för rättvisa, § 261; and Big Brother Watch and Others, § 347, all cited above). What rather matters is that any potential abuses flowing from the inherently vague meaning and contours of the notion of national security can be checked. It must be noted in this connection that even when it comes to national security, the relevant authorities must seek judicial authorisation for the surveillance, which can limit their discretion in interpreting that notion and ensure that sufficient reasons to place someone under surveillance are present in each case (see Roman Zakharov, cited above, § 249). This is an important safeguard against arbitrariness and abuse. Its effectiveness is analysed in paragraphs 307 to 322 below.", "302. The law also sets out in an exhaustive manner the categories of persons who, or objects which, may be placed under surveillance. When it comes to surveillance relating to criminal offences, the relevant categories are clearly defined: those are either people suspected of committing offences, people unwittingly used for their preparation or commission, people who have agreed to surveillance for their own protection, or cooperating witnesses in cases relating to a limited class of serious intentional offences, as well as objects capable of leading to the identification of such persons if their identity is unknown (see paragraph 23 (a), (c), (d) and (e) above). It is true that when it comes to surveillance on national-security grounds, the law is couched in vaguer terms: “persons or objects related to national security” (see paragraph 23 (b) above). But the considerations in paragraph 301 above about the possibility of checking potential abuses flowing from the vagueness of the notion of national security are equally relevant here.", "303. A problem arises, however, with the lack of sufficient precision about the meaning of the term “objects” in section 12(1) of the 1997 Act (see paragraph 23 (b) and (c) above). The Act does not clarify whether the “objects” which may be placed under surveillance – either because they relate to national security or because they are necessary to identify persons who need to be placed under surveillance – need to be concrete (for instance, specific premises, a specific vehicle, or a specific telephone line). It must be noted in this connection that the secret surveillance regime in Bulgaria is intended to be a targeted regime rather than a bulk one (compare with Roman Zakharov, cited above, § 265). Although an extreme example, the case of Mustafa Sezgin Tanrıkulu (cited above, §§ 51-60) illustrates the risk of misinterpretation of insufficiently precise legal provisions normally meant to permit only targeted surveillance to in reality enable large-scale surveillance. So do the facts underlying the 2016 criminal conviction of the President of the Sofia City Court (see paragraph 56 above). In 2014 she had authorised the surveillance of an automated police information system (which itself surely contained data about many persons), apparently considering that that system was an “object” within the meaning of section 12(1) of the 1997 Act. She was then charged with authorising surveillance with respect to an “object” which did not properly fall within the statutory definition, but the courts acquitted her of that charge and found her guilty solely with respect to the time-limit of the authorisation which she had issued. Although as a result of the non-publication of the relevant judgments the reasons underlying that acquittal remain unclear, it tends to suggest than the Bulgarian courts are not averse to construing the term “objects” in section 12(1) of the 1997 Act in a rather extensive way.", "304. In the light of these considerations, it can be said that Bulgarian law complies with the requirements of Article 8 of the Convention in respect of the grounds on which secret surveillance may be resorted to and persons who can be placed under surveillance, except for the lack of a more precise definition of the term “objects” in section 12(1) of the 1997 Act (see paragraph 23 (b) and (c) above).", "(γ) Duration of secret surveillance measures", "305. Bulgarian law lays down clearly the initial and maximum duration of secret surveillance measures (see paragraph 79 above). It is also clear that surveillance beyond the initially authorised period is only possible if authorised by the competent judge, who must be presented not only with the same information as that required for the initial authorisation, but also with a full account of any surveillance results obtained so far (see paragraph 42 above). Lastly, the law sets out the circumstances in which surveillance must be stopped (see paragraph 82 above). There is, all the same, one area of concern, and that is the potential duration of the initial authorisation for surveillance on national-security grounds, which is up to two years (see paragraph 79 (b) above). The sheer length of that period, coupled with the inherently unclear contours of the notion of national security, significantly weakens the judicial control to which such surveillance must be subjected. This point has already been noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (c) above). Even if, as asserted by the Government (see paragraph 286 above), in practice the courts never issue such warrants for periods exceeding six months, that is not based on any statutory limitation.", "(δ) Authorisation procedures", "306. The relevant factors under this rubric are (a) the status of the authority which can authorise secret surveillance, and (b) the manner in which that authority reviews surveillance requests and authorises surveillance.", "‒ Standard procedure", "307. When in 2007 it reviewed the authorisation procedure under the 1997 Act, the Court found that, if strictly adhered to, that procedure provided substantial safeguards against arbitrary or indiscriminate surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 84). The sophistication of the relevant provisions has since then grown (compare paragraphs 32 to 51 and 70 to 78 above with Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 12-17). Those procedures, however, must be examined not simply as they exist on paper but also as they operate in practice, as far as that can be ascertained on the basis of reliable official sources (compare with Roman Zakharov, cited above, §§ 263 and 265).", "308. The relevant legislation in Bulgaria lays down robust safeguards intended to ensure that secret surveillance is resorted to only when that is truly justified. First, only a limited number of authorities can request surveillance, within the spheres of their respective competencies (see paragraphs 32 to 36 above). Secondly, the law appears to provide for a form of internal review preceding the submission of surveillance applications: those made by executive authorities must originate from the head of the respective authority, and public prosecutors intending to make such applications must notify their hierarchical superiors (see paragraph 37 above). Thirdly and most importantly, surveillance may be authorised only by the competent court president or an expressly authorised deputy (see paragraphs 46 and 47 above). Lastly, the authority which carries out the surveillance must, before proceeding with it, scrutinise the surveillance application for incompatibility ratione materiae or obvious mistakes and, if it spots issues in those respects, refer the application back to the judge who authorised the surveillance for reconsideration (see paragraph 73 above).", "309. By law, surveillance applications must be duly reasoned and set out both the grounds for the requested surveillance and its intended parameters (see paragraphs 39, 40 and 41 above). An application must, in particular, (a) refer to the circumstances giving cause to suspect that a relevant offence is being prepared or committed or has been committed (including when it comes to national security), (b) set out (except in relation to terrorist offences) the investigative steps already taken and the results of any previous inquiries or investigations, (c) explain (except in relation to terrorist offences) why the requisite intelligence cannot be obtained through other means or why such other means would entail exceptional difficulties, and (d) explain (except in relation to terrorist offences) why the intended duration of the surveillance is necessary (see paragraphs 39 (a), (b), (d) and (f), 40 (a), (b), (e) and (f), and 41 (a) above). All materials on which the application is based must either be enclosed with it from the outset (for applications made outside criminal proceedings), or made available to the competent judge upon request (for applications made in the course of criminal proceedings) (see paragraph 44 above). When examining the application, the judge must review whether all legal prerequisites are in place and rule by means of a reasoned decision (see paragraph 51 above). One possible shortcoming at that stage is that although surveillance-warrant proceedings must of necessity be conducted without notice to the persons intended to be placed under surveillance, the requesting authority is under no duty to disclose to the judge fully and frankly all matters relevant to the well-foundedness of its surveillance application, including matters which may weaken its case.", "310. Nonetheless, in spite of this latter potential shortcoming, the Court’s finding in Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 84) that, if strictly adhered to, the authorisation procedure in Bulgaria provides substantial safeguards against arbitrary or indiscriminate surveillance can only be confirmed. But it must also be seen whether those safeguards are being properly applied in practice.", "311. The two courts in Bulgaria which have issued the highest number of surveillance warrants during the past decade were, by a large margin, the Sofia City Court (until 2015) and the Specialised Criminal Court (since 2015) (see the table under paragraph 49 above). According to an official report published in early 2017, until April 2015 all judges in the Sofia City Court issuing surveillance warrants gave no reasons whatever for their decisions, and in April-August 2015 gave, with few exceptions, only “blanket and generalised” reasons (see paragraph 59 (h) and (i) above). That is confirmed by the two 2012 and 2013 surveillance warrants issued by that court submitted by the applicants (see paragraph 61 above). It is true that after the scandal which erupted in 2015 in relation to the manner in which the Sofia City Court was processing surveillance applications (and which later led to the dismissal and criminal conviction of its president), the competent judges of that court began systematically giving reasons for their decisions to issue surveillance warrants (see paragraphs 56, 57 and 60 above). At about the same time, however, the number of surveillance applications addressed to that court sharply declined, and the largest number of such applications started being submitted to the Specialised Criminal Court (see the table under paragraph 49 above). Indeed, since 2018 the Specialised Criminal Court has been issuing roughly half of all surveillance warrants in Bulgaria (ibid.).", "312. As is apparent from two recent judgments of the Specialised Criminal Court, about thirty surveillance warrants issued by its president and vice-presidents had completely blanket contents, were couched in terms which were general enough to be capable of relating to any possible surveillance application, and lacked any reference to the specific case to which they related except the number of the application (see paragraphs 64 and 65 above). There is no reason to think that those warrants were somehow exceptional and represent anything other than the normal practice in that court.", "313. It can thus be concluded that no proper reasons have been given for the decisions to issue the vast majority of all surveillance warrants issued in Bulgaria in the past decade. This is of particular relevance as the contemporaneous provision of reasons is a vital safeguard against abusive surveillance (see Dragojević v. Croatia, no. 68955/11, §§ 88-101, 15 January 2015; Dudchenko v. Russia, no. 37717/05, §§ 97-98, 7 November 2017; and Liblik and Others v. Estonia, nos. 173/15 and 5 others, §§ 137-41, 28 May 2019). This is because the provision of reasons, even if succinct, is the only way of ensuring that the judge examining a surveillance application has properly reviewed the application and the materials which support it, and has truly directed his or her mind to the questions whether the surveillance would be a justified and proportionate interference with the Article 8 rights of the person(s) against whom it will be directed, and of any person(s) likely to be collaterally affected by it. In Bulgaria, that is particularly important in view of the applicants’ allegation – which seems corroborated by, inter alia, some recent developments (see paragraph 67 above) – that criminal proceedings can be opened in a frivolous and abusive manner, chiefly with a view to making it possible to place someone under surveillance for ulterior motives (see paragraph 279 above). As demonstrated by the arrangements in the Sofia City Court since August 2015, the provision of reasons, regardless of whether a surveillance application is allowed or refused, is not unachievable in practice, in spite of the fairly short time-limits for ruling on such applications (see paragraph 60 above).", "314. It is true that, as noted in the two above-mentioned judgments of the Specialised Criminal Court (see paragraphs 64 and 65 above), the absence of reasons cannot automatically lead to the conclusion that the judges issuing surveillance warrants have not properly reviewed the applications for them. But three factors raise serious misgivings in that respect.", "315. The first such factor is the sheer workload entailed by such applications, which by law can only be dealt with by the presidents or vice ‑ presidents of the respective courts. The National Bureau has repeatedly drawn attention to the inadequate staff and resources placed at the disposal of the Specialised Criminal Court to process properly all surveillance applications submitted to its president and vice-presidents (see paragraph 50 above). The Specialised Criminal Court has itself also drawn attention to the ever-increasing workload entailed by the large volume of surveillance applications submitted to it (see paragraphs 62 and 63 above), and the issue has already been highlighted by the Committee of Ministers in the context of its supervision of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (b) above).", "316. The second factor is the high percentage of surveillance applications which are being allowed (see the table under paragraph 55 above).", "317. The third factor is the express position of the Specialised Criminal Court of Appeal – which has direct supervisory jurisdiction over the Specialised Criminal Court – that a judge dealing with a surveillance application need only check whether the formal requirements to allow it are satisfied, without engaging with the materials in support of the application (see paragraph 66 above).", "318. All of the above cannot be dismissed as a mere technicality which does not reflect on the substantive operation of the system of secret surveillance in Bulgaria. There is evidence which tends to suggest that the manner in which the competent judges go about examining surveillance applications has resulted in actual instances of unjustified surveillance.", "319. First, the president of the Sofia City Court was dismissed in connection with the manner in which she had organised the processing of such applications in that court at the time when it was the court in Bulgaria which was issuing the highest number of surveillance warrants (see paragraph 57 above). She was also criminally convicted of deliberately authorising surveillance in breach of the statutory requirements (see paragraph 56 above). Although no such charges have been laid against other judges of the Sofia City Court, there is evidence that the problem was far more generalised (see paragraphs 58 and 59 (c), (d), (e), (f) and (g) above).", "320. As for the Specialised Criminal Court, it is noteworthy that in July 2021 the Bulgarian Parliament created an ad hoc committee to investigate the possibly unlawful and unjustified use of special means of surveillance with respect to opposition politicians, journalists, and hundreds of participants in the 2020 anti-government protests in Bulgaria, on the basis of warrants issued by that court. Although that committee’s report, which was finalised in September 2021, is not yet publicly available, the statements which the Minister of Internal Affairs made in Parliament at the time when the committee was being set up already suggest that the problem with the absence of proper judicial scrutiny has seriously affected the surveillance operations authorised by the Specialised Criminal Court (see paragraph 67 above).", "321. It follows that the Court cannot be satisfied that the procedures for authorising secret surveillance, as operating in practice in Bulgaria, effectively guarantee that such surveillance is authorised only when genuinely necessary and proportionate in each case (compare with Roman Zakharov, cited above, §§ 262-63).", "322. The additional vetting carried out by the surveillance authorities after the grant of judicial authorisation (see paragraph 73 above) cannot remedy that lack of proper judicial scrutiny, for two reasons. First, that vetting is limited to incompatibility ratione materiae or obvious mistakes (ibid.). Secondly, the instances in which that additional safeguard has been triggered are apparently extremely rare (see paragraph 75 above).", "‒ Urgent procedure", "323. By contrast, it does not appear that a discrete issue arises with regard to the urgent procedure, under which special means of surveillance may be deployed without a prior judicial warrant if there is an immediate risk that a serious intentional offence is about to be committed, or a risk of an immediate threat to national security (see paragraph 77 above). When the authorities resort to that urgent procedure, the competent judge must within twenty-four hours assess and approve retrospectively the need for them to have done so; otherwise the surveillance operation must stop. The judge is not required to just review the need to pursue the surveillance, but must also validate the surveillance which has already taken place, as well as its results (contrast Roman Zakharov, cited above, § 266, and Konstantin Moskalev v. Russia, no. 59589/10, §§ 51-52, 7 November 2017). There have moreover been few instances in which that procedure has been used, and in 2018-20 those even diminished to a negligible percentage (see paragraph 78 above).", "(ε) Procedures for storing, accessing, examining, using, communicating and destroying surveillance data", "‒ In general", "324. In Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 86), the Court found that there was an apparent lack of regulations specifying with an appropriate degree of precision the manner of screening of the information obtained through secret surveillance, or the procedures for preserving its integrity and confidentiality and its destruction.", "325. The 1997 Act and the Code of Criminal Procedure have since then been amended, and now contain provisions dealing with various aspects of those issues. Lacunae remain, however, in several areas.", "326. First, while those provisions specify the way in which information from the “primary recording” is to be reproduced in the “derivative data carrier” and then in any evidentiary material (see paragraphs 87 to 91 above), they say nothing about the way in which the “primary recording” and the “derivative data carrier” are to be stored. Nor do they circumscribe in any way the officials within the relevant authorities who are entitled to access them, or lay down any safeguards ensuring the integrity and confidentiality of those materials. It must be noted in this connection that since the repeal in August 2013 of point 8 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002, information obtained by using special means of surveillance is no longer classified (see paragraph 102 above). It is thus apparently not subject to the rules governing the protection of such information – although the Technical Operations Agency maintained that despite the amendment both the “primary recording” obtained as a result of surveillance and the “derivative data carrier” remained classified information (see paragraph 104 above). As noted in paragraph 296 above, the internal rules to which the Government referred (see paragraphs 283 and 288 above) have not been published. They were not even disclosed in these proceedings (compare with Big Brother Watch and Others, cited above, § 423).", "327. Moreover, aside from the general rule that the content of the “derivative data carrier” must fully match that of the “primary recording” (see paragraph 89 in fine above), no publicly available rules exist about the way in which the “primary recording” and the “derivative data carrier” are to be examined: how the authorities are to sift through the information in them and decide which parts are relevant and are to be kept and used as evidence, and which parts are irrelevant and are to be discarded. Although the rules governing the possible use of materials obtained as a result of secret surveillance say that any such materials, including surplus information, can be used only to prevent, detect or prove serious intentional criminal offences, or to protect national security (see paragraphs 18, 84, 100 and 101 above), it is thus unclear how compliance with that limitation is ensured in practice.", "328. The rules governing the destruction of the “primary recording” and the “derivative data carrier” appear sufficiently clear, although a discrepancy exists between the position in relation to materials obtained as a result of surveillance outside the framework of already pending criminal proceedings and the position in relation to materials obtained in the course of criminal proceedings: the law provides for automatic destruction and subsequent report to the judge who has authorised the surveillance in the former case, and for a report to that judge and destruction by his or her order in the latter case (see paragraphs 94 to 99 above).", "329. There are, however, no special rules about the storage or destruction of the resulting evidentiary material. At least two copies of that evidentiary material are produced in each case (which appear to consist in computer files containing audio- or video-recordings – see paragraph 90 above) and of the written records which accompany them (see paragraph 91 above). The first copy is sent to the judge who has issued the surveillance warrant (ibid.). The second copy is kept first by the requesting authority and then, if criminal proceedings are opened in connection with it, it is transferred to the case file of those proceedings – first the case file kept by the prosecuting authorities and then the case file kept by the criminal court(s) (see paragraph 92 above). It appears that both copies are stored and destroyed together with the case files of which they form part. It cannot be accepted that this provides an appropriate level of protection for information which may concern intimate aspects of someone’s private life or otherwise permit a disproportionate invasion into the privacy of the people concerned or in the “correspondence” of any legal persons concerned. The scenario in which no criminal proceedings are opened also throws up many uncertainties.", "330. Nor are there any publicly available rules governing the storage of information obtained through surveillance on national-security grounds – which must be kept by the relevant requesting authority for fifteen years after the end of the surveillance (see paragraph 98 above).", "331. The Government did not argue that all or some of the above gaps have been filled by the provisions added in 2019 to the 2002 Act to transpose Directive (EU) 2016/680 (see paragraph 219 above), and it is unclear whether the competent authorities have regard to those data-protection rules when processing information obtained as a result of secret surveillance. Moreover, those rules cannot provide a safeguard with respect to information relating to legal persons (see paragraphs 216 and 239 above).", "332. The apparent lack of clear regulation in all these fields, and of proper safeguards, makes it possible for information obtained as a result of secret surveillance to be misused for ends which have little to do with the statutory purpose.", "‒ With regard to surveillance affecting legal professional privilege", "333. A further issue in this regard arises from the absence of legal provisions specifying with an appropriate degree of precision the fate of information resulting from secret surveillance which may have affected materials subject to legal professional privilege. It is open to question whether the Chief Prosecutor’s instruction on the point, which was a purely internal act issued pursuant to his power to make instructions governing the work of the prosecuting authorities (see paragraphs 27 above), can be seen as “law” for the purposes of Article 8 § 2 of the Convention (see, mutatis mutandis, Silver and Others v. the United Kingdom, 25 March 1983, § 86, Series A no. 61; Malone v. the United Kingdom, 2 August 1984, §§ 68 and 79, Series A no. 82; and Amann v. Switzerland [GC], no. 27798/95, § 75, ECHR 2000-II). It is moreover doubtful whether that instruction lays down sufficient safeguards in respect of secret surveillance directed against lawyers, since it simply makes this subject to the existence of a reasonable suspicion that they have committed an offence (see paragraph 28 above), which is in principle a requirement for all surveillance, not just that directed against lawyers (see paragraphs 39 and 54 above). The instruction also seems to contradict the express terms of section 33(1), (2) and (3) of the Bar Act 2004, according to which all lawyers’ records and communications, regardless of their form, are privileged without exception (see paragraph 26 above). Nor does the instruction lay down enough safeguards with respect to materials obtained as a result of accidentally intercepted lawyer-client communications (see, mutatis mutandis, R.E. v. the United Kingdom, no. 62498/11, §§ 138-41, 27 October 2015, and Dudchenko v. Russia, no. 37717/05, § 107, 7 November 2017). Its only provision dealing with the issue, point 13, simply says that if the authorities intercept the conversation of a lawyer with a client or with another lawyer, and that conversation touches upon a client’s defence, they must not prepare evidentiary material on its basis, unless the surveillance reveals that the lawyer has him- or herself engaged in criminal activity (see paragraph 29 above). That leaves open the question how precisely any such intercept materials are to be destroyed, as expressly required by section 33(3) of the Bar Act 2004 (see paragraph 26 above). Nor does the instruction appear to encompass all sorts of lawyer-client communications: by its terms, point 13 of the instruction applies solely to communications relating to a client’s defence, which implies already pending litigation, and perhaps even just criminal proceedings.", "(στ) Oversight arrangements", "334. The relevant factors for deciding whether the oversight arrangements are adequate are (a) the independence of the supervisory authorities, their competences, and their powers (both to access materials and to redress breaches, in particular order the destruction of surveillance materials), and (b) the possibility of effective public scrutiny of those authorities’ work.", "335. In Bulgaria, three authorities can supervise the use of special means of surveillance: (a) the judge who has issued the respective surveillance warrant; (b) the National Bureau; and (c) a special parliamentary committee (see paragraphs 106 to 135 above).", "336. That system’s sophistication goes well beyond the arrangements condemned by the Court in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 87-88). It nevertheless falls short of the requisite standard of effectiveness in several respects.", "337. The judge who has issued the surveillance warrant is not in a position to ensure effective oversight. It is true that he or she must be informed of the end of the respective surveillance operation (see paragraphs 105 and 107 above, and contrast Roman Zakharov, cited above, § 274), and given a report about it (see paragraph 106 above). But in all instances of surveillance outside already pending criminal proceedings that judge has no power to order remedial measures, such as the destruction of surveillance materials. More importantly, he or she is not empowered or expected to carry out on-site inspections, and performs his or her supervisory duties solely on the basis of the report submitted by the authorities. Also, in view of the high workload of the judges concerned (see paragraph 315 above), it is open to doubt whether that supervision could be effective in practice. In sum, although a valuable safeguard, that mechanism is insufficient to ensure that surveillance powers are not being abused.", "338. For its part, the main supervisory body, the National Bureau, suffers from several shortcomings undermining its effectiveness in practice.", "339. First, there is no guarantee that all of its members are sufficiently independent vis-à-vis the authorities which they must oversee. By law, individuals with professional experience in the law-enforcement or the security services may become members of the National Bureau (see paragraph 109 above). After serving their five-year term (which, granted, can be renewed), they are entitled to regain their previous posts (see paragraph 111 above). This potential “revolving door” mechanism can raise misgivings about the practical independence of such members of the Bureau and about possible conflicts of interests on their part (see, mutatis mutandis, Centrum för rättvisa, cited above, § 359). Indeed, the Bureau’s current chairperson came directly from the State Agency for National Security, and the deputy chairperson who was elected in 2018 and resigned in mid-2021 (after having been placed under sanctions by the authorities of the United States of America on serious corruption allegations) had been employed by the security services for more than two and a half decades before joining the Bureau (see paragraphs 112 and 115 above).", "340. Another aspect of the National Bureau’s organisation raises further misgivings in this respect. Before being appointed to their posts, its members must undergo security vetting by one of the very authorities whose work the Bureau is overseeing – the State Agency for National Security (see paragraphs 109 and 110 above). This creates an obvious conflict of interests for that Agency. If it later revokes the security clearance of members of the Bureau, they must be removed from their post since they automatically cease being eligible to occupy it; that already happened once in 2017-18 (see paragraphs 111 (c) and 114 above). Although the Agency’s decision to revoke a security clearance is amenable to judicial review, that possibility for it to influence the Bureau’s membership is capable of affecting the Bureau’s independence and the objectivity and thoroughness of its supervisory work, especially with regard to that Agency.", "341. The issue with the National Bureau’s independence vis-à-vis the authorities which it oversees has already been highlighted by the Committee of Ministers of the Council of Europe in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (e) above).", "342. Secondly, misgivings arise about the qualifications of some of the members of the National Bureau. Only one of its current five members has legal training and experience (see paragraph 112 above, and contrast Big Brother Watch and Others, cited above, § 407). This point has also been noted by the Committee of Ministers (see paragraph 229 (e) above).", "343. Thirdly, it does not appear that when carrying out on-site inspections members of the National Bureau and its employees are able to have unfettered access to all relevant materials held by the prosecuting authorities and the State Agency for National Security, especially materials enabling them to check the well-foundedness of surveillance applications (reasonable suspicion and proportionality in each case) (see paragraphs 118 and 119 above). The Bureau has also complained of the repeated provision of incorrect information by the main surveillance authority in Bulgaria, the Technical Operations Agency (see paragraph 118 in fine above). Such obstruction seriously weakens the Bureau’s oversight capabilities, and cannot be seen as justified (compare, mutatis mutandis, with Roman Zakharov, cited above, § 281). Providing Bureau members with access to all materials in the case file of a criminal case cannot prejudice ongoing investigations since those members have the highest security clearance and are bound by professional secrecy (see paragraphs 109, 110 and 129 above). The Committee of Ministers has already drawn attention to that issue as well (see paragraph 229 (e) above).", "344. Lastly, the National Bureau has no power to order remedial measures, such as the destruction of surveillance materials. It can only bring irregularities to the attention of the heads of the relevant authorities and the prosecuting authorities, or of the Supreme Judicial Council, for irregularities attributable to judges (see paragraphs 122 and 123 above). The Bureau’s power to give instructions appears to relate solely to instructions intended to improve practices rather than instructions in specific cases, as attested in particular by their limited number per year (see paragraphs 120 and 121 above).", "345. The special parliamentary committee is not empowered to order remedial measures either (see paragraph 127 above). Moreover, unlike the National Bureau, it does not appear to conduct regular inspections (see paragraph 128 above and compare with the table under paragraph 124 above).", "346. The Government did not argue, and there is no indication, that the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council have so far played any role in the oversight of the system of secret surveillance by virtue of their powers under 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraphs 225 and 226 above).", "347. In view of the defects outlined above, the system of overseeing secret surveillance in Bulgaria as it is currently organised does not appear capable of providing effective guarantees against abusive surveillance.", "(ζ) Notification", "348. The relevant factors under this rubric are (a) when is such notification possible, and (b) whether it is a prerequisite for using the available remedies.", "349. As already noted in paragraph 267 above, the National Bureau must notify someone who has been placed under secret surveillance only if that has happened unlawfully, whereas under the Court’s case-law such notification is, in the absence of a remedy available without prior notification, required in all cases, as soon as it can be made without jeopardising the purpose of the surveillance (see Klass and Others v. Germany, 6 September 1978, § 58, Series A no. 28; Weber and Saravia v. Germany (dec.), no. 54934/00, § 135, ECHR 2006-XI; and, more recently, Roman Zakharov, cited above, § 287). It is telling in that respect that the number of notifications made by the Bureau each year relative to the annual number of surveillance warrants is very small (compare the tables under paragraphs 55 and 135 above). Moreover, the Bureau is only required to notify individuals, not legal persons (see paragraph 130 above) – a point already noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (e) in fine above).", "350. The Government did not argue, and there is no indication, that there have so far been instances in which such notification has been made by virtue of section 54(4) of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 220 above). Nor does it appear that there have so far been any instances in which people have been able to obtain information about secret surveillance under section 55(3) in fine, section 56(6) in fine or section 57(1) and (2) of the same Act, as worded after the 2019 amendment (see paragraphs 221 and 224 above).", "351. At the same time, as already noted in paragraphs 266 to 271 above, notification by the National Bureau is normally a prerequisite to bringing a claim for damages under section 2(1)(7) of the 1988 Act; the only other situation in which such a claim may become available is when the secret surveillance has come to light because the materials from it have been used in criminal proceedings.", "(η) Remedies", "352. In 2009 Bulgaria put in place a dedicated remedy in respect of secret surveillance: a claim for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above). But that remedy, although effective in some scenarios, suffers from three serious limitations outlined in paragraphs 266 to 273 above: (a) it has so far not been able to operate in the absence of prior notification by the National Bureau that someone has been placed under surveillance, (b) it does not entail an examination of the necessity for the surveillance in each case, and (c) it is not open to legal persons.", "353. Moreover, the only form of relief available in such proceedings is money damages (see paragraph 139 above); the courts have no power to order the destruction of surveillance material (contrast, for instance, Big Brother Watch and Others, cited above, § 413). The Committee of Ministers has already highlighted this point in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (f) in fine above).", "354. As noted in paragraph 275 above, the novel remedies available under the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraphs 221, 224 and 227 above), have so far not been shown to be effective in relation to secret surveillance, and are moreover not available to legal persons.", "355. It follows that Bulgarian law does not provide an effective remedy to all persons suspecting, without concrete proof, that they have been unjustifiably subjected to secret surveillance. It also follows that the Government’s objection that domestic remedies have not been exhausted, which was joined to the merits (see paragraph 259 above), must be rejected.", "(θ) Conclusion", "356. Although significantly improved after they were examined by the Court in Association for European Integration and Human Rights and Ekimdzhiev (cited above), the laws governing secret surveillance in Bulgaria, as applied in practice, still fall short of the minimum safeguards against arbitrariness and abuse required under Article 8 of the Convention in the following respects:", "(a) the internal rules governing the storage and destruction of materials obtained via surveillance have not been made accessible to the public (see paragraph 296 in fine above);", "(b) the term “objects” in section 12(1) of the 1997 Act is not defined in a way so as ensure that it cannot serve as a basis for indiscriminate surveillance (see paragraph 303 above);", "(c) the excessive duration of the initial authorisation for surveillance on national-security grounds – two years – significantly weakens the judicial control to which such surveillance is subjected (see paragraph 305 above);", "(d) the authorisation procedure, as it operates in practice, is not capable of ensuring that surveillance is resorted to only when “necessary in a democratic society” (see paragraphs 307 to 322 above);", "(e) a number of lacunae exist in the statutory provisions governing the storing, accessing, examining, using, communicating and destroying of surveillance data (see paragraphs 326 to 332 above);", "(f) the oversight system, as currently organised, does not comply with the requirements of sufficient independence, competence and powers (see paragraphs 335 to 347 above);", "(g) the notification arrangements are too narrow (see paragraphs 349 to 351 above); and", "(h) the dedicated remedy, a claim under section 2(1)(7) of the 1988 Act, is not available in practice in all possible scenarios, does not ensure examination of the justification of each instance of surveillance (by reference to reasonable suspicion and proportionality), is not open to legal persons, and is limited in terms of the relief available (see paragraphs 266 to 273 and 352 to 355 above).", "357. Those shortcomings in the legal regime appear to have had an actual impact on the operation of the system of secret surveillance in Bulgaria. The recurring scandals relating to secret surveillance (see paragraphs 56, 57, 59 and 67 above) suggest the existence of abusive surveillance practices, which appear to be at least in part due to the inadequate legal safeguards (see Association for European Integration and Human Rights and Ekimdzhiev, § 92, and Roman Zakharov, § 303, both cited above).", "358. It follows that the Bulgarian laws governing secret surveillance do not fully meet the “quality of law” requirement and are incapable of keeping the “interference” entailed by the system of secret surveillance in Bulgaria to what is “necessary in a democratic society”.", "359. There has therefore been a breach of Article 8 of the Convention.", "RETENTION AND ACCESSING OF COMMUNICATIONS DATA", "360. The applicants also complained that the system of retention and subsequent accessing of communications data in Bulgaria did not meet the requirements of Article 8 of the Convention, and that they did not have an effective remedy in that respect, in breach of Article 13 of the Convention.", "361. In the light of the Court’s case-law (see Roman Zakharov, cited above, § 307), this complaint likewise falls to be examined solely under Article 8 of the Convention, whose text, so far as relevant, has been set out in paragraph 247 above.", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) Victim status of the applicants", "(i) The Government", "362. The Government submitted that the applicants could not claim to be victims of a violation of their right to respect for their private life or correspondence. That was because under Bulgarian law communications data could be accessed only in connection with serious criminal offences, even when national security was at stake. Moreover, since in Bulgaria legal persons could not bear criminal liability, the two applicant organisations were outside the scope of the contested laws.", "363. The Government went on to argue that the applicants, who all had the requisite legal expertise, could have urged the special parliamentary committee to check whether their retained communications data had been accessed unlawfully. That committee was also bound to inform individuals of unlawful requests for access, or access, of their communications data on its own initiative. Individuals could also seek information on the point under the 2002 Act – which, as amended in 2019, had transposed Directive (EU) 2016/380 – or under the GDPR, from the communications service providers themselves or from the Commission for Protection of Personal Data. The notification procedure was coupled with possibilities to complain to that Commission and seek damages from the communications service providers or from the relevant authorities under the relevant provisions of the 2002 Act or the general law of tort. Since those remedies were effective, the applicants’ failure to use them stripped them of their victim status and rendered their complaint an actio popularis.", "(ii) The applicants", "364. The applicants argued that in view of the similarities between secret surveillance and the retention and subsequent accessing of communications data, the approach to the question whether they could claim to be victims of interference with their rights under Article 8 of the Convention on account of the latter had to be the same as the one taken by the Court with respect to the former. They all used electronic communications services, and the laws in issue applied to all such users, including legal persons. The fact that those laws enabled the authorities to access retained data only in connection with serious criminal offences – a rule which had in any event been flouted on several reported occasions – did not detract from that position, especially in the light of the many thousands of access applications in each of the recent years and the feeble oversight arrangements. The applicants further underlined that the retained data enabled the profiling of all persons in the country. Its unlawful use in disciplinary proceedings against judges and prosecutors in 2010-11 had amply illustrated the potential for abuse.", "365. Bulgarian law did not lay down effective procedures whereby the applicants could obtain information about the retention or accessing of their communications data or compensation in respect of that. They could hence claim to be victims of a violation owing to the mere existence of laws permitting the retention and accessing of communications data.", "(b) Exhaustion of domestic remedies", "366. Based on the arguments summarised in paragraph 363 above, the Government further submitted that the applicants had not exhausted domestic remedies.", "367. The applicants disputed that assertion, noting that when they had lodged their application, neither the Commission for Protection of Personal Data nor the special parliamentary committee had had any functions relating the retention or accessing of communications data. It had therefore not been open to them to complain to either of those authorities about the matter.", "The Court’s assessment", "368. Similarly to the position in relation to the complaint about secret surveillance (see paragraph 259 above), both of the Government’s objections are so closely linked to the substance of the applicants’ complaint that they must be joined to the merits.", "369. The complaint is, moreover, not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.", "MeritsThe applicants’ victim status and the existence of an interference", "The applicants’ victim status and the existence of an interference", "The applicants’ victim status and the existence of an interference", "(a) The parties’ submissions", "370. The parties’ submissions have been summarised in paragraphs 362 to 365 above.", "(b) The Court’s assessment", "371. Under Bulgarian law, all communications service providers in the country must retain all the communications data of all of their users for six months, with a view to making that data available to the authorities for certain law-enforcement purposes (see paragraphs 161 and 163 above). Various authorities may then access that data (see paragraphs 167 to 169 above). It is appropriate to analyse those two steps separately, since each of them may affect the rights guaranteed under Article 8 of the Convention in different ways and to different degrees (see, mutatis mutandis, Centrum för rättvisa, §§ 239-43, and Big Brother Watch and Others, §§ 325-29, both cited above).", "(i) Retention of communications data by communications service providers", "372. It is settled that the mere storing of data relating to someone’s private life amounts to interference with that individual’s right to respect for his or her “private life” (see, with respect to personal data relating to the use of communications services, Breyer v. Germany, no. 50001/12, § 81, 30 January 2020; Centrum för rättvisa, cited above, § 244, and Big Brother Watch and Others, cited above, § 330). All types of communications data at issue in the present case – subscriber, traffic and location data – can relate, alone or in combination, to the “private life” of those concerned. Bulgarian law requires all communications service providers in the country to retain the entirety of that data of all users for potential subsequent access by the authorities (see paragraph 161 above). It has not been disputed that the two individual applicants use such services. It follows that this legally mandated retention is in itself an interference with their right to respect for their “private life”, irrespective of whether the retained data are then accessed by the authorities.", "373. That retention amounts also to interference with those applicants’ right to respect for their correspondence. The Court has already held that the storage of traffic and location data relating to a mobile telephone line amounts to interference with the right of the person using that line to respect for his “correspondence” (see Ben Faiza v. France, no. 31446/12, §§ 66-67, 8 February 2018). There is no reason to hold otherwise with respect to other types of communications, such as electronic communications, or with respect to communications data more generally.", "374. As for the two applicant organisations, it is settled that the communications of legal persons are covered by the notion of “correspondence” in Article 8 § 1 of the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, § 60, and Liblik and Others, § 110, both cited above). It has not been disputed that the two organisations likewise use communications services in Bulgaria. It follows that the legally mandated retention of the communications data of all users of communications services in the country is interference with their right to respect for their “correspondence”.", "375. The interference, although carried out by private persons – the communications service providers – is required by law. Indeed, service providers who fail to comply with their statutory data-retention obligations are liable to sanctions (see paragraph 161 in fine above). It follows that the interference is attributable to the Bulgarian State ( compare with Digital Rights Ireland and Others, cited in paragraph 233 above, § 34 ).", "(ii) Accessing of retained communications data by the authorities", "376. Access by the authorities to the retained communications data constitutes a further interference with right to respect for one’s private life and one’s communications under Article 8 of the Convention (see, mutatis mutandis, Centrum för rättvisa, § 244, and Big Brother Watch and Others, § 330, both cited above). But it is plain that not all retained communications data is subsequently accessed by the authorities. Since it is impossible for an individual or a legal person to know for certain whether their data has been so accessed, it is appropriate to analyse the question whether the applicants may claim that they are victims of interference with their rights under Article 8 owing to the mere existence of laws permitting authorities to do so with reference to the same criteria as the ones used in relation to secret surveillance: (a) the scope of the laws permitting such access and (b) the availability of an effective remedy (see paragraphs 262 to 275 above).", "(α) Scope of the relevant law", "377. Under the relevant statutory provisions, the authorities may access the retained communications data of anyone if that is necessary for (a) national-security purposes; (b) the prevention, detection or investigation of serious criminal offences; (c) the tracing of people who have been finally sentenced to imprisonment with respect to a serious criminal offence or who have fallen or could fall in a situation which puts their life or health at risk; and (d) (this applies solely to cell ID) the carrying out of search-and-rescue operations with respect to people in distress (see paragraph 163 above). Since the communications data of anyone in Bulgaria can theoretically become necessary for one or more of those purposes, all four applicants, including the applicant organisations, can possibly be affected by the contested legislation.", "(β) Availability of an effective remedy", "378. The next question is whether there exists an effective remedy which can alleviate the suspicion among the general public that retained communications data is being abusively accessed and used.", "379. Neither the 2007 Act nor Article 159a of the Code of Criminal Procedure provide for a remedy with respect to the retention or accessing of communications data.", "380. Nothing suggests that the remedies under section 38(1) and (7), section 39(1) and (2), and section 82(1) of the 2002 Act, as worded after the 2019 amendment intended to transpose Directive (EU) 2016/680 (see paragraphs 218 and 227 above), have so far been used to provide redress with respect to the retention of communications data by communications service providers or with respect to its accessing and use by the authorities. In the absence of reported decisions by the Bulgarian courts, it is not for this Court to say whether or how those remedies, which are general in application, can operate in such cases. It is true that those remedies are novel, and that they are part of a branch of law which has only developed relatively recently. But it was for the Government to explain their manner of operation, and as far as possible support their explanations with concrete examples (see, mutatis mutandis, Roman Zakharov, § 295, and Mustafa Sezgin Tanrıkulu, §§ 28-29, both cited above). The Government were, however, vague on the point, contenting themselves to say that the 2019 amendment had introduced provisions governing the liability of communications service providers and the relevant authorities in respect of retained and accessed communications data (see paragraphs 363 and 388 above, and contrast the circumstances in Ringler v. Austria (dec.) [Committee], no. 2309/10, §§ 12-13 and 51-54, 15 May 2020). In the absence of further particulars about the actual operation of those remedies with respect to communications data, it cannot be accepted that they are currently effective in that respect. Moreover, those remedies are not open to legal persons (see paragraphs 216 and 239 above).", "381. Nor is there any evidence that a remedy is available under the general law of tort.", "382. It follows that the public’s misgivings about the threat of abusive accessing and use of communications data by the authorities cannot be sufficiently dispelled by the presence of effective remedies in that respect.", "(γ) Conclusion", "383. In view of the above considerations, there is no need to inquire whether the applicants are at risk of having their retained communications data accessed by the authorities owing to their personal situation (see, mutatis mutandis, Centrum för rättvisa, cited above, §§ 175-76).", "384. It follows that an examination of the laws governing the accessing of retained communications data by the authorities in the abstract is justified. It also follows that the Government’s objection that the applicants may not claim to be victims of a violation of Article 8 of the Convention allegedly caused by the mere existence of such laws, which was joined to the merits (see paragraph 368 above), must be rejected.", "Justification for the interference", "(a) The parties’ submissions", "(i) The applicants", "385. The applicants submitted that the manner in which the law regulated the authorisation of access to communications data – in particular, the lack of any requirement for the authority seeking access to provide evidence in support of its application – did not ensure enough guarantees against abuse. There was, moreover, no requirement for ongoing judicial oversight. The publicly available judicial decisions on access applications, many of which contained only stereotyped reasoning, showed that judicial control in such cases was formal and provided few guarantees against abuse.", "386. The remaining oversight arrangements were likewise insufficient. The special parliamentary committee was under no duty to examine individual complaints, and there were no publicly available rules governing its work. It was hence unsurprising that although the authorities made tens of thousands of requests for access to retained communications data each year, that committee had so far received only between one and four complaints annually. Even so, the committee’s reports had recorded worrying breaches of the law. For its part, the Commission for Protection of Personal Data was simply gathering statistics about the retention of communications data. Its reports did not mention any instances in which it had examined individual complaints, and it was unclear how the GDPR could come into play in connection with that.", "387. Moreover, the law did not require notification in cases of lawful access to retained communications data. That was a serious deficiency since the way in which the lawfulness of the access in each case was being assessed remained unclear. In practice that meant that if a court had issued an access warrant, those concerned would then not be notified of the access and would thus be unable to use any remedies in relation to it. Claiming damages under the GDPR was impossible, since it did not apply to data processing by the authorities for law-enforcement purposes. Unlike the position with respect to secret surveillance, the 1988 Act did not envisage liability of the courts or the prosecuting authorities in connection with retained communications data. But even if the law had made it possible to claim damages in this context, it would in practice be hard for individuals or legal persons alike to show non-pecuniary damage on account of such matters since they could not prove that an action of which they had remained unaware had caused them negative emotions. Pecuniary damage was, for its part, nearly impossible to establish. To be effective, a remedy in that domain had to address those points, for instance by providing for lump-sum compensation.", "(ii) The Government", "388. The Government submitted that the law specified clearly what communications data was to be retained, for how long, and for what purposes. A 2019 amendment implementing the GDPR and Directive (EU) 2016/680 had brought in stringent data-protection safeguards and provisions governing the liability of communications service providers and the authorities, and had expanded the powers of the supervisory authorities. The relevant rules were foreseeable and contained enough safeguards against arbitrariness.", "389. This type of data retention was done in the interests of national security and public safety, and for the prevention of crime.", "390. As for its necessity, there was no European consensus about the need to retain communications data or its modalities. Even after the CJEU’s judgments in Digital Rights Ireland and Others and Tele2 Sverige and Watson and Others (see paragraphs 233 and 240 above), many member States of the European Union had not fully repealed their laws providing for the generalised retention of communications data, since that was a valuable instrument for combatting serious crime. A more restrictive approach could prevent the proper operation of that instrument. The CJEU had not altogether dismissed the importance of retaining communications data, and the matter remained within the States’ margin of appreciation.", "391. In Bulgaria, retained communications data could be accessed only in connection with serious offences and on the basis of a judicial warrant. The law set out in an exhaustive way the authorities which could seek such warrants, and required them to give enough reasons why they should be granted. If the materials in support of the warrant application were insufficient, judges could request further information, and their decisions in such cases were usually well reasoned. The possibility for communications service providers to refuse access to data retained by them if the necessary prerequisites were absent was an additional safeguard against abuse.", "392. There were also clear rules on the destruction of retained data, and the judge who had issued an access warrant had to be informed of that destruction. The whole process was moreover overseen by the Commission for Protection of Personal Data and the special parliamentary committee.", "393. Lastly, as regards notification arrangements and remedies, the Government referred to their submissions on the applicants’ victim status (see paragraph 363 above).", "(b) The Court’s assessment", "(i) General principles", "394. In view of the technological and social developments in the past two decades in the sphere of electronic communications, communications data can nowadays reveal a great deal of personal information. If obtained by the authorities in bulk, such data can be used to paint an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who that person has interacted with (see Centrum för rättvisa, § 256, and Big Brother Watch and Others, § 342, both cited above). The acquisition of that data through bulk interception can therefore be just as intrusive as the bulk acquisition of the content of communications, which is why their interception, retention and search by the authorities must be analysed by reference to the same safeguards as those applicable to content (see Centrum för rättvisa, § 277, and Big Brother Watch and Others, § 363, both cited above).", "395. Here, it must be added that by the same token, the general retention of communications data by communications service providers and its access by the authorities in individual cases must be accompanied, mutatis mutandis, by the same safeguards as secret surveillance (see paragraphs 291 to 293 above).", "(ii) Application of those principles", "(α) Accessibility of the law", "396. All statutory provisions governing the retention of communications data and its accessing by the authorities have been officially published and are thus accessible to the public.", "(β) Protection of retained data by communications service providers", "397. Bulgarian law expressly requires that communications service providers store and process retained communications data in line with the rules governing the protection of personal data, and that various technical and organisational safeguards be put in place to ensure that such data is not unduly accessed, disclosed or altered, and that it is destroyed when the statutory period for its retention expires (see paragraphs 164 to 166 above).", "(γ) Grounds on which retained data can be accessed by the authorities", "398. In Bulgaria, the law sets outs in an exhaustive manner the grounds on which the authorities may seek access to retained communications data: protecting national security; preventing, detecting or investigating serious criminal offences; tracing people finally sentenced to imprisonment with respect to such offences; tracing people who have fallen or could fall into a situation which puts their life or health at risk; and (only as concerns location data) carrying out search-and-rescue operations with respect to people in distress (see paragraph 163 above). The law is thus sufficiently clear on that point. As noted in paragraph 301 above in relation to secret surveillance, the mere fact that one of the grounds for accessing retained communications data is “national security” is not in itself contrary to Article 8 of the Convention.", "399. It must also be noted in this connection that when in 2020 the Bulgarian Parliament broadened the possible grounds for acquiring retained communications data to include enforcement of isolation and quarantine measures in connection with infectious diseases, the Constitutional Court struck down the amendment as a whole, on the basis that it disproportionately interfered with the constitutional right to privacy (see paragraphs 158 and 159 above).", "(δ) Procedure for obtaining access", "‒ Standard procedure", "400. Bulgarian law lays down safeguards intended to ensure that retained communications data is accessed by the authorities only when that is justified. First, only a limited number of authorities can seek access to that data, within the spheres of their respective competencies (see paragraphs 167 to 169 above). More importantly, such access can be granted only by the competent court president or by a judge to whom that power has been delegated (for access requested outside the framework of already pending criminal proceedings), or by a judge of the competent first-instance court (for access requested by a public prosecutor in the course of criminal proceedings) (see paragraphs 173 to 177 above).", "401. Those safeguards nonetheless fall short of the requisite standard of effectiveness in several respects.", "402. Access applications made outside the framework of already pending criminal proceedings must set out not only the grounds for seeking access to such data and the purpose for which it is being sought, but also contain a full account of the circumstances which show that the data is needed for a relevant purpose (see paragraph 171 above). By contrast, access applications made in the course of criminal proceedings, although expected to feature information about the alleged offence in connection with which access is being sought, are not expressly required to explain, in terms, why the data at issue is truly needed – they only have to contain a description of the circumstances underlying the access application, which appears to be an altogether looser requirement (see paragraph 172 above). The law does not therefore make it plain in all situations that access in each individual case can be sought and granted only if the resulting interference with the Article 8 rights of the person(s) concerned would be truly necessary and proportionate.", "403. As with the procedure for authorising secret surveillance (see paragraph 309 in fine above), a further possible shortcoming at that stage is that although data-access proceedings must of necessity be conducted without notice to the persons whose communications data is being sought, the authority seeking access is under no duty to disclose to the judge fully and frankly all matters relevant to the well-foundedness of its access application, including matters which may weaken its case.", "404. The law does not require that supporting materials be enclosed with the access application either, which can in many cases prevent the judge who deals with the application from properly checking whether it is well ‑ founded.", "405. Nor does the law require judges examining such applications to give reasons explaining why they have decided that granting access to the communications data at issue was truly necessary (see paragraphs 179 and 180 above). As already noted in relation to the procedure for authorising secret surveillance (see paragraph 313 above), the provision of reasons, even if succinct, is the only way of ensuring that the judge examining an access application has properly reviewed the application and the materials which support it, and has truly directed his or her mind to the questions whether accessing the communications data at issue would be a justified and proportionate interference with the Article 8 rights of the person(s) whose data is being accessed, and any person(s) likely to be collaterally affected by that.", "406. It follows that the procedures for authorising the authorities to access retained communications data do not effectively guarantee that such access is granted only when genuinely necessary and proportionate in each case.", "‒ Urgent procedure", "407. By contrast, it does not appear that a discrete issue arises with regard to the urgent procedure, under which the authorities may access retained communications data without a prior judicial warrant if there is an immediate danger that a terrorist offence will be committed (see paragraph 183 above). When the authorities resort to that urgent procedure, the competent judge must within twenty-four hours assess and approve retrospectively the need for them to have done so; otherwise any data made available pursuant to the direct-access request must be destroyed by the authority which has received it (see paragraphs 184 and 185 above). Moreover, that urgent procedure is apparently used sparingly (see paragraph 186 above, and compare it with the table under paragraph 182 above).", "(ε) Amount of time for which the authorities may store and use accessed data not subsequently used in criminal proceedings", "408. The 2007 Act says that any communications data not used to open criminal proceedings must be destroyed within three months of its receipt by the authorities, and that any data accessed under the urgent procedure must be immediately destroyed in the same way if resort to that urgent procedure has not been retrospectively validated by the competent judge (see paragraphs 194 and 195 above). By contrast, no such time-limit has been laid down in relation to data accessed in the course of criminal proceedings. Although the point seems to be covered by internal rules issued by the Chief Prosecutor, those have not been made accessible to the public and it is unclear what they say (see paragraph 196 above). Nothing suggests that the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 219 above), have so far been used to fill that lacuna.", "(στ) Procedures for storing, accessing, examining, using, communicating and destroying data accessed by the authorities", "409. The 2007 Act and the Code of Criminal Procedure say nothing about the procedures for storing, accessing, examining, using, communicating and destroying communications data accessed by the authorities, and those points are not specifically covered by the rules governing prosecutorial and judicial case files either (see paragraph 193 above). It appears that such data is simply kept in the criminal case file, follows its fate, and can be accessed by anyone who can access the case file itself (ibid.). It cannot be accepted that this provides an appropriate level of protection for data which may sometimes concern intimate aspects of someone’s private life or otherwise permit a disproportionate invasion into the privacy of the people concerned or in the “correspondence” of the legal persons concerned. Here also, nothing suggests that the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 219 above), have so far been used to fill that lacuna.", "(ζ) Oversight arrangements", "410. In Bulgaria, three authorities can oversee the retention of communications data and its subsequent accessing by the authorities: (a) the Commission for Protection of Personal Data; (b) the judge who has issued the access warrant; and (c) the same parliamentary committee which oversees secret surveillance (see paragraphs 197 to 210 above).", "411. Under the 2007 Act, the Commission for Protection of Personal Data may (a) request communications service providers to provide it with any information relevant to its mandate in that domain, (b) check how those providers comply with their duties to communicate personal data breaches to users, and (c) check the technical and organisational measures taken by those providers to store retained communications data (see paragraphs 201 and 202 above). It may also give binding instructions to communications service providers and sanction them (see paragraphs 203 and 204 above). But its mandate under the 2007 Act appears to be limited to overseeing communications service providers (see paragraph 198 above); it has no express powers under that Act with respect to the authorities which can access retained communications data.", "412. It is true that under the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680, the same Commission – as well as the Inspectorate attached to the Supreme Judicial Council – are tasked with supervising the way in which the authorities process any personal data for law-enforcement purposes (see paragraph 225 above). But nothing suggests that either of those two authorities has so far availed itself of those powers in relation to communications data.", "413. For his or her part, the judge who has issued the access warrant is not in a position to ensure effective oversight. Granted, he or she must be informed of the destruction of irrelevant or unhelpful communications data accessed by the authorities (see paragraph 197 above). But that judge has no power to order remedial measures. He or she is, moreover, not empowered or expected to carry out on-site inspections, and performs his or her supervisory duties solely on the basis of the report submitted by the authorities. Although a valuable safeguard, that mechanism is insufficient to ensure that data-accessing powers are not being abused.", "414. The main supervisory body, the special parliamentary committee, can oversee both communications service providers and the relevant authorities (see paragraph 205 above), and has extensive information-gathering and inspection powers (see paragraph 207 above). Its annual reports demonstrate that it regularly carries out inspections via the experts it employs (see paragraphs 208 to 210 above). But several shortcomings undermine its effectiveness. First, its members need not be persons with legal qualifications or experience (see paragraph 206 above). Secondly, it has no power to order remedial measures in concrete cases, such as the destruction of retained or accessed communications data; it can only give instructions designed to improve the relevant procedures (see paragraph 211 above). If it detects irregularities, it can only bring the matter to the attention of the prosecuting authorities, or inform the heads of the relevant access-requesting authorities and communications service providers (see paragraph 212 above).", "415. In view of the shortcomings outlined above, the system of overseeing the retention of communications data and its subsequent accessing by the authorities in Bulgaria, as currently organised, does not appear capable of providing effective guarantees against abusive practices in this respect.", "(η) Notification", "416. The 2007 Act requires the special parliamentary committee to notify an individual if his or her retained communications data has been accessed or sought to be accessed unlawfully, if such notification would not defeat the purpose for which those data has been accessed (see paragraph 213 above). However, as noted in paragraph 349 above in relation to secret surveillance, under the Court’s case-law such notification is required in all cases, not only those in which the data has been accessed unlawfully, as soon as the notification can be made without jeopardising the purpose of the measure.", "417. Nothing suggests that such notification has so far been made by virtue of section 54(4) of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 220 above). Nor does it appear that there have so far been any instances in which people have been able to obtain information about the retention or accessing of their communications data under section 37a, section 55(3) in fine, section 56(6) in fine or section 57(1) and (2) of the same Act, as worded after the 2019 amendment (see paragraphs 217, 221 and 224 above). The Government were vague on the point, contenting themselves to say that the amendment had introduced provisions enabling individuals to obtain such information in respect of retained and accessed communications data (see paragraph 363 above, and contrast the circumstances in Ringler, cited above, §§ 12-13 and 51-54). In the absence of further particulars about the actual operation of those data-protection provisions with respect to retained communications data, it cannot be accepted that they are currently effective in that respect. Moreover, those information rights are not available to legal persons (see paragraphs 216, 234 and 239 above).", "(θ) Remedies", "418. As already noted in paragraphs 379 to 381 above, it has not been shown that an effective remedy exists in Bulgaria in respect of the retention and accessing of communications data. The Government’s objection that the applicants have not exhausted domestic remedies in that respect, which was joined to the merits (see paragraph 368 above), must therefore be rejected.", "(ι) Conclusion", "419. Although the laws governing the retention of communications data and its subsequent accessing by the authorities were significantly improved after the Constitutional Court examined them in 2015 in the wake of the CJEU’s judgment in Digital Rights Ireland and Others (see paragraph 156 above), those laws, as applied in practice, still fall short of the minimum safeguards against arbitrariness and abuse required under Article 8 of the Convention in the following respects:", "(a) the authorisation procedure does not appear capable of ensuring that retained communications data is accessed by the authorities solely when that is “necessary in a democratic society” (see paragraphs 400 to 406 above);", "(b) no clear time-limits have been laid down for destroying data accessed by the authorities in the course of criminal proceedings (see paragraph 408 above);", "(c) no publicly available rules exist on the storing, accessing, examining, using, communicating and destroying communications data accessed by the authorities (see paragraph 409 above);", "(d) the oversight system, as currently organised, does not appear capable of effectively checking abuse (see paragraphs 410 to 415 above);", "(e) the notification arrangements, as currently operating, are too narrow (see paragraphs 416 and 417 above); and", "(f) it does not appear that there is an effective remedy (see paragraphs 379 to 381 and 418 above).", "420. It follows that those laws do not fully meet the “quality of law” requirement and are incapable of keeping the “interference” entailed by the system of retention and accessing of communications data in Bulgaria to what is “necessary in a democratic society”.", "421. There has therefore been a breach of Article 8 of the Convention in this respect as well.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "422. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "DamageThe applicants’ claims and the Government’s comments on them", "The applicants’ claims and the Government’s comments on them", "The applicants’ claims and the Government’s comments on them", "423. The first and second applicants claimed 5,000 euros (EUR) each in respect of the alleged frustration and disappointment flowing from the defects marring the secret surveillance system in Bulgaria, which had been illustrated by many scandals revealing cases of unlawful and abusive surveillance.", "424. The third and fourth applicants claimed an unspecified sum in respect of the non-pecuniary damage allegedly suffered by them owing to the breach of their privacy rights resulting from the incompatibility of the laws governing secret surveillance and the retention and accessing of communications data with the requirements of the Convention.", "425. The Government contested the claims in full, noting that in previous such cases nothing had been awarded in respect of non-pecuniary damage.", "The Court’s assessment", "426. The findings of violation amount to sufficient just satisfaction for any non-pecuniary damage suffered by the applicants as a result of the two breaches of Article 8 of the Convention found in this case (see Roman Zakharov, § 312, and Centrum för rättvisa, §§ 379-80, both cited above).", "427. That said, under Article 46 a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State an obligation to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be taken in its domestic legal order to end the violation and make all feasible reparation for its consequences in a way to restore as far as possible the situation which would have obtained if it had not taken place. Moreover, it follows from the Convention, and from Article 1 in particular, that in ratifying it the Contracting States undertook to ensure that their domestic laws would be compatible with it (see Roman Zakharov, cited above, § 311).", "428. In this case, as far as secret surveillance is concerned, these general measures will have to supplement those which the Bulgarian authorities have already taken to execute Association for European Integration and Human Rights and Ekimdzhiev (cited above).", "Costs and expensesThe applicants’ claims and the Government’s comments on them", "The applicants’ claims and the Government’s comments on them", "The applicants’ claims and the Government’s comments on them", "429. The first and second applicants did not seek reimbursement of any lawyers’ fees, saying that their representatives had worked on the case for free. They did, however, jointly seek reimbursement of BGN 1,032 incurred for the translation of their submissions into English, and BGN 25.50 in postage. They requested that any award in that respect be made payable to Ekimdzhiev and Partners, the law firm in which their representatives worked. In support of their claims, they submitted two contracts for translation services and postal receipts.", "430. The third and fourth applicants sought reimbursement of EUR 2,750 in lawyers’ fees incurred for their representation before the Court by, respectively, Mr A.A. Kashamov (EUR 750) and Mr A.E. Kashamov (EUR 2,000). In support of those claims, they submitted contracts for legal services between, respectively, the Access to Information Foundation and Mr A.E. Kashamov and between Mr A.E. Kashamov and Mr A.A. Kashamov, time-sheets and receipts.", "431. The Government contested the quantum of the first and second applicants’ claim for translation expenses, and the third and fourth applicants’ claim for lawyers’ fees. In their view, those were both exorbitant.", "The Court’s assessment", "432. According to the Court’s case-law, applicants are entitled to the reimbursement of their costs and expenses, but only to the extent that these were actually and necessarily incurred and are reasonable as to quantum.", "433. In this case, there is no reason to suspect that the translations costs and postage claimed by the first and second applicants (see paragraph 429 above) have not been actually incurred by them. In view of the volume of those applicants’ submissions, the translation costs can also be seen as necessary and reasonable as to quantum. They must hence be awarded in full. Converted into euros, those sums come respectively to EUR 527.65 and EUR 13.04, which gives EUR 540.69 in total. To them should be added any tax that may be chargeable to those applicants. As requested by them, the sums are to be paid into the bank account of Ekimdzhiev and Partners, the law firm in which their representatives work.", "434. In view of the complexity of the issues raised by the case, the legal fees claimed by the third and fourth applicants (see paragraph 430 above) can likewise be accepted as necessary and reasonable as to quantum. They must therefore be awarded in full, net of any tax that may be chargeable to those applicants.", "Default interest", "435. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1969 and lives in Bratislava. He was represented by Škubla & Partneri s.r.o., a law firm with its registered office in Bratislava.", "3. The Government were represented by their Agents, Ms M. Pirošíková, who was succeeded by Ms M. Bálintová.", "4. The facts of the case may be summarised as follows.", "BACKGROUND", "5. The applicant is a prominent businessman associated with an influential finance group. He is the business partner of the applicant in the case of Zoltán Varga, (cited above), mentioned in paragraphs 6, 66-7, 85 and 159 of the above-cited judgment.", "Surveillance and its products", "6. It is undisputed that the applicant was affected by the implementation by the SIS of two surveillance warrants issued by the Bratislava Regional Court (“BRC”) on 23 November 2005 and 18 May 2006. The former was aimed at monitoring Mr Varga and meetings taking place in a flat that belonged to him. It can be understood that, in addition to Mr Varga, the latter warrant was concerned with monitoring another person. The applicant submitted that he had reasons to believe that that other person was him.", "7. The warrants were implemented by way of the flat being subjected to audio surveillance. This resulted in primary (audio recording or the transcription thereof) and derivative material (summaries and analytical notes). This material was or has been kept by the SIS as follows.", "8. It was taken by the domestic authorities as established that the SIS had destroyed the primary material on 2 April 2008, the reason being that it had contained nothing that could serve the operation’s purpose.", "9. The derivative material is archived by the SIS in the manner specified in section 17(6) of the SIS Act (Law no 46/1993 Coll., as amended) – that is to say “in a way that excluded access to it by anyone except a court”. The rules for the retention of such material are provided in an internal regulation issued by the SIS Director under section 17(8) of the SIS Act.", "10. In addition, some further material based on or linked to the two warrants (namely SIS’s applications for the warrants and an SIS report on the implementation of the first of them and an application for the early discontinuance of the second one) was kept within the control of the BRC. The BRC files concerning these warrants, including the further material mentioned, were destroyed on 13 April 2016 and 8 March 2017, as the prescribed archiving term had expired.", "11. Meanwhile, on 20 November 2012, the Constitutional Court decided on the merits of an individual complaint lodged by Mr Varga. It quashed the warrant of 23 November 2005 in its entirety and that of 18 May 2006 “in so far as it concerned Mr Varga”. It found that the warrants were unjustified and unlawful as they lacked several fundamental elements and that, accordingly, by issuing them the BRC had violated several of Mr Varga’s fundamental rights. A similar complaint lodged by the applicant was rejected on 14 March 2012 as belated.", "Written and audio material linked to the Gorilla operation", "12. In December 2011 some written text was anonymously posted on the Internet. Indicating that it was the result of the implementation of the two warrants, this text could be defined as a descriptive analytical summary, purportedly produced by the SIS, of what had occurred at the flat. There had purportedly been meetings between the applicant and other persons at which had been discussed and coordinated – among other nefarious matters – massive corruption within the context of the privatisation of strategic State-owned enterprises. By the applicant’s count the material mentioned his name more than 800 times.", "13. In the course of a home search conducted in 2018 in an unrelated criminal investigation (into the murder of a journalist), a portable data storage device was seized which contained a digital audio track that appeared to be the audio recording on which the text mentioned in the preceding paragraph was based.", "14. After it had been established that the content of this device had no link to the investigation in question, it was forwarded to the investigation that had meanwhile been opened into suspicions of corruption, as revealed by the material posted on the Internet (“the Gorilla investigation” – for details see paragraphs 20 and 43 et seq. below). It appears that copies of the recording are being used in other criminal investigations as well.", "15. In December 2018 the fact that the above-mentioned seizure had taken place was reported by the media. In October 2019 a digital audio track was anonymously forwarded to the media and posted on the Internet. It purported to be the audio recording on the basis of which the text mentioned in paragraph 12 above had been compiled.", "16. The authenticity of the text and of the audio recording, which was publicly accessible on the Internet, has not been officially confirmed. They are, however, commonly referred to as having a connection to operation Gorilla.", "17. The Prosecutor General and the Office of Special Prosecutions ( Úrad Špeciálnej prokuratúry – “the OSP”), which is the body supervising the Gorilla and other related investigations, have recently issued a decision and a statement (for details, see paragraphs 56 et seq. below), which may be read as indicating that there were grounds to believe that the audio recording retrieved in the home search in 2018 was in fact the recording made by the SIS in the course of the Gorilla operation.", "Investigations", "18. In connection with the above-mentioned matters, three main lines of inquiry were pursued by the authorities.", "19. Firstly, an investigation was carried out into whether the SIS had failed to transmit the outcome of the operation to the prosecuting authorities and whether its agents had abused their authority by using that outcome for the purposes of extortion. In a similar matter, charges were brought against the applicant but then withdrawn (see paragraphs 55 and 56 below). As a complement to those investigations, an inquiry was carried out into suspected abuse of official powers in connection with the SIS’s applications for the warrants in question and the issuance of those warrants by the BRC. The status of these investigations is not entirely certain, but there is no indication that anyone is presently facing any charges.", "20. Secondly, “the Gorilla investigation” was opened against one or more persons unknown into suspected corruption, as revealed by the material posted on the Internet. It is ongoing and no one is currently charged with any offence. More details of the investigation and any links that it has to the applicant are indicated in paragraphs 43 et seq. below.", "21. Thirdly, an investigation was carried out into a suspicion that the Minister of the Interior committed slander when making his statements about the matter in press conferences (see paragraph 45 below). The information available suggests that the investigation was terminated on 18 December 2017 with no one having been charged.", "THE APPLICANT’S RESPONSE TO THE GORILLA OPERATION AND MATERIAL, HIS LINKS AND RESPONSE TO THE GORILLA INVESTIGATION AND THE CHARGES AGAINST HIM", "22. Following the constitutional judgment obtained by Mr Varga (see paragraph 11 above and paragraphs 31 et seq. of the Zoltán Varga judgment), and relying on that judgment, the applicant pursued several lines of response, as described below.", "Response to the Gorilla operation and materialVarious requests, complaints and actions", "Various requests, complaints and actions", "Various requests, complaints and actions", "23. The applicant addressed a number of requests to the SIS, mainly seeking that any material originating from the operation be completely destroyed. His subsequent complaint that the SIS had refused those requests was handled successively by the Office of the Government and the Secretariat of Parliament.", "24. In a letter of 29 November 2013 the Office of the Government informed the applicant, inter alia, that it had no authority to deal with his complaint. Although it was true that the director of the SIS was answerable to the Security Council of the Slovak Republic, there was no organ hierarchically superior to the SIS. Nevertheless, the applicant’s complaint had been forwarded to a special parliamentary committee for the supervision of SIS activities.", "25. In a letter of 13 February 2014 the Secretariat of Parliament, for its part, acknowledged receipt of the applicant’s complaint, which the Office of the Government had forwarded to it. It went on to say that as the applicant had meanwhile been asserting his rights before the administrative-law judiciary (see below), his complaint was considered to have become moot.", "26. Unsatisfied with the outcome, the applicant further pursued his claims before the Constitutional Court by way of a complaint lodged on 26 August 2013.", "27. In addition to the requests mentioned above, he also requested access to an SIS internal regulation issued under section 17(8) of the SIS Act (see paragraph 9 above). Under that legislation, the SIS director was to issue a regulation governing the type of records to be kept by the service, the way in which they were to be kept, and the procedures for gaining access to them. The SIS acknowledged the existence of such a regulation but refused to grant access to it on the grounds that it was classified. The applicant challenged that response by bringing an administrative-law action. On 31 October 2014 the BRC dismissed that action. That decision was upheld by the courts, the final decision being given by the Constitutional Court on 15 February 2018. It noted that legal rules governing the area of State security were based on trust in the intelligence held by the SIS and on supervision that was mainly political in nature. By implication, any element of judicial supervision in relation to matters such as what material fulfilled the statutory requirements for being classified was limited.", "28. Moreover, the applicant requested that the Prosecutor General step in with a view to reviewing the lawfulness of the treatment of the material derived from the Gorilla operation. In response, in a letter of 6 September 2013 the Prosecutor General confirmed his previous position to the effect that the Public Prosecution Service (“the PPS”) had no authority to examine whether the SIS had breached the law by allegedly failing to destroy material resulting from the implementation of the warrants in question.", "29. Furthermore, the applicant brought two administrative-law actions, complaining that the SIS had interfered with his rights by, respectively, its actions and its failure to take action in respect of the continued existence of material resulting from the implementation of the warrants in question. On 29 October 2013 and 29 January 2014 the Supreme Court declared those actions inadmissible on the grounds that although the SIS was a State authority, it was not a public administration body. Accordingly, its actions and omissions did not fall within the jurisdiction of the administrative-law courts. The applicant challenged those decisions before the Constitutional Court by lodging complaints on 23 December 2013 and 17 April 2014.", "30. In addition, the applicant made several applications to the BRC and the Ministry of Justice seeking to press the BRC to exercise what he considered to be a part of its supervisory duty in relation to the implementation of the warrants in question. In particular, he considered that it was up to the BRC to follow up on the Constitutional Court’s judgment in respect of Mr Varga (see paragraph 11 above) by ensuring that the SIS destroy any material based on the operation. As he was not satisfied with the outcome of those applications, the applicant continued pursuing his rights by way of a separate constitutional complaint lodged on 28 April 2015. Following the Constitutional Court’s decision in respect of that complaint (see the following paragraphs), on 23 March 2016 the applicant again unsuccessfully applied to the BRC.", "Constitutional Court’s decision", "31. The applicant’s constitutional complaints of 26 August and 23 December 2013, 17 April 2014 and 28 April 2015 (see paragraphs 26, 29 and 30 above) were joined into a single set of proceedings together with similar complaints pursued by Mr Varga. The admissibility of all those complaints was determined in a decision of 6 October 2015.", "32. As for the applicant’s complaints in relation to the SIS, the Constitutional Court noted that similar complaints had already been examined and declared inadmissible by a decision of 14 March 2012 (see paragraph 11 above). Their examination was accordingly precluded by the principle of res judicata.", "33. However, on the basis of essentially the same complaints that had been advanced by Mr Varga, the Constitutional Court referred to the conclusions reached in its decision on the admissibility of Mr Varga’s previous constitutional complaint to the effect that it had no jurisdiction in relation to supervising the implementation of surveillance warrants by the SIS and that Mr Varga had failed to exhaust the available ordinary remedies in that respect.", "34. As for the remaining complaints, the Constitutional Court noted that, in the applicant’s own submission, the underlying fundamental motive of all his complaints was to achieve the destruction of the material resulting from the implementation of the contested warrants that fell within the control of the SIS. In that respect, the Constitutional Court acknowledged that when surveillance warrants were annulled, any recordings made under them had to be destroyed as a matter of responsibility of the issuing court and the SIS.", "35. However, as noted by the SIS in its observations in reply to the applicant’s constitutional complaints, and as certified by minutes dated 2 April 2008 that the SIS had submitted in support of those observations, the SIS had itself destroyed the recordings resulting from the implementation of the two warrants.", "36. As regards the “data extracted from the recordings”, the Constitutional Court observed that the statute did not provide that such data should be destroyed. Such material had to be deposited by the SIS in the way specified in section 17(6) of the SIS Act. It was inadmissible to use it for any official purpose and it could not acquire any lawful status and be used as evidence in any proceedings before public authorities in the future.", "37. The remainder of the applicant’s constitutional complaints had thus become moot and was accordingly manifestly ill-founded.", "The action in the civil courts", "38. Assuming that he had been the other target of the warrant of 2006, and being affected by the implementation of both warrants, the applicant brought an action in the ordinary courts. Relying on the State Liability Act (Law no. 514/2003 Coll., as amended – “the SL Act”) and the legal rules concerning the protection of personal integrity, he sought orders requiring the SIS to refrain from making any use of, and to destroy, any material resulting from the implementation of those warrants.", "39. The action is being examined in two separate sets of proceedings, separated according to how the applicant formally identified the defendant.", "40. To the extent that the defendant was identified as being the SIS itself, the proceedings were terminated by the Bratislava I District Court (21 September 2017) on the grounds that the ordinary courts had no power to issue orders to it as to a State organ acting in an area entrusted to it by law. However, following an appeal lodged by the applicant, this decision was quashed by the Bratislava Regional Court (20 November 2019) owing to errors of law and the matter was remitted to the first-instance court. On 20 November 2020 the District Court stayed the proceedings pending the outcome of an appeal on points of law by the defendant in a similar action by Mr Varga.", "41. To the extent that the applicant identified the defendant as being the State (in the person of the SIS), the action was dismissed by the District Court (7 July 2017) and, following an appeal lodged by the applicant, that decision was partly upheld and partly quashed by the Regional Court (29 September 2020). In particular, the court of appeal held that, when acting in an official capacity, the State fell outside the private ‑ law rules on protection of personal integrity. Nevertheless, as a matter of principle, in that capacity it had standing to be sued under the SL Act. The court’s jurisdiction under that legislation was limited to determining compensation. In so far as the applicant might be understood as essentially bringing any claims of that nature, they were remitted to the court of first instance for re-examination. In so far as the applicant had been seeking that the SIS be ordered to act or refrain from acting in a certain way, the SL Act provided no basis for issuing such orders, and the dismissal of such claims was to be upheld.", "42. The applicant challenged the judgment of 29 September 2020 by way of an appeal on points of law, and the matter is ongoing.", "The applicant’s links and response to the Gorilla investigation", "43. Since the opening of the investigation on 9 January 2012, the applicant was questioned as a witness on several occasions but he has never been charged. Nevertheless, he argues that the investigation concentrates on him and on the companies within the group associated with him, making him one of the key suspects.", "44. In the course of the investigation, depositions were taken from numerous other witnesses and information was sought from a great number of persons and institutions within and outside Slovakia. The investigation targets numerous business and other transactions with complex contractual and corporate backgrounds.", "45. The Minister of the Interior informed the public about the Gorilla investigation and associated matters in press conferences, through the media and by other means, indicating that the Gorilla operation by the SIS had taken place, that the information published on the Internet was being verified and that some of it was proving to have a truthful basis. In particular, in press conferences held on 9 January and 5 March 2012 he announced (i) his decision to set up a special investigative team to be in charge of that investigation and (ii) his intention to challenge a decision on the privatisation of an important industrial enterprise in the light of the information gleaned from that investigation. He stated, inter alia, that what was at issue in the investigation was a serious crime committed by an organised group, which included certain finance groups. The applicant was not referred to by name but considers that references to the person responsible for the crime in question were made in such a way that enabled him to be identified.", "46. In addition, on 12 September 2012 and 7 February 2013 the minister reported on the progress of the investigation in Parliament.", "47. The head of the investigative team repeatedly informed the public through the media about the progress of the investigation, expressing the view that the information on the Internet was proving to be accurate.", "48. In a letter of 3 February 2015, the OSP reprimanded the head of the investigative team for a lack of professionalism in his communication with the media and reserved the exclusive right to inform the public about such matters.", "49. On 15 June 2015 Parliament convened for an extraordinary session to hear a report which it had invited the supervising prosecutor to deliver on the progress of the investigation. The latter declined to provide such a report on the grounds that, in his view, Parliament had no power to enquire into ongoing investigations.", "50. On 19 August 2015 the applicant lodged a complaint with the Constitutional Court, arguing that the parliamentary debate and its conclusion on 15 June 2015 had violated his right to be presumed innocent. The Constitutional Court rejected the complaint as inadmissible on 11 February 2016. It noted that one of the key functions of a parliament was to debate fundamental societal issues, and that although it was true that the applicant had been mentioned in the parliamentary debate, in relation to the topic of that debate he had had the position of a public figure. However, neither the debate nor its conclusion, which had in no way targeted the applicant, had been of such a nature and gravity as to constitute an interference with his rights.", "51. Meanwhile, on 1 October 2015, the applicant lodged a further complaint with the Constitutional Court, alleging, inter alia, that his right to a hearing within a reasonable time had been violated in the Gorilla investigation, as it had been too lengthy. Although no formal charges had been brought against him, the investigation had substantially affected him, so he had to be regarded as being charged with a criminal offence in substance. In his view, the investigation had been conducted in an arbitrary fashion and should be promptly discontinued.", "52. On 17 February 2016 the Constitutional Court declared the complaint inadmissible. It noted that the applicant had not been charged, and neither was he otherwise directly concerned by the investigation, other than having been questioned as a witness who had the right to refuse to give evidence. Accordingly, the conditions for considering him in substance to be a person charged with an offence in terms of the Court’s case-law had not been fulfilled. He therefore had no standing to challenge that investigation before the Constitutional Court. Moreover, in so far as the applicant had been seeking to base his claims on various public statements about the investigation, the Constitutional Court endorsed a view previously taken by the OSP to the effect that it was open to the applicant to seek to protect his rights by way of bringing an action for the protection of his personal integrity.", "53. Following the forwarding to the Gorilla investigation of the data storage device found in the 2018 home search (containing the audio track apparently linked to the Gorilla operation), investigative measures have been taken with a view to verifying to what extent the audio recording and the text posted anonymously on the Internet (see paragraphs 12, 13 and 14 above) were concordant with each other. This included an analysis and comparison of voices on that recording with voice samples of the persons associated with those voices in the text posted on the Internet.", "54. Between September and November 2019 the head of the Gorilla investigation team confirmed to the media that the results of this voice analysis had shown that the voices in the recording were indeed those of the persons indicated in the written text. Nevertheless, he pointed out that the Constitutional Court had quashed the two warrants and had found that the primary material relating to their implementation had been destroyed. Therefore, in his view, the authenticity of the recording would never be established. He declined to comment on the material’s content other than stating that the audio recording contained some parts that appeared similar to the written material posted on the Internet and that some parts that were not contained in it. However, since there were diverging views as to the usability of the material in question as evidence, it was not possible to denounce anyone. The questions of the origin of the audio recording, the means of verifying its authenticity, and its relevance and usability as evidence were also commented on by other persons and officials.", "The applicant’s charges", "55. On 1 December 2020 the applicant and two others were charged with various offences in connection with a suspicion that they had set up and operated a corporate cover-up scheme to compensate a former SIS agent for having provided the applicant with a copy of the original SIS intelligence material produced by the Gorilla operation. On the same day, various premises were searched and the applicant was arrested and later placed in detention pending trial on that charge, but that decision was quashed on 7 January 2021 and the applicant was released.", "56. On 31 August 2021, in response to complaints lodged by the applicant and the other two persons, the Prosecutor General quashed the decision to bring charges against them. He noted, inter alia, that various written and audio material connected with the Gorilla operation had been available to numerous persons within and outside the SIS and that there were grounds to suspect that those persons had been unlawfully using it for their own benefit. Nevertheless, the individual charges against the applicant and the other two persons lacked any supporting evidence. In particular, they were principally based on the Gorilla material posted anonymously on the Internet and, in so far as that material pointed to an intelligence memorandum that presumably confirmed the factual basis for the charges, the text of that memorandum was not available to the investigators, and the SIS had refused to provide it, citing its classified nature under section 17(6) of the SIS Act.", "57. In connection with his observation that the audio recording found in the home search of 2018 appeared to be the product of the SIS’s operation Gorilla, the Prosecutor General noted in passing that the applicant’s claim for its destruction was justified.", "58. In conclusion, the Prosecutor General instructed the investigators to re-examine and decide on the matter in the light of his findings.", "59. The Prosecutor General’s decision provoked a strong public reaction as to its substantive justification and the legitimacy of his exercise of the powers under which it had been issued.", "60. On 7 September 2021 the OSP issued a public statement questioning on several counts the Prosecutor General’s analysis and conclusions. This included the Prosecutor General’s position as to the need for the destruction of the audio recording retrieved in the home search of 2018 and its eligibility to be used as evidence.", "61. The investigation in this matter appears to be ongoing, but there is no indication that any new charges have been brought against any person." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "62. The relevant legal framework and practice are summarised in the Court’s judgment in the case of Zoltán Varga (cited above, §§ 66-83).", "THE LAW", "PRELIMINARY REMARKS", "63. In its Zoltán Varga judgment, the Court made, inter alia, the following preliminary remarks:", "“84. The Court notes that matters associated with the surveillance operation at the heart of the present ... applications have been a subject of concern and intense general interest for a decade or so. This has been reflected particularly in the media attention that the subject has been given and in the many associated and interrelated investigations and other types of official proceedings, some of which are still ongoing.", "85. The Court further notes that the present ... applications are interrelated, between themselves and with the similar applications of [Mr Haščák]. They all comprise an extensive number of factual and procedural elements that have been submitted to the Court gradually as matters have evolved at the national level over time.", "86. As a result, some of the facts and the parties’ observations submitted in the present proceedings before the Court have been superseded by further national developments.", "87. In these circumstances the Court finds it opportune at the outset to delineate the parameters of the present ... applications for the purposes of its review.", "...", "89. In generic terms, the applicant’s complaints may be characterised as concerning the implementation of the three warrants, which to a large extent corresponds to the production of the primary and derivative material. He further complained about the partly past, and partly still persisting, retention of that and some other material, the alleged leak of information and associated procedural matters.", "90. It is not disputed that the applicant was concerned by the implementation of the [impugned] warrants and that this implementation resulted in the production of primary, derivative and other material that also, at least in part, pertained to him.", "91. It is likewise uncontested that, following their implementation, the [impugned] warrants were annulled by the Constitutional Court essentially as having been unlawful, that their implementation and the creation of various material on the basis thereof by SIS was found by the [BRC] to have violated the applicant’s right to protection of his personal integrity, and that some material originating from the implementation of warrants 1 and 2 was destroyed by the SIS in 2008, as was any other material stemming from the implementation of the [impugned] warrants that fell within the control of the BRC, in 2016 and 2017.", "92. The issues remaining in dispute are essentially the effectiveness and exhaustion of other remedies, ... and the existence of adequate safeguards against abuse of State power.", "93. As the present case involves an allegation of an individual interference with the applicant’s rights, there is no need for the Court to rule in abstracto on the Slovakian legislation regulating covert surveillance in the intelligence‑gathering context. Rather, the Court must confine itself to the circumstances of the case and take into account the nature and extent of the interference alleged by the applicant (see, for example, Pastyřík v. the Czech Republic (dec.), no. 47091/09, 31 May 2011).”", "64. The Court finds that these remarks apply mutatis mutandis to the present case, in particular to the applicant’s complaints other than those made under Article 6 of the Convention. The Court will return to the issue of the scope of these complaints below.", "JOINDER OF THE APPLICATIONS", "65. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "66. As regards the implementation of the two warrants, the applicant complained that there had been a lack of effective supervision and review, that the applicable framework provided no protection to persons randomly affected by surveillance measures, that that had resulted in the production of various items of intelligence material (which continued to exist or about whose destruction there were doubts), and that the internal rules applicable to its retention by the SIS were inadequate. Furthermore, the SIS had failed to prevent a leak of information originating from the implementation of the warrants, and the applicant did not have at his disposal an effective remedy in respect of the above complaints.", "67. As in Zoltán Varga (cited above, § 95), the Court considers that these complaints fall to be examined under Article 8 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "68. The Government pointed out that the applicant’s constitutional complaint about the two warrants had been rejected as belated (see paragraph 11 above). Furthermore, in relation to the SIS, the applicant had had at his disposal and had resorted to effective remedies before the ordinary courts (an action for the protection of his personal integrity and claims for damages under the SL Act), the proceedings in respect of which were ongoing. In these actions, he had not sought any financial compensation. Therefore, in respect of his Article 8 complaints, the available domestic remedies had not been exhausted.", "69. Furthermore, as to the alleged leak of information from the SIS, in their initial submissions before the Court the Government argued that no occurrence of any such leak had been established. However, in their submission of 10 November 2021, they added that the applicant had failed to raise any assertions in that regard in his action in the ordinary courts and in his constitutional complaints; he had thus failed to exhaust the available domestic remedies.", "70. In so far as in his submissions made to the Court after the surfacing in 2018 of the above-mentioned audio recording (which was apparently related to the Gorilla operation) the applicant might be understood as seeking to challenge the investigative and prosecuting authorities’ use of that recording (see paragraph 73 below), the Government argued that this was a separate matter beyond the scope of the present case.", "71. The applicant disagreed and contended that the remedies referred to by the Government were ineffective for the purposes of the Convention. Even though by way of precaution he had resorted to all existing remedies, this had yielded no results, the common denominator being the unwillingness of any official body to confront the substance of his grievances.", "72. As to the Government’s specific argument in relation to any leak of information from the SIS, the applicant replied in his submissions of 9 December 2021 that he had “never unequivocally alleged that a leak had occurred and in fact, at the time the [present applications had been] lodged (2012 and 2016), that would not have been possible (there [having been] no evidence then or now upon which [the applicant] could [have based] such an allegation)”.", "73. Nevertheless, in his earlier submissions of 2019, 2020 and 2021, he had informed the Court of the discovery and procedural use of the audio recording presumably originating from the Gorilla operation, had argued that its exploitation in criminal proceedings had been unlawful and in violation of his Convention rights, and had requested that the Court make it clear that the recording must be destroyed.", "The Court’s assessment", "(a) Scope of the complaints", "74. The Court for its part notes at the outset that the parameters of its review in these proceedings are defined by (i) the content of the three applications and (ii) its decision – given at the time that the respondent Government were given notice of them (Rule 54 of the Rules of Court) – to declare a part of them inadmissible. Any complaints concerning the issuance of the impugned warrants by the BRC, in respect of which the Constitutional Court rejected the applicant’s complaint as belated (see paragraph 11 above), are outside the scope of the present case.", "75. As regards the matter of any leak of information by the SIS, the Court is perplexed by the intended meaning of the applicant’s submissions to the Court prior to 9 December 2021. It notes their contents, as well as the finding in Zoltán Varga (§ 126) that there had been no claim made at the domestic level or before the Court (Rule 47 of the Rules of Court) regarding a failure to fulfil any positive obligation that the State might have in connection with the fact that material apparently having to do with the Gorilla operation was in the public domain. Accordingly, the Court concludes that there is in fact no complaint to be adjudicated in this respect.", "76. On the issue of the practical and procedural status of the audio recording retrieved by the investigators in 2018 – the authenticity of which as a primary material from the Gorilla operation was addressed by the PPS in August and September 2021 (see paragraphs 56 et seq. above), and in respect of which the Court made no pronouncements in its Zoltán Varga judgment, delivered on 20 July 2021 – the Court likewise notes that this is beyond the subject matter of the present applications (Rule 47 of the Rules of Court). The Court is nevertheless not prevented from taking the status of that material into account by way of background information for the purposes of assessing the applicant’s original complaints (ibid., §§ 123, 124 and 127; see also paragraph 95 below).", "(b) Admissibility of the complaints", "77. As to the remaining Article 8 complaints, the Court observes that in its judgment in Zoltán Varga (§§ 100 and 112 et seq.) it examined essentially the same non-exhaustion objection by the Government. In so doing, it noted that the objection concerned the implementation of the impugned warrants and the production by the SIS – and continued existence under its control – of the primary and derivative material resulting from their implementation. As the (i) implementation of those warrants and (ii) the production and existence of the said material had been intrinsically interrelated, the question of exhausting the available domestic remedies in that respect inherently correlated with the possibility of securing its destruction. Where the continued existence of the impugned material was in itself alleged to constitute a violation of Mr Varga’s rights, for a remedy to be effective for the purposes of the Convention it had in principle to be capable of leading to the destruction of that material, which the action advocated by the Government was not (ibid., §§ 114-18).", "78. The Court notes that the applicant’s complaints and the parties’ arguments in the present case are essentially the same as those in Zoltán Varga, and so is the Court’s reasoning in respect of the rejection of the Government’s non ‑ exhaustion plea. Indeed, that reasoning applies in the present case a fortiori in view of the fact that Mr Varga’s action in the civil courts is still pending following an appeal on points of law by the SIS (see paragraph 40 above) – a fact that was not known to the Court at the time of the Zoltán Varga judgment (see its paragraphs 59 et seq.).", "79. The Government’s non-exhaustion objection must therefore be dismissed.", "80. In these circumstances, the Court notes that the applicant’s remaining Article 8 complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "MeritsParties’ arguments", "Parties’ arguments", "Parties’ arguments", "81. The applicant argued that any records known to him regarding the destruction of the primary material by the SIS were not conclusive as to what exactly – and whether all of the primary material – had been destroyed. The BRC, as the court that had issued the impugned warrants, had repeatedly refused to exercise any supervisory jurisdiction in that regard. It was undisputed that the SIS still kept derivative material originating from the implementation of those warrants. The applicable statute provided that it could only be accessed by a court, but it contained no rules as to which court and within which context. Any details were to be governed by the internal rules of the SIS, which, however, were inaccessible to him. As to the other material kept by the BRC (which had meanwhile also been destroyed), the reason for its destruction had had nothing to do with the protection of his individual rights and, until that destruction, its being kept by the BRC had constituted an interference with those rights. The applicant concluded that none of the authorities to which he had turned for protection had provided him with any such protection – including the ordinary courts and administrative-law tribunals dealing with his actions and applications, the issuing court (the BRC), the Constitutional Court, the PPS, the Office of the Cabinet, Parliament and the SIS itself.", "82. The Government contended that the crux of the applicant’s argument was that there was still in existence material that had been produced by the implementation of the two warrants and that it should be destroyed. In that regard, it was to be noted that, at the time of their implementation, those warrants had been valid and uncontested, and accordingly had had to be presumed lawful and justified.", "83. As the domestic authorities had established, all primary material produced by the implementation of the warrants had been destroyed as unusable. In contrast to destruction of material obtained unlawfully, the destruction of unusable material did not necessitate the presence of a judge. Neither did any need for the presence of a judge during such destruction stem from the case-law of the Court. The applicant’s assertion that in the absence of judicial or similar guarantees he could not be certain whether all primary material originating from the surveillance under the two warrants had actually been destroyed was purely speculative and hypothetical, and the Convention imposed no duty on the States to refute such arguments. Nevertheless, he had been afforded (and through his lawyer had made use of) the opportunity to inspect a redacted version of the SIS minutes of the destruction on 2 April 2008 of the said material.", "84. It was true that in 2012 the Constitutional Court had found a violation of a number of Mr Varga’s rights in connection with the warrants and had issued orders for their annulment. However, the court had reached that finding only after the primary material relating to their implementation had been destroyed in 2008.", "85. The Government furthermore pointed out that any further material under the control of the BRC had also been destroyed, in 2016 and 2017, respectively.", "86. As to the derivative material arising from the surveillance carried out under the two warrants, it had not been destroyed but had been stored, in compliance with section 17(6) of the SIS Act. As such, it could not be accessed by anyone but a court or be used in any proceedings before public authorities. The Government left it to the Court to determine whether this complied with the Convention.", "The Court’s assessment", "87. Noting again that, to a significant extent, the applicant’s Article 8 complaints are identical and arise from an identical factual and procedural background to that examined in Zoltán Varga, the Court finds the case-law cited and applied in that case applicable in the present case accordingly. First of all, this concerns the questions of the applicability of Article 8 to the applicant’s complaints and the interference with his rights under that provision (ibid., §§ 144-49). As to the latter issue, the Court observes specifically that neither at any domestic stage nor before the Court has any authority questioned that the applicant was subjected to surveillance on the basis of the two warrants and that various items of material arising from their implementation and at least in part concerning him were or are still retained by the SIS and the BRC. On the contrary, this contention appears to have been acknowledged (by implication) as a fact.", "88. The Court therefore finds that the implementation of the two warrants and the retention of the resulting material fell within the ambit of Article 8 of the Convention and constituted an interference with the applicant’s right to respect for his private life.", "89. As regards the compatibility of that interference with the requirements of the second paragraph of that Article, and in particular with the requirement for that interference to be “in accordance with the law”, the Court would again refer to the general principles cited in cited in Zoltán Varga (§§ 150 and 151). It reiterates especially that, where a power of the executive is exercised in secret, the risks of arbitrariness are evident. Since the implementation in practice of measures of secret surveillance is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see, for example, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006‑VII, with further references).", "(a) Implementation of the warrants", "90. As to the compliance of this interference with the requirements of Article 8 § 2 of the Convention in respect of the implementation of the warrants, the Court found in Zoltán Varga that it had directly led to the production of the primary material, that the implementation of the warrants and the production of that material had been intrinsically connected, and that they were accordingly to be examined together (ibid., § 152). Moreover, it held that the implementation of the warrants had in principle had a statutory basis (§ 153), but that it had inherently been tainted by serious deficiencies in those warrants and in the associated procedures (§§ 154, 156 and 157).", "91. The Court is aware that the deficiencies in question were found by the Constitutional Court when examining the individual complaints lodged by Mr Varga, but that a similar complaint lodged by the applicant was rejected as belated (see paragraph 11 above). Nevertheless, it notes that the deficiencies were attributable to the issuing court (the BRC) and finds that in essence they were of an objective nature (ibid., §§ 33 and 55). Accordingly, the fact that the applicant’s own constitutional complaint in respect of the BRC was rejected does not prevent the Court from taking those deficiencies into account in the assessment of what is at stake in the instant case – namely the implementation of the warrants by the SIS, in respect of which the Constitutional Court declined to issue a decision as it found that it had no jurisdiction in the matter (ibid., § 32).", "92. The Court is likewise aware that, unlike in the case of Mr Varga, in the present case there was no finding by the ordinary courts that the implementation of the warrants by the SIS had violated the applicant’s right to the protection of his personal integrity (contrast § 59 of the Zoltán Varga judgment). It is, however, of the view that if this factual distinction made any difference at all to the assessment of the present case, it was to the benefit of the applicant. The reasons are twofold.", "93. Firstly, the ordinary courts in the case of Mr Varga made no assessment of the actions of the SIS and based their findings – currently subject to an appeal on points of law (see paragraph 40 above) – on the quashing of the warrants by the Constitutional Court (ibid., §§ 154-55). Secondly, the fact that the outcome of an action brought by Mr Varga that was essentially identical to that brought by the applicant in the instant case has been even less favourable for the applicant than for Mr Varga accentuates the conclusion that the action in question has constituted no effective remedy in the applicant’s individual case.", "94. Having considered all other means of legal protection against arbitrary interference (ibid., §§ 158-61), the Court concluded in Zoltán Varga that – in view of the lack of clarity of the applicable jurisdictional rules and the lack of procedures for the implementation of the existing rules and flaws in their application – when implementing the warrants the SIS had practically enjoyed discretion amounting to unfettered power, which had not been accompanied by a measure of protection against arbitrary interference, as required by the rule of law. It had accordingly not been “in accordance with the law” for the purposes of Article 8 § 2 of the Convention (ibid., § 162).", "95. The Court finds that the situation in the present case is aggravated by two additional factors. Firstly, while it is accepted that the implementation of the warrant of 2005 interfered with the applicant’s right to respect for his privacy, there has been no indication that the warrant actually targeted him. It is accordingly plausible that he was affected in a random manner by its implementation, as he has contended. In that respect, the applicant further argued (and that argument has in no way been refuted by the Government) that the applicable law actually provided no protection to persons randomly affected by covert surveillance measures. Secondly, as appears to be exemplified by the recent controversy between the Prosecutor General and the OSP (see paragraphs 56 and 60 above), there is a protracted fundamental uncertainty in the applicable legal framework as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants.", "(b) Storing of the derivative material from the implementation of the warrants", "96. As to the storing of the derivative material from the implementation of the two warrants, under section 17(6) of the SIS Act, the Court found in Zoltán Varga that it had been subject to confidential rules which had been both adopted and applied by the SIS, with no element of external control. Such rules had clearly been lacking in accessibility and had provided Mr Varga with no protection against arbitrary interference with his right to respect for his private life (ibid., § 169). The retention of the said material had therefore not been “in accordance with the law” within the meaning of the second paragraph of Article 8 of the Convention (§ 171). These findings directly apply in the present case.", "(c) Conclusions", "97. It follows from the foregoing that, on account of the implementation of the two warrants and the retention by the SIS of the derivative material from their implementation, there has been a violation of the applicant’s right under Article 8 of the Convention to respect for his private life.", "98. At the same time, in view of that finding and the reasoning behind it, the Court considers that it is not necessary to examine on the merits the remainder of the applicant’s Article 8 complaint.", "REMAINING ALLEGED VIOLATIONS OF THE CONVENTION", "99. The applicant complained that the “reasonable time” requirement had not been respected in the Gorilla investigation and that by their public statements in relation to that investigation the prosecuting authorities and officials of the Ministry of the Interior had breached his right to be presumed innocent, as provided in Article 6 §§ 1 and 2 of the Convention, the relevant parts of which reads as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ...", "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "100. The Government argued that as no charges had been brought against the applicant either expressly or in substance, his Article 6 complaints fell outside the scope of that provision ratione materiae. Moreover, they contended that the applicant could (and under Article 35 § 1 of the Convention should) have asserted any claims against the public officials who in his view had had interfered with his reputation by way of an action for the protection of personal integrity. Given that he had not done so, he had failed to exhaust the available domestic remedies.", "101. The applicant argued that, given the circumstances, he had been substantially affected by the Gorilla investigation from the very moment that it had been opened. In his observations after the Government had been given notice of the present case he successively updated his complaint concerning the alleged violation of the presumption of his innocence in that it related to various public statements made in relation to the Gorilla investigation between 2012 and 2019. He explained that the gist of the complaint was that the impugned statements had strengthened his position as a person having in substance been charged with a criminal offence. Given that he was being denied that procedural status in the investigation, he had been prevented from defending his rights in it. The essential problem was thus the criminal proceedings. An action in civil courts for the protection of personal integrity had by no means any potential to redress it.", "102. The Court notes first of all that the present two complaints concern the Gorilla investigation and not the charges laid against the applicant on 1 December 2020 or any public statements made in relation to them.", "103. The common denominator of the two complaints is that for them to fall within the material scope of Article 6 of the Convention the applicant must have been charged with a criminal offence. As to the Gorilla investigation, it is clear that the applicant has never been charged with any offence in the context of it. Involving complex factual and procedural questions and a large number of possible offences (see paragraph 44 above), this investigation has been ongoing for some ten years. As acknowledged by the Constitutional Court (see paragraph 50 above), the investigation raises important societal issues and it is only natural that it is subject to public debate. In so far as this part of the application has been substantiated, there is no indication that any of the impugned public comments exceeded the limits of a legitimate public debate by referring to the applicant in a way going beyond the limits of Article 6 § 2 of the Convention (contrast Allenet de Ribemont v. France, 10 February 1995, § 41, Series A no. 308, and Khuzhin and Others v. Russia, no. 13470/02, § 94 and 96, 23 October 2008).", "104. In that regard, the Court observes in particular that in view of the state of affairs in 2016 as regards any impact of the investigation on the applicant, the Constitutional Court concluded that there had been nothing to place the applicant in the position of being so substantially affected by criminal proceedings as to render him a person charged with a criminal offence in substance (see paragraph 52 above). While certain shortcomings in communication with the media on the part of the heads of the Gorilla investigation team had been acknowledged by the OSP, these were not such as to go beyond incurring civil-law liability for libel (see paragraphs 48 and 52 above).", "105. As to any public statements (see paragraph 54 above) in the period after the finding and releasing into the public domain (2018) of the audio recording that appears to have a connection with the Gorilla operation, the Court notes that, rather than involving any criminal charge against the applicant in substance, they essentially reveal a lack of clarity as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants, which is a different matter that has been addressed by the Court under Article 8 of the Convention (see paragraph 95 above).", "106. Accordingly, the Court concludes that neither the impugned public statements nor any other circumstance indicated by the applicant has placed him in the position of a person who has been charged with a criminal offence in the Gorilla investigation (see, for example, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, with further references; and Casse v. Luxembourg, no. 40327/02, §§ 16 and 74, 27 April 2006). In view of the nature of the matters that are the subject of the Gorilla investigation and their background, mere enquiries into them cannot be seen as involving charges against the applicant (contrast Šubinski v. Slovenia, no. 19611/04, § 68, 18 January 2007).", "107. Accordingly, the remainder of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "108. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "109. The applicant claimed 66,000 euros (EUR) in respect of non ‑ pecuniary damage.", "110. The Government contested the claim as being clearly excessive.", "111. The Court awards the applicant EUR 9,750 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1967 and lives in Mönchengladbach.", "A. Background to the case", "6. In spring 1993 the North Rhine-Westphalia Department for the Protection of the Constitution ( Verfassungsschutz ) started a long-term observation of the applicant. The latter was suspected of participation in offences committed by the so-called Anti-Imperialist Cell ( Antiimperialistische Zelle ), an organisation which was pursuing the armed combat abandoned since 1992 by the Red Army Fraction ( Rote Armee Fraktion ), a left-wing extremist terrorist movement.", "7. As a consequence, the applicant was occasionally kept under visual surveillance by staff members of the Department for the Protection of the Constitution and the entries to his flats were filmed by video cameras. The Department also intercepted the telephones in the house in which the applicant lived with his mother ( from 26 April 1993 to 4 April 1996) and in a telephone box situated nearby ( from 11 January 1995 until 25 February 1996). Moreover, post addressed to him was opened and checked (from 29 April 1993 to 29 March 1996).", "8. Likewise, S., a presumed accomplice of the applicant, was subjected to surveillance measures from 1993. The Hamburg Office for the Protection of the Constitution intercepted telecommunications from the phone in his parents'house as well as his post. Moreover, staff members of the Office occasionally observed him.", "9. In October 1995 the Federal Public Prosecutor General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which the Anti-Imperialist Cell had claimed responsibility. The Federal Office for Criminal Investigations was in charge of the investigations.", "10. Following this, the applicant and S. were kept under visual surveillance by civil servants of the Federal Office for Criminal Investigation, essentially during the weekends between 30 September 1995 and their arrest on 25 February 1996. Moreover, the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by the Federal Office for Criminal Investigations (from October 1995 to February 1996). The telephones in that house, in a telephone box situated nearby and in S.'s flat in Hamburg were tapped by order of the investigating judge at the Federal Court of Justice (13 October 1995 to 27 February 1996). That judge further ordered observation by the police of the applicant and S. as well as of the cars used by them. The Federal Office for Criminal Investigations also observed the entry of S.'s apartment by means of video cameras (October 1995 to February 1996). Moreover, it intercepted the professional radio communication used by S.", "11. In October 1995 the Federal Office for Criminal Investigations further installed two transmitters ( Peilsender ) in S.'s car, which the applicant and S. often used together. However, the applicant and S. detected and destroyed the transmitters. As they suspected that their telecommunications were being intercepted and that they were being observed, they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities.", "12. In view of this, the Federal Office for Criminal Investigation built a Global Positioning System (GPS) receiver into S.'s car in December 1995 by order of the Federal Public Prosecutor General. Thereby it could determine the location and the speed of the car once per minute. However, the data were only recovered every other day in order to prevent detection of the receiver. This observation lasted until the applicant's and S.'s arrest on 25 February 1996.", "13. GPS is a radio navigation system working with the help of satellites. It allows the continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time. It does not comprise any visual or acoustical surveillance. As opposed to transmitters, its use does not necessitate the knowledge of where approximately the person to be located can be found.", "B. The proceedings before the Düsseldorf Court of Appeal", "14. In the criminal trial opened against the applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December 1997, dismissed the applicant's objection to the use as evidence of the results obtained by his surveillance with the help of GPS. It found that Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below) authorised the use of GPS in the instant case. The reliable information thus collected could therefore be used at trial. This information was confirmed by the evidence obtained by the – legal – video and personal surveillance of the defendants. Moreover, contrary to the applicant's submission, the use of GPS did not require a court order because it had been aggregated with other, legal, methods of surveillance. According to the Code of Criminal Procedure, surveillance via GPS did not have to be ordered by a judge, as opposed to measures interfering more profoundly with the right to self-determination in the sphere of information ( Recht auf informationelle Selbstbestimmung ). Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question.", "15. On 1 September 1999 the Düsseldorf Court of Appeal convicted the applicant, inter alia, of attempted murder and of four counts of causing an explosion and sentenced him to thirteen years'imprisonment. It found that the applicant and S., who had been the only members of the so-called Anti ‑ Imperialist Cell since spring 1995, had placed bombs in front of the houses of members or former members of Parliament and in front of the Peruvian Honorary Consulate between January and December 1995.", "16. The Court of Appeal noted that the applicant had availed himself of his right to remain silent when faced with the charges and that S. had admitted taking part in the bomb attacks only in general terms, without giving any details. However, circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty.", "17. In particular, the Court of Appeal found that for the bomb attack carried out following the GPS surveillance of S.'s car, it had been shown that the car had been parked close to the scene of the crime on the day the offence was committed and on a few days prior to it. Moreover, the car had been located close to the places where the defendants had photocopied, hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb. This evidence was corroborated by information obtained by other methods of surveillance, in particular, the video surveillance of the entry of the applicant's home and the visual surveillance of the defendants by staff of the Federal Office for Criminal Investigations. The defendants'participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications.", "C. The proceedings before the Federal Court of Justice", "18. In an appeal on points of law the applicant complained, in particular, about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS.", "19. By a judgment of 24 January 2001 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. It found that the collection of data by GPS had a legal basis, namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore, the information obtained in this manner could be used in the criminal proceedings against the applicant.", "20. In particular, the use of technical locating devices such as the GPS did not interfere with the applicant's home. As the applicant was suspected of offences of considerable gravity, namely participation in bomb attacks committed by a terrorist organisation, the use of GPS was a proportionate interference with his right to respect for his private life (as protected also by Article 8 of the Convention) and his right to self-determination in the sphere of information. Other methods of investigation would have had less prospect of success, as the applicant and S. had often succeeded in evading other measures of observation.", "21. Endorsing the reasons given by the Court of Appeal, the Federal Court of Justice further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary. However, the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate. In any event, there had not been a total surveillance of the applicant, which alone could violate the principle of proportionality and a person's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings.", "22. The Federal Court of Justice conceded that following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph 32 below) provided that any long-term observation lasting for more than one month had to be ordered by a judge, irrespective of whether or not technical means of surveillance were used. The need for a court order did not, however, previously emanate from the Code of Criminal Procedure, constitutional law or Article 8 of the Convention.", "D. The proceedings before the Federal Constitutional Court", "23. The applicant subsequently lodged a complaint with the Federal Constitutional Court. He claimed, in particular, that his surveillance by the North Rhine-Westphalia and Hamburg Offices for the Protection of the Constitution and by the Federal Office for Criminal Investigations from October 1995 until February 1996 and the judgments of the Court of Appeal and the Federal Court of Justice had infringed his right to privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS. There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law. Moreover, the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing.", "24. On 12 April 2005 the Federal Constitutional Court, having held a hearing, dismissed the applicant's constitutional complaint (file no. 2 BvR 581/01). It found that his complaint was ill-founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal.", "25. The surveillance of the applicant with the help of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. That provision was constitutional. In particular, the term “special technical means intended for the purpose of surveillance” was sufficiently precise. As opposed to visual or acoustic surveillance, it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS. The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques. However, there was a risk of infringement of the right to self ‑ determination in the sphere of information, that is, the right of the individual to determine the use of data on him or her. Therefore, the legislator had to observe technical progress and, if necessary, safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions.", "26. Moreover, the measure did not disproportionately interfere with the applicant's right to privacy. His surveillance did not destroy the essence of his private life. On the contrary, such surveillance by technical means could in some cases make more serious interferences, such as the interception of communications, unnecessary. Therefore, it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence (of considerable gravity) and if other methods of investigation had less prospect of success. Furthermore, the legislator had not been obliged to set up additional safeguards for long-term surveillance – which he later did by adopting Article 163f § 4 of the Code of Criminal Procedure – but could first observe the factual developments in this field.", "27. Neither did the legislator have the duty to regulate the use of several surveillance measures at once. Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional, but could, as a rule, be prevented by the existing procedural safeguards. However, the Public Prosecutor's Office, when ordering a surveillance measure, had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time. Furthermore, the legislator had to observe whether, in view of future developments, the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities.", "28. In the instant case, the interference with the applicant's rights by his surveillance by GPS was proportionate, notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance. The use of several observation measures at the same time had not led to total surveillance. He had been observed with the help of GPS only when he had travelled in S.'s car. Other surveillance measures had basically been used only at weekends and had consisted only to a minor extent of the interception of communications." ]

[ "II. RELEVANT DOMESTIC LAW", "29. Article 100c § 1 no. 1 was inserted into the Code of Criminal Procedure by the Act on the fight against drug trafficking and other forms of organised crime ( Gesetz zur Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der organisierten Kriminalität ) of 15 July 1992. The relevant parts of Article 100 c of the Code of Criminal Procedure, in its version in force at the relevant time, provided :", "“(1) Without the knowledge of the person concerned", "no. 1", "a) photographs may be taken and visual recordings be made,", "b) other special technical means intended for the purpose of surveillance may be used to investigate the facts of the case or to detect the perpetrator's whereabouts if the investigation concerns a criminal offence of considerable gravity and", "if other means of investigating the facts of the case or of detecting the perpetrator's whereabouts had less prospect of success or were more difficult,", "no. 2", "private speech may be listened to and recorded using technical means ...", "(2) Measures pursuant to paragraph 1 may only be taken against the accused. ... Measures pursuant to paragraph 1 no. 1 (b) ... may be ordered against third persons only if it can be assumed, on the basis of specific facts, that they are in contact with or will contact the perpetrator and that the measure will make it possible to establish the facts or to determine the perpetrator's whereabouts and if other means would offer no prospect of success or would be considerably more difficult.”", "30. Pursuant to Article 100d § 1 of the Code of Criminal Procedure, in its version in force at the relevant time – just as for an order to tap a person's telephone (Article 100b § 1 of the Code of Criminal Procedure) – a court order was necessary to authorise the use of technical devices to bug and to record conversations made in private under Article 100c § 1 no. 2 of the Code of Criminal Procedure. However, that Article did not prescribe a court order for measures of investigation taken under Article 100c § 1 no. 1.", "31. Pursuant to Article 101 § 1 of the Code of Criminal Procedure, the person concerned by a measure under Article 100c § 1 no. 1 (b) of that Code shall be notified of the measure taken as soon as this is possible without endangering the purpose of the investigations, public safety, life and limb of another person or the possible further use of an undercover agent involved in the measure.", "32. On 1 November 2000 Article 163f of the Code of Criminal Procedure, on long-term systematic surveillance of suspects, entered into force. Pursuant to paragraph 1 of that Article, such surveillance lasting for more than twenty-four hours non-stop or applied on more than two days, could only be ordered in respect of persons suspected of an offence of considerable gravity and if other means of investigating the facts of the case or the suspect's whereabouts had considerably less prospect of success or were considerably more difficult. The measure was to be ordered by the Public Prosecutor's Office (paragraph 3). Pursuant to paragraph 4, the measure had to be restricted to a maximum of one month; any further extension could only be ordered by a judge.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained that his observation via GPS and its aggregation with several further measures of surveillance, as well as the use of the data obtained thereby in the criminal proceedings against him, had breached his right to respect for his private life as provided in Article 8 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "34. The Government contested that argument.", "A. Admissibility", "1. The parties'submissions", "a. The Government", "35. The Government considered that the applicant had not fully exhausted domestic remedies as required by Article 35 of the Convention. In the proceedings before the domestic courts, he had failed to complain about his visual observation as such, which alone had established a link between himself and the data obtained by the GPS surveillance in that it had disclosed his presence in S.'s car. Moreover, the applicant had not contested the lawfulness of all surveillance measures other than the GPS surveillance, in particular the interception of his telecommunications, before the domestic courts.", "36. The Government further took the view that the applicant could not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention. They argued that the GPS surveillance of the car of his accomplice S. had not directly concerned him in person.", "b. The applicant", "37. The applicant contested that view. He argued, in particular, that he had exhausted domestic remedies. He underlined that he had complained both before the domestic courts and before this Court about his surveillance via GPS, which had been applied in addition to further surveillance methods used at the same time, and had objected to the use of evidence obtained as a result of his surveillance via GPS and not only to the use of the GPS data as such. Furthermore, he had also complained throughout the proceedings that he was under total surveillance by an accumulation of different measures of surveillance in addition to the use of GPS. This was confirmed by the reasoning of the decisions of the domestic courts, which had addressed– and rejected – his arguments in this respect.", "2. The Court's assessment", "38. The Court notes, as regards the scope of the case before it, that the applicant complained under Article 8 about his observation via GPS. He argued that this measure, taken alone, was in breach of his right to respect for his private life and that in any event it breached Article 8 because of its aggregation with several further measures of surveillance. He further complained about the use of the data collected thereby in the criminal proceedings against him. The applicant did not contest the lawfulness of any of the additional surveillance measures other than the GPS surveillance. The Court observes that the applicant brought his complaint as defined above before the Düsseldorf Court of Appeal, the Federal Court of Justice and the Federal Constitutional Court, which all addressed and rejected it on the merits (see paragraphs 14, 18-22 and 23-28 respectively). Consequently, the Government's objection of non-exhaustion of domestic remedies must be dismissed.", "39. As to the question whether the applicant may claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention in view of the fact that it was not himself, but his accomplice's car which had been subjected to surveillance via GPS, the Court considers that this issue is closely linked to the substance of his complaint under Article 8. It therefore joins the preliminary objection raised by the Government in this respect to the merits of the case.", "40. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference with private life", "a. The parties'submissions", "41. In the applicant's view, his total surveillance via GPS had interfered with his right to respect for his private life. Even though the GPS receiver had been built into an object (S.'s car), it had been used to observe his (and S.'s) movements. It had enabled the investigating authorities to draw up a comprehensive pattern of his movements in public for months, by means of a measure which was very precise and difficult to detect. All his movements had been made known to third persons without his consent. The information gathered by the GPS surveillance had enabled the authorities to initiate further investigations, inter alia, at the places he had travelled to.", "42. The Government took the view that there had not been an interference with the applicant's right to respect for his private life under Article 8 by the surveillance via GPS. This surveillance had not directly concerned the applicant in person as the GPS receiver had been built into the car of his accomplice S. and as the data collected had only revealed where the receiver had found itself at a particular time and not who had been travelling in S.'s car.", "b. The Court's assessment", "i. Recapitulation of the relevant principles", "43. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001 ‑ IX; Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 ‑ I; and Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003 ‑ IX (extracts) ).", "44. There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37 ). A person walking along the street will inevitably be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character (see also Herbecq and the Association “Ligue des droits de l'homme” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports (DR) 92-B, p. 92, concerning the use of photographic equipment which does not involve the recording of the visual data obtained ). Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § § 58 -59; and Perry, cited above, § 38 ).", "45. Further elements which the Court has taken into account in this respect include the question whether there has been compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable.", "46. Thus, the Court has considered that the systematic collection and storing of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with these persons'private lives (see Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § 59; and Perry, cited above, § 38; compare also Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the storing of information about the applicant on a card in a file was found to be an interference with private life, even though it contained no sensitive information and had probably never been consulted ). The Court has also referred in this context to the Council of Europe's Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force – inter alia for Germany – on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see P.G. and J.H. v. the United Kingdom, cited above, § 57 ).", "47. The Court has further taken into consideration whether the impugned measure amounted to a processing or use of personal data of a nature to constitute an interference with respect for private life (see, in particular, Perry, cited above, §§ 40-41 ). Thus, it considered, for instance, the permanent recording of footage deliberately taken of the applicant at a police station by a security camera and its use in a video identification procedure as the processing of personal data about the applicant interfering with his right to respect for private life (ibid., §§ 39-43). Likewise, the covert and permanent recording of the applicants'voices at a police station for further analysis as voice samples directly relevant for identifying these persons in the context of other personal data was regarded as the processing of personal data about them amounting to an interference with their private lives (see P.G. and J.H. v. the United Kingdom, cited above, § § 59-60; and Perry, cited above, § 38 ).", "48. Finally, the publication of material obtained in public places in a manner or degree beyond that normally foreseeable may also bring recorded data or material within the scope of Article 8 § 1 (see Peck, cited above, §§ 60-63, concerning disclosure to the media for broadcast use of video footage of the applicant taken in a public place; and Perry, cited above, § 38).", "ii. Application of these principles to the present case", "49. In determining whether the surveillance via GPS carried out by the investigation authorities interfered with the applicant's right to respect for his private life, the Court, having regard to the above principles, will determine first whether this measure constituted a compilation of data on the applicant. It notes the Government's argument that this was not the case, given that the GPS receiver had been built into an object ( a car) belonging to a third person (the applicant's accomplice). However, in doing so, the investigating authorities clearly intended to obtain information on the movements of both the applicant and his accomplice as they had been aware from their previous investigations that both suspects had been using S.'s car together on the weekends of previous bomb attacks (see paragraphs 11 and 17 above; see also, mutatis mutandis, Lambert v. France, 24 August 1998, § 21, Reports of Judgments and Decisions 1998 ‑ V, where it was considered irrelevant to the finding of an interference with the applicant's private life that the telephone tapping in question had been carried out on the line of a third party ).", "50. Moreover, the fact that the applicant must, just as S. was, be considered to have been the subject of the surveillance by GPS, is not in question, because information on the movements of S.'s car could only be linked to the applicant by additional visual surveillance to confirm his presence in that car. Indeed, none of the domestic courts expressed any doubts that the applicant had been subjected to surveillance via GPS (see, in particular, paragraphs 14, 17, 20 and 26 above).", "51. The Court further notes that by the surveillance of the applicant via GPS, the investigation authorities, for some three months, systematically collected and stored data determining, in the circumstances, the applicant's whereabouts and movements in the public sphere. They further recorded the personal data and used it in order to draw up a pattern of the applicant's movements, to make further investigations and to collect additional evidence at the places the applicant had travelled to, which was later used at the criminal trial against the applicant (see paragraph 17 above).", "52. In the Court's view, GPS surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a person's right to respect for private life, because they disclose more information on a person's conduct, opinions or feelings. Having regard to the principles established in its case-law, it nevertheless finds the above-mentioned factors sufficient to conclude that the applicant's observation via GPS, in the circumstances, and the processing and use of the data obtained thereby in the manner described above amounted to an interference with his private life as protected by Article 8 § 1.", "53. Consequently, the Government's preliminary objection that the applicant may not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention must equally be dismissed.", "2. Whether the interference was justified", "a. Was the interference “in accordance with the law”?", "i. The parties'submissions", "α. The applicant", "54. The applicant argued that the said interference had not been justified under Article 8 § 2. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure had not been a sufficient legal basis for the interference. That provision had not been meant by the legislator to cover measures of surveillance unknown at the time of its adoption. Moreover, the term “other special technical means intended for the purpose of surveillance” contained in the said Article was not sufficiently clear and, having regard to possible technical developments in the future, its content was not foreseeable for the persons possibly concerned. This had implicitly been confirmed by the Federal Constitutional Court which had found that there was a risk of infringements of fundamental rights by the use of new forensic techniques and that the legislator had to safeguard the respect of those rights, if necessary, by additional legislative provisions (see paragraph 25 above).", "55. Moreover, the applicant submitted that the legal provisions on the basis of which GPS surveillance had been ordered had not satisfied the qualitative requirements developed in the Court's case-law on secret measures of surveillance (he refers, in particular, to the case of Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 ‑ XI and to that of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, 28 June 2007 ). In particular, there was no statutory limit on the duration of such surveillance. Furthermore, in view of the intensity of the interference, authorising the prosecution, as opposed to the investigating judge, to order that surveillance had not offered sufficient protection against arbitrariness.", "56. The applicant further took the view that the use of numerous further surveillance measures in addition to GPS surveillance had led to his total surveillance by the State authorities and had violated his rights under Article 8 in that the law did not contain sufficient safeguards against abuse, in particular because no order by an independent tribunal had been necessary to authorise and supervise the surveillance measures in their entirety. A subsequent judicial review of the surveillance measures alone had not afforded sufficient protection to the persons concerned. It was carried out only if criminal proceedings were instituted at all following such a measure and if by that measure the prosecution had obtained evidence which it intended to use at the trial. Article 163f of the Code of Criminal Procedure (see paragraph 32 above) had not been in force at the relevant time and, in any event, did itself not contain sufficient safeguards against abuse.", "β. The Government", "57. The Government argued that, even assuming that the surveillance of the applicant via GPS was considered an interference with the applicant's right to respect for his private life, that interference had been justified under paragraph 2 of Article 8. It had been based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a legal provision which met the necessary qualitative requirements, in particular that of foreseeability. They took the view that the principles developed in the Court's case-law on the law's foreseeability in the context of cases concerning the interception of telecommunications could not be transferred to the present case concerning the surveillance via GPS as the latter interfered to a much lesser extent with the private life of the person concerned than telephone tapping. As had been confirmed by the domestic courts, it had been sufficiently clear that the term “other special technical means intended for the purpose of surveillance” under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, whereby the legislator intended to authorise the use of future surveillance techniques, covered a surveillance via GPS.", "58. Moreover, the Government submitted that the legal provisions at issue contained sufficient safeguards against arbitrary interference by the authorities with the citizens'rights. Surveillance by technical means such as GPS had only been authorised under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure if the investigation concerned a criminal offence of considerable gravity. Under Article 100c § 2 of the Code of Criminal Procedure (see paragraph 29 above), such a measure could, as a rule, only be ordered against persons charged with a criminal offence. Under the legal provisions in force at the relevant time, the Public Prosecutor's Office had been authorised to issue a surveillance order. It had not been necessary to confer that power on a judge. In any event, there was a judicial review of the measures at issue in the subsequent criminal proceedings. Moreover, as the domestic courts had convincingly found, a court order for the surveillance via GPS had not been necessary in view of the fact that that measure had been used in addition to several further measures of surveillance.", "59. Furthermore, the Government underlined that the person concerned by the surveillance measure had to be informed thereof as soon as this was possible without endangering the purpose of the investigations (Article 101 § 1 of the Code of Criminal Procedure, see paragraph 31 above). Moreover, the principle of proportionality had been respected in that under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, the surveillance methods in question had only been authorised if other means of investigation had less prospect of success or were more difficult. The duration of a measure of surveillance via GPS also had to be proportionate.", "ii. The Court's assessment", "α. Relevant principles", "60. Under the Court's case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A; Lambert, cited above, § 23; and Perry, cited above, § 45).", "61. As to the requirement of legal “foreseeability” in this field, the Court reiterates that in the context of covert measures of surveillance, the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (see, among other authorities, Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; Valenzuela Contreras v. Spain, 30 July 1998, § 46 (iii), Reports 1998 ‑ V; and Bykov v. Russia [GC], no. 4378/02, § 76, ECHR 2009 ‑ ... ). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 ‑ XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007; Liberty and Others v. the United Kingdom, no. 58243/00, § 62, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, § 39, 10 February 2009).", "62. The Court has further stated, in the context of Article 7 of the Convention, that in any system of law, including criminal law, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. The Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see, inter alia, S.W. v. the United Kingdom, 22 November 1995, § 36, Series A no. 335 ‑ B; and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II ). The Court considers that these principles, developed under Article 7, apply also in the present context.", "63. In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of misuse of power, compatibility with the rule of law requires that domestic law provides adequate protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Amann, cited above, §§ 76-77; Bykov, cited above, § 76; see also Weber and Saravia (dec.), cited above, § 94; and Liberty and Others, cited above, § 62 ). The Court must be satisfied that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 77, with reference to Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28).", "β. Application of those principles to the present case", "64. The Court, examining whether the interference with the applicant's right to respect for his private life by his surveillance via GPS was “in accordance with the law” within the meaning of Article 8 § 2, considers that this interference had a basis in German statute law, Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a provision which was accessible to the applicant.", "65. As to the law's foreseeability and its compliance with the rule of law, the Court notes at the outset that in his submissions, the applicant strongly relied on the minimum safeguards which are to be set out in statute law in order to avoid abuses as developed by the Court in the context of applications concerning the interception of telecommunications. According to these principles, the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their communications monitored; a limit on the duration of such monitoring; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which data obtained may or must be erased or the records destroyed, have to be defined in statute law (see Weber and Saravia, cited above, § 95, with further references ).", "66. While the Court is not barred from gaining inspiration from these principles, it finds that these rather strict standards, set up and applied in the specific context of surveillance of telecommunications (see also Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76; Liberty and Others, cited above, § 62; and Iordachi and Others, cited above, § 39 ), are not applicable as such to cases such as the present one, concerning surveillance via GPS of movements in public places and thus a measure which must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations (see paragraph 52 above). It will therefore apply the more general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see paragraph 63 ).", "67. In determining whether the provisions on the applicant's surveillance via GPS complied with the requirement of “foreseeability”, the Court notes the applicant's argument that the term “other special technical means intended for the purpose of surveillance” contained in Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure was not sufficiently clear and could not be said to cover surveillance via GPS. On the contrary, the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998 ‑ II ), were unanimous in their finding that the said Article covered surveillance by such means (see paragraphs 14, 19 and 25 above).", "68. The Court considers that it was clear from the wording of Article 100c § 1 no. 1 (b), read in the context of Article 100c § 1 no. 1 (a) and no. 2, that the technical means at issue covered methods of surveillance which were neither visual nor acoustical and were used, in particular, “to detect the perpetrator's whereabouts”. As the use of GPS does not constitute either visual or acoustical surveillance and allows the location of objects equipped with a GPS receiver and thus of persons travelling with or in those objects, the Court finds that the domestic courts'finding that such surveillance was covered by Article 100c § 1 no. 1 (b) was a reasonably foreseeable development and clarification of the said provision of the Code of Criminal Procedure by judicial interpretation.", "69. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court observes that in its nature conducting surveillance of a person by building a GPS receiver into the car he or she uses, coupled with visual surveillance of that person, permits the authorities to track that person's movements in public places whenever he or she is travelling in that car. It is true that, as the applicant had objected, there was no fixed statutory limit on the duration of such monitoring. A fixed time-limit had only subsequently been enacted in so far as under the new Article 163f § 4 of the Code of Criminal Procedure, the systematic surveillance of a suspect ordered by a Public Prosecutor could not exceed one month, and any further extension could only be ordered by a judge (see paragraph 32 above). However, the Court is satisfied that the duration of such a surveillance measure was subject to its proportionality in the circumstances and that the domestic courts reviewed the respect of the proportionality principle in this respect (see for an example paragraph 28 above). It finds that German law therefore provided sufficient guarantees against abuse on that account.", "70. As to the grounds required for ordering a person's surveillance via GPS, the Court notes that under Article 100c § 1 no. 1 (b), § 2 of the Code of Criminal Procedure, such surveillance could only be ordered against a person suspected of a criminal offence of considerable gravity or, in very limited circumstances, against a third person suspected of being in contact with the accused, and if other means of detecting the whereabouts of the accused had less prospect of success or were more difficult. It finds that domestic law thus set quite strict standards for authorising the surveillance measure at issue.", "71. The Court further observes that under domestic law the prosecution was able to order a suspect's surveillance via GPS, which was carried out by the police. It notes that in the applicant's submission, only conferring the power to order GPS surveillance on an investigating judge would have offered sufficient protection against arbitrariness. The Court observes that pursuant to Article 163f § 4 of the Code of Criminal Procedure, which entered into force after the applicant's surveillance via GPS had been carried out, systematic surveillance of a suspect for a period exceeding one month did indeed have to be ordered by a judge. It welcomes this reinforcement of the protection of the right of a suspect to respect for his private life. It notes, however, that already, under the provisions in force at the relevant time, surveillance of a subject via GPS has not been removed from judicial control. In subsequent criminal proceedings against the person concerned, the criminal courts could review the legality of such a measure of surveillance and, in the event that the measure was found to be unlawful, had discretion to exclude the evidence obtained thereby from use at the trial (such a review was also carried out in the present case, see, in particular, paragraphs 14, 19 and 21 above).", "72. The Court considers that such judicial review and the possibility to exclude evidence obtained from an illegal GPS surveillance constituted an important safeguard, as it discouraged the investigating authorities from collecting evidence by unlawful means. In view of the fact that GPS surveillance must be considered to interfere less with a person's private life than, for instance, telephone tapping (an order for which has to be made by an independent body both under domestic law (see Article 100 b § 1 of the Code of Criminal Procedure, paragraph 30 above ) and under Article 8 of the Convention (see, in particular, Dumitru Popescu v. Romania (no. 2), no. 71525/01, § § 70-71, 26 April 2007, and Iordachi and Others, cited above, § 40), the Court finds subsequent judicial review of a person's surveillance by GPS to offer sufficient protection against arbitrariness. Moreover, Article 101 § 1 of the Code of Criminal Procedure contained a further safeguard against abuse in that it ordered that the person concerned be informed of the surveillance measure he or she had been subjected to under certain circumstances (see paragraph 31 above).", "73. The Court finally does not overlook that under the Code of Criminal Procedure, it was not necessary for a court to authorise and supervise surveillance via GPS which was carried out in addition to other means of surveillance and thus all surveillance measures in their entirety. It takes the view that sufficient safeguards against abuse require, in particular, that uncoordinated investigation measures taken by different authorities must be prevented and that, therefore, the prosecution, prior to ordering a suspect's surveillance via GPS, had to make sure that it was aware of further surveillance measures already in place. However, having also regard to the findings of the Federal Constitutional Court on this issue (see paragraph 27 above), it finds that at the relevant time the safeguards in place to prevent a person's total surveillance, including the principle of proportionality, were sufficient to prevent abuse.", "74. In view of the foregoing, the Court considers that the interference with the applicant's right to respect for his private life was “in accordance with the law” within the meaning of Article 8 § 2.", "b. Purpose and necessity of the interference", "i. The parties'submissions", "75. The applicant considered that the interference at issue had not been necessary in a democratic society within the meaning of Article 8 § 2 because, as set out above (see paragraphs 54-56), the applicable law failed to protect him sufficiently against arbitrary interference by State authorities.", "76. In the Government's view, the surveillance measure at issue had pursued legitimate aims as it had served the interests of national security, public safety, the prevention of crime and the protection of the rights of others. The measure had also been necessary in a democratic society. As set out above, there had been effective guarantees against abuse. It was true that the legislator, by adopting Article 163f § 4 of the Code of Criminal Procedure, had subsequently further strengthened the rights of the persons concerned in that it had made the surveillance measure subject to a judicial order and a time-limit. This did not, however, warrant the conclusion that the measure had not previously met the minimum standards set by the Convention. The applicant's surveillance via GPS for some two and a half months could not be considered disproportionate. Likewise, the accumulation of different methods of surveillance had not rendered the interference with the applicant's rights disproportionate. The visual surveillance, in particular, had been carried out almost exclusively at weekends and the gravity of the offence the applicant had been suspected of and the danger to the public had justified his surveillance in that manner.", "ii. The Court's assessment", "77. The applicant's surveillance via GPS, ordered by the Federal Public Prosecutor General in order to investigate into several counts of attempted murder for which a terrorist movement had claimed responsibility and to prevent further bomb attacks, served the interests of national security and public safety, the prevention of crime and the protection of the rights of the victims.", "78. In determining whether the applicant's surveillance via GPS as carried out in the present case was “necessary in a democratic society”, the Court reiterates that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Leander v. Sweden, 26 March 1987, § 58, Series A no. 116; and Messina v. Italy (no. 2), no. 25498/94, § 65, ECHR 2000 ‑ X). In examining whether, in the light of the case as a whole, the measure taken was proportionate to the legitimate aims pursued, the Court notes that the applicant's surveillance via GPS was not ordered from the outset. The investigation authorities had first attempted to determine whether the applicant was involved in the bomb attacks at issue by measures which interfered less with his right to respect for his private life. They had notably tried to determine the applicant's whereabouts by installing transmitters in S.'s car, the use of which (other than with the GPS) necessitated the knowledge of where approximately the person to be located could be found. However, the applicant and his accomplice had detected and destroyed the transmitters and had also successfully evaded their visual surveillance by State agents on many occasions. Therefore, it is clear that other methods of investigation, which were less intrusive than the applicant's surveillance by GPS, had proved to be less effective.", "79. The Court further observes that in the present case, the applicant's surveillance by GPS was added to a multitude of further previously ordered, partly overlapping measures of observation. These comprised the applicant's visual surveillance by both members of the North Rhine ‑ Westphalia Department for the Protection of the Constitution and by civil servants of the Federal Office for Criminal Investigations. It further included the video surveillance of the entry of the house he lived in and the interception of the telephones in that house and in a telephone box situated nearby by both of the said authorities separately. Moreover, the North Rhine-Westphalia Department for the Protection of the Constitution intercepted his postal communications at the relevant time.", "80. The Court considers that in these circumstances, the applicant's surveillance via GPS had led to a quite extensive observation of his conduct by two different State authorities. In particular, the fact that the applicant had been subjected to the same surveillance measures by different authorities had led to a more serious interference with his private life, in that the number of persons to whom information on his conduct had become known had been increased. Against this background, the interference by the applicant's additional surveillance via GPS thus necessitated more compelling reasons if it was to be justified. However, the GPS surveillance was carried out for a relatively short period of time (some three months), and, as with his visual surveillance by State agents, affected him essentially only at weekends and when he was travelling in S.'s car. Therefore, he cannot be said to have been subjected to total and comprehensive surveillance. Moreover, the investigation for which the surveillance was put in place concerned very serious crimes, namely several attempted murders of politicians and civil servants by bomb attacks. As shown above, the investigation into these offences and notably the prevention of further similar acts by the use of less intrusive methods of surveillance had previously not proved successful. Therefore, the Court considers that the applicant's surveillance via GPS, as carried out in the circumstances of the present case, was proportionate to the legitimate aims pursued and thus “necessary in a democratic society” within the meaning of Article 8 § 2.", "81. There has accordingly been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "82. The applicant further claimed that the use in the criminal proceedings of information obtained by his surveillance in breach of Article 8, which had been the essential basis for his conviction, had infringed his right to a fair trial. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "83. The Government contested that argument.", "A. Admissibility", "84. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "B. Merits", "85. Having regard to its above finding that the applicant's surveillance via GPS has not breached Article 8 of the Convention, the Court considers that the use of information and evidence obtained thereby in the criminal proceedings against the applicant does not, in the circumstances of the present case, raise a separate issue under Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1967 and lives in Mönchengladbach.", "A. Background to the case", "6. In spring 1993 the North Rhine-Westphalia Department for the Protection of the Constitution ( Verfassungsschutz ) started a long-term observation of the applicant. The latter was suspected of participation in offences committed by the so-called Anti-Imperialist Cell ( Antiimperialistische Zelle ), an organisation which was pursuing the armed combat abandoned since 1992 by the Red Army Fraction ( Rote Armee Fraktion ), a left-wing extremist terrorist movement.", "7. As a consequence, the applicant was occasionally kept under visual surveillance by staff members of the Department for the Protection of the Constitution and the entries to his flats were filmed by video cameras. The Department also intercepted the telephones in the house in which the applicant lived with his mother ( from 26 April 1993 to 4 April 1996) and in a telephone box situated nearby ( from 11 January 1995 until 25 February 1996). Moreover, post addressed to him was opened and checked (from 29 April 1993 to 29 March 1996).", "8. Likewise, S., a presumed accomplice of the applicant, was subjected to surveillance measures from 1993. The Hamburg Office for the Protection of the Constitution intercepted telecommunications from the phone in his parents'house as well as his post. Moreover, staff members of the Office occasionally observed him.", "9. In October 1995 the Federal Public Prosecutor General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which the Anti-Imperialist Cell had claimed responsibility. The Federal Office for Criminal Investigations was in charge of the investigations.", "10. Following this, the applicant and S. were kept under visual surveillance by civil servants of the Federal Office for Criminal Investigation, essentially during the weekends between 30 September 1995 and their arrest on 25 February 1996. Moreover, the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by the Federal Office for Criminal Investigations (from October 1995 to February 1996). The telephones in that house, in a telephone box situated nearby and in S.'s flat in Hamburg were tapped by order of the investigating judge at the Federal Court of Justice (13 October 1995 to 27 February 1996). That judge further ordered observation by the police of the applicant and S. as well as of the cars used by them. The Federal Office for Criminal Investigations also observed the entry of S.'s apartment by means of video cameras (October 1995 to February 1996). Moreover, it intercepted the professional radio communication used by S.", "11. In October 1995 the Federal Office for Criminal Investigations further installed two transmitters ( Peilsender ) in S.'s car, which the applicant and S. often used together. However, the applicant and S. detected and destroyed the transmitters. As they suspected that their telecommunications were being intercepted and that they were being observed, they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities.", "12. In view of this, the Federal Office for Criminal Investigation built a Global Positioning System (GPS) receiver into S.'s car in December 1995 by order of the Federal Public Prosecutor General. Thereby it could determine the location and the speed of the car once per minute. However, the data were only recovered every other day in order to prevent detection of the receiver. This observation lasted until the applicant's and S.'s arrest on 25 February 1996.", "13. GPS is a radio navigation system working with the help of satellites. It allows the continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time. It does not comprise any visual or acoustical surveillance. As opposed to transmitters, its use does not necessitate the knowledge of where approximately the person to be located can be found.", "B. The proceedings before the Düsseldorf Court of Appeal", "14. In the criminal trial opened against the applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December 1997, dismissed the applicant's objection to the use as evidence of the results obtained by his surveillance with the help of GPS. It found that Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below) authorised the use of GPS in the instant case. The reliable information thus collected could therefore be used at trial. This information was confirmed by the evidence obtained by the – legal – video and personal surveillance of the defendants. Moreover, contrary to the applicant's submission, the use of GPS did not require a court order because it had been aggregated with other, legal, methods of surveillance. According to the Code of Criminal Procedure, surveillance via GPS did not have to be ordered by a judge, as opposed to measures interfering more profoundly with the right to self-determination in the sphere of information ( Recht auf informationelle Selbstbestimmung ). Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question.", "15. On 1 September 1999 the Düsseldorf Court of Appeal convicted the applicant, inter alia, of attempted murder and of four counts of causing an explosion and sentenced him to thirteen years'imprisonment. It found that the applicant and S., who had been the only members of the so-called Anti ‑ Imperialist Cell since spring 1995, had placed bombs in front of the houses of members or former members of Parliament and in front of the Peruvian Honorary Consulate between January and December 1995.", "16. The Court of Appeal noted that the applicant had availed himself of his right to remain silent when faced with the charges and that S. had admitted taking part in the bomb attacks only in general terms, without giving any details. However, circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty.", "17. In particular, the Court of Appeal found that for the bomb attack carried out following the GPS surveillance of S.'s car, it had been shown that the car had been parked close to the scene of the crime on the day the offence was committed and on a few days prior to it. Moreover, the car had been located close to the places where the defendants had photocopied, hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb. This evidence was corroborated by information obtained by other methods of surveillance, in particular, the video surveillance of the entry of the applicant's home and the visual surveillance of the defendants by staff of the Federal Office for Criminal Investigations. The defendants'participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications.", "C. The proceedings before the Federal Court of Justice", "18. In an appeal on points of law the applicant complained, in particular, about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS.", "19. By a judgment of 24 January 2001 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. It found that the collection of data by GPS had a legal basis, namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore, the information obtained in this manner could be used in the criminal proceedings against the applicant.", "20. In particular, the use of technical locating devices such as the GPS did not interfere with the applicant's home. As the applicant was suspected of offences of considerable gravity, namely participation in bomb attacks committed by a terrorist organisation, the use of GPS was a proportionate interference with his right to respect for his private life (as protected also by Article 8 of the Convention) and his right to self-determination in the sphere of information. Other methods of investigation would have had less prospect of success, as the applicant and S. had often succeeded in evading other measures of observation.", "21. Endorsing the reasons given by the Court of Appeal, the Federal Court of Justice further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary. However, the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate. In any event, there had not been a total surveillance of the applicant, which alone could violate the principle of proportionality and a person's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings.", "22. The Federal Court of Justice conceded that following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph 32 below) provided that any long-term observation lasting for more than one month had to be ordered by a judge, irrespective of whether or not technical means of surveillance were used. The need for a court order did not, however, previously emanate from the Code of Criminal Procedure, constitutional law or Article 8 of the Convention.", "D. The proceedings before the Federal Constitutional Court", "23. The applicant subsequently lodged a complaint with the Federal Constitutional Court. He claimed, in particular, that his surveillance by the North Rhine-Westphalia and Hamburg Offices for the Protection of the Constitution and by the Federal Office for Criminal Investigations from October 1995 until February 1996 and the judgments of the Court of Appeal and the Federal Court of Justice had infringed his right to privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS. There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law. Moreover, the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing.", "24. On 12 April 2005 the Federal Constitutional Court, having held a hearing, dismissed the applicant's constitutional complaint (file no. 2 BvR 581/01). It found that his complaint was ill-founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal.", "25. The surveillance of the applicant with the help of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. That provision was constitutional. In particular, the term “special technical means intended for the purpose of surveillance” was sufficiently precise. As opposed to visual or acoustic surveillance, it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS. The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques. However, there was a risk of infringement of the right to self ‑ determination in the sphere of information, that is, the right of the individual to determine the use of data on him or her. Therefore, the legislator had to observe technical progress and, if necessary, safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions.", "26. Moreover, the measure did not disproportionately interfere with the applicant's right to privacy. His surveillance did not destroy the essence of his private life. On the contrary, such surveillance by technical means could in some cases make more serious interferences, such as the interception of communications, unnecessary. Therefore, it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence (of considerable gravity) and if other methods of investigation had less prospect of success. Furthermore, the legislator had not been obliged to set up additional safeguards for long-term surveillance – which he later did by adopting Article 163f § 4 of the Code of Criminal Procedure – but could first observe the factual developments in this field.", "27. Neither did the legislator have the duty to regulate the use of several surveillance measures at once. Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional, but could, as a rule, be prevented by the existing procedural safeguards. However, the Public Prosecutor's Office, when ordering a surveillance measure, had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time. Furthermore, the legislator had to observe whether, in view of future developments, the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities.", "28. In the instant case, the interference with the applicant's rights by his surveillance by GPS was proportionate, notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance. The use of several observation measures at the same time had not led to total surveillance. He had been observed with the help of GPS only when he had travelled in S.'s car. Other surveillance measures had basically been used only at weekends and had consisted only to a minor extent of the interception of communications." ]

[ "II. RELEVANT DOMESTIC LAW", "29. Article 100c § 1 no. 1 was inserted into the Code of Criminal Procedure by the Act on the fight against drug trafficking and other forms of organised crime ( Gesetz zur Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der organisierten Kriminalität ) of 15 July 1992. The relevant parts of Article 100 c of the Code of Criminal Procedure, in its version in force at the relevant time, provided :", "“(1) Without the knowledge of the person concerned", "no. 1", "a) photographs may be taken and visual recordings be made,", "b) other special technical means intended for the purpose of surveillance may be used to investigate the facts of the case or to detect the perpetrator's whereabouts if the investigation concerns a criminal offence of considerable gravity and", "if other means of investigating the facts of the case or of detecting the perpetrator's whereabouts had less prospect of success or were more difficult,", "no. 2", "private speech may be listened to and recorded using technical means ...", "(2) Measures pursuant to paragraph 1 may only be taken against the accused. ... Measures pursuant to paragraph 1 no. 1 (b) ... may be ordered against third persons only if it can be assumed, on the basis of specific facts, that they are in contact with or will contact the perpetrator and that the measure will make it possible to establish the facts or to determine the perpetrator's whereabouts and if other means would offer no prospect of success or would be considerably more difficult.”", "30. Pursuant to Article 100d § 1 of the Code of Criminal Procedure, in its version in force at the relevant time – just as for an order to tap a person's telephone (Article 100b § 1 of the Code of Criminal Procedure) – a court order was necessary to authorise the use of technical devices to bug and to record conversations made in private under Article 100c § 1 no. 2 of the Code of Criminal Procedure. However, that Article did not prescribe a court order for measures of investigation taken under Article 100c § 1 no. 1.", "31. Pursuant to Article 101 § 1 of the Code of Criminal Procedure, the person concerned by a measure under Article 100c § 1 no. 1 (b) of that Code shall be notified of the measure taken as soon as this is possible without endangering the purpose of the investigations, public safety, life and limb of another person or the possible further use of an undercover agent involved in the measure.", "32. On 1 November 2000 Article 163f of the Code of Criminal Procedure, on long-term systematic surveillance of suspects, entered into force. Pursuant to paragraph 1 of that Article, such surveillance lasting for more than twenty-four hours non-stop or applied on more than two days, could only be ordered in respect of persons suspected of an offence of considerable gravity and if other means of investigating the facts of the case or the suspect's whereabouts had considerably less prospect of success or were considerably more difficult. The measure was to be ordered by the Public Prosecutor's Office (paragraph 3). Pursuant to paragraph 4, the measure had to be restricted to a maximum of one month; any further extension could only be ordered by a judge.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained that his observation via GPS and its aggregation with several further measures of surveillance, as well as the use of the data obtained thereby in the criminal proceedings against him, had breached his right to respect for his private life as provided in Article 8 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "34. The Government contested that argument.", "A. Admissibility", "1. The parties'submissions", "a. The Government", "35. The Government considered that the applicant had not fully exhausted domestic remedies as required by Article 35 of the Convention. In the proceedings before the domestic courts, he had failed to complain about his visual observation as such, which alone had established a link between himself and the data obtained by the GPS surveillance in that it had disclosed his presence in S.'s car. Moreover, the applicant had not contested the lawfulness of all surveillance measures other than the GPS surveillance, in particular the interception of his telecommunications, before the domestic courts.", "36. The Government further took the view that the applicant could not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention. They argued that the GPS surveillance of the car of his accomplice S. had not directly concerned him in person.", "b. The applicant", "37. The applicant contested that view. He argued, in particular, that he had exhausted domestic remedies. He underlined that he had complained both before the domestic courts and before this Court about his surveillance via GPS, which had been applied in addition to further surveillance methods used at the same time, and had objected to the use of evidence obtained as a result of his surveillance via GPS and not only to the use of the GPS data as such. Furthermore, he had also complained throughout the proceedings that he was under total surveillance by an accumulation of different measures of surveillance in addition to the use of GPS. This was confirmed by the reasoning of the decisions of the domestic courts, which had addressed– and rejected – his arguments in this respect.", "2. The Court's assessment", "38. The Court notes, as regards the scope of the case before it, that the applicant complained under Article 8 about his observation via GPS. He argued that this measure, taken alone, was in breach of his right to respect for his private life and that in any event it breached Article 8 because of its aggregation with several further measures of surveillance. He further complained about the use of the data collected thereby in the criminal proceedings against him. The applicant did not contest the lawfulness of any of the additional surveillance measures other than the GPS surveillance. The Court observes that the applicant brought his complaint as defined above before the Düsseldorf Court of Appeal, the Federal Court of Justice and the Federal Constitutional Court, which all addressed and rejected it on the merits (see paragraphs 14, 18-22 and 23-28 respectively). Consequently, the Government's objection of non-exhaustion of domestic remedies must be dismissed.", "39. As to the question whether the applicant may claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention in view of the fact that it was not himself, but his accomplice's car which had been subjected to surveillance via GPS, the Court considers that this issue is closely linked to the substance of his complaint under Article 8. It therefore joins the preliminary objection raised by the Government in this respect to the merits of the case.", "40. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there was an interference with private life", "a. The parties'submissions", "41. In the applicant's view, his total surveillance via GPS had interfered with his right to respect for his private life. Even though the GPS receiver had been built into an object (S.'s car), it had been used to observe his (and S.'s) movements. It had enabled the investigating authorities to draw up a comprehensive pattern of his movements in public for months, by means of a measure which was very precise and difficult to detect. All his movements had been made known to third persons without his consent. The information gathered by the GPS surveillance had enabled the authorities to initiate further investigations, inter alia, at the places he had travelled to.", "42. The Government took the view that there had not been an interference with the applicant's right to respect for his private life under Article 8 by the surveillance via GPS. This surveillance had not directly concerned the applicant in person as the GPS receiver had been built into the car of his accomplice S. and as the data collected had only revealed where the receiver had found itself at a particular time and not who had been travelling in S.'s car.", "b. The Court's assessment", "i. Recapitulation of the relevant principles", "43. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001 ‑ IX; Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 ‑ I; and Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003 ‑ IX (extracts) ).", "44. There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37 ). A person walking along the street will inevitably be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character (see also Herbecq and the Association “Ligue des droits de l'homme” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports (DR) 92-B, p. 92, concerning the use of photographic equipment which does not involve the recording of the visual data obtained ). Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § § 58 -59; and Perry, cited above, § 38 ).", "45. Further elements which the Court has taken into account in this respect include the question whether there has been compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable.", "46. Thus, the Court has considered that the systematic collection and storing of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with these persons'private lives (see Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck, cited above, § 59; and Perry, cited above, § 38; compare also Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the storing of information about the applicant on a card in a file was found to be an interference with private life, even though it contained no sensitive information and had probably never been consulted ). The Court has also referred in this context to the Council of Europe's Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force – inter alia for Germany – on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see P.G. and J.H. v. the United Kingdom, cited above, § 57 ).", "47. The Court has further taken into consideration whether the impugned measure amounted to a processing or use of personal data of a nature to constitute an interference with respect for private life (see, in particular, Perry, cited above, §§ 40-41 ). Thus, it considered, for instance, the permanent recording of footage deliberately taken of the applicant at a police station by a security camera and its use in a video identification procedure as the processing of personal data about the applicant interfering with his right to respect for private life (ibid., §§ 39-43). Likewise, the covert and permanent recording of the applicants'voices at a police station for further analysis as voice samples directly relevant for identifying these persons in the context of other personal data was regarded as the processing of personal data about them amounting to an interference with their private lives (see P.G. and J.H. v. the United Kingdom, cited above, § § 59-60; and Perry, cited above, § 38 ).", "48. Finally, the publication of material obtained in public places in a manner or degree beyond that normally foreseeable may also bring recorded data or material within the scope of Article 8 § 1 (see Peck, cited above, §§ 60-63, concerning disclosure to the media for broadcast use of video footage of the applicant taken in a public place; and Perry, cited above, § 38).", "ii. Application of these principles to the present case", "49. In determining whether the surveillance via GPS carried out by the investigation authorities interfered with the applicant's right to respect for his private life, the Court, having regard to the above principles, will determine first whether this measure constituted a compilation of data on the applicant. It notes the Government's argument that this was not the case, given that the GPS receiver had been built into an object ( a car) belonging to a third person (the applicant's accomplice). However, in doing so, the investigating authorities clearly intended to obtain information on the movements of both the applicant and his accomplice as they had been aware from their previous investigations that both suspects had been using S.'s car together on the weekends of previous bomb attacks (see paragraphs 11 and 17 above; see also, mutatis mutandis, Lambert v. France, 24 August 1998, § 21, Reports of Judgments and Decisions 1998 ‑ V, where it was considered irrelevant to the finding of an interference with the applicant's private life that the telephone tapping in question had been carried out on the line of a third party ).", "50. Moreover, the fact that the applicant must, just as S. was, be considered to have been the subject of the surveillance by GPS, is not in question, because information on the movements of S.'s car could only be linked to the applicant by additional visual surveillance to confirm his presence in that car. Indeed, none of the domestic courts expressed any doubts that the applicant had been subjected to surveillance via GPS (see, in particular, paragraphs 14, 17, 20 and 26 above).", "51. The Court further notes that by the surveillance of the applicant via GPS, the investigation authorities, for some three months, systematically collected and stored data determining, in the circumstances, the applicant's whereabouts and movements in the public sphere. They further recorded the personal data and used it in order to draw up a pattern of the applicant's movements, to make further investigations and to collect additional evidence at the places the applicant had travelled to, which was later used at the criminal trial against the applicant (see paragraph 17 above).", "52. In the Court's view, GPS surveillance is by its very nature to be distinguished from other methods of visual or acoustical surveillance which are, as a rule, more susceptible of interfering with a person's right to respect for private life, because they disclose more information on a person's conduct, opinions or feelings. Having regard to the principles established in its case-law, it nevertheless finds the above-mentioned factors sufficient to conclude that the applicant's observation via GPS, in the circumstances, and the processing and use of the data obtained thereby in the manner described above amounted to an interference with his private life as protected by Article 8 § 1.", "53. Consequently, the Government's preliminary objection that the applicant may not claim to be the victim of a breach of his right to respect for his private life for the purposes of Article 34 of the Convention must equally be dismissed.", "2. Whether the interference was justified", "a. Was the interference “in accordance with the law”?", "i. The parties'submissions", "α. The applicant", "54. The applicant argued that the said interference had not been justified under Article 8 § 2. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure had not been a sufficient legal basis for the interference. That provision had not been meant by the legislator to cover measures of surveillance unknown at the time of its adoption. Moreover, the term “other special technical means intended for the purpose of surveillance” contained in the said Article was not sufficiently clear and, having regard to possible technical developments in the future, its content was not foreseeable for the persons possibly concerned. This had implicitly been confirmed by the Federal Constitutional Court which had found that there was a risk of infringements of fundamental rights by the use of new forensic techniques and that the legislator had to safeguard the respect of those rights, if necessary, by additional legislative provisions (see paragraph 25 above).", "55. Moreover, the applicant submitted that the legal provisions on the basis of which GPS surveillance had been ordered had not satisfied the qualitative requirements developed in the Court's case-law on secret measures of surveillance (he refers, in particular, to the case of Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 ‑ XI and to that of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, 28 June 2007 ). In particular, there was no statutory limit on the duration of such surveillance. Furthermore, in view of the intensity of the interference, authorising the prosecution, as opposed to the investigating judge, to order that surveillance had not offered sufficient protection against arbitrariness.", "56. The applicant further took the view that the use of numerous further surveillance measures in addition to GPS surveillance had led to his total surveillance by the State authorities and had violated his rights under Article 8 in that the law did not contain sufficient safeguards against abuse, in particular because no order by an independent tribunal had been necessary to authorise and supervise the surveillance measures in their entirety. A subsequent judicial review of the surveillance measures alone had not afforded sufficient protection to the persons concerned. It was carried out only if criminal proceedings were instituted at all following such a measure and if by that measure the prosecution had obtained evidence which it intended to use at the trial. Article 163f of the Code of Criminal Procedure (see paragraph 32 above) had not been in force at the relevant time and, in any event, did itself not contain sufficient safeguards against abuse.", "β. The Government", "57. The Government argued that, even assuming that the surveillance of the applicant via GPS was considered an interference with the applicant's right to respect for his private life, that interference had been justified under paragraph 2 of Article 8. It had been based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a legal provision which met the necessary qualitative requirements, in particular that of foreseeability. They took the view that the principles developed in the Court's case-law on the law's foreseeability in the context of cases concerning the interception of telecommunications could not be transferred to the present case concerning the surveillance via GPS as the latter interfered to a much lesser extent with the private life of the person concerned than telephone tapping. As had been confirmed by the domestic courts, it had been sufficiently clear that the term “other special technical means intended for the purpose of surveillance” under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, whereby the legislator intended to authorise the use of future surveillance techniques, covered a surveillance via GPS.", "58. Moreover, the Government submitted that the legal provisions at issue contained sufficient safeguards against arbitrary interference by the authorities with the citizens'rights. Surveillance by technical means such as GPS had only been authorised under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure if the investigation concerned a criminal offence of considerable gravity. Under Article 100c § 2 of the Code of Criminal Procedure (see paragraph 29 above), such a measure could, as a rule, only be ordered against persons charged with a criminal offence. Under the legal provisions in force at the relevant time, the Public Prosecutor's Office had been authorised to issue a surveillance order. It had not been necessary to confer that power on a judge. In any event, there was a judicial review of the measures at issue in the subsequent criminal proceedings. Moreover, as the domestic courts had convincingly found, a court order for the surveillance via GPS had not been necessary in view of the fact that that measure had been used in addition to several further measures of surveillance.", "59. Furthermore, the Government underlined that the person concerned by the surveillance measure had to be informed thereof as soon as this was possible without endangering the purpose of the investigations (Article 101 § 1 of the Code of Criminal Procedure, see paragraph 31 above). Moreover, the principle of proportionality had been respected in that under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, the surveillance methods in question had only been authorised if other means of investigation had less prospect of success or were more difficult. The duration of a measure of surveillance via GPS also had to be proportionate.", "ii. The Court's assessment", "α. Relevant principles", "60. Under the Court's case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A; Lambert, cited above, § 23; and Perry, cited above, § 45).", "61. As to the requirement of legal “foreseeability” in this field, the Court reiterates that in the context of covert measures of surveillance, the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (see, among other authorities, Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82; Valenzuela Contreras v. Spain, 30 July 1998, § 46 (iii), Reports 1998 ‑ V; and Bykov v. Russia [GC], no. 4378/02, § 76, ECHR 2009 ‑ ... ). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 ‑ XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007; Liberty and Others v. the United Kingdom, no. 58243/00, § 62, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, § 39, 10 February 2009).", "62. The Court has further stated, in the context of Article 7 of the Convention, that in any system of law, including criminal law, however clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. The Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see, inter alia, S.W. v. the United Kingdom, 22 November 1995, § 36, Series A no. 335 ‑ B; and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II ). The Court considers that these principles, developed under Article 7, apply also in the present context.", "63. In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of misuse of power, compatibility with the rule of law requires that domestic law provides adequate protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Amann, cited above, §§ 76-77; Bykov, cited above, § 76; see also Weber and Saravia (dec.), cited above, § 94; and Liberty and Others, cited above, § 62 ). The Court must be satisfied that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 77, with reference to Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28).", "β. Application of those principles to the present case", "64. The Court, examining whether the interference with the applicant's right to respect for his private life by his surveillance via GPS was “in accordance with the law” within the meaning of Article 8 § 2, considers that this interference had a basis in German statute law, Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, a provision which was accessible to the applicant.", "65. As to the law's foreseeability and its compliance with the rule of law, the Court notes at the outset that in his submissions, the applicant strongly relied on the minimum safeguards which are to be set out in statute law in order to avoid abuses as developed by the Court in the context of applications concerning the interception of telecommunications. According to these principles, the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their communications monitored; a limit on the duration of such monitoring; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which data obtained may or must be erased or the records destroyed, have to be defined in statute law (see Weber and Saravia, cited above, § 95, with further references ).", "66. While the Court is not barred from gaining inspiration from these principles, it finds that these rather strict standards, set up and applied in the specific context of surveillance of telecommunications (see also Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76; Liberty and Others, cited above, § 62; and Iordachi and Others, cited above, § 39 ), are not applicable as such to cases such as the present one, concerning surveillance via GPS of movements in public places and thus a measure which must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations (see paragraph 52 above). It will therefore apply the more general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see paragraph 63 ).", "67. In determining whether the provisions on the applicant's surveillance via GPS complied with the requirement of “foreseeability”, the Court notes the applicant's argument that the term “other special technical means intended for the purpose of surveillance” contained in Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure was not sufficiently clear and could not be said to cover surveillance via GPS. On the contrary, the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998 ‑ II ), were unanimous in their finding that the said Article covered surveillance by such means (see paragraphs 14, 19 and 25 above).", "68. The Court considers that it was clear from the wording of Article 100c § 1 no. 1 (b), read in the context of Article 100c § 1 no. 1 (a) and no. 2, that the technical means at issue covered methods of surveillance which were neither visual nor acoustical and were used, in particular, “to detect the perpetrator's whereabouts”. As the use of GPS does not constitute either visual or acoustical surveillance and allows the location of objects equipped with a GPS receiver and thus of persons travelling with or in those objects, the Court finds that the domestic courts'finding that such surveillance was covered by Article 100c § 1 no. 1 (b) was a reasonably foreseeable development and clarification of the said provision of the Code of Criminal Procedure by judicial interpretation.", "69. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court observes that in its nature conducting surveillance of a person by building a GPS receiver into the car he or she uses, coupled with visual surveillance of that person, permits the authorities to track that person's movements in public places whenever he or she is travelling in that car. It is true that, as the applicant had objected, there was no fixed statutory limit on the duration of such monitoring. A fixed time-limit had only subsequently been enacted in so far as under the new Article 163f § 4 of the Code of Criminal Procedure, the systematic surveillance of a suspect ordered by a Public Prosecutor could not exceed one month, and any further extension could only be ordered by a judge (see paragraph 32 above). However, the Court is satisfied that the duration of such a surveillance measure was subject to its proportionality in the circumstances and that the domestic courts reviewed the respect of the proportionality principle in this respect (see for an example paragraph 28 above). It finds that German law therefore provided sufficient guarantees against abuse on that account.", "70. As to the grounds required for ordering a person's surveillance via GPS, the Court notes that under Article 100c § 1 no. 1 (b), § 2 of the Code of Criminal Procedure, such surveillance could only be ordered against a person suspected of a criminal offence of considerable gravity or, in very limited circumstances, against a third person suspected of being in contact with the accused, and if other means of detecting the whereabouts of the accused had less prospect of success or were more difficult. It finds that domestic law thus set quite strict standards for authorising the surveillance measure at issue.", "71. The Court further observes that under domestic law the prosecution was able to order a suspect's surveillance via GPS, which was carried out by the police. It notes that in the applicant's submission, only conferring the power to order GPS surveillance on an investigating judge would have offered sufficient protection against arbitrariness. The Court observes that pursuant to Article 163f § 4 of the Code of Criminal Procedure, which entered into force after the applicant's surveillance via GPS had been carried out, systematic surveillance of a suspect for a period exceeding one month did indeed have to be ordered by a judge. It welcomes this reinforcement of the protection of the right of a suspect to respect for his private life. It notes, however, that already, under the provisions in force at the relevant time, surveillance of a subject via GPS has not been removed from judicial control. In subsequent criminal proceedings against the person concerned, the criminal courts could review the legality of such a measure of surveillance and, in the event that the measure was found to be unlawful, had discretion to exclude the evidence obtained thereby from use at the trial (such a review was also carried out in the present case, see, in particular, paragraphs 14, 19 and 21 above).", "72. The Court considers that such judicial review and the possibility to exclude evidence obtained from an illegal GPS surveillance constituted an important safeguard, as it discouraged the investigating authorities from collecting evidence by unlawful means. In view of the fact that GPS surveillance must be considered to interfere less with a person's private life than, for instance, telephone tapping (an order for which has to be made by an independent body both under domestic law (see Article 100 b § 1 of the Code of Criminal Procedure, paragraph 30 above ) and under Article 8 of the Convention (see, in particular, Dumitru Popescu v. Romania (no. 2), no. 71525/01, § § 70-71, 26 April 2007, and Iordachi and Others, cited above, § 40), the Court finds subsequent judicial review of a person's surveillance by GPS to offer sufficient protection against arbitrariness. Moreover, Article 101 § 1 of the Code of Criminal Procedure contained a further safeguard against abuse in that it ordered that the person concerned be informed of the surveillance measure he or she had been subjected to under certain circumstances (see paragraph 31 above).", "73. The Court finally does not overlook that under the Code of Criminal Procedure, it was not necessary for a court to authorise and supervise surveillance via GPS which was carried out in addition to other means of surveillance and thus all surveillance measures in their entirety. It takes the view that sufficient safeguards against abuse require, in particular, that uncoordinated investigation measures taken by different authorities must be prevented and that, therefore, the prosecution, prior to ordering a suspect's surveillance via GPS, had to make sure that it was aware of further surveillance measures already in place. However, having also regard to the findings of the Federal Constitutional Court on this issue (see paragraph 27 above), it finds that at the relevant time the safeguards in place to prevent a person's total surveillance, including the principle of proportionality, were sufficient to prevent abuse.", "74. In view of the foregoing, the Court considers that the interference with the applicant's right to respect for his private life was “in accordance with the law” within the meaning of Article 8 § 2.", "b. Purpose and necessity of the interference", "i. The parties'submissions", "75. The applicant considered that the interference at issue had not been necessary in a democratic society within the meaning of Article 8 § 2 because, as set out above (see paragraphs 54-56), the applicable law failed to protect him sufficiently against arbitrary interference by State authorities.", "76. In the Government's view, the surveillance measure at issue had pursued legitimate aims as it had served the interests of national security, public safety, the prevention of crime and the protection of the rights of others. The measure had also been necessary in a democratic society. As set out above, there had been effective guarantees against abuse. It was true that the legislator, by adopting Article 163f § 4 of the Code of Criminal Procedure, had subsequently further strengthened the rights of the persons concerned in that it had made the surveillance measure subject to a judicial order and a time-limit. This did not, however, warrant the conclusion that the measure had not previously met the minimum standards set by the Convention. The applicant's surveillance via GPS for some two and a half months could not be considered disproportionate. Likewise, the accumulation of different methods of surveillance had not rendered the interference with the applicant's rights disproportionate. The visual surveillance, in particular, had been carried out almost exclusively at weekends and the gravity of the offence the applicant had been suspected of and the danger to the public had justified his surveillance in that manner.", "ii. The Court's assessment", "77. The applicant's surveillance via GPS, ordered by the Federal Public Prosecutor General in order to investigate into several counts of attempted murder for which a terrorist movement had claimed responsibility and to prevent further bomb attacks, served the interests of national security and public safety, the prevention of crime and the protection of the rights of the victims.", "78. In determining whether the applicant's surveillance via GPS as carried out in the present case was “necessary in a democratic society”, the Court reiterates that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Leander v. Sweden, 26 March 1987, § 58, Series A no. 116; and Messina v. Italy (no. 2), no. 25498/94, § 65, ECHR 2000 ‑ X). In examining whether, in the light of the case as a whole, the measure taken was proportionate to the legitimate aims pursued, the Court notes that the applicant's surveillance via GPS was not ordered from the outset. The investigation authorities had first attempted to determine whether the applicant was involved in the bomb attacks at issue by measures which interfered less with his right to respect for his private life. They had notably tried to determine the applicant's whereabouts by installing transmitters in S.'s car, the use of which (other than with the GPS) necessitated the knowledge of where approximately the person to be located could be found. However, the applicant and his accomplice had detected and destroyed the transmitters and had also successfully evaded their visual surveillance by State agents on many occasions. Therefore, it is clear that other methods of investigation, which were less intrusive than the applicant's surveillance by GPS, had proved to be less effective.", "79. The Court further observes that in the present case, the applicant's surveillance by GPS was added to a multitude of further previously ordered, partly overlapping measures of observation. These comprised the applicant's visual surveillance by both members of the North Rhine ‑ Westphalia Department for the Protection of the Constitution and by civil servants of the Federal Office for Criminal Investigations. It further included the video surveillance of the entry of the house he lived in and the interception of the telephones in that house and in a telephone box situated nearby by both of the said authorities separately. Moreover, the North Rhine-Westphalia Department for the Protection of the Constitution intercepted his postal communications at the relevant time.", "80. The Court considers that in these circumstances, the applicant's surveillance via GPS had led to a quite extensive observation of his conduct by two different State authorities. In particular, the fact that the applicant had been subjected to the same surveillance measures by different authorities had led to a more serious interference with his private life, in that the number of persons to whom information on his conduct had become known had been increased. Against this background, the interference by the applicant's additional surveillance via GPS thus necessitated more compelling reasons if it was to be justified. However, the GPS surveillance was carried out for a relatively short period of time (some three months), and, as with his visual surveillance by State agents, affected him essentially only at weekends and when he was travelling in S.'s car. Therefore, he cannot be said to have been subjected to total and comprehensive surveillance. Moreover, the investigation for which the surveillance was put in place concerned very serious crimes, namely several attempted murders of politicians and civil servants by bomb attacks. As shown above, the investigation into these offences and notably the prevention of further similar acts by the use of less intrusive methods of surveillance had previously not proved successful. Therefore, the Court considers that the applicant's surveillance via GPS, as carried out in the circumstances of the present case, was proportionate to the legitimate aims pursued and thus “necessary in a democratic society” within the meaning of Article 8 § 2.", "81. There has accordingly been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "82. The applicant further claimed that the use in the criminal proceedings of information obtained by his surveillance in breach of Article 8, which had been the essential basis for his conviction, had infringed his right to a fair trial. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "83. The Government contested that argument.", "A. Admissibility", "84. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "B. Merits", "85. Having regard to its above finding that the applicant's surveillance via GPS has not breached Article 8 of the Convention, the Court considers that the use of information and evidence obtained thereby in the criminal proceedings against the applicant does not, in the circumstances of the present case, raise a separate issue under Article 6 § 1 of the Convention." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "12. Mr. James Malone was born in 1937 and is resident in Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has since ceased business as such.", "13. On 22 March 1977, Mr. Malone was charged with a number of offences relating to dishonest handling of stolen goods. His trial, which took place in June and August 1978, resulted in his being acquitted on certain counts and the jury disagreeing on the rest. He was retried on the remaining charges between April and May 1979. Following a further failure by the jury to agree, he was once more formally arraigned; the prosecution offered no evidence and he was acquitted.", "14. During the first trial, it emerged that details of a telephone conversation to which Mr. Malone had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the investigations. Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of State for the Home Department.", "15. In October 1978, the applicant instituted civil proceedings in the Chancery Division of the High Court against the Metropolitan Police Commissioner, seeking, inter alia, declarations to the effect that interception, monitoring and recording of conversations on his telephone lines without his consent was unlawful, even if done pursuant to a warrant of the Secretary of State. The Solicitor General intervened in the proceedings on behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor, Sir Robert Megarry, dismissed the applicant ’ s claim (Malone v. Commissioner of Police of the Metropolis (No. 2), [1979] 2 All England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An account of this judgment is set out below (at paragraphs 31-36).", "16. The applicant further believed that both his correspondence and his telephone calls had been intercepted for a number of years. He based his belief on delay to and signs of interference with his correspondence. In particular, he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state. As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping. He thought that such measures had continued since his acquittal on the charges against him.", "It was admitted by the Government that the single conversation about which evidence emerged at the applicant ’ s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant ’ s proceedings against the Commissioner of Police as to whether the applicant ’ s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant ’ s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed.", "17. In addition, Mr. Malone believed that his telephone had been \"metered\" on behalf of the police by a device which automatically records all numbers dialled. As evidence for this belief, he asserted that when he was charged in March 1977 the premises of about twenty people whom he had recently telephoned were searched by the police. The Government affirmed that the police had neither caused the applicant ’ s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering.", "18. In September 1978, the applicant requested the Post Office and the complaints department of the police to remove suspected listening devices from his telephone. The Post Office and the police both replied that they had no authority in the matter." ]

[ "II. RELEVANT LAW AND PRACTICE", "A. Introduction", "19. The following account is confined to the law and practice in England and Wales relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime. The expression \"interception\" is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved.", "20. It has for long been the practice for the interception of postal and telephone communications in England and Wales to be carried out on the authority of a warrant issued by a Secretary of State, nowadays normally the Secretary of State for the Home Department (the Home Secretary). There is no overall statutory code governing the matter, although various statutory provisions are applicable thereto. The effect in domestic law of these provisions is the subject of some dispute in the current proceedings. Accordingly, the present summary of the facts is limited to what is undisputed, the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment \"as to the law\".", "21. Three official reports available to the public have described and examined the working of the system for the interception of communications.", "Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 \"to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...\". The Committee ’ s report (hereinafter referred to as \"the Birkett report\") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report.", "Secondly, a Command Paper entitled \"The Interception of Communications in Great Britain\" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as \"the White Paper\"). The purpose of the White Paper was to bring up to date the account given in the Birkett report.", "Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date.", "22. The legal basis of the practice of intercepting telephone communications was also examined by the Vice-Chancellor in his judgment in the action which the applicant brought against the Metropolitan Police Commissioner (see paragraphs 31-36 below).", "23. Certain changes have occurred in the organisation of the postal and telephone services since 1957, when the Birkett Committee made its report. The Post Office, which ran both services, was then a Department of State under the direct control of a Minister (the Postmaster General). By virtue of the Post Office Act 1969, it became a public corporation with a certain independence of the Crown, though subject to various ministerial powers of supervision and control exercised at the material time by the Home Secretary. The Post Office Act 1969 was repealed in part and amended by the British Telecommunications Act 1981. That Act divided the Post Office into two corporations: the Post Office, responsible for mail, and British Telecommunications, responsible for telephones. The 1981 Act made no change of substance in relation to the law governing interceptions. For the sake of convenience, references in the present judgment are to the position as it was before the 1981 Act came into force.", "B. Legal position relating to interception of communications prior to 1969", "24. The existence of a power vested in the Secretary of State to authorise by warrant the interception of correspondence, in the sense of detaining and opening correspondence transmitted by post, has been acknowledged from early times and its exercise has been publicly known (see the Birkett report, Part I, especially paras. 11, 17 and 39). The precise origin in law of this executive authority is obscure (ibid., para. 9). Nevertheless, although none of the Post Office statutes (of 1710, 1837, 1908 or 1953) contained clauses expressly conferring authority to intercept communications, all recognised the power as an independently existing power which it was lawful to exercise (ibid., paras. 17 and 38).", "25. At the time of the Birkett report, the most recent statutory provision recognising the right of interception of a postal communication was section 58 sub-section 1 of the Post Office Act 1953, which provides:", "\"If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour ....", "Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State.\"", "\"Postal packet\" is defined in section 87 sub-section 1 of the Act as meaning:", "\"a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram\".", "Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710.", "26. So far as telecommunications are further concerned, it is an offence under section 45 of the Telegraph Act 1863 if an official of the Post Office \"improperly divulges to any person the purport of any message\". Section 11 of the Post Office (Protection) Act 1884 creates a similar offence in relation to telegrams. In addition, section 20 of the Telegraph Act 1868 makes it a criminal offence if any Post Office official \"shall, contrary to his duty, disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to the [Post Office] for the purpose of transmission\".", "These provisions are still in force.", "27. It was held in a case decided in 1880 (Attorney General v. Edison Telephone Company, (1880) 6 Queen ’ s Bench Division 244) that a telephone conversation is a \"telegraphic communication\" for the purposes of the Telegraph Acts. It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations.", "28. The power to intercept telephone messages has been exercised in England and Wales from time to time since the introduction of the telephone. Until the year 1937, the Post Office, which was at that time a Department of Government, acted upon the view that the power which the Crown exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law. Consequently, no warrants by the Secretary of State were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and the Director-General of the Post Office. In 1937, the position was reviewed by the Home Secretary and the Postmaster General (the Minister then responsible for the administration of the Post Office) and it was decided, as a matter of policy, that it was undesirable that records of telephone conversations should be made by Post Office servants and disclosed to the police without the authority of the Secretary of State. The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of State was, by its nature, wide enough to include the interception of telephone communications. Since 1937 it had accordingly been the practice of the Post Office to intercept telephone conversations only on the express warrant of the Secretary of State (see the Birkett report, paras. 40-41).", "The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes ( Birkett report, para. 50). It concluded (ibid., para. 51):", "\"We are therefore of the opinion that the state of the law might fairly be expressed in this way.", "(a) The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament.", "(b) This power extends to telegrams.", "(c) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams, then it is wide enough to cover telephone communications as well.\"", "C. Post Office Act 1969", "29. Under the Post Office Act 1969, the \"Post Office\" ceased to be a Department of State and was established as a public corporation of that name with the powers, duties and functions set out in the Act. In consequence of the change of status of the Post Office and of the fact that the Post Office was no longer under the direct control of a Minister of the Crown, it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of State. By section 80 of the Act it was therefore provided as follows:", "\"A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him.\"", "30. The 1969 Act also introduced, for the first time, an express statutory defence to the offences under the Telegraph Acts mentioned above (at paragraph 26), similar to that which exists under section 58 para. 1 of the Post Office Act 1953. This was effected by paragraph 1 sub-paragraph 1 of Schedule 5 to the Act, which reads:", "\"In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State.\"", "D. Judgment of Sir Robert Megarry V.-C. in Malone v. Commissioner of Police of the Metropolis", "31. In the civil action which he brought against the Metropolitan Police Commissioner, Mr. Malone sought various relief including declarations to the following effect:", "- that any \"tapping\" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary;", "- that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights;", "- that the tapping of his telephone lines violated Article 8 (art. 8) of the Convention.", "In his judgment, delivered on 28 February 1979, the Vice-Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of Article 8 (art. 8) of the Convention. He made a detailed examination of the domestic law relating to telephone tapping, held in substance that the practice of tapping on behalf of the police as recounted in the Birkett report was legal and accordingly dismissed the action.", "32. The Vice-Chancellor described the central issue before him as being in simple form: is telephone tapping in aid of the police in their functions relating to crime illegal? He further delimited the question as follows:", "\"... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them.\" ([1979] 2 All England Law Reports, p. 629)", "33. The Vice-Chancellor held that there was no right of property (as distinct from copyright) in words transmitted along telephone lines (ibid., p. 631).", "As to the applicant ’ s remaining contentions based on privacy and confidentiality, he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant. Unlike a search of premises, the process of telephone tapping on Post Office premises did not involve any act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly, referring to the warrant of the Home Secretary, the Vice-Chancellor remarked that such warrant did not \"purport to be issued under the authority of any statute or of the common law\". The decision to introduce such warrants in 1937 seemed \"plainly to have been an administrative decision not dictated or required by statute\" (ibid.). He referred, however, to section 80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor General had based certain contentions summarised as follows:", "\"Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping.\" (ibid., p. 641)", "\"In their essentials\", stated the Vice-Chancellor, \"these contentions seem to me to be sound.\" He accepted that, by the 1969 Act,", "\"Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts\" (ibid., pp. 641-642).", "The Vice-Chancellor further concluded that there was in English law neither a general right of privacy nor, as the applicant had contended, a particular right of privacy to hold a telephone conversation in the privacy of one ’ s home without molestation (ibid., pp. 642-644). Moreover, no duty of confidentiality existed between the Post Office and the telephone subscriber; nor was there any other obligation of confidence on a person who overheard a telephone conversation, whether by means of tapping or otherwise (ibid., pp. 645-647).", "34. Turning to the arguments based on the Convention, the Vice-Chancellor noted firstly that the Convention was not part of the law of England and, as such, did not confer on the applicant direct rights that could be enforced in the English courts (ibid., p. 647).", "He then considered the applicant ’ s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown ’ s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded:", "\"... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure.", "It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘ adequate and effective safeguards against abuse ’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law.", "I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes.\"", "This conclusion did not, however, enable the Vice-Chancellor to decide the case in the way the applicant sought:", "\"It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [the above-stated proviso]: possible ways of expressing such a rule may be seen in what I have already said. But I see the greatest difficulty in the common law framing the safeguards required by the second limb. Various institutions or offices would have to be brought into being to exercise various defined functions. The more complex and indefinite the subject-matter the greater the difficulty in the court doing what it is really appropriate, and only appropriate, for the legislature to do. Furthermore, I find it hard to see what there is in the present case to require the English courts to struggle with such a problem. Give full rein to the Convention, and it is clear that when the object of the surveillance is the detection of crime, the question is not whether there ought to be a general prohibition of all surveillance, but in what circumstances, and subject to what conditions and restrictions, it ought to be permitted. It is those circumstances, conditions and restrictions which are at the centre of this case; and yet it is they which are the least suitable for determination by judicial decision.", "... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me.\" (ibid., pp. 647-649)", "He added that \"this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation\", and continued:", "\"However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted.\" (ibid., p. 649)", "35. As a final point of substance, the Vice-Chancellor dealt, in the following terms, with the applicant ’ s contention that as no power to tap telephones had been given by either statute or common law, the tapping was necessarily unlawful:", "\"I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary ’ s warrant seems to me to point clearly to the same conclusion.\" (ibid., p. 649)", "36. The Vice-Chancellor therefore held that the applicant ’ s claim failed in its entirety. He made the following concluding remarks as to the ambit of his decision:", "\"Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated.\" (ibid., p. 651)", "E. Subsequent consideration of the need for legislation", "37. Following the Vice-Chancellor ’ s judgment, the necessity for legislation concerning the interception of communications was the subject of review by the Government, and of Parliamentary discussion. On 1 April 1980, on the publication of the White Paper, the Home Secretary announced in Parliament that after carefully considering the suggestions proffered by the Vice-Chancellor in his judgment, the Government had decided not to introduce legislation. He explained the reasons for this decision in the following terms:", "\"The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret, and cannot therefore be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control, and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject.", "Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters\" ( Hansard, House of Commons, 1 April 1980, cols. 205-207).", "He gave an assurance that \"Parliament will be informed of any changes that are made in the arrangements\" (ibid., col. 208).", "38. In the course of the Parliamentary proceedings leading to the enactment of the British Telecommunications Act 1981, attempts were made to include in the Bill provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper. The Government successfully opposed these moves, primarily on the grounds that secrecy, which was essential if interception was to be effective, could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts. The present arrangements and safeguards were adequate and the proposed new provisions were, in the Government ’ s view, unworkable and unnecessary (see, for example, the statement of the Home Secretary in the House of Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act eventually contained a re-enactment of section 80 of the Post Office Act 1969 applicable to the Telecommunications Corporation (Schedule 3, para. 1, of the 1981 Act). Section 80 of the 1969 Act itself continues to apply to the Post Office.", "39. In its report presented to Parliament in January 1981 (Command Paper 8092), the Royal Commission on Criminal Procedure, which had been appointed in 1978, also considered the possible need for legislation in this field. In the chapter entitled \"Investigative powers and the rights of the citizen\", the Royal Commission made the following recommendation in regard to what it termed \"surreptitious surveillance\" ( paras. 3.56-3.60):", "\"... [A] lthough we have no evidence that the existing controls are inadequate to prevent abuse, we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants. As with all features of police investigative procedures, the value of prescribing them in statutory form is that it brings clarity and precision to the rules; they are open to public scrutiny and to the potential of Parliamentary review. So far as surveillance devices in general are concerned this is not at present so.", "...", "We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute.\"", "These recommendations were not adopted by the Government.", "40. A few months later, the Law Commission, a permanent body set up by statute in 1965 for the purpose of promoting reform of the law, produced a report on breach of confidence (presented to Parliament in October 1981 - Command Paper 8388). This report examined, inter alia, the implications for the civil law of confidence of the acquisition of information by surveillance devices, and made various proposals for reform of the law ( paras. 6.35 - 6.46). The Law Commission, however, felt that the question whether \"the methods which the police ... may use to obtain information should be defined by statute\" was a matter outside the scope of its report ( paras. 6.43 and 6.44 in fine). No action has been taken by the Government on this report.", "F. The practice followed in relation to interceptions", "41. Details of the current practices followed in relation to interceptions are set out in the Government ’ s White Paper of 1980. The practices there summarised are essentially the same as those described and recommended in the Birkett report, and referred to in Parliamentary statements by successive Prime Ministers and Home Secretaries in 1957, 1966, 1978 and 1980.", "42. The police, H.M. Customs and Excise and the Security Service may request authority for the interception of communications for the purposes of \"detection of serious crime and the safeguarding of the security of the State\" (paragraph 2 of the White Paper). Interception may take place only on the authority of the Secretary of State given by warrant under his own hand. In England and Wales, the power to grant such warrants is exercised by the Home Secretary or occasionally, if he is ill or absent, by another Secretary of State on his behalf (ibid.). In the case of warrants applied for by the police to assist them in the detection of crime, three conditions must be satisfied before a warrant will be issued:", "(a) the offence must be \"really serious\";", "(b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed;", "(c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction.", "43. As is indicated in the Birkett report ( paras. 58-61), the concept of \"serious crime\" has varied from time to time. Changing circumstances have made some acts serious offences which were not previously so regarded; equally, some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded. Thus, the interception of letters believed to contain obscene or indecent matter ceased in the mid-1950s ( Birkett report, para. 60); no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since November 1953 (ibid., para. 59). \"Serious crime\" is defined in the White Paper, and subject to the addition of the concluding words has been consistently defined since September 1951 ( Birkett report, para. 64), as consisting of \"offences for which a man with no previous record could reasonably be expected to be sentenced to three years ’ imprisonment, or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence\" (White Paper, para. 4). In April 1982, the Home Secretary announced to Parliament that, on a recommendation made by Lord Diplock in his second report (see paragraph 55 below), the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of three years ’ imprisonment on first conviction, but in which the financial rewards of success were very large ( Hansard, House of Commons, 21 April 1982, col. 95).", "Handling (including receiving) stolen goods, knowing or believing them to be stolen, is an offence under section 22 of the Theft Act 1968, carrying a maximum penalty of fourteen years ’ imprisonment. According to the Government, the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large-scale thefts (see the Birkett report, para. 103). The detection of receivers of stolen property was at the time of the Birkett report (ibid.), and remains, one of the important uses to which interception of communications is put by the police.", "44. Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request. Every application is submitted to the Permanent Under-Secretary of State - the senior civil servant - at the Home Office (or, in his absence, a nominated deputy), who, if he is satisfied that the application meets the required criteria, submits it to the Secretary of State for approval and signature of a warrant. In a case of exceptional urgency, if the Secretary of State is not immediately available to sign a warrant, he may be asked to give authority orally, by telephone; a warrant is signed and issued as soon as possible thereafter (White Paper, para. 9).", "In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met ( Hansard, House of Commons, 1 April 1981, col. 336).", "45. Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored, together with the name and address of the subscriber. Any changes require the authority of the Secretary of State, who may delegate power to give such authority to the Permanent Under-Secretary. If both the mail and the telephone line of a person are to be intercepted, two separate warrants are required (White Paper, para. 10).", "46. Every warrant is time-limited, specifying a date on which it expires if not renewed. Warrants are in the first place issued with a time-limit set at a defined date not exceeding two months from the date of issue. Warrants may be renewed only on the personal authority of the Secretary of State and may be renewed for not more than one month at a time. In each case where renewal of a warrant is sought, the police are required first to satisfy the Permanent Under-Secretary of State at the Home Office that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified: a submission to the Secretary of State for authority to renew the warrant is only made if the Permanent Under-Secretary is so satisfied (White Paper, para. 11).", "47. Warrants are reviewed monthly by the Secretary of State. When an interception is considered to be no longer necessary, it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under-Secretary of State at the Home Office. In addition to the monthly review of each warrant by the Secretary of State, the Metropolitan Police carry out their own review each month of all warrants arising from police applications: where an interception is deemed to be no longer necessary, instructions are issued to the Post Office to discontinue the interception forthwith and the Home Office is informed so that the warrant can be cancelled ( Birkett report, paras. 72-74; White Paper, paras. 12-13).", "48. In accordance with the recommendations of the Birkett report (para. 84), records are kept in the Home Office, showing in respect of each application for a warrant:", "(a) the ground on which the warrant is applied for;", "(b) a copy of the warrant issued or a note of rejection of the application;", "(c) the dates of any renewals of the warrant;", "(d) a note of any other decisions concerning the warrant;", "(e) the date of cancellation of the warrant (White Paper, para. 14).", "49. On the issue of a warrant, the interception is effected by the Post Office. Telephone interceptions are carried out by a small staff of Post Office employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly. In the case of postal communications, the Post Office makes a copy of the correspondence. As regards the interception of communications for the purpose of the detection of crime, in practice the \"designated person holding office under the Crown\" to whom the Post Office is required by sub-section 80 of the Post Office Act 1969 to transmit the intercepted information (see paragraph 29 above) is invariably the Commissioner of Police of the Metropolis. The product of the interception - that is, the copy of the correspondence or the tape-recording - is made available to a special unit of the Metropolitan Police who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation. When the documentary record has been made, the tape is returned to the Post Office staff, who erase the recording. The tape is subsequently re-used. The majority of recordings are erased within one week of their being taken ( Birkett report, paras. 115-117; White Paper, para. 15).", "50. A Consolidated Circular to Police, issued by the Home Office in 1977, contained the following paragraphs in a section headed \"Supply of information by Post Office to police\":", "\"1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information", "(a) in the interests of justice in the investigation of a serious indictable offence; or", "(b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or", "(c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or", "...", "1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed", "...", "(g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ...", "...", "1.69 ...", "1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied.\"", "In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was \"in some respects misleading\", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases.", "51. The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of twelve months or for as long as they may be required for the purposes of investigation. The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question. When the notes or transcriptions are no longer required for the purposes of the investigation, the documentary record is destroyed ( Birkett report, para. 118; White Paper, para. 15). The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations: the material is not tendered in evidence, although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence ( Birkett report, para. 151; White Paper, para. 16). In accordance with the recommendation of the Birkett Committee ( Birkett report, para. 101), information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind (White Paper, para. 17).", "52. An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained, even when the surveillance and the related investigations have terminated.", "53. For security reasons it is the normal practice not to disclose the numbers of interceptions made ( Birkett report, paras. 119-121; White Paper, paras. 24-25). However, in order to allay public concern as to the extent of interception, both the Birkett report and the White Paper gave figures for the number of warrants granted annually over the years preceding their publication. The figures in the White Paper (Appendix III) indicate that in England and Wales between 1969 and 1979 generally something over 400 telephone warrants and something under 100 postal warrants were granted annually by the Home Secretary. Paragraph 27 of the White Paper also gave the total number of Home Secretary warrants in force on 31 December for the years 1958 (237), 1968 (273) and 1978 (308). The number of telephones installed at the end of 1979 was, according to the Government, 26,428,000, as compared with 7,327,000 at the end of 1957. The Government further stated that over the period from 1958 to 1978 there was a fourfold increase in indictable crime, from 626,000 to 2,395,000.", "54. When the White Paper was published on 1 April 1980, the Home Secretary announced in Parliament that the Government, whilst not proposing to introduce legislation (see paragraph 37 above), intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures. His terms of reference were stated to be:", "\"to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister\" ( Hansard, House of Commons, 1 April 1980, cols. 207-208).", "It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.).", "55. Lord Diplock, a Lord of Appeal in Ordinary since 1968, was appointed to carry out the review. In his first report, published in March 1981, Lord Diplock recorded, inter alia, that, on the basis of a detailed examination of apparently typical cases selected at random, he was satisfied", "( i ) that, in each case, the information provided by the applicant authorities to the Secretary of State in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of State were appropriate to detect and correct any departure from proper standards;", "(ii) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose.", "Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out.", "In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock ’ s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned.", "In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980.", "G. \"Metering\"", "56. The process known as \"metering\" involves the use of a device called a meter check printer which registers the numbers dialled on a particular telephone and the time and duration of each call. It is a process which was designed by the Post Office for its own purposes as the corporation responsible for the provision of telephone services. Those purposes include ensuring that the subscriber is correctly charged, investigating complaints of poor quality service and checking possible abuse of the telephone service. When \"metering\" a telephone, the Post Office - now British Telecommunications (see paragraph 23 above) - makes use only of signals sent to itself.", "In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means.", "However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761).", "H. Possible domestic remedies in respect of the alleged violation of the Convention", "57. Commission, Government and applicant are agreed that, at least in theory, judicial remedies are available in England and Wales, in both the civil and the criminal courts, in respect of interceptions of communications carried out unlawfully. The remedies referred to by the Government were summarised in the pleadings as follows:", "( i ) In the event of any interception or disclosure of intercepted material effected by a Post Office employee \"contrary to duty\" or \"improperly\" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution.", "(ii) In addition to ( i ) above, in a case of unlawful interception by a Post Office employee without a warrant, an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and the Post Office itself from carrying out further unlawful interception of his communications: such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act (see, for example, Gouriet v. The Union of Post Office Workers, [1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All England Law Reports 795).", "(iii) On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police.", "Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages.", "58. The Government further pointed to the following possible non-judicial remedies:", "( i ) In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions.", "(ii) If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant.", "(iii) Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out.", "According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded.", "PROCEEDINGS BEFORE THE COMMISSION", "59. In his application of 19 July 1979 to the Commission (no. 8691/79), Mr. Malone complained of the admitted interception of a telephone conversation to which he had been a party. He further stated his belief that, at the behest of the police, his correspondence as well as that of his wife had been intercepted, his telephone lines \"tapped\" and, in addition, his telephone \"metered\" by a device recording all the numbers dialled. He claimed that by reason of these matters, and of relevant law and practice in England and Wales, he had been the victim of breaches of Articles 8 and 13 (art. 8, art. 13) of the Convention.", "60. The Commission declared the application admissible on 13 July 1981.", "In its report adopted on 17 December 1982 (Article 31) (art. 31), the Commission expressed the opinion:", "- that there had been a breach of the applicant ’ s rights under Article 8 (art. 8) by reason of the admitted interception of a telephone conversation to which he was a party and of the law and practice in England and Wales governing the interception of postal and telephone communications on behalf of the police (eleven votes, with one abstention);", "- that it was unnecessary in the circumstances of the case to investigate whether the applicant ’ s rights had also been interfered with by the procedure known as \"metering\" of telephone calls (seven votes to three, with two abstentions);", "- that there had been a breach of the applicant ’ s rights under Article 13 (art. 13) in that the law in England and Wales did not provide an \"effective remedy before a national authority\" in respect of interceptions carried out under a warrant (ten votes to one, with one abstention).", "The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "61. At the hearings on 20 February 1984, the Government maintained the submissions set out in their memorial, whereby they requested the Court", "\"(1) with regard to Article 8 (art. 8),", "( i ) to decide and declare that the interference with the exercise of the rights guaranteed by Article 8 para. 1 (art. 8-1) of the Convention resulting from the measures of interception of communications on behalf of the police in England and Wales for the purpose of the detection and prevention of crime, and any application of those measures to the applicant, were and are justified under paragraph 2 of Article 8 (art. 8-2) as being in accordance with the law and necessary in a democratic society for the prevention of crime and for the protection of the rights and freedoms of others and that accordingly there has been no breach of Article 8 (art. 8) of the Convention;", "(ii) (a) to decide and declare that it is unnecessary in the circumstances of the present case to investigate whether the applicant ’ s rights under Article 8 (art. 8) were interfered with by the so-called system of ‘ metering ’; alternatively (b) to decide and declare that the facts found disclose no breach of the applicant ’ s rights under Article 8 (art. 8) by reason of the said system of ‘ metering ’;", "(2) with regard to Article 13 (art. 13),", "to decide and declare that the circumstances of the present case disclose no breach of Article 13 (art. 13) of the Convention\".", "AS TO THE LAW", "I. ALLEGED BREACH OF ARTICLE 8 (art. 8)", "62. Article 8 (art. 8) provides as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The applicant alleged violation of this Article (art. 8) under two heads. In his submission, the first violation resulted from interception of his postal and telephone communications by or on behalf of the police, or from the law and practice in England and Wales relevant thereto; the second from \"metering\" of his telephone by or on behalf of the police, or from the law and practice in England and Wales relevant thereto.", "A. Interception of communications", "1. Scope of the issue before the Court", "63. It should be noted from the outset that the scope of the case before the Court does not extend to interception of communications in general. The Commission ’ s decision of 13 July 1981 declaring Mr. Malone ’ s application to be admissible determines the object of the case brought before the Court (see, inter alia, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, para. 157). According to that decision, the present case \"is directly concerned only with the question of interceptions effected by or on behalf of the police\" - and not other government services such as H.M. Customs and Excise and the Security Service - \"within the general context of a criminal investigation, together with the legal and administrative framework relevant to such interceptions\".", "2. Whether there was any interference with an Article 8 (art. 8) right", "64. It was common ground that one telephone conversation to which the applicant was a party was intercepted at the request of the police under a warrant issued by the Home Secretary (see paragraph 14 above). As telephone conversations are covered by the notions of \"private life\" and \"correspondence\" within the meaning of Article 8 (art. 8) (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41), the admitted measure of interception involved an \"interference by a public authority\" with the exercise of a right guaranteed to the applicant under paragraph 1 of Article 8 (art. 8-1).", "Despite the applicant ’ s allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police (see paragraph 16 above). They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report (paragraph 115), the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an \"interference ... with the exercise\" of the applicant ’ s rights under Article 8 (art. 8), apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission (see the report, paragraph 114), does not consider it necessary to inquire into the applicant ’ s further claims that both his mail and his telephone calls were intercepted for a number of years.", "3. Whether the interferences were justified", "65. The principal issue of contention was whether the interferences found were justified under the terms of paragraph 2 of Article 8 (art. 8-2), notably whether they were \"in accordance with the law\" and \"necessary in a democratic society\" for one of the purposes enumerated in that paragraph.", "(a) \"In accordance with the law\"", "( i ) General principles", "66. The Court held in its Silver and Others judgment of 25 March 1983 (Series A no. 61, pp. 32-33, para. 85) that, at least as far as interferences with prisoners ’ correspondence were concerned, the expression \"in accordance with the law/ prévue par la loi\" in paragraph 2 of Article 8 (art. 8-2) should be interpreted in the light of the same general principles as were stated in the Sunday Times judgment of 26 April 1979 (Series A no. 30) to apply to the comparable expression \"prescribed by law/ prévues par la loi\" in paragraph 2 of Article 10 (art. 10-2).", "The first such principle was that the word \"law/ loi\" is to be interpreted as covering not only written law but also unwritten law (see the above-mentioned Sunday Times judgment, p. 30, para. 47). A second principle, recognised by Commission, Government and applicant as being applicable in the present case, was that \"the interference in question must have some basis in domestic law\" (see the the above-mentioned Silver and Others judgment, p. 33, para. 86). The expressions in question were, however, also taken to include requirements over and above compliance with the domestic law. Two of these requirements were explained in the following terms:", "\"Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as ‘ law ’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.\" (Sunday Times judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88)", "67. In the Government ’ s submission, these two requirements, which were identified by the Court in cases concerning the imposition of penalties or restrictions on the exercise by the individual of his right to freedom of expression or to correspond, are less appropriate in the wholly different context of secret surveillance of communications. In the latter context, where the relevant law imposes no restrictions or controls on the individual to which he is obliged to conform, the paramount consideration would appear to the Government to be the lawfulness of the administrative action under domestic law.", "The Court would reiterate its opinion that the phrase \"in accordance with the law\" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention (see, mutatis mutandis, the above-mentioned Silver and Others judgment, p. 34, para. 90, and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para. 34). The phrase thus implies - and this follows from the object and purpose of Article 8 (art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) (see the report of the Commission, paragraph 121). Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident (see the above-mentioned Klass and Others judgment, Series A no. 28, pp. 21 and 23, paras. 42 and 49). Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.", "68. There was also some debate in the pleadings as to the extent to which, in order for the Convention to be complied with, the \"law\" itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions on which a public authority may interfere with the exercise of the protected rights. The above-mentioned judgment in the case of Silver and Others, which was delivered subsequent to the adoption of the Commission ’ s report in the present case, goes some way to answering the point. In that judgment, the Court held that \"a law which confers a discretion must indicate the scope of that discretion\", although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (ibid., Series A no. 61, pp. 33-34, paras. 88-89). The degree of precision required of the \"law\" in this connection will depend upon the particular subject-matter (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 31, para. 49). Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.", "(ii) Application in the present case of the foregoing principles", "69. Whilst the exact legal basis of the executive ’ s power in this respect was the subject of some dispute, it was common ground that the settled practice of intercepting communications on behalf of the police in pursuance of a warrant issued by the Secretary of State for the purposes of detecting and preventing crime, and hence the admitted interception of one of the applicant ’ s telephone conversations, were lawful under the law of England and Wales. The legality of this power to intercept was established in relation to telephone communications in the judgment of Sir Robert Megarry dismissing the applicant ’ s civil action (see paragraphs 31-36 above) and, as shown by the independent findings of the Birkett report (see paragraph 28 in fine above), is generally recognised for postal communications.", "70. The issue to be determined is therefore whether, under domestic law, the essential elements of the power to intercept communications were laid down with reasonable precision in accessible legal rules that sufficiently indicated the scope and manner of exercise of the discretion conferred on the relevant authorities.", "This issue was considered under two heads in the pleadings: firstly, whether the law was such that a communication passing through the services of the Post Office might be intercepted, for police purposes, only pursuant to a valid warrant issued by the Secretary of State and, secondly, to what extent the circumstances in which a warrant might be issued and implemented were themselves circumscribed by law.", "71. On the first point, whilst the statements of the established practice given in the Birkett report and the White Paper are categorical para. 55 of the Birkett report and para. 2 of the White Paper - see paragraph 42 above), the law of England and Wales, as the applicant rightly pointed out (see paragraph 56 of the Commission ’ s report), does not expressly make the exercise of the power to intercept communications subject to the issue of a warrant. According to its literal terms, section 80 of the Post Office Act 1969 provides that a \"requirement\" may be laid on the Post Office to pass information to the police, but it does not in itself render illegal interceptions carried out in the absence of a warrant amounting to a valid \"requirement\" (see paragraph 29 above). The Commission, however, concluded that this appeared to be the effect of section 80 when read in conjunction with the criminal offences created by section 58 para. 1 of the Post Office Act 1953 and by the other statutory provisions referred to in paragraph 1, sub-paragraph 1 of Schedule 5 to the 1969 Act (see paragraphs 129-135 of the report, and paragraphs 25, 26 and 30 above). The reasoning of the Commission was accepted and adopted by the Government but, at least in respect of telephone interceptions, disputed by the applicant. He relied on certain dicta to the contrary in the judgment of Sir Robert Megarry (see paragraphs 31-36 above, especially paragraphs 33 and 35). He also referred to the fact that the 1977 Home Office Consolidated Circular to Police made no mention, in the section headed \"Supply of information by Post Office to police\", of the warrant procedure (see paragraph 50 above).", "72. As to the second point, the pleadings revealed a fundamental difference of view as to the effect, if any, of the Post Office Act 1969 in imposing legal restraints on the purposes for which and the manner in which interception of communications may lawfully be authorised by the Secretary of State.", "73. According to the Government, the words in section 80 - and, in particular, the phrase \"for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid\" - define and restrict the power to intercept by reference to the practice which prevailed in 1968. In the submission of the Government, since the entry into force of the 1969 Act a requirement to intercept communications on behalf of the police can lawfully be imposed on the Post Office only by means of a warrant signed personally by the Secretary of State for the exclusive purpose of the detection of crime and satisfying certain other conditions. Thus, by virtue of section 80 the warrant must, as a matter of law, specify the relevant name, address and telephone number; it must be time-limited and can only be directed to the Post Office, not the police. In addition, the Post Office is only required and empowered under section 80 to make information available to \"designated persons holding office under the Crown\". Any attempt to broaden or otherwise modify the purposes for which or the manner in which interceptions may be authorised would require an amendment to the 1969 Act which could only be achieved by primary legislation.", "74. In its reasoning, which was adopted by the applicant, the Commission drew attention to various factors of uncertainty arguing against the Government ’ s view as to the effect of the 1969 Act (see paragraphs 136-142 of the report).", "75. Firstly, the relevant wording of the section, and especially the word \"may\", appeared to the Commission to authorise the laying of a requirement on the Post Office for whatever purposes and in whatever manner it would previously have been lawfully possible to place a ministerial duty on the Postmaster General, and not to be confined to what actually did happen in practice in 1968. Yet at the time of the Birkett report (see, for example, paragraphs 15, 21, 27, 54-55, 56, 62 and 75), and likewise at the time when the 1969 Act was passed, no clear legal restrictions existed on the permissible \"purposes\" and \"manner\". Indeed the Birkett report at one stage (paragraph 62) described the Secretary of State ’ s discretion as \"absolute\", albeit specifying how its exercise was in practice limited.", "76. A further difficulty seen by the Commission is that, on the Government ’ s interpretation, not all the details of the existing arrangements are said to have been incorporated into the law by virtue of section 80 but at least the principal conditions, procedures or purposes for the issue of warrants authorising interceptions. Even assuming that the reference to \"like purposes\" and \"like manner\" is limited to previous practice as opposed to what would have been legally permissible, it was by no means evident to the Commission what aspects of the previous \"purposes\" and \"manner\" have been given statutory basis, so that they cannot be changed save by primary legislation, and what aspects remain matters of administrative discretion susceptible of modification by governmental decision. In this connection, the Commission noted that the notion of \"serious crime\", which in practice serves as a condition governing when a warrant may be issued for the purpose of the detection of crime, has twice been enlarged since the 1969 Act without recourse to Parliament (see paragraphs 42-43 above).", "77. The Commission further pointed out that the Government ’ s analysis of the law was not shared by Sir Robert Megarry in his judgment of February 1979. He apparently accepted the Solicitor General ’ s contentions before him that section 80 referred back to previous administrative arrangements for the issue of warrants (see paragraph 33 above). On the other hand, he plainly considered that these arrangements remained administrative in character and had not, even in their principal aspects, been made binding legal requirements by virtue of section 80 (see paragraph 34 above).", "78. It was also somewhat surprising, so the Commission observed, that no mention of section 80 as regulating the issue of warrants should have been made in the White Paper published by the Government in the wake of Sir Robert Megarry ’ s judgment (see paragraph 21 above). Furthermore, the Home Secretary, when presenting the White Paper to Parliament in April 1980, expressed himself in terms suggesting that the existing arrangements as a whole were matters of administrative practice not suitable for being \"embodied in legislation\", and were subject to change by governmental decision of which Parliament would be informed (see paragraphs 37 in fine and 54 in fine above).", "79. The foregoing considerations disclose that, at the very least, in its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations. The Court would be usurping the function of the national courts were it to attempt to make an authoritative statement on such issues of domestic law (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 28, in fine, and the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 30, fourth sub-paragraph). The Court is, however, required under the Convention to determine whether, for the purposes of paragraph 2 of Article 8 (art. 8-2), the relevant law lays down with reasonable clarity the essential elements of the authorities ’ powers in this domain.", "Detailed procedures concerning interception of communications on behalf of the police in England and Wales do exist (see paragraphs 42-49, 51-52 and 54-55 above). What is more, published statistics show the efficacy of those procedures in keeping the number of warrants granted relatively low, especially when compared with the rising number of indictable crimes committed and telephones installed (see paragraph 53 above). The public have been made aware of the applicable arrangements and principles through publication of the Birkett report and the White Paper and through statements by responsible Ministers in Parliament (see paragraphs 21, 37-38, 41, 43 and 54 above).", "Nonetheless, on the evidence before the Court, it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach a similar conclusion to that of the Commission. In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.", "(iii) Conclusion", "80. In sum, as far as interception of communications is concerned, the interferences with the applicant ’ s right under Article 8 (art. 8) to respect for his private life and correspondence (see paragraph 64 above) were not \"in accordance with the law\".", "(b) \"Necessary in a democratic society\" for a recognised purpose", "81. Undoubtedly, the existence of some law granting powers of interception of communications to aid the police in their function of investigating and detecting crime may be \"necessary in a democratic society ... for the prevention of disorder or crime\", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 23, para. 48). The Court accepts, for example, the assertion in the Government ’ s White Paper (at para. 21) that in Great Britain \"the increase of crime,and particularly the growth of organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about have made telephone interception an indispensable tool in the investigation and prevention of serious crime\". However, the exercise of such powers, because of its inherent secrecy, carries with it a danger of abuse of a kind that is potentially easy in individual cases and could have harmful consequences for democratic society as a whole ( ibid., p. 26, para. 56). This being so, the resultant interference can only be regarded as \"necessary in a democratic society\" if the particular system of secret surveillance adopted contains adequate guarantees against abuse (ibid., p. 23, paras. 49-50).", "82. The applicant maintained that the system in England and Wales for the interception of postal and telephone communications on behalf of the police did not meet this condition.", "In view of its foregoing conclusion that the interferences found were not \"in accordance with the law\", the Court considers that it does not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 (art. 8-2) and whether the system circumstances.", "B. Metering", "83. The process known as \"metering\" involves the use of a device (a meter check printer) which registers the numbers dialled on a particular telephone and the time and duration of each call (see paragraph 56 above). In making such records, the Post Office - now British Telecommunications - makes use only of signals sent to itself as the provider of the telephone service and does not monitor or intercept telephone conversations at all. From this, the Government drew the conclusion that metering, in contrast to interception of communications, does not entail interference with any right guaranteed by Article 8 (art. 8).", "84. As the Government rightly suggested, a meter check printer registers information that a supplier of a telephone service may in principle legitimately obtain, notably in order to ensure that the subscriber is correctly charged or to investigate complaints or possible abuses of the service. By its very nature, metering is therefore to be distinguished from interception of communications, which is undesirable and illegitimate in a democratic society unless justified. The Court does not accept, however, that the use of data obtained from metering, whatever the circumstances and purposes, cannot give rise to an issue under Article 8 (art. 8). The records of metering contain information, in particular the numbers dialled, which is an integral element in the communications made by telephone. Consequently, release of that information to the police without the consent of the subscriber also amounts, in the opinion of the Court, to an interference with a right guaranteed by Article 8 (art. 8).", "85. As was noted in the Commission ’ s decision declaring Mr. Malone ’ s application admissible, his complaints regarding metering are closely connected with his complaints regarding interception of communications. The issue before the Court for decision under this head is similarly limited to the supply of records of metering to the police \"within the general context of a criminal investigation, together with the legal and administrative framework relevant [thereto]\" (see paragraph 63 above).", "86. In England and Wales, although the police do not have any power, in the absence of a subpoena, to compel the production of records of metering, a practice exists whereby the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources (see paragraph 56 above). The applicant, as a suspected receiver of stolen goods, was, it may be presumed, a member of a class of persons potentially liable to be directly affected by this practice. The applicant can therefore claim, for the purposes of Article 25 (art. 25) of the Convention, to be a \"victim\" of a violation of Article 8 (art. 8) by reason of the very existence of this practice, quite apart from any concrete measure of implementation taken against him (cf., mutatis mutandis, paragraph 64 above). This remains so despite the clarification by the Government that in fact the police had neither caused his telephone to be metered nor undertaken any search operations on the basis of any list of telephone numbers obtained from metering (see paragraph 17 above; see also, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 20, para. 37 in fine).", "87. Section 80 of the Post Office Act 1969 has never been applied so as to \"require\" the Post Office, pursuant to a warrant of the Secretary of State, to make available to the police in connection with the investigation of crime information obtained from metering. On the other hand, no rule of domestic law makes it unlawful for the Post Office voluntarily to comply with a request from the police to make and supply records of metering (see paragraph 56 above). The practice described above, including the limitative conditions as to when the information may be provided, has been made public in answer to parliamentary questions (ibid.). However, on the evidence adduced before the Court, apart from the simple absence of prohibition, there would appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authorities. Consequently, although lawful in terms of domestic law, the interference resulting from the existence of the practice in question was not \"in accordance with the law\", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see paragraphs 66 to 68 above).", "88. This conclusion removes the need for the Court to determine whether the interference found was \"necessary in a democratic society\" for one of the aims enumerated in paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, paragraph 82 above).", "C. Recapitulation", "89. There has accordingly been a breach of Article 8 (art. 8) in the applicant ’ s case as regards both interception of communications and release of records of metering to the police.", "II. ALLEGED BREACH OF ARTICLE 13 (art. 13)", "90. The applicant submitted that no effective domestic remedy existed for the breaches of Article 8 (art. 8) of which he complained and that, consequently, there had also been a violation of Article 13 (art. 13) which provides:", "\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "91. Having regard to its decision on Article 8 (art. 8) (see paragraph 89 above), the Court does not consider it necessary to rule on this issue.", "III. APPLICATION OF ARTICLE 50 (art. 50)", "92. The applicant claimed just satisfaction under Article 50 (art. 50) under four heads: ( i ) legal costs that he was ordered by Sir Robert Megarry to pay to the Metropolitan Commissioner of Police, assessed at £9,011.00, (ii) costs, including disbursements, paid by him to his own lawyers in connection with the same action, assessed at £5,443.20, (iii) legal costs incurred in the proceedings before the Commission and the Court, as yet unquantified, and (iv) \"compensation of a moderate amount\" for interception of his telephone conversations.", "He further sought recovery of interest in respect of the first two items.", "The Government have so far made no submissions on these claims.", "93. The question is thus not yet ready for decision and must be reserved; in the circumstances of the case, it is appropriate to refer the matter back to the Chamber (Rule 53 paras. 1 and 3 of the Rules of Court)." ]

[ "I. CIRCUMSTANCES OF THE CASE", "8. Mr Jean Kruslin, who is unemployed and has no fixed abode, is currently in custody at Fresnes (Val-de-Marne).", "9. On 8 and 14 June 1982 an investigating judge at Saint- Gaudens (Haute- Garonne ), who was inquiring into the murder of a banker, Mr Jean Baron, at Montréjeau on the night of 7-8 June (\"the Baron case\"), issued two warrants to the commanding officer of the investigation section of the Toulouse gendarmerie. In the second of these the officer was instructed to tap the telephone of a suspect, Mr Dominique Terrieux, who lived in Toulouse.", "From 15 to 17 June the gendarmes intercepted seventeen telephone calls in all. The applicant, who was staying with Mr Terrieux at the time and occasionally used his telephone, had been a party to several of the telephone conversations and more especially to one between 9 p.m. and 11 p.m. on 17 June with someone calling him from a public telephone-box in Perpignan ( Pyrénées-Orientales ).", "During their short conversation the two men had spoken in veiled terms about a different case from the Baron case, concerning in particular the murder on 29 May 1982 of Mr Henri Père, an employee of the Gerbe d ’ Or jewellers in Toulouse (\"the Gerbe d ’ Or case\"). The gendarmes reported this the next day to colleagues from the criminal-investigation branch of the police. On 11 June 1982 an investigating judge in Toulouse had issued a warrant to these officers to investigate that case, and they now immediately listened to the recording of the telephone conversation in question, had it transcribed and appended the text to a report drawn up at midnight on 18 June; the original tape remained, sealed, with the gendarmerie.", "10. At dawn on 18 June the gendarmes arrested Mr Kruslin at Mr Terrieux ’ s home and held him in custody in connection with the Baron case.", "Early that afternoon he was questioned about the Gerbe d ’ Or case by the police (who had already questioned him on 15 June and then released him after about four hours) and - the next day, it seems - he was charged together with Mr Terrieux and one Patrick Antoine with murder, aggravated theft and attempted aggravated theft. On 25 October 1982 the Toulouse investigating judge held a confrontation of the three men, during which after the seals had been broken in their presence - the aforementioned taperecording was heard in its entirety, including the conversation on the evening of 17 June.", "Mr Kruslin adopted the same attitude as when questioned by the police on 18 June: he protested his innocence and denied - in respect of this conversation but not of the others - that the voice was his. Mr Terrieux now said that he did not recognise the voice, whereas he had identified it earlier.", "The tape was resealed, again in the presence of the persons charged. The applicant refused to sign either the report or the form recording the sealing.", "He subsequently applied for an examination by experts, and the investigating judge granted the application in an order of 10 February 1983. In their report of 8 June 1983, however, the three experts who were appointed felt able to state \"with 80% certainty\" that the voice they had analysed was indeed Mr Kruslin ’ s.", "11. Before the Indictment Division ( chambre d ’ accusation ) of the Toulouse Court of Appeal, to which the case was sent after the judicial investigation was completed, the applicant requested that the recording of the disputed conversation should be ruled inadmissible in evidence because it had been made in connection with proceedings which, he claimed, did not concern him - the Baron case. On 16 April 1985 the Indictment Division dismissed this plea in the following terms:", "\"... while this telephone tapping was ordered by the investigating judge at the Saint- Gaudens tribunal de grande instance in connection with other proceedings, the fact remains that judges are not prohibited by either Article 11 [which lays down the principle that judicial investigations shall be confidential] or Articles R.155 and R.156 of the Code of Criminal Procedure from deciding to include in criminal proceedings evidence from other proceedings which may assist them and help to establish the truth, on the sole condition - which was satisfied in the instant case - that such evidence is added under an adversarial procedure and that it has been submitted to the parties for them to comment on ...\"", "In so doing, the Indictment Division, it appears, took as its inspiration - and extended by analogy to the field of telephone tapping the settled case-law of the Criminal Division of the Court of Cassation, developed in respect of other investigative measures (see, for example, 11 March 1964, Bulletin (Bull.) no. 86; 13 January 1970, Bull. no. 21; 19 December 1973, Bull. no. 480; 26 May and 30 November 1976, Bull. nos. 186 and 345; 16 March and 2 October 1981, Bull. nos. 91 and 256).", "In the same decision the Indictment Division committed Mr Kruslin - with four others, including Mr Terrieux and Mr Antoine - for trial at the Haute- Garonne Assize Court on charges, in his case, of aiding and abetting a murder, aggravated theft and attempted aggravated theft.", "12. The applicant appealed to the Court of Cassation on points of law. In the second of his five grounds of appeal he relied on Article 8 (art. 8) of the Convention. He criticised the Indictment Division of the Toulouse Court of Appeal for having", "\"refused to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible;", "whereas interference by the public authorities with a person ’ s private and family life, home and correspondence is not necessary in a democratic society for the prevention of crime unless it is in accordance with a law that satisfies the following two requirements: it must be of a quality such that it is sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence, and it must define the scope and manner of exercise of such a power clearly enough to give the individual adequate protection from arbitrary interference; these requirements are not satisfied by any provision of French law, and particularly not by Article 81 of the Code of Criminal Procedure\".", "In his supplementary pleadings of 11 June 1985 (pp. 5-8) counsel for Mr Kruslin relied on the case-law of the European Court of Human Rights, both in regard to telephone tapping ( Klass and Others judgment of 6 September 1978 and Malone judgment of 2 August 1984, Series A nos. 28 and 82) and in other respects ( Golder judgment of 21 February 1975, Sunday Times judgment of 26 April 1979 and Silver and Others judgment of 25 March 1983, Series A nos. 18, 30 and 61).", "The Criminal Division of the Court of Cassation dismissed the appeal in a judgment of 23 July 1985. As regards the point in question it gave the following reasons for its decision:", "\"...", "An examination of the evidence shows that the transcript of a tape recording of conversations in calls made on Terrieux ’ s telephone line was included in the file of the murder investigation then being conducted by the Toulouse investigating judge following the death of Henri Père at the hands of a person or persons unknown; this recording had been made pursuant to a warrant issued by the investigating judge at Saint- Gaudens in connection with the investigation of another murder, likewise committed by a person or persons unknown; it was because of its relevance to the investigation into Père ’ s death that the transcription was made by senior police officers acting under a warrant issued by the investigating judge in Toulouse;", "The tenor of the conversations recorded was made known to the various persons concerned, notably Kruslin, who was asked to account for them both during the inquiries made pursuant to the investigating judge ’ s warrant and after he was charged; furthermore, an examination of the tape recording by an expert, whose report was subsequently added to the evidence, was made pursuant to a lawful decision by the investigating judge;", "That being so, the Indictment Division did not lay itself open to the objection raised in the ground of appeal by refusing to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible;", "In the first place, there is no statutory provision prohibiting the inclusion in criminal proceedings of evidence from other proceedings which may assist the judges and help to establish the truth; the sole condition is that such evidence should be added under an adversarial procedure - which was so in this case, in which the documents were submitted to the parties for them to comment on;", "In the second place, it is clear from Articles 81 and 151 of the Code of Criminal Procedure and from the general principles of criminal procedure that, among other things, firstly, telephone tapping may be ordered by an investigating judge, by means of a warrant, only where there is a presumption that a specific offence has been committed which has given rise to the investigation which the judge has been assigned to undertake, and that it cannot be directed, on the off chance, against a whole category of offences; and, secondly, that the interception ordered must be carried out under the supervision of the investigating judge, without any subterfuge or ruse being employed and in such a way that the exercise of the rights of the defence cannot be jeopardised;", "These provisions governing the use of telephone tapping by an investigating judge, which have not been shown to have been infringed in the instant case, satisfy the requirements of Article 8 (art. 8) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;", "...\" (Bull. no. 275, pp. 713-715)", "13. It appears from the file that the recording of the telephone conversation of 17 June 1982 was a decisive piece of evidence in the proceedings against the applicant. These proceedings ended, on 28 November 1986, with a judgment of the Haute- Garonne Assize Court. Mr Kruslin was acquitted of murder but sentenced to fifteen years ’ imprisonment for armed robbery and attempted armed robbery; an appeal by him to the Court of Cassation was dismissed on 28 October 1987. He seems always to have protested his innocence.", "14. In the Baron case the Indictment Division of the Toulouse Court of Appeal likewise committed the applicant, on 2 June 1987, for trial at the Haute- Garonne Assizes, together with Mr Antoine and one Charles Croce. At that trial too he alleged that the telephone tapping carried out from 15 to 17 June 1982 was inadmissible; on 4 November 1987 the Criminal Division of the Court of Cassation dismissed this plea on grounds identical, mutatis mutandis, to those in its judgment of 23 July 1985 previously cited (see paragraph 12 above - Recueil Dalloz Sirey (DS) 1988, sommaires, p. 195). On 2 December 1988 the Assize Court sentenced the applicant to life imprisonment for premeditated murder; he lodged an appeal on points of law, but this was dismissed by the Criminal Division of the Court of Cassation on 6 November 1989.", "The complaints he made to the Commission, however, related solely to the telephone tapping whose results were used in the Gerbe d ’ Or case." ]

[ "II. THE RELEVANT LEGISLATION AND CASE-LAW", "15. French criminal law adopts the principle that any kind of evidence is admissible: \"unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge ...\" (Article 427 of the Code of Criminal Procedure).", "There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping, or indeed to carry out or order various measures which are nonetheless in common use, such as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations of witnesses and reconstructions of crimes. On the other hand, the Code of Criminal Procedure does expressly confer power on them to take several other measures, which it regulates in detail, such as pre-trial detention, seizure of property and searches.", "16. Under the old Code of Criminal Procedure the Court of Cassation had condemned the use of telephone tapping by investigating judges, at least in circumstances which it regarded as disclosing, on the part of a judge or the police, a lack of \"fairness\" incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence (combined divisions, 31 January 1888, ministère public c. Vigneau, Dalloz 1888, jurisprudence, pp. 73-74; Criminal Division, 12 June 1952, Imbert, Bull. no. 153, pp. 258-260; Civil Division, second section, 18 March 1955, époux Jolivot c. époux Lubrano et autres, DS 1955, jurisprudence, pp. 573-574, and Gazette du Palais (GP) 1955, jurisprudence, p. 249). Some trial courts and courts of appeal which had to deal with the issue, on the other hand, showed some willingness to hold that such telephone tapping was lawful if there had been neither \"entrapment\" nor \"provocation\"; this view was based on Article 90 of the former Code (Seine Criminal Court, Tenth Division, 13 February 1957, ministère public contre X, GP 1957, jurisprudence, pp. 309-310).", "17. Since the 1958 Code of Criminal Procedure came into force, the courts have had regard in this respect to, among others, Articles 81, 151 and 152, which provide:", "Article 81", "(first, fourth and fifth paragraphs)", "\"The investigating judge shall, in accordance with the law, take all the investigative measures which he deems useful for establishing the truth.", "...", "If the investigating judge is unable to take all the investigative measures himself, he may issue warrants to senior police officers ( officiers de police judiciaire ) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles 151 and 152.", "The investigating judge must verify the information thus gathered.", "...\"", "Article 151", "(as worded at the material time)", "\"An investigating judge may issue a warrant requiring any judge of his court, any district-court judge within the territorial jurisdiction of that court, any senior police officer ( officier de police judiciaire ) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions.", "The warrant shall indicate the nature of the offence to which the proceedings relate. It shall be dated and signed by the issuing judge and shall bear his seal.", "It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate.", "...\"", "Article 152", "\"The judges or senior police officers instructed to act shall exercise, within the limits of the warrant, all the powers of the investigating judge.", "...\"", "18. An Act of 17 July 1970 added to the Civil Code an Article 9 guaranteeing to everyone \"the right to respect for his private life\". It also added to the Criminal Code an Article 368, whereby:", "\"Anyone who wilfully intrudes on the privacy of others:", "1. By listening to, recording or transmitting by means of any device, words spoken by a person in a private place, without that person ’ s consent;", "2. ...", "shall be liable to imprisonment for not less than two months and not more than one year and a fine ... or to only one of these two penalties.\"", "During the preparatory work, one of the vice-chairmen of the National Assembly ’ s Statutes Committee, Mr Zimmermann, sought \"certain assurances\" that this enactment \"[would] not prevent the investigating judge from issuing strictly within the provisions of the law warrants to have telephones tapped, obviously without making use of any form of inducement and in compliance with all the legal procedures\" (Journal officiel, National Assembly, 1970 proceedings, p. 2074). The Minister of Justice, Mr René Pleven, replied: \"... there is no question of interfering with the powers of investigating judges, who are indeed empowered, in the circumstances laid down by law, to order tapping\"; he added a little later: \"When an official taps a telephone, he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister\" (ibid., p. 2075). Both Houses of Parliament thereupon passed the Bill without amending it on this point.", "19. Article 41 of the Post and Telecommunications Code provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in Article 187 of the Criminal Code - a fine, imprisonment and temporary disqualification from any public office or employment. Article 42 provides that anyone who, without permission from the sender or the addressee, divulges, publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in Article 378 of the Criminal Code (on professional confidentiality) - a fine or imprisonment.", "General Instruction no. 500-78 on the telephone service - intended for Post and Telecommunications Authority officials - contains the following provisions, however, given here in the amended version of 1964 (Article 24 of Part III):", "\"Postmasters and sub-postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority, made by:", "1. An investigating judge (Articles 81, 92 and 94 of the Code of Criminal Procedure) or any judge or senior police officer ( officier de police judiciaire ) to whom a judicial warrant has been issued (Art. 152);", "...\"", "The General Instruction was published in the official bulletin of the Ministry of Post and Telecommunications and was described by the Government as an \"implementing regulation\".", "20. The striking development of various forms of serious crime - large-scale thefts and robberies, terrorism, drug-trafficking - appears in France to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping. The courts have as a result given many more decisions on the subject than formerly; telephone tapping has not been held to be unlawful in itself, although the courts have occasionally shown some distaste for it (Paris Court of Appeal, Ninth Criminal Division, 28 March 1960, Cany et Rozenbaum, GP 1960, jurisprudence, pp. 253-254).", "The decisions cited to the Court by the Government, the Commission and the applicant, or of which the Court has had cognisance by its own means, are mostly of later date than the facts of the instant case (June 1982) and have gradually provided a number of clarifications. These do not all stem from judgments of the Court of Cassation, and do not for the time being constitute a uniform body of case-law, because the decisions or reasons given in some of the cases have remained unique. They may be summarised as follows.", "(a) Articles 81 and 151 of the Code of Criminal Procedure (see paragraph 17 above) empower investigating judges - and them alone, as far as judicial investigations are concerned - to carry out telephone tapping or, much more commonly in practice, to issue a warrant to that effect to a senior police officer ( officier de police judiciaire ) within the meaning of Article 16 (see, in particular, Court of Cassation, Criminal Division, 9 October 1980, Tournet, Bull. no. 255, pp. 662-664; 24 April 1984, Peureux, Huvig et autre, DS 1986, jurisprudence, pp. 125-128; 23 July 1985 - see paragraph 12 above; 4 November 1987 - see paragraph 14 above; 15 February 1988, Schroeder, and 15 March 1988, Arfi, Bull. no. 128, pp. 327-335). Telephone tapping is an \"investigative measure\" which may sometimes be \"useful for establishing the truth\". It is comparable to the seizure of letters or telegrams (see, among other authorities, Poitiers Court of Appeal, Criminal Division, 7 January 1960, Manchet, Juris-Classeur périodique (JCP) 1960, jurisprudence, no. 11599, and Paris Court of Appeal, Indictment Division, 27 June 1984, F. et autre, DS 1985, jurisprudence, pp. 93-96) and it similarly does not offend the provisions of Article 368 of the Criminal Code, having regard to the legislative history and to the principle that any kind of evidence is admissible (see paragraphs 15 and 18 above and Strasbourg tribunal de grande instance, 15 February 1983, S. et autres, unreported; Colmar Court of Appeal, 9 March 1984, Chalvignac et autre, unreported but cited by the Government at the Commission hearing on 6 May 1988; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited and judgment of 31 October 1984, Li Siu Lung et autres, GP 1985, sommaires, pp. 94-95).", "(b) The investigating judge can only issue such a warrant \"where there is a presumption that a specific offence has been committed which has given rise to the investigation\" which he is responsible for conducting and not in respect of a whole category of offences \"on the off chance\"; this is clear not only from Articles 81 and 151 (second and third paragraphs) of the Code of Criminal Procedure but also \"from the general principles of criminal procedure\" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).", "The French courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it.", "(c) \"Within the limits of the warrant\" that has been issued to him - if need be by fax ( Limoges Court of Appeal, Criminal Division, 18 November 1988, Lecesne et autres, DS 1989, sommaires, p. 394) - the senior police officer exercises \"all the powers of the investigating judge\" (Article 152 of the Code of Criminal Procedure). He exercises these under the supervision of the investigating judge, who by the fifth paragraph of Article 81 is bound to \"verify the information ... gathered\" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987 and 15 March 1988 previously cited).", "The warrant apparently sometimes takes the form of a general delegation of powers, including - without its being expressly mentioned - the power to tap telephones (Court of Cassation, Civil Division, second section, judgment of 18 March 1955 previously cited, and Paris Court of Appeal, judgment of 28 March 1960 previously cited).", "(d) In no case may a police officer tap telephones on his own initiative without a warrant, for example during the preliminary investigation preceding the opening of the judicial investigation (see, among other authorities, Court of Cassation, Criminal Division, 13 June 1989, Derrien, and 19 June 1989, Grayo, Bull. no. 254, pp. 635-637, and no. 261, pp. 648-651; full court, 24 November 1989, Derrien, DS 1990, p. 34, and JCP 1990, jurisprudence, no. 21418, with the submissions of Mr Advocate-General Emile Robert).", "(e) Telephone tapping must not be accompanied by \"any subterfuge or ruse\" (see, among other authorities, Court of Cassation, Criminal Division, judgment of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988 and 15 March 1988 previously cited) failing which the information gathered by means of it must be either deleted or removed from the case file (Court of Cassation, Criminal Division, judgments of 13 and 19 June 1989 previously cited).", "(f) The telephone tapping must also be carried out \"in such a way that the exercise of the rights of the defence cannot be jeopardised\" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988, 15 March 1988 and 19 June 1989 previously cited). In particular, the confidentiality of the relations between suspect or person accused and lawyer must be respected, as must, more generally, a lawyer ’ s duty of professional confidentiality, at least when he is not acting in any other capacity (Aix-en-Provence Court of Appeal, Indictment Division, 16 June 1982 and 2 February 1983, Sadji Hamou et autres, GP 1982, jurisprudence, pp. 645-649, and GP 1983, jurisprudence, pp. 313-315; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited).", "(g) With this reservation, it is permissible to tap telephone calls to or from a charged person (Court of Cassation, Criminal Division, judgments of 9 October 1980 and 24 April 1984 previously cited) or a mere suspect, such as Mr Terrieux in the instant case (see paragraph 9 above and also the previously cited judgments of the Strasbourg tribunal de grande instance, 15 February 1983, the Colmar Court of Appeal, 9 March 1984, and the Indictment Division of the Paris Court of Appeal, 27 June 1984) or even a third party, such as a witness, whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence (see, among other authorities, Aix-en-Provence Court of Appeal, judgment of 16 June 1982 previously cited).", "(h) A public telephone-box may be tapped (Seine Criminal Court, Tenth Division, 30 October 1964, Trésor public et Société de courses c. L. et autres, DS 1965, jurisprudence, pp. 423-424) just like a private line, irrespective of whether current is diverted to a listening station (Court of Cassation, Criminal Division, 13 June 1989, and full court, 24 November 1989, previously cited).", "( i ) The senior police officer supervises the tape or cassette recording of the conversations and their transcription, where he does not carry out these operations himself; when it comes to choosing extracts to submit \"for examination by the court\", it is for him to determine \"what words may render the speaker liable to criminal proceedings\". He performs these duties \"on his own responsibility and under the supervision of the investigating judge\" (Strasbourg tribunal de grande instance, judgment of 15 February 1983 previously cited, upheld by the Colmar Court of Appeal on 9 March 1984; Paris Court of Appeal, judgment of 27 June 1984 previously cited).", "(j) The original tapes - which in the instant case were sealed (see paragraphs 8-9 above) - are \"exhibits\", not \"investigation documents\", but have only the weight of circumstantial evidence; their contents are transcribed in reports in order to give them a physical form so that they can be inspected (Court of Cassation, Criminal Division, 28 April 1987, Allieis, Bull. no. 173, pp. 462-467).", "(k) If transcription raises a problem of translation into French, Articles 156 et seq. of the Code of Criminal Procedure, which deal with expert opinions, do not apply to the appointment and work of the translator (Court of Cassation, Criminal Division, 6 September 1988, Fekari, Bull. no. 317, pp. 861-862 (extracts), and 18 December 1989, M. et autres, not yet reported).", "(l) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings, such as tapes and reports containing transcriptions, if they may \"assist the judges and help to establish the truth\", provided that such evidence is added under an adversarial procedure (Toulouse Court of Appeal, Indictment Division, 16 April 1985 - see paragraph 11 above; Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above - and 6 September 1988 previously cited).", "(m) The defence must be able to inspect the reports containing transcriptions, to hear the original tape recordings, to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion, as in the instant case (see paragraph 10 in fine) - relating to their contents and the circumstances in which they were made (see, among other authorities, Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above; 16 July 1986, Illouz, unreported; and 28 April 1987, Allieis, previously cited).", "(n) Just as the investigating judge supervises the senior police officer, he is himself supervised by the Indictment Division, to which he - exactly like the public prosecutor - may apply under Article 171 of the Code of Criminal Procedure.", "Trial courts, courts of appeal and the Court of Cassation may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also, on occasion, by the prosecution (Court of Cassation, judgments of 19 June and 24 November 1989 previously cited) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable. A failure of this kind, however, would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion; they affect only defence rights (Court of Cassation, Criminal Division, 11 December 1989, Takrouni, not yet reported).", "21. Since at least 1981, parties have increasingly often relied on Article 8 (art. 8) of the Convention - and, much less frequently, on Article 6 (art. 6) (Court of Cassation, Criminal Division, 23 April 1981, Pellegrin et autres, Bull. no. 117, pp. 328-335, and 21 November 1988, S. et autres ) - in support of their complaints about telephone tapping; they have sometimes as in the instant case (see paragraph 12 above) - cited the case-law of the European Court of Human Rights.", "Hitherto only telephone tapping carried out without a warrant, during the police investigation (see, among other authorities, Court of Cassation, judgments of 13 June and 24 November 1989 previously cited), or in unexplained circumstances (see, among other authorities, Court of Cassation, judgment of 19 June 1989 previously cited) or in violation of defence rights (Paris Court of Appeal, Indictment Division, judgment of 31 October 1984, previously cited) has been held by the French courts to be contrary to Article 8 § 2 (art. 8-2) (\"in accordance with the law\") or to domestic law in the strict sense. In all other cases the courts have either found no violation (Court of Cassation, Criminal Division, judgments of 24 April 1984, 23 July 1985, 16 July 1986, 28 April 1987, 4 November 1987, 15 February 1988, 15 March 1988, 6 September 1988 and 18 December 1989 previously cited, and 16 November 1988, S. et autre, unreported, and the judgments of 15 February 1983 (Strasbourg), 9 March 1984 ( Colmar ) and 27 June 1984 (Paris) previously cited) or else ruled the plea inadmissible for various reasons (Court of Cassation, Criminal Division, judgments of 23 April 1981, 21 November 1988 and 11 December 1989 previously cited and the unreported judgments of 24 May 1983, S. et autres; 23 May 1985, Y. H. W.; 17 February 1986, H.; 4 November 1986, J.; and 5 February 1990, B. et autres ).", "22. While academic opinion is divided as to the compatibility of telephone tapping as carried out in France - on the orders of investigating judges or others - with the national and international legal rules in force in the country, there seems to be unanimous agreement that it is desirable and even necessary for Parliament to try to solve the problem by following the example set by many foreign States (see in particular Gaëtan di Marino, comments on the Tournet judgment of 9 October 1980 (Court of Cassation), JCP 1981, jurisprudence, no. 19578; Albert Chavanne, ‘ Les résultats de l ’ audio -surveillance comme preuve pénale ’, Revue internationale de droit comparé, 1986, pp. 752-753 and 755; Gérard Cohen-Jonathan, ‘ Les écoutes téléphoniques ’, Studies in honour of Gérard J. Wiarda, 1988, p. 104; Jean Pradel, ‘ Écoutes téléphoniques et Convention européenne des Droits de l ’ Homme ’, DS 1990, chronique, pp. 17-20). In July 1981 the Government set up a study group chaired by Mr Robert Schmelck, who was then President of the Court of Cassation, and consisting of senators and MPs of various political persuasions, judges, university professors, senior civil servants, judges and a barrister. The group submitted a report on 25 June 1982, but this has remained confidential and has not yet led to a bill being tabled.", "PROCEEDINGS BEFORE THE COMMISSION", "23. Before the Commission, to which he applied on 16 October 1985 (application no. 11801/85), Mr Kruslin put forward a single ground of complaint: he argued that the interception and recording of his telephone conversation on 17 June 1982 had infringed Article 8 (art. 8) of the Convention.", "The Commission declared the application admissible on 6 May 1988. In its report of 14 December 1988 (made under Article 31) (art. 31) it expressed the opinion by ten votes to two that there had indeed been a breach of that Article (art. 8). The full text of the Commission ’ s opinion and of the separate opinion contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS TO THE COURT", "24. At the hearing the Court was requested:", "(a) by the Agent of the Government to \"hold that there ha[d] been no breach of Article 8 (art. 8) of the Convention in the instant case\";", "(b) by the Delegate of the Commission to \"conclude that in the instant case there ha[d] been a breach of Article 8 (art. 8)\"; and", "(c) by counsel for the applicant to \"find the French Government in breach in this case\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)", "25. Mr Kruslin claimed that in the instant case there had been a breach of Article 8 (art. 8), which provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Government disputed that submission, while the Commission agreed with it in substance.", "26. Although it was Mr Terrieux ’ s line that they were tapping, the police in consequence intercepted and recorded several of the applicant ’ s conversations, and one of these led to proceedings being taken against him (see paragraphs 9-10 above). The telephone tapping therefore amounted to an \"interference by a public authority\" with the exercise of the applicant ’ s right to respect for his \"correspondence\" and his \"private life\" (see the Klass and Others judgment of 8 September 1978, Series A no. 28, p. 21, § 41, and the Malone judgment of 2 August 1984, Series A no. 82, p. 30, § 64). The Government did not dispute this.", "Such an interference contravenes Article 8 (art. 8) unless it is \"in accordance with the law\", pursues one or more of the legitimate aims referred to in paragraph 2 (art. 8-2) and furthermore is \"necessary in a democratic society\" in order to achieve them.", "A. \"In accordance with the law\"", "27. The expression \"in accordance with the law\", within the meaning of Article 8 § 2 (art. 8-2), requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.", "1. Whether there was a legal basis in French law", "28. It was a matter of dispute before the Commission and the Court whether the first condition was satisfied in the instant case.", "The applicant said it was not. Article 368 of the Criminal Code, he claimed, prohibited telephone tapping in principle (see paragraph 18 above). It took precedence over Article 81 of the Code of Criminal Procedure, which did not expressly authorise telephone tapping and required the investigating judge to behave \"in accordance with the law\" - and therefore in accordance, inter alia, with Article 368 of the Criminal Code - when ordering any steps \"useful for establishing the truth\" (see paragraph 17 above). Articles 151 and 152 (ibid.) made no difference, he added, as investigating judges could not delegate to senior police officers powers which they did not have themselves. The Delegate of the Commission agreed as to the latter point.", "In the Government ’ s submission, there was no contradiction between Article 368 of the Criminal Code and Article 81 of the Code of Criminal Procedure, at least not if regard was had to the drafting history of the former (see paragraph 18 above). The Code of Criminal Procedure, they argued, did not give an exhaustive list of the investigative means available to the investigating judge - measures as common as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations between witnesses, and reconstructions of crimes, for example, were not mentioned in it either (see paragraph 15 above). The provisions added to Article 81 by Articles 151 and 152 were supplemented in national case-law (see paragraphs 17 and 20-21 above). By \"law\" as referred to in Article 8 § 2 (art. 8-2) of the Convention was meant the law in force in a given legal system, in this instance a combination of the written law - essentially Articles 81, 151 and 152 of the Code of Criminal Procedure - and the case-law interpreting it.", "The Delegate of the Commission considered that in the case of the Continental countries, including France, only a substantive enactment of general application - whether or not passed by Parliament - could amount to a \"law\" for the purposes of Article 8 § 2 (art. 8-2) of the Convention. Admittedly the Court had held that \"the word ‘ law ’ in the expression ‘ prescribed by law ’ cover[ed] not only statute but also unwritten law\" (see the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, § 47, the Dudgeon judgment of 22 October 1981, Series A no. 45, p. 19, § 44, and the Chappell judgment of 30 March 1989, Series A no. 152, p. 22, § 52), but in those instances the Court was, so the Delegate maintained, thinking only of the common-law system. That system, however, was radically different from, in particular, the French system. In the latter, case-law was undoubtedly a very important source of law, but a secondary one, whereas by \"law\" the Convention meant a primary source.", "29. Like the Government and the Delegate, the Court points out, firstly, that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, the Malone judgment previously cited, Series A no. 82, p. 36, § 79, and the Eriksson judgment of 22 June 1989, Series A no. 156, p. 25, § 62). It is therefore not for the Court to express an opinion contrary to theirs on whether telephone tapping ordered by investigating judges is compatible with Article 368 of the Criminal Code. For many years now, the courts - and in particular the Court of Cassation - have regarded Articles 81, 151 and 152 of the Code of Criminal Procedure as providing a legal basis for telephone tapping carried out by a senior police officer ( officier de police judiciaire ) under a warrant issued by an investigating judge.", "Settled case-law of this kind cannot be disregarded. In relation to paragraph 2 of Article 8 (art. 8-2) of the Convention and other similar clauses, the Court has always understood the term \"law\" in its \"substantive\" sense, not its \"formal\" one; it has included both enactments of lower rank than statutes (see, in particular, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 45, § 93) and unwritten law. The Sunday Times, Dudgeon and Chappell judgments admittedly concerned the United Kingdom, but it would be wrong to exaggerate the distinction between common-law countries and Continental countries, as the Government rightly pointed out. Statute law is, of course, also of importance in common-law countries. Conversely, case-law has traditionally played a major role in Continental countries, to such an extent that whole branches of positive law are largely the outcome of decisions by the courts. The Court has indeed taken account of case-law in such countries on more than one occasion (see, in particular, the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 20, § 29, the Salabiaku judgment of 7 October 1988, Series A no. 141, pp. 16-17, § 29, and the Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp. 18-19, § 30). Were it to overlook case-law, the Court would undermine the legal system of the Continental States almost as much as the Sunday Times judgment of 26 April 1979 would have \"struck at the very roots\" of the United Kingdom ’ s legal system if it had excluded the common law from the concept of \"law\" (Series A no. 30, p. 30, § 47). In a sphere covered by the written law, the \"law\" is the enactment in force as the competent courts have interpreted it in the light, if necessary, of any new practical developments.", "In sum, the interference complained of had a legal basis in French law.", "2. \"Quality of the law\"", "30. The second requirement which emerges from the phrase \"in accordance with the law\" - the accessibility of the law - does not raise any problem in the instant case.", "The same is not true of the third requirement, the law ’ s\" foreseeability\" as to the meaning and nature of the applicable measures. As the Court pointed out in the Malone judgment of 2 August 1984, Article 8 § 2 (art. 8-2) of the Convention \"does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law\". It", "\"thus implies ... that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ... Undoubtedly ..., the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations\"", "- or judicial investigations -", "\"as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.", "... [In its judgment of 25 March 1983 in the case of Silver and Others the Court] held that ‘ a law which confers a discretion must indicate the scope of that discretion ’, although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (ibid., Series A no. 61, pp. 33-34, §§ 88-89). The degree of precision required of the ‘ law ’ in this connection will depend upon the particular subject-matter ... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive\"", "- or to a judge -", "\"to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity ... to give the individual adequate protection against arbitrary interference.\" (Series A no. 82, pp. 32-33, §§ 67-68)", "31. The Government submitted that the Court must be careful not to rule on whether French legislation conformed to the Convention in the abstract and not to give a decision based on legislative policy. The Court was therefore not concerned, they said, with matters irrelevant to Mr Kruslin ’ s case, such as the possibility of telephone tapping in relation to minor offences or the fact that there was no requirement that an individual whose telephone had been monitored should be so informed after the event where proceedings had not in the end been taken against him. Such matters were in reality connected with the condition of \"necessity in a democratic society\", fulfilment of which had to be reviewed in concrete terms, in the light of the particular circumstances of each case.", "32. The Court is not persuaded by this argument. Since it must ascertain whether the interference complained of was \"in accordance with the law\", it must inevitably assess the relevant French \"law\" in force at the time in relation to the requirements of the fundamental principle of the rule of law. Such a review necessarily entails some degree of abstraction. It is none the less concerned with the \"quality\" of the national legal rules applicable to Mr Kruslin in the instant case.", "33. Tapping and other forms of interception of telephone conversations represent a serious interference with private life and correspondence and must accordingly be based on a \"law\" that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated.", "Before the Commission (supplementary observations of 4 July 1988, pages 4-7, summarised in paragraph 37 of the report) and, in a slightly different form, before the Court, the Government listed seventeen safeguards which they said were provided for in French law ( droit ). These related either to the carrying out of telephone tapping or to the use made of the results or to the means of having any irregularities righted, and the Government claimed that the applicant had not been deprived of any of them.", "34. The Court does not in any way minimise the value of several of the safeguards, in particular the need for a decision by an investigating judge, who is an independent judicial authority; the latter ’ s supervision of senior police officers and the possible supervision of the judge himself by the Indictment Division, by trial courts and courts of appeal and, if need be, by the Court of Cassation; the exclusion of any \"subterfuge\" or \"ruse\" consisting not merely in the use of telephone tapping but in an actual trick, trap or provocation; and the duty to respect the confidentiality of relations between suspect or accused and lawyer.", "It has to be noted, however, that only some of these safeguards are expressly provided for in Articles 81, 151 and 152 of the Code of Criminal Procedure. Others have been laid down piecemeal in judgments given over the years, the great majority of them after the interception complained of by Mr Kruslin (June 1982). Some have not yet been expressly laid down in the case-law at all, at least according to the information gathered by the Court; the Government appear to infer them either from general enactments or principles or else from an analogical interpretation of legislative provisions - or court decisions - concerning investigative measures different from telephone tapping, notably searches and seizure of property. Although plausible in itself, such \"extrapolation\" does not provide sufficient legal certainty in the present context.", "35. Above all, the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge (who can hardly verify the number and length of the original tapes on the spot) and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case-law.", "36. In short, French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at the material time, so that Mr Kruslin did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment previously cited, Series A no. 82, p. 36, § 79). There has therefore been a breach of Article 8 (art. 8) of the Convention.", "B. Purpose and necessity of the interference", "37. Having regard to the foregoing conclusion, the Court, like the Commission (see paragraph 77 of the report), does not consider it necessary to review compliance with the other requirements of paragraph 2 of Article 8 (art. 8-2) in this case.", "II. APPLICATION OF ARTICLE 50 (art. 50)", "38. By Article 50 (art. 50),", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicant claimed, firstly, compensation in the amount of 1,000,000 French francs (FRF) in respect of his fifteen-year prison sentence (see paragraph 13 above), which he alleged to be the direct result of the breach of Article 8 (art. 8) as the telephone tapping complained of had led to the decision to take proceedings against him. He also sought reimbursement of lawyer ’ s fees and expenses: FRF 20,000 in order to prepare his appeal on points of law against the Indictment Division ’ s judgment of 16 April 1985 in the Gerbe d ’ Or case (see paragraph 12 above) plus FRF 50,000 for his defence at the Haute- Garonne Assize Court and the Court of Cassation in the Baron case (see paragraph 14 above). He made no claim for the proceedings at Strasbourg, as the Commission and the Court had granted him legal aid.", "The Government and the Delegate of the Commission expressed no opinion on the matter.", "39. In the circumstances of the case the finding that there has been a breach of Article 8 (art. 8) affords Mr Kruslin sufficient just satisfaction for the alleged damage; it is accordingly unnecessary to award pecuniary compensation.", "40. The costs and expenses incurred by the applicant in the Baron case cannot be taken into account by the Court; no doubt the telephone tapping was, as he pointed out, made use of in the two cases successively, but the Commission and the Court have only been concerned with considering its compatibility with the Convention in connection with the Gerbe d ’ Or case (see paragraph 14 in fine above).", "The sum of FRF 20,000 sought in respect of the latter case, however, is relevant and not excessive, and it should therefore be awarded to him." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant, who was born in 1940, is a businessman living in Switzerland. In the early 1980s he imported depilatory appliances into Switzerland which he advertised in magazines.", "8. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a “Perma Tweez” depilatory appliance.", "9. That telephone call was intercepted by the Federal Public Prosecutor’s Office ( Bundesanwaltschaft – “the Public Prosecutor’s Office”), which then requested the Intelligence Service of the police of the Canton of Zürich to carry out an investigation into the applicant and the goods he sold.", "10. The report drawn up by the police of the Canton of Zürich in December 1981 stated that the applicant, who had been registered in the Commercial Registry since 1973, was in the aerosols business. It stated that “Perma Tweez” was a battery-operated depilatory appliance; a leaflet describing the appliance was appended to the report.", "11. On 24 December 1981 the Public Prosecutor’s Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Zürich.", "12. In 1990 the public learned of the existence of the card index being kept by the Public Prosecutor’s Office and many people, including the applicant, asked to consult their card.", "13. Various laws on accessing and processing the Confederation’s documents were then enacted.", "14. On 12 September 1990 the special officer in charge of the Confederation’s national security documents (“the special officer”) sent the applicant, at his request, a photocopy of his card.", "15. The applicant’s card, which was numbered (1153 : 0) 614 and on which two passages had been blue-pencilled ..., contained the following information:", "“from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to .... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...”", "16. As soon as he received his card, the applicant asked the Ombudsman at the Public Prosecutor’s Office to disclose the blue-pencilled passages.", "17. On 9 October 1990 the Ombudsman replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card. The other censored passage related to a technical surveillance measure ordered against a third party; the Ombudsman stated that he would be recommending that the special officer disclose that information, since – in his view – the applicant’s interest prevailed over the public interest in keeping it secret.", "18. On 19 April 1991 the special officer decided, on the basis of Article 5 § 1 of the Order of 5 March 1990 on the Processing of Federal National Security Documents, that the initials at the end of the card could not be disclosed. He also considered that the other censored passage contained counter-intelligence which, pursuant to Article 5 § 3 (a) of the Order, should not be disclosed. On the basis of those considerations, the disclosure of the applicant’s card was extended to one word (“report”):", "“from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to report ... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...”", "19. On 26 October 1991 the applicant filed a request for compensation with the Federal Department of Finance. His request was refused on 28 January 1992.", "20. On 9 March 1992 the applicant filed an administrative-law action with the Federal Court claiming compensation from the Confederation of 5,000 Swiss francs for the unlawful entry of his particulars in the card index kept by the Public Prosecutor’s Office. He also requested that his file and card be sent immediately to the Federal Archives with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement.", "21. On being invited to submit its written observations, the Confederation stated, in its memorial of 26 May 1992, that according to the information provided by the Public Prosecutor’s Office and the special officer the record of the surveillance was no longer in the federal police’s files. It pointed out in that connection that, pursuant to section 66(1 ter ) of the Federal Criminal Procedure Act (“FCPA”), documents which were no longer necessary had to be destroyed (“ Das Protokoll der technischen Ueberwachung ist gemäss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten ... in den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist anzumerken, dass nicht mehr benötigte Akten gemäss Art. 66 Abs. 1ter BStP ... vernichtet werden müssen ”).", "22. The Federal Court held hearings on 27 October 1993 and 14 September 1994.", "The applicant’s lawyer pointed out that the case number of the card, namely (1153 : 0) 614, was a code meaning “communist country” (1), “Soviet Union” (153), “espionage established” (0) and “various contacts with the Eastern bloc” (614).", "The Confederation’s representative stated that where someone ( jemand ) at the former Soviet embassy was under surveillance, on every telephone call both parties to the conversation were identified, a card drawn up on them and a telephone monitoring report ( Telefon-Abhör-Bericht ) made. In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags; the intention had been to destroy them as well, but when the post of special officer had been instituted everything had had to be maintained “in its present state”. She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed. According to information she had received from the special officer, the reports had not been sorted and it would require about five people and one year’s work to examine the contents of all the bags still in existence.", "23. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed all the applicant’s claims.", "24. Regarding the issue whether there was a legal basis for the measures complained of, the Federal Court referred first to section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office. However, it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant’s personality rights, since one of the conditions for awarding compensation had not been met.", "25. The court then referred to sections 66 et seq., and particularly section 72 FCPA on the monitoring of telephone communications and postal correspondence, and to Articles 265 et seq. of the Criminal Code, which govern “crimes or major offences against the State,” and reiterated that information could lawfully be gathered – even before a prosecution was brought – in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared.", "26. In that connection the Federal Court found:", "“... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the Soviet embassy for counter-intelligence reasons. As he had contacts with a male or female employee of the Soviet embassy and it was not immediately clear that the ‘Perma Tweez’ appliance which he sold was a harmless depilatory instrument, the authorities acted correctly in investigating his identity, his circumstances and the ‘Perma Tweez’ appliance in question and recording the result.”", "27. The Federal Court held, however, that it did not have to rule on whether those provisions, particularly section 66(1 ter ) FCPA, allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared (“ Fraglich ist, ob die Aufzeichnungen weiter aufbewahrt werden durften, nachdem sich offenbar herausgestellt hatte, dass keine strafbare Handlung vorbereitet wurde ”), since the applicant had not suffered a serious infringement of his personality rights.", "28. In that connection the Federal Court reiterated that, pursuant to section 6(2) of the Federal Liability Act of 14 March 1958, the Swiss Confederation had a duty to pay compensation in cases of serious infringement of personality rights, but considered that in this case that condition had not been met. The Federal Court held that the mere fact that the applicant had been named in the file as a “contact with the Russian embassy” could hardly be considered as an infringement of his personality rights. Moreover, even if part of the case number meant “espionage established”, there was nothing to indicate that the authorities had considered the applicant to be a spy and although the expression “contact with the Russian embassy” could conceivably imply that the applicant had effectively had regular contact with the embassy, his card had to be seen, not in isolation, but in the wider context of the card index as a whole and the other circumstances of the case; in particular, the fact that no other entry had been made on his card suggested that the authorities did not suspect the applicant of having illegal contacts with the embassy. Furthermore, it could not be presumed that the applicant had been subject to surveillance on other occasions or that the recorded information had been disclosed to third parties. Taken as a whole, the applicant’s file thus appeared to be of minor importance and there was nothing to indicate that it had been used for other purposes or unlawfully disclosed.", "29. Lastly, the Federal Court held that the applicant’s administrative-law action, which he had filed with it on 9 March 1992, was an “effective remedy” within the meaning of Article 13 of the Convention. It also pointed out that the applicant could have instituted proceedings challenging certain data in the Public Prosecutor’s card index and requesting that they be amended. In that connection the Federal Court referred to, inter alia, the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration (section 44), to the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 7 § 1) and to the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 11 § 1).", "30. In 1996 the applicant’s card was removed from the card index and transferred to the Federal Archives where it cannot be consulted for fifty years." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Federal Constitution", "31. The relevant provisions of the Federal Constitution in force at the material time were worded as follows:", "Article 102", "“The powers and duties of the Federal Council, as referred to in the present Constitution, are the following, among others:", "...", "9. It shall ensure that Switzerland’s external security is protected and its independence and neutrality maintained;", "10. It shall ensure that the Confederation’s internal security is protected and that peace and order are maintained;", "...”", "B. The Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office", "32. The relevant provisions of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office are worded as follows:", "Article 1", "“The Police Service of the Federal Public Prosecutor’s Office (Federal Police) shall provide an investigation and information service in the interests of the Confederation’s internal and external security. That service shall comprise:", "1. The surveillance and prevention of acts liable to endanger the Confederation’s internal or external security ( police politique );", "2. Police investigations in the prosecution of offences against the internal or external security of the Confederation ( police judiciaire ).”", "C. The Federal Criminal Procedure Act", "33. The relevant provisions of the Federal Criminal Procedure Act in force at the material time were worded as follows:", "Section 17", "“…", "3. The Federal Public Prosecutor’s Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the Confederation’s internal and external security. The Public Prosecutor’s Office shall, as a general rule, act in concert with the relevant police authorities of the cantons. It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so.”", "Section 66", "“1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telephone and telegraphic telecommunications if", "(a) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone; and if", "(b) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if", "(c) without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results.", "1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused.", "1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings.”", "Section 66 bis", "“1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division.", "2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division.", "3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.”", "Section 66 ter", "“1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision.", "2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.”", "Section 66 quater", "“1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began or, where the period of validity has been extended, before the further period begins.", "2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.”", "Section 72", "“1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances...", "2. He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared.", "3. Sections 66 to 66 quater shall be applicable by analogy.”", "D. Legislation on the processing and consultation of the Confederation’s documents", "34. The relevant provisions of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration are worded as follows:", "4 General principles", "41 Principles governing data processing", "“411. There must be a legal basis for the processing of personal data.", "412. Personal data may be processed only for very specific purposes. The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out.", "413. Inaccurate or incomplete data must be rectified having regard to the purpose of the processing.", "414. Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed.", "The obligation to store them in the Federal Archives is reserved.", "...”", "43 Information", "“431. As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files, the nature of the processed data and the lawful recipients thereof to anyone requesting the same.", "432. On request, they must indicate in a comprehensible manner to anyone who has disclosed his identity whether – and which – data on him from a particular file have been processed.", "...”", "44 Rectification or destruction following a request", "“If it emerges, on a request, that the data on the person making the request are inaccurate or incomplete, or inappropriate to the purpose for which they have been recorded, or that processing is illegal for another reason, the organ in question must rectify or destroy such data immediately, and at the latest when the file is next accessed.”", "35. The relevant provisions of the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents are worded as follows:", "Article 1", "“1. The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks.", "2. Federal documents compiled on grounds of national security shall be placed in the custody of a special officer...”", "Article 4", "“1. The special officer shall have custody of all documents belonging to the Police Service of the Federal Public Prosecutor’s Office.", "2. He shall then sort the documents and withdraw those which serve no further purpose...”", "Article 5", "“1. The special officer shall allow applicants to consult their cards by sending them a photocopy thereof.", "2. He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services.", "3. Furthermore, he may refuse or restrict the consultation if it", "(a) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism, counter-intelligence or the fight against organised crime;", "...”", "Article 13", "“1. The ombudsman appointed by the Federal Council shall examine, at the request of the person concerned, whether the present Order has been complied with.", "…”", "Article 14", "“1. Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within thirty days.", "2. If the ombudsman considers that the Order has been complied with, he shall inform the applicant accordingly. The applicant may lodge an appeal with the Federal Council within thirty days of receiving the ombudsman’s decision.", "3. If the ombudsman considers that the Order has not been complied with, he shall inform the special officer and the applicant accordingly. The special officer shall then give a fresh decision, which is subject to appeal.”", "36. The relevant provisions of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office provide:", "Article 4", "“1. Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non-pecuniary damage in connection with information transpiring from documents held by the Police Service or with acts by officers of the Federal Public Prosecutor’s Office.", "…”", "Article 7", "“1. The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process.", "2. Documents relating to criminal proceedings shall be eliminated if", "(a) the time-limit for prosecuting the offence has expired following a stay of the proceedings;", "(b) the proceedings have been closed by an enforceable judgment.", "3. The eliminated documents shall be stored in the Federal Archives. They can no longer be consulted by the authorities and access to them shall be prohibited for fifty years.”", "37. The relevant provisions of the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office are worded as follows:", "Article 11", "“1. A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto.", "2. Documents which are manifestly erroneous shall be rectified at the request of the person concerned.", "...”", "E. The Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair", "38. A Parliamentary Commission of Inquiry (“PCI”) was set up to investigate the so-called “card index” affair. In its report published in the Federal Gazette ( Feuille fédérale (FF) 1990, I, pp. 593 et seq.) it noted, among other things, in connection with the monitoring of telephone conversations (pp. 759 and 760):", "“According to various sources, a number of people feared that their telephone conversations were being monitored for political reasons. The PCI has conducted a thorough examination of the technical surveillance measures ordered by the Federal Public Prosecutor’s Office. In the course of that examination it requested from the Federal Public Prosecutor’s Office a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored; that list was then compared with the list requested independently from the Post, Telecommunications and Telegraph Office. The PCI was then able to satisfy itself, partly with the help of certain documents and also following an interview with the President of the Indictment Division of the Federal Court, that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders.", "...", "The federal investigating judge and, before the preliminary investigation begins, the Federal Public Prosecutor have power to order a surveillance measure. A decision taken to this effect is valid for no more than six months but may be extended if necessary. It requires in all cases the approval of the President of the Indictment Division of the Federal Court. That approval procedure has been considerably formalised over recent years and is now applied by means of a pre-printed form. The PCI noted that all decisions had been submitted to the President of the Indictment Division and that he had approved all of them without exception...”", "PROCEEDINGS BEFORE THE COMMISSION", "39. Mr Amann applied to the Commission on 27 June 1995. Relying on Articles 8 and 13 of the Convention, he complained that a telephone call he had received had been intercepted, that the Public Prosecutor’s Office had filled in a card on him and kept it in the resulting federal card index and that he had had no effective remedy in that connection.", "40. The Commission (First Chamber) declared the application (no. 27798/95) admissible on 3 December 1997. In its report of 20 May 1998 (former Article 31 of the Convention) it concluded, by nine votes to eight, that there had been a violation of Article 8 and, unanimously, that there had been no violation of Article 13. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "41. In their memorials the Government asked the Court to find that the applicant had not repeated his complaint of a violation of Article 13 of the Convention and that there was therefore no need to examine it. With regard to the merits, the Government asked the Court to hold that the facts which gave rise to the application introduced by Mr Amann against Switzerland had not amounted to a violation of the Convention.", "42. The applicant asked the Court to find that there had been a violation of Articles 8 and 13 of the Convention and to award him just satisfaction under Article 41.", "THE LAW", "I. alleged violation of article 8 of the convention arising from the interception of the telephone CALL of 12 October 1981", "43. The applicant complained that the interception of the telephone call he had received from a person at the former Soviet embassy in Berne had breached Article 8 of the Convention, which is worded as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Applicability of Article 8", "44. The Court reiterates that telephone calls received on private or business premises are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see the Halford v. the United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1016, § 44). This point was not in fact disputed.", "B. Compliance with Article 8", "1. Whether there was any interference", "45. The Court notes that it is not disputed that the Public Prosecutor’s Office intercepted and recorded a telephone call received by the applicant on 12 October 1981 from a person at the former Soviet embassy in Berne. There was therefore “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 of that provision (see the Kopp v. Switzerland judgment of 25 March 1998, Reports 1998-II, p. 540, § 53).", "2. Justification for the interference", "46. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.", "(a) Whether the interference was “in accordance with the law”", "47. The applicant submitted that there was no legal basis for the interference in Swiss law. In particular, he asserted that the Government could not rely on sections 66 to 72 FCPA as a basis for the measure complained of since they had not produced any evidence to prove that criminal proceedings had been brought against a third party or that the authorities had complied with the procedure laid down by those provisions. He argued in that connection that the Government’s claim that the documents were no longer available lacked credibility. It transpired from the report of the Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair that lists had been kept relating to the telephone tapping ordered by the Public Prosecutor’s Office and carried out by the Post, Telecommunications and Telegraph Office; furthermore, the Indictment Division of the Federal Court had kept registers recording the authorisations issued by its President; moreover, the Government could not claim that an employee at the former Soviet embassy in Berne was being monitored unless they had documents to support that assertion; lastly, the fact that the recording had not been destroyed “at the end of the proceedings” (section 66(1 ter ) FCPA) showed that there had not been an investigation within the meaning of sections 66 et seq. FCPA.", "The applicant maintained that all the telephone lines at the former Soviet embassy in Berne had been systematically tapped without any specific person being suspected of committing an offence or judicial proceedings being instituted in accordance with the law. He submitted that this presumption was confirmed by the fact that during the proceedings before the Swiss authorities the latter had expressly mentioned the term “counter-intelligence”. In addition, the inquiries by the Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair had shown that the federal police had monitored citizens for decades without a court order. Section 17(3) FCPA could not be relied on as a basis for such practices by the police politique.", "With regard to the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, the applicant pointed out that the text contained purely organisational provisions relating to the various offices of the Federal Department of Justice and Police and did not in any way empower those offices to interfere with the rights and freedoms protected by the Convention; it could not therefore be considered to be an adequate legal basis. Moreover, the applicant considered that the text was not sufficiently precise and accessible to satisfy the requirement of “foreseeability” as defined by the Court’s case-law.", "48. The Commission found that there had not been a sufficient legal basis for the monitoring of the applicant’s telephone conversation. The Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office was drafted in too general terms. Furthermore, it had not been shown that the procedure laid down in sections 66 et seq. FCPA had been followed.", "49. The Government maintained that there had definitely been a legal basis in Swiss law. As a preliminary point, they indicated that the measure in question had been carried out, under section 66(1 bis ) FCPA, in the context of monitoring ordered by the Public Prosecutor’s Office of a particular employee at the former Soviet embassy in Berne and that the applicant had not been the subject of the telephone tapping, either as a suspect or as a third party (the latter being the person who had ordered the depilatory appliance); the applicant had therefore been recorded “fortuitously” as a “necessary participant”.", "In the Government’s submission it was of little importance whether the measure had been ordered in the context of criminal proceedings which had already been instituted or with the aim of preventing the commission of an offence, since section 17(3) (based on Article 102 §§ 9 and 10 of the Federal Constitution), section 72 FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office formed a sufficient legal basis in either case. It pointed out that the Court had concluded in a similar case that there had been a legal basis in Swiss law (see the Kopp judgment cited above, pp. 540-41, §§ 56-61).", "The only decisive question was whether the safeguards provided for by law had been complied with. In that connection the Government stated that since they were unable to consult the file they could not verify whether the approval of the President of the Indictment Division of the Federal Court required under section 66 bis FCPA had been granted. In the light of the statement in the report by the Parliamentary Commission of Inquiry set up to examine the so-called “card index” affair that the President of the Indictment Division of the Federal Court had approved all the investigating judge’s decisions, they presumed, however, that he had also done so in this case.", "50. The Court draws attention to its established case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see the Kopp judgment cited above, p. 540, § 55).", "(i) Whether there was a legal basis in Swiss law", "51. The Government and the applicant disagreed as to whether that condition had been met. The Government’s submission that sections 17(3) and 72 FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office amounted to a sufficient legal basis was disputed by the applicant.", "52. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, pp. 21-22, § 29, and the Kopp judgment cited above, p. 541, § 59). In that connection it points out that the Federal Court, in its judgment of 14 September 1994, held that it was unnecessary to examine whether sections 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office could justify the alleged infringement of the applicant’s personality rights. Moreover, that court expressed itself only in very general terms regarding section 72 FCPA, confining itself to pointing out that information could lawfully be gathered in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared.", "53. The Court has, admittedly, already ruled on the issue whether the Federal Criminal Procedure Act amounted, under Swiss law, to a sufficient legal basis for telephone tapping (see the Kopp judgment cited above, pp. 540-41, §§ 56-61). Unlike the position in the instant case, however, the authority to which Mr Kopp had submitted his complaint (the Federal Council) had examined in detail whether the surveillance was lawful (ibid., p. 533, § 31 (b)) and section 72 FCPA was not in issue.", "54. In the instant case the Court does not consider it necessary to determine whether there was a legal basis for the interception of the telephone call of 12 October 1981. Even assuming that there was, one of the requirements flowing from the expression “in accordance with the law”, namely – here – foreseeability, was not satisfied.", "(ii) Quality of the law", "55. The Court reiterates that the phrase “in accordance with the law” implies conditions which go beyond the existence of a legal basis in domestic law and requires that the legal basis be “accessible” and “foreseeable”.", "56. According to the Court’s established case-law, a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 31-32, § 66). With regard to secret surveillance measures the Court has underlined the importance of that concept in the following terms (ibid., pp. 32-33, §§ 67-68):", "“The Court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident...", "... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”", "It has also stated that “tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a ‘law’ that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated” (see the Kopp judgment cited above, pp. 542 ‑ 43, § 72).", "57. The “quality” of the legal provisions relied on in the instant case must therefore be considered.", "58. The Court points out first of all that Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, according to which the federal police “shall provide an investigation and information service in the interests of the Confederation’s internal and external security”, including by means of “surveillance” measures, contains no indication as to the persons concerned by such measures, the circumstances in which they may be ordered, the means to be employed or the procedures to be observed. That rule cannot therefore be considered to be sufficiently clear and detailed to afford appropriate protection against interference by the authorities with the applicant’s right to respect for his private life and correspondence.", "59. It considers that the same is true of section 17(3) FCPA, which is drafted in similar terms.", "60. As regards the other provisions of the Federal Criminal Procedure Act, the Court observes that section 66 defines the categories of persons in respect of whom telephone tapping may be judicially ordered and the circumstances in which such surveillance may be ordered. Furthermore, sections 66 bis et seq. set out the procedure to be followed; thus, implementation of the measure is limited in time and subject to the control of an independent judge, in the instant case the President of the Indictment Division of the Federal Court.", "61. The Court does not in any way minimise the importance of those guarantees. It points out, however, that the Government were unable to establish that the conditions of application of section 66 FCPA had been complied with or that the safeguards provided for in sections 66 et seq. FCPA had been observed.", "It points out further that, in the Government’s submission, the applicant had not been the subject of the impugned measure, either as a suspect or an accused, or as a third party presumed to be receiving information or sending it to a suspect or an accused, but had been involved “fortuitously” in a telephone conversation recorded in the course of surveillance measures taken against a particular member of staff of the former Soviet embassy in Berne.", "The primary object of the Federal Criminal Procedure Act is the surveillance of persons suspected or accused of a crime or major offence (section 66(1) FCPA), or even third parties presumed to be receiving information from or sending it to such persons (section 66(1 bis ) FCPA), but the Act does not regulate in detail the case of persons monitored “fortuitously” as “necessary participants” in a telephone conversation recorded by the authorities pursuant to those provisions. In particular, the Act does not specify the precautions which should be taken with regard to those persons.", "62. The Court concludes that the interference cannot therefore be considered to have been “in accordance with the law” since Swiss law does not indicate with sufficient clarity the scope and conditions of exercise of the authorities’ discretionary power in the area under consideration.", "It follows that there has been a violation of Article 8 of the Convention arising from the recording of the telephone call received by the applicant on 12 October 1981 from a person at the former Soviet embassy in Berne.", "(b) Purpose and necessity of the interference", "63. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with.", "II. alleged violation of article 8 of the convention arising from the CREATION of a card AND THE STORING THEREOF IN THE confederation’s cARD INDEX", "64. The applicant complained that the creation of a card on him, following the interception of a telephone call he had received from a person at the former Soviet embassy in Berne, and the storing thereof in the Confederation’s card index had resulted in a violation of Article 8 of the Convention.", "A. Applicability of Article 8", "65. The Court reiterates that the storing of data relating to the “private life” of an individual falls within the application of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48).", "It points out in this connection that the term “private life” must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and the Halford judgment cited above, pp. 1015-16, § 42).", "That broad interpretation corresponds with that of the Council of Europe’s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined as “any information relating to an identified or identifiable individual” (Article 2).", "66. In the present case the Court notes that a card was filled in on the applicant on which it was stated that he was a “contact with the Russian embassy” and did “business of various kinds with the [A.] company” (see paragraphs 15 and 18 above).", "67. The Court finds that those details undeniably amounted to data relating to the applicant’s “private life” and that, accordingly, Article 8 is applicable to this complaint also.", "B. Compliance with Article 8", "1. Whether there was any interference", "68. The Government submitted that the issue whether there had been “interference” within the meaning of Article 8 of the Convention remained open since “the card contained no sensitive information about the applicant’s private life”, the latter “had not in any way been inconvenienced as a result of the creation and storing of his card” and that it had “in all probability never been consulted by a third party”.", "69. The Court reiterates that the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8. The subsequent use of the stored information has no bearing on that finding (see, mutatis mutandis, the Leander judgment cited above, p. 22, § 48, and the Kopp judgment cited above, p. 540, § 53).", "70. In the instant case the Court notes that a card containing data relating to the applicant’s private life was filled in by the Public Prosecutor’s Office and stored in the Confederation’s card index. In that connection it points out that it is not for the Court to speculate as to whether the information gathered on the applicant was sensitive or not or as to whether the applicant had been inconvenienced in any way. It is sufficient for it to find that data relating to the private life of an individual were stored by a public authority to conclude that, in the instant case, the creation and storing of the impugned card amounted to an interference, within the meaning of Article 8, with the applicant’s right to respect for his private life.", "2. Justification for the interference", "71. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and, in addition, is “necessary in a democratic society” to achieve those aims.", "(a) Was the interference “in accordance with the law”?", "72. The applicant submitted that there was no legal basis for creating and storing a card on him. In particular, he asserted that section 17(3) FCPA did not authorise the federal police to record the results of their surveillance measures. As to the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration, these were intended for the civil servants of the administration and were not therefore sufficiently clear and precise to enable citizens to ascertain their rights and obligations.", "In his submission the authorities had, furthermore, failed to comply with the rules in force, since section 66(1 ter ) FCPA and section 414 of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration stipulated that recordings which turned out not to be necessary to the conduct of an investigation should be destroyed.", "Lastly, he pointed out that the legislation which had come into force in the early 1990s, after the so-called “card index” affair had broken, did not provide for the possibility of instituting judicial proceedings to have a card destroyed. Thus, under the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office and the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office, cards were stored in the Federal Archives and all interested persons could do was have their card annotated if they disputed its contents.", "73. The Commission agreed with the applicant. In particular, it considered that the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration were insufficiently precise and merely presupposed that there was a legal basis to the storing of information without themselves providing one.", "74. The Government submitted that the Swiss legal system provided a sufficiently accessible and foreseeable legal basis having regard to “the special nature of secret measures in the field of national security”.", "Before 1990, they submitted, the impugned measures had mainly been based on section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, those provisions being given concrete form by the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration. They pointed out that those directives had been published in the Federal Gazette (FF 1981, I, p. 1314).", "After 1990, they submitted, a number of texts had been enacted on the processing and consultation of documents containing personal data, in particular the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents, the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office and the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office.", "(i) Creation of the card", "75. The Court notes that in December 1981, when the card on the applicant was created, the Federal Criminal Procedure Act, the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office and the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration were in force. None of those provisions, however, expressly mentions the existence of a register kept by the Public Prosecutor’s Office, which raises the question whether there was “a legal basis in Swiss law” for the creation of the card in question and, if so, whether that legal basis was “accessible” (see the Leander judgment cited above, p. 23, § 51). It observes in that connection that the Federal Council’s Directives of 16 March 1981 were above all intended for the staff of the federal administration.", "In the instant case, however, it does not consider it necessary to rule on this subject, since even supposing that there was an accessible legal basis for the creation of the card in December 1981, that basis was not “foreseeable”.", "76. The Court has found above (see paragraphs 58 and 59) that section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office were drafted in terms too general to satisfy the requirement of foreseeability in the field of telephone tapping. For the reasons already set out, it arrives at the same conclusion concerning the creation of the card on the applicant.", "As regards the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration, they set out some general principles, for example that “there must be a legal basis for the processing of personal data” (section 411) or that “personal data may be processed only for very specific purposes” (section 412), but do not contain any appropriate indication as to the scope and conditions of exercise of the power conferred on the Public Prosecutor’s Office to gather, record and store information; thus, they do not specify the conditions in which cards may be created, the procedures that have to be followed, the information which may be stored or comments which might be forbidden.", "Those directives, like the Federal Criminal Procedure Act and the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, cannot therefore be considered sufficiently clear and detailed to guarantee adequate protection against interference by the authorities with the applicant’s right to respect for his private life.", "77. The creation of the card on the applicant was not therefore “in accordance with the law” within the meaning of Article 8 of the Convention.", "(ii) Storing of the card", "78. The Court points out first of all that it would seem unlikely that the storing of a card which had not been created “in accordance with the law” could satisfy that requirement.", "Moreover, it notes that Swiss law, both before and after 1990, expressly provided that data which turned out not to be “necessary” or “had no further purpose” should be destroyed (section 66(1 ter ) FCPA, section 414 of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration and Article 7 of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office).", "In the instant case the authorities did not destroy the stored information when it emerged that no offence was being prepared, as the Federal Court found in its judgment of 14 September 1994.", "79. For these reasons, the storing of the card on the applicant was not “in accordance with the law” within the meaning of Article 8 of the Convention.", "80. The Court concludes that both the creation of the impugned card by the Public Prosecutor’s Office and the storing of it in the Confederation’s card index amounted to interference with the applicant’s private life which cannot be considered to be “in accordance with the law” since Swiss law does not indicate with sufficient clarity the scope and conditions of exercise of the authorities’ discretionary power in the area under consideration. It follows that there has been a violation of Article 8 of the Convention.", "(b) Purpose and necessity of the interference", "81. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with.", "III. alleged violation of article 13 of the convention", "82. The applicant also alleged a violation of Article 13 of the Convention, which is worded as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The Government’s preliminary objection", "83. The Government noted that the applicant had not repeated his complaint relating to Article 13 of the Convention in his memorial submitted on 11 May 1999. They accordingly considered that there was no need to examine that issue.", "84. The Court notes that the applicant relied on Article 13 of the Convention before the Commission, that the Commission examined that complaint in its report of 20 May 1998 and that, when invited to lodge with the Court memorials relating to the issues raised by this case, as declared admissible by the Commission, the applicant submitted observations on Article 13 in his memorial filed on 14 June 1999.", "Accordingly, the Court considers that the applicant did not manifest an intention to waive before it his complaint of a violation of Article 13 of the Convention which he had alleged before the Commission.", "The Government’s preliminary objection cannot therefore be upheld.", "B. Merits of the complaint", "85. The applicant complained that he had not had an “effective remedy” since he had been unable to raise before the Federal Court the issue whether the telephone tapping and the creation and storing of the card were lawful.", "86. The Commission found that the administrative-law action brought by the applicant had amounted to an effective remedy.", "87. The Government agreed with that finding. They stressed that the applicant, in bringing an administrative-law action in the Federal Court, had sought compensation for non-pecuniary damage and, in the alternative, a finding that the card on him was illegal.", "88. The Court reiterates first of all that in cases arising from individual petitions the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 30-31, § 55).", "It further observes that Article 13 of the Convention requires that any individual who considers himself injured by a measure allegedly contrary to the Convention should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see the Leander judgment cited above, pp. 29-30, § 77). That provision does not, however, require the certainty of a favourable outcome (see the D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 798, § 71).", "89. In the instant case the Court notes that the applicant was able to consult his card as soon as he asked to do so, in 1990, when the general public became aware of the existence of the card index being kept by the Public Prosecutor’s Office. It also points out that the applicant brought an administrative-law action in the Federal Court and that on that occasion he was able to complain, firstly, about the lack of a legal basis for the telephone tapping and the creation of his card and, secondly, the lack of an “effective remedy” against those measures. It notes that the Federal Court had jurisdiction to rule on those complaints and that it duly examined them. In that connection it reiterates that the mere fact that all the applicant’s claims were dismissed is not in itself sufficient to determine whether or not the administrative-law action was “effective”.", "90. The applicant therefore had an effective remedy under Swiss law to complain of the violations of the Convention which he alleged. There has not therefore been a violation of Article 13.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "91. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "92. The applicant claimed 1,000 Swiss francs (CHF) for non-pecuniary damage and did not claim any amount in respect of pecuniary damage.", "93. The Government maintained that if the Court were to find a violation of the Convention, the non-pecuniary damage would be adequately compensated by the publicity given to the judgment.", "94. The Court considers that the non-pecuniary damage is adequately compensated by the finding of violations of Article 8 of the Convention.", "B. Costs and expenses", "95. The applicant also claimed CHF 7,082.15 in respect of his costs and expenses for the proceedings before the Convention institutions.", "96. The Government stated that, in the light of all the circumstances of the present case and the amounts awarded by the Court in other applications directed against Switzerland, they were prepared to pay CHF 5,000.", "97. The Court considers that the claim for costs and expenses is reasonable and that it should be allowed in full.", "C. Default interest", "98. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. Between August 1995 and the applicant’s arrest on 21 January 1996, he was the target of surveillance by the police. Using a “clone” of the applicant’s pager, the police were able to intercept messages sent to him. The pager system used by the applicant and intercepted by the police operated as follows: The sender, whether in the United Kingdom or overseas, would telephone the pager bureau in the United Kingdom via the public telephone network. The pager operator would key the message into a computer and read it back to the sender to confirm its accuracy. The computer message was transmitted via the public telephone system to the pager terminal, from where it was relayed by radio to one of four regional base stations and thence, again by radio, simultaneously to the applicant’s and the police’s clone pagers, which displayed the message in text.", "10. The applicant was arrested and charged with conspiracy to supply a controlled drug. The prosecution alleged that he had been one of the principal organisers of the importation to the United Kingdom from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried, along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997.", "11. Part of the prosecution case against the applicant consisted of the contemporaneous written notes of the pager messages which had been transcribed by the police. The applicant’s counsel submitted that these notes should not be admitted in evidence because the police had not had a warrant under section 2 of the Interception of Communications Act 1985 (“the 1985 Act”) for the interception of the pager messages. However, the trial judge ruled that, since the messages had been transmitted via a private system, the 1985 Act did not apply and no warrant had been necessary.", "12. The applicant pleaded not guilty. He was convicted and sentenced to ten years’ imprisonment.", "13. The applicant appealed against conviction and sentence. One of the grounds was the admission in evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998, upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on the private radio system, so that the 1985 Act did not apply and the messages were admissible despite having been intercepted without a warrant." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "14. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence, unless the interception is carried out pursuant to a warrant issued in compliance with the Act.", "15. At the time of the applicant’s trial there was no provision in British law governing the interception of communications on a private system.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "16. The applicant complained that the interception by the police of messages on his pager violated Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "He submitted that the police action amounted to an interference with his private life and correspondence, which was not “in accordance with the law” or “necessary in a democratic society”.", "17. The Government conceded that the interception by the police of messages sent to the applicant’s pager was inconsistent with Article 8 in that it was not “in accordance with the law”, although they added that this should not be taken as a concession that the action was not justified in the circumstances.", "18. The Court notes that it is not disputed that the surveillance carried out by the police in the present case amounted to an interference with the applicant’s rights under Article 8 § 1 of the Convention. It recalls that the phrase “in accordance with the law” not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of covert surveillance by public authorities, in this instance the police, domestic law must provide protection against arbitrary interference with an individual’s right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures (see Khan v. the United Kingdom, no. 35394/97, § 26, ECHR 2000-V).", "19. At the time of the events in the present case there existed no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system. It follows, as indeed the Government have accepted, that the interference was not “in accordance with the law”. There has, accordingly, been a violation of Article 8.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "20. The applicant also contended there was no remedy available to him at national level in respect of his Article 8 complaint, contrary to Article 13, which provides:", "“Everyone whose rights and freedoms as set forth in [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "He relied on the above-mentioned Khan judgment as authority for the position that section 78 of the Police and Criminal Evidence Act 1985 (“PACE”), which allows the trial judge to exclude evidence in certain circumstances, could not provide an effective remedy to deal with all aspects of his complaint about unlawful surveillance.", "21. The Government alleged that there had been no violation of the applicant’s Article 13 rights, submitting that under section 78 of PACE the judge could have regard to Article 8 of the Convention when exercising his discretion to exclude evidence from trial proceedings. However, it did not appear that the applicant had ever submitted during his trial that the intercepted messages should be excluded from the evidence under section 78 on the basis that they had been obtained in breach of Article 8, and added that in the circumstances it cannot be said that such a submission would necessarily have failed. In this way, the Government claimed that the present case was distinguishable from the above-mentioned Khan case.", "22. The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, without, however, requiring incorporation of the Convention (see the above-mentioned Khan judgment, § 44).", "23. The Court recalls its finding in the Khan judgment that, in circumstances similar to those of the applicant, the courts in the criminal proceedings were not capable of providing a remedy because, although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint (ibid.).", "24. It does not appear that there was any other effective remedy available to the applicant for his Convention complaint, and it follows that there has been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "25. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Non-pecuniary damage", "26. The applicant claimed non-pecuniary damage for the invasion of his privacy. He drew attention to the facts that the interceptions took place over a long period of time (August 1995-January 1996) and were indiscriminate, in that every message on his pager was copied. He pointed out, furthermore, that since the Malone v. the United Kingdom judgment of 2 August 1984 (Series A no. 95), the Government had been aware of the need to regulate covert surveillance by the police.", "27. The Government submitted that a finding of violation would constitute ample just satisfaction, since there was no evidence to suggest that, had proper procedures been in place at the relevant time, as they now were, the interceptions in question would not have been authorised.", "28. The Court recalls that the violations it has found in this case relate to the fact that the interceptions by the police were not properly controlled by law. It considers that the findings of violation constitute sufficient just satisfaction for any non-pecuniary loss caused to the applicant by this failure.", "B. Costs and expenses", "29. The applicant claimed legal costs and expenses as follows: GBP 918.00, exclusive of value added tax (“VAT”), for his solicitors, and the fees of two counsel, amounting to GBP 2,680.00 and GBP 3348.20, both exclusive of VAT.", "30. The Government considered that the sums claimed were excessive, given that the application had not progressed beyond the written stage, that the Article 6 § 1 complaint was declared inadmissible on 27 June 2000 and that the Article 8 complaint did not raise any new issues not already established in the Court’s case-law. The Government questioned whether it had been necessary to have engaged both leading and junior counsel to work on the case in addition to a solicitor, and whether it had been necessary for both barristers and the solicitor to visit the applicant in prison at a total cost of nearly GBP 4,700.00. The Government suggested that GBP 1,500, plus VAT, would be a reasonable sum.", "31. The Court recalls that it will award legal costs and expenses only if satisfied that these were necessarily incurred and reasonable as to quantum. It agrees with the Government that this was a straightforward case, raising virtually identical issues to the above-mentioned Khan judgment. It awards EUR 4,800 in respect of costs and expenses, plus any VAT that may be payable.", "C. Default interest", "32. The Court considers that the default interest should be fixed at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1982 and lives in Vela Luka.", "6. He worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia.", "A. Investigation", "7. In 2007 the police and the State Attorney ’ s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “ the OSCOC ”) investigated allegations of possible drug trafficking between Latin America and Europe via ocean carriers, involving several persons from Croatia.", "8. On 23 March 2007, on the basis of a police report, the OSCOC requested an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to authorise the use of secret surveillance measures to tap the applicant ’ s telephone and covertly monitor him.", "9. The investigating judge granted the request and on the same day issued an order for the use of secret surveillance measures. Its statement of reasons reads as follows :", "“ On 23 March 2007 the OSCOC lodged a request, no. ..., for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević. The request refers to the [police] report of 2 March 2007, concerning the use of secret surveillance measures in respect of M.R., M.V., B.Ž. and I.B., alleging probable cause to believe that [ Ante Dragojević ] is also involved in the commission of the offence proscribed by Article 173 §§ 2 and 3 of the Criminal Code.", "The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and the use of these measures in respect of Ante Dragojević is also necessary for satisfactory completion of the investigation, given that there are sufficient grounds for suspecting that he has also been involved in the commission of the offence in issue.", "It is therefore appropriate to temporarily limit the constitutional rights and decide as above. ”", "10. In the course of the further investigation the OSCOC learnt that the applicant had been using another telephone number. On 25 May 2007 it asked the investigating judge to extend the use of secret surveillance measures to tap that number.", "11. On the same day the investigating judge granted that request and issued an order, which contains the following statement of reasons:", "“ Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for the offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code.", "On 25 May 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of D.Š., and the secret surveillance measure under [Article 180 § 1] (1) of the above- cited provision in respect of Ante Dragojević, who was using the telephone number ... This measure was also requested in respect of another unidentified person who was using the number ... since the results of the previous use of secret surveillance measures showed that they had made contact in order to commit the offence in issue.", "The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means, so it is necessary to temporarily limit the constitutional rights and order the measures noted in the operative part of this order under points I and II.", "The OSCOC also asked that certain measures be terminated because they had not produced any result, and a decision was made accordingly as noted under point V of this order.”", "12. On 2 July 2007 the OSCOC requested that the use of secret surveillance measures be extended for a further three months.", "13. The investigating judge granted the request and on the same day issued an order based on the following statement of reasons:", "“Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for an offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code.", "On 2 July 2007 the OSCOC lodged a request for an extension of the use of secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of M.R., B.Ž. and Ante Dragojević on grounds of suspected conspiracy in drug trafficking between Latin America and Croatia. It appears, given their constant contacts, that the offence could be committed within a period of three months so it was proposed that the use of measures be extended for that period.", "The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and given the circumstances of the offence it is necessary to extend the use of [secret surveillance] measures in order to achieve satisfactory completion of the investigation and obtaining of evidence.", "It is therefore decided accordingly as noted in the operative part of this order.”", "14. On 6 August 2 007 the OSCOC requested the investigating judge to discontinue the use of secret surveillance measures in respect of the applicant on the grounds that the results of the investigation did not justify further secret surveillance.", "15. The investigating judge granted the request and ordered the discontinuation of secret surveillance on 7 August 2007.", "16. On 17 September 2007 the OSCOC made a new request for secret surveillance in respect of the applicant.", "17. On the same day the investigating judge issued a secret surveillance order with the following statement of reasons:", "“ By orders under the above number secret surveillance was ordered in respect of Ante Dragojević (on 23 March 2007 and discontinued on 7 August 2007), and in respect of ...", "On 17 September 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević, B. Ž. and M.M. for a period of two months in connection with offences proscribed under Article 173 §§ 2 and 3 of the Criminal Code, and for the discontinuation of secret surveillance in respect of N.I and an unidentified person. In their request [the OSCOC ] submits that the investigation shows that there is a possibility that these individuals could contact each other again and that they could contact N.I., who travelled to Latin America and is expected to stay there for ten months. [The OSCOC ] therefore considers that by resuming the use of secret surveillance relevant information for the further investigation could be obtained. On the other hand, there has been no communication on the telephone numbers of N.I. and the unidentified person so [the OSCOC ] proposes that the secret surveillance in that respect be discontinued.", "The investigating judge finds in the case in issue that it is necessary to temporarily limit the constitutional rights of the above-mentioned individuals since investigation by another means would not be possible. It has therefore been decided as noted under points I and II, while at the same time [certain] measures have been discontinued as noted under points III and IV of this order.”", "18. After further preliminary investigation, on 16 January 2009 the applicant was arrested and detained on suspicion of drug trafficking.", "19. The following day the Dubrovnik Police Department ( Policijska uprava Dubrovačko-neretvanska ) lodged a criminal complaint with the Dubrovnik County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney ’ s Office”) against the applicant and another person on charges of drug trafficking.", "20. On the same day the applicant was questioned by an investigating judge of the Dubrovnik County Court ( Županijski sud u Dubrovniku ). He stressed that it was true that he worked on an ocean carrier between Latin America and Europe but denied that he had anything to do with any drug trafficking.", "21. After the questioning the investigating judge opened an investigation in respect of the applicant and several other persons on suspicion of drug trafficking. The investigating judge also remanded the applicant in custody.", "22. During the investigation the investigating judge questioned several witnesses and obtained the relevant results and analyses of the use of secret surveillance measures, as well as evidence obtained following a number of searches conducted during the investigation. Throughout the proceedings the applicant was remanded in custody.", "B. Proceedings on indictment", "23. After the completion of the investigation, on 10 March 2009 the State Attorney ’ s Office indicted the applicant and two other persons in the Dubrovnik County Court on charges of drug trafficking. The applicant was also indicted on charges of money laundering.", "24. On 11 March 2009 a three-judge panel of the Dubrovnik County Court presided over by judge Z.Č. extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision in respect of the applicant reads:", "“This panel considers that the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Dragojević and V. should be extended because the type and quantity of drugs which are the subject of the indictment, and the manner of commission [of the offence], indicate particularly grave circumstances of the offence for which the pre-trial detention should be extended”", "25. On 13 March 2009 the applicant ’ s defence lawyer asked the Dubrovnik County Court for access to and a copy of the audio recordings obtained by the use of secret surveillance measures.", "26. The request for access to the recordings was granted on 16 March 2009.", "27. On 16 March 2009 the applicant challenged the decision on his pre-trial detention before the Supreme Court ( Vrhovni sud Republike Hrvatske ).", "28. On 18 March 2009 the applicant also lodged an objection against the indictment, arguing, inter alia, that the results of the secret surveillance measures did not suggest that he had been involved in the offence.", "29. On 30 March 2009 the Supreme Court allowed the applicant ’ s appeal against the detention order of 11 March 2009 (see paragraphs 24 and 27 above) on the grounds that the first-instance court had failed to state any reasons why the applicant ’ s detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending ). Without releasing the applicant, it therefore ordered that the matter be re-examined.", "30. The Dubrovnik County Court complied with that order and on 6 April 2009 a three-judge panel of that court, presided over by Judge Z.Č., extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads:", "“The fact that the defendant Ante Dragojević is a reoffender, who has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10 July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgment of the Korčula Municipal Court no. K-68/07 of 10 December 2007, suggests that his previous behaviour has not been in compliance with the law and that there is therefore a risk that, if at large, he might reoffend.", "Accordingly, this court considers that his detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure.", "Furthermore, this panel considers that the detention of Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug which is the subject matter of the charges and the manner of execution [of the offence] suggest that the circumstances of the offence were particularly serious and thus warrant his further detention.", "To be specific, cocaine is a hard drug and forty kilos of it is not an insignificant amount. Such a quantity could be distributed in a number of single doses and thus endanger the health of a number of people, particularly young people. Having regard also to the international character of the offence, and the recorded EUR 80,000 from the proceeds of the crime which surpasses the usual circumstances associated with such offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.”", "31. On 27 April 2009 a three-judge panel of the Dubrovnik County Court dismissed the applicant ’ s objection against the indictment as ill-founded (see paragraph 28 above) on the grounds that there was sufficient suspicion to warrant sending the case for trial.", "32. The applicant ’ s pre-trial detention was further extended by a three-judge panel of the Dubrovnik County Court, presided over by Judge Z.Č. on 5 June 2009, which reiterated the same reasons as in its previous decision.", "33. Meanwhile, Judge Z.Č., who had presided over the panels extending the applicant ’ s pre-trial detention (see paragraphs 24, 30 and 32 above), assumed responsibility for the applicant ’ s case as president of the trial bench of the Dubrovnik County Court.", "34. At hearings held on 16 and 17 June 2009 the applicant pleaded not guilty and the trial bench heard evidence from several witnesses.", "35. The applicant also applied to have the results of the secret surveillance measures excluded from the case file as unlawfully obtained evidence on the grounds that the orders for their use had not been sufficiently reasoned and had thus been contrary to Articles 180a, 181 and 182 of the Code of Criminal Procedure (see paragraph 55 below).", "36. In a short oral explanation and ruling out the possibility of appeal against his decision, the president of the trial bench dismissed the applicant ’ s request as ill-founded. The trial bench then examined the evidence obtained by secret surveillance. It also decided to obtain further evidence proposed by the prosecution and the applicant, and adjourned the hearing.", "37. On 4 August 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., E.Č. and M.V., extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) reiterating the reasons stated in the previous decisions on his detention.", "38. On 25 August 2009 Judge Z.Č., referring to the Court ’ s case-law and the case-law of the Constitutional Court ( Ustavni sud Republike Hrvatske ), asked to withdraw from the case as president of the trial bench on the grounds that his previous involvement in the case, as president of the panels which had extended the applicant ’ s pre-trial detention, could raise doubts about his impartiality.", "39. Following Judge Z.Č. ’ s request, on 26 August 2009 the President of the Dubrovnik County Court asked the Supreme Court to transfer the trial to another court since all the judges of the Criminal Division of the Dubrovnik County Court had already taken part in the applicant ’ s case.", "40. On 9 September 2009 the Supreme Court dismissed that request on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It held that the mere fact that a judge had presided over the panels extending the applicant ’ s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits. There were also no reasons to doubt the impartiality of Judge Z.Č. within the meaning of Article 36 § 2 of the Code of Criminal Procedure (see paragraph 55 below).", "41. The applicant ’ s detention was further extended on 1 October 2009 by a three-judge panel in which Judge Z.Č. sat as a member of the panel, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and reiterating the reasons from the previous decisions on detention.", "42. At a hearing on 26 November 2009 the trial bench questioned several witnesses and the defence again sought to have the evidence obtained by secret surveillance excluded from the case file as unlawfully obtained evidence. Ruling out the possibility of appeal, the president of the trial bench dismissed the request as ill-founded. The trial bench thus examined the evidence obtained by the use of secret surveillance measures.", "43. On 3 December 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., S.V. and M.V., extended the applicant ’ s detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the reasons stated in the previous decisions.", "44. At a hearing on 17 December 2009 the applicant pleaded not guilty and denied all the charges against him. The parties gave their closing statements and the trial bench concluded the hearing.", "45. On 18 December 2009 the Dubrovnik County Court found the applicant guilty on charges of drug trafficking and money laundering and sentenced him to nine years ’ imprisonment. The judgment was based on an analysis of the applicant ’ s defence and the statements of his co-accused, as well as on the statements of witnesses, evidence obtained through numerous searches and seizures and the use of secret surveillance measures.", "46. As to the refusal to exclude the latter evidence from the case file, the Dubrovnik County Court noted:", "“The court found that the defence of the accused Ante Dragojević was unconvincing, contradictory and aimed at avoiding his criminal responsibility .... The court examined the audio recordings (CD) of the conversations between the accused and witnesses I. Ž. and M.R. after it had found that the recordings had been made pursuant to the orders of the investigating judge of the Zagreb County Court no. Kir-Us-14/07 authorising the telephone tapping. These were the reasons why the court dismissed the request made during the proceedings that these recordings be excluded from the case file as unlawfully obtained evidence. [Moreover] the court considered them to be lawful and acceptable evidence obtained pursuant to valid court decisions. This court also refused the request by the defence to examine the case files of the Rijeka County Court no. Kir-Us-1/09 and the Zagreb County Court no. Kir-Us-14/07 [concerning the use of secret surveillance], because it considered those requests irrelevant and obsolete for the same reasons referred to in the decisions concerning the requests for exclusion of the secret surveillance recordings from the case file. As to the request that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence on the grounds that they did not contain an assessment of the likelihood that the accused themselves or jointly with other persons had committed one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and that they did not contain an assessment of whether the investigation could be conducted by other means, this court considers that this is not correct because the orders were sufficient and well-reasoned and eventually resulted in an indictment being lodged [against the accused]. In any event, as to the request by the defence that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence, it should be noted that these are not evidence but court decisions so they cannot be excluded from the case file as unlawfully obtained evidence. And as regards the evidence obtained on the basis of these orders, this court considers that there was no breach of the Code of Criminal Procedure and therefore it does not consider them to be fruit of the poisonous tree but lawfully obtained evidence.”", "47. On 27 January and 3 February 2010 the applicant lodged an appeal against the first-instance judgment with the Supreme Court. He argued, inter alia, that the secret surveillance orders had not been properly drafted as required under the Code of Criminal Procedure given that they had not given a proper assessment of the likelihood that the offences in issue had been committed, or of the circumstances indicating that the investigation could not be conducted by other means. In his view, this had led to his unlawful surveillance and therefore any evidence thus obtained could not be used in the criminal proceedings against him. He challenged, further, the basis of the first-instance court ’ s reasoning in its judgment, namely, the evidence obtained through secret surveillance. The applicant also requested the Supreme Court to quash the first-instance judgment and order that a retrial be held before a differently composed trial bench.", "48. The Supreme Court dismissed the applicant ’ s appeal as ill-founded and upheld the first-instance judgment on 23 September 2010. It held that all relevant facts had been sufficiently and correctly established, that the applicant had had every opportunity to participate effectively in the proceedings and that the first-instance court had given sufficient reasons for its decisions. As to the alleged unlawfulness of the applicant ’ s secret surveillance, the Supreme Court noted:", "“As regards the secret surveillance orders, contrary to what is alleged in the appeal, these impugned orders contain sufficient reasons as to probable cause to believe that the offence under Article 173 § 2 of the Criminal Code was committed, as well as to the fact that the investigation into this offence could not be conducted by other means and that [such investigation] would be extremely difficult, which is evident from the fact that the investigating judge did not refuse to issue the orders. In fact he issued the orders as required under Article 182 § 2 of the Code of Criminal Procedure. It follows that the appellant ’ s allegation that the impugned orders of the investigating judge do not contain sufficient reasons, is erroneous and that they are therefore not unlawfully obtained evidence within the meaning of Article 9 § 2 of the Code of Criminal Procedure.”", "49. The applicant subsequently lodged a constitutional complaint with the Constitutional Court on 21 October 2010 arguing, inter alia, that the trial bench had lacked impartiality because of the previous involvement of Judge Z.Č. in the case; that his secret surveillance had been unlawful on account of the failure of the investigating judge to issue an order in the manner required under the relevant law; and that the use of the evidence thus obtained for his conviction had rendered the entire proceedings unfair.", "50. On 25 May 2011 the Constitutional Court dismissed the applicant ’ s constitutional complaint as ill-founded. It endorsed the reasoning of the Supreme Court with regard to the use of secret surveillance measures and the use of evidence thus obtained in the proceedings. As regards the lack of impartiality of the trial bench, the Constitutional Court observed :", "“In the case in issue, the mere fact that the president of the trial bench had on three previous occasions ... sat on a panel which extended the appellant ’ s pre-trial detention cannot in itself be a reason for disqualifying the judge from deciding the merits of the case.", "There is a significant difference between the decision on detention and the decision on the guilt of the appellant. When ruling on an extension of detention, a member of a panel of judges decides only the legal issues on which the application of the procedural law concerning the so-called causae arresti (Article 102 of the Code of Criminal Procedure) depends. Accordingly, he or she does not assess all the legal and factual aspects of the charges. The charges will be assessed in the first - instance proceedings. However, the appellant has not advanced any reasons why Judge Z. Č. ’ s participation in the panel [of judges] which had extended his detention could be considered to have led him to form a previous conviction as to his guilt.”", "51. The decision of the Constitutional Court was served on the applicant ’ s representative on 13 June 2011." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant domestic law", "1. Constitution", "52. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows:", "Article 29", "“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. ”", "Article 35", "“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”", "Article 36", "“Freedom and confidentiality of correspondence and all other forms of communication are guaranteed and inviolable.", "Only the law may provide for restrictions necessary for the protection of national security or the conduct of criminal proceedings.”", "53. The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:", "Section 62", "“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ...", "2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”", "2. Criminal Code", "54. The relevant part of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006 ) provides:", "Title thirteen (XIII) Criminal offences against the values of international law", "Abuse of Narcotic Drugs", "Article 173", "“ ...", "(2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation declared to be narcotic drugs, shall be liable to a minimum sentence of three years ’ imprisonment .”", "Title twenty- one (XXI) Criminal offences against confidence in the financial sector and the economy", "Money laundering", "Article 279", "“(1) Whoever, in the course of a banking, financial or other business enterprise, invests, accepts, exchanges or by any other means conceals the real source of money or objects or rights obtained by that money which he or she knows has been obtained as a result of a criminal offence shall be liable to between six months and five years ’ imprisonment ... ”", "3. Code of Criminal Procedure", "55. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows:", "Article 9", "“(1) The courts ’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence).", "(2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, domestic law or international law, or evidence obtained in breach of the rules of criminal procedure in so far as set out in this Code, as well as any other evidence obtained unlawfully. “", "Transfer of jurisdiction", "Article 31", "“ Where the competent court, for legal or practical reasons, is unable to act, it shall inform the immediately higher court, which shall, after obtaining the opinion of the State Attorney, designate another court on its territory [as the competent court]. No appeal lies against this decision.”", "Disqualification", "Article 36", "“1. A judge or lay judge shall be disqualified from sitting in a case", "(1) if he has been injured by the offence;", "(2) if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative;", "(3) if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person;", "(4) if in the same criminal case he has carried out measures during the investigation, or has taken part in ruling on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness;", "(5) if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy.", "2. A judge or lay judge may be disqualified from sitting in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.”", "Article 37", "“1. A judge or lay judge, as soon as he discovers a ground for his disqualification referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity in the case and report the matter to the president of the court, who shall appoint a substitute judge. ...", "2. If a judge or lay judge considers that other circumstances exist which would justify his withdrawal (Article 36, paragraph 2), he shall inform the president of the court thereof.”", "Grounds for Ordering Detention", "Section 102", "“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:", "1. where there are circumstances which show that there is a risk that [the defendant] will abscond [is in hiding or his or her identity cannot be established, and so on);", "2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion;", "3. special circumstances justify the suspicion that the person concerned might reoffend;", "4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years ’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.”", "Special investigative measures temporarily limiting constitutional rights and freedoms", "Article 180", "“(1) If an investigation by other means would either not be possible or would be extremely difficult, upon a request by the State Attorney the investigating judge can, where there is probable cause to believe that an individual, acting alone or jointly with others, has committed one of the offences proscribed under Article 181 of this Code, order in respect of that individual the following measures restricting the constitutional rights of citizens:", "1. telephone tapping, ...", "3. covert monitoring of persons and objects ... ”", "Article 180a", "“Recordings, documents and objects obtained under the conditions provided for in Article 180 § 1 (1), ... (3) ... and Article 182 of this Code can be used as evidence in the criminal proceedings. ... ”", "Article 181", "“ Measures under Article 180 of this Code can be ordered in respect of the following offences:", "1. ... against the values of international law ( Chapter XIII) ... ”", "Article 182", "“(1) The measures under Article 180 of this Code shall be authorised by a written reasoned order of the investigating judge. The order shall be executed by the police. The order shall stipulate all relevant information about the individual concerned, the circumstances justifying the need for the measures, the time-limits within which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope and place of the measures. ...", "(2) The measures can last for a maximum period of four months. Following a request by the State Attorney, the measures can be extended for a further three months. In the event of a disagreement between the State Attorney and the investigating judge, a decision shall be taken by a [three-judge] panel (Article 20 § 2). Where there are no grounds for further surveillance, the investigating judge shall order the discontinuation of the measures. If the State Attorney drops the charges, or if the results of the measures are not relevant for the criminal proceedings, [these results] shall be destroyed under the supervision of the investigating judge, who shall draw up a record accordingly and file it in the case file.", "...", "(6) If measures under Article 180 of this Code have been taken without an order of the investigating judge or contrary to Articles 180 and 182 § 2 of this Code, the evidence and information thus obtained cannot be used in the criminal proceedings.. ... ”", "Article 182a", "“(1) The measures under Article 180 of this Code shall be executed by the police. During their execution, the police shall prepare daily reports and other documentation related to the recordings which, based on a special request, shall be forwarded to the investigating judge or the State Attorney ’ s Office.", "(2) Upon the expiry of the use of the measures, the police shall submit a special report to the State Attorney ’ s Office and the investigating judge in which they shall indicate:", "1. the time of the beginning and end of the use of the measure;", "2. the number and nature of activities undertaken by the State officials in the execution of the measure;", "3. the type and number of technical devices used;", "4. the number and identity of persons in respect of whom the measure has been taken;", "5. the type of the offences under Article 181 of this Code which were possibly prevented by the use of the measure;", "6. a succinct analysis of the question whether the measure contributed to or achieved the aim indicated in the order for its use.”", "56. On 18 December 2008 a new Code of Criminal Procedure was enacted (Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/ 2011, 91/2012, 143/2012 and 56/2013) which, in so far as relevant to the instant case, provides no particular amendments to the use of secret surveillance measures.", "B. Relevant practice", "57. In its decision no. U-III-857/2008 of 1 October 2008 the Constitutional Court examined a complaint about the unlawfulness of secret surveillance orders made in the course of criminal proceedings. The Constitutional Court noted the relevant principles but dismissed the complaint for non-exhaustion of domestic remedies because the appellant had failed to complain about the alleged unlawfulness of his secret surveillance during the criminal proceedings. The relevant part of the decision reads:", "“8.1. Where the secret surveillance order of the investigating judge, besides the operative part listing the measures to be conducted in respect of a person, contains nothing more in its statement of reasons than a mere statement referring to the [State Attorney ’ s] request for the use of secret surveillance in respect of a person ‘ because there is probable cause to believe that an offence has been committed ’ and that this is apparent from the [police reports], then it is clear that this breaches the constitutional guarantee of respect for private and family life under Article 35 of the Constitution, and the confidentiality of communications under Article 36 § 1 of the Constitution.", "8.2. The Constitutional Court reiterates that the guarantees of personal rights can be restricted only in order to achieve an aim provided for by law which is also proportionate to the necessity of such restriction and that this should be decided by a court (see, mutatis mutandis, decision no. U-III-4286/2007 of 26 December 2007). Pursuant to the Code of Criminal Procedure, the impugned [secret surveillance] order should have contained (a) a valid assessment of the ‘ probable cause to believe that the appellant, acting either alone or jointly with others, has committed ’ one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and (b) an assessment that the investigation ‘ cannot be conducted by other means or would be extremely difficult ’. Only such a statement of reasons guarantees that the existence of a ‘ probable cause to believe ’ that an offence proscribed under the law has been committed will precede the use of secret surveillance measures, that a minimum degree of probability exists that an actual – and not some possible – offence has been committed, and that the use of State powers will be logical and convincing and subsequently challengeable during the proceedings before the competent courts.", "8.3. Where the secret surveillance order has not been justified in that way, it breaches the Code of Criminal Procedure. ...", "9. However, the appellant failed to raise that complaint during the trial or in his appeal against the first-instance judgment (see paragraphs 2 and 5 above) and raised it for the first time in his constitutional complaint. Moreover, he did not use other remedies provided for in the Code of Criminal Procedure by which an accused can challenge evidence admitted in the case. ...", "10. The Constitutional Court therefore finds that the appellant has failed to exhaust the relevant remedies ... ”", "58. The Supreme Court, in its decision no. I-Kž-61/09-3 of 3 February 2009, set out the relevant principles concerning the use of evidence allegedly unlawfully obtained by the use of secret surveillance measures in criminal proceedings, in the following terms:", "“It is to be noted that the question of the use of evidence obtained by special investigative measures in criminal proceedings is regulated under Article 182 § 6 of the Code of Criminal Procedure. This provision expressly excludes the use of such evidence obtained contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure.", "The submissions of the accused in support of their request for the exclusion of unlawfully obtained evidence on the grounds that the orders issued by the investigating judge (save for the one of 8 March 2008) contained no reasons and was thus ex lege unlawful evidence is not correct.", "Specifically, an order (just like judgments and decisions) is an act of the court and in principle (unlike judgments and decisions) contains no reasons. The duty to state reasons in court orders is exceptional where search orders and orders for the use of special investigative measures limiting constitutional rights and freedoms are concerned. The requirement for the court to give reasoned orders for the use of special investigative measures limiting constitutional rights and freedoms flows from the requirement contained in Article 182 § 1 of the Code of Criminal Procedure. The lawmaker did not, however, seek to sanction conduct of the courts contrary to Article 182 § 1 of the Code of Criminal Procedure ..., Article 182 § 6 of the Code of Criminal Procedure provides that “the results [of the use of special investigative measures] cannot be used in criminal proceedings”.", "It follows that the lack of reasons for the orders concerning the use of special investigative measures limiting constitutional rights and freedoms does not render the evidence thus obtained unlawful. This also follows from the wording of the part of Article 9 § 2 of the Code of Criminal Procedure which provides that unlawfully obtained evidence is evidence obtained in breach of the law on criminal procedure where such unlawfulness is expressly envisaged under a legal provision, which is not the case regarding conduct contrary to Article 182 § 1 of the Code of Criminal Procedure.", "With regard to conduct contrary to Article 180 of the Code of Criminal Procedure, which would provide grounds for a conclusion of unlawfulness of evidence, it is to be noted that this provision is multi-layered.", "Without doubt, evidence is ex lege unlawfully obtained if it is the result of the use of special investigative measures limiting constitutional rights and freedoms which have not been ordered by the court based on a request by the State Attorney; if the measures do not relate to an individual concerning one of the offences under Article 181 of the Code of Criminal Procedure; or if a measure other than those provided for by law is ordered.", "A further condition, referred to in the decision of the Constitutional Court [ no. U-III-857/2008 of 1 October 2008; see paragraph 57 above] invoked by the appellants is the requirement that the general conditions for the use of such orders have been met, namely, the existence of probable cause to believe that an individual has committed one of the offences listed under the law, with regard to which the order is issued, and that the investigation cannot be carried out by other means or that it would be extremely difficult.", "It goes without saying that the investigating judge, when ruling on the request of the State Attorney, must take these general conditions into account. However, since the lack of reasons does not render the evidence obtained unlawful ex lege, the mere fact that an order has been issued based on a request by the State Attorney indicates that the general conditions have been met. However, if the investigating judge disagrees with the request to issue an order for the use of special investigative measures, and finds that the general conditions have not been met, he or she will request the panel under Article 20 § 2 of the Code of Criminal Procedure to rule on the matter, ...", "Of course, a citizen whose constitutional rights and freedoms are thus limited, which is possible under Article 16 of the Constitution only in accordance with the law and in order to protect the rights and freedoms of others or the legal order, public morals or health, must be able to verify whether the legal conditions, including the general ones, for such limitation have been met, in order to protect his or her constitutional rights from unjustified infringement by the executive, and possibly judicial, authorities. It is therefore understandable that the accused are now challenging the lawfulness of the orders from the perspective of the general conditions for their use, which is certainly relevant for the question of the lawfulness of the evidence thus obtained. ...", "Furthermore, in order that the court may issue an order for the use of special investigative measures, the request for their use must contain a statement of reasons to the effect that the investigation cannot be conducted by means other than interfering with the constitutional rights and freedoms, or that this would be extremely difficult. The very fact that the order has been issued, ..., even if, contrary to the law, it does not contain reasons, in itself implies acceptance of the arguments contained in the reasons for the request [for the use of special investigative measures].", "However, fully accepting the rights of citizens to question the existence of the general conditions for issuing an order, the court being requested to exclude from the case file evidence obtained by such contested orders for the use of special investigative measures is obliged, where no reasons are stated in the order contrary to Article 182 § 1 of the Code of Criminal Procedure, to provide specific reasons with regard to the relevant questions. That court ... must carefully analyse the content of the request of the State attorney [for the use of special investigative measures] and other accompanying material and decide whether it can conclude from the request that, at the relevant time, there existed a suspicion that an individual had committed one of the offences listed under the law, and why it considers that obtaining the evidence by the use of measures interfering with the constitutional rights of citizens is necessary ...", "These answers, contrary to the appeal submissions, can be given when ruling on the lawfulness of the orders issued [for the use special investigative measures] given that the orders, contrary to Article 182 § 1 of the Code of Criminal Procedure, do not contain a statement of reasons, and that the lawmaker, having regard to the provisions of Article 282 § 6 of the Code of Criminal Procedure, did not sanction it by unlawfulness of evidence obtained by the use of such defective orders. The purpose of the provision concerning unlawful evidence is not to exclude evidence in favour of persons in respect of whom there is a reasonable suspicion that they have committed an offence, but to protect citizens who are presumed innocent (until proven guilty ) from illegal actions by the judicial and executive authorities where such actions are illegal to such an extent that the lawmaker expressly categorised the results as unlawfully obtained evidence.”", "59. More recently, in its decision no. I-Kž-437/13-4 of 21 August 2013, the Supreme Court interpreted the requirements of Article 180 § 1 of the Code of Criminal Procedure in the following manner:", "“The statement of reasons of the impugned decision states that all orders authorising or extending secret surveillance measures ... contain the opinion that there is a probable cause to believe that the offence has been committed and that the investigation cannot be conducted by other means or would be extremely difficult. Such a statement, without specifying the circumstances which indicate that there is probable cause to believe [that an offence has been committed] and a mere [statutory] statement that the investigation cannot be conducted by other means and that it would be extremely difficult, without giving reasons in the decision, make the decision incomprehensible and contradictory ... Moreover, the impugned decision lacks relevant and sufficient reasons regarding a probable cause to believe that the accused has committed an offence proscribed under Article 181 of the Code of Criminal Procedure. It is also necessary to state the reason why the investigation cannot be conducted or would be extremely difficult to conduct by other means, as provided by Article 180 § 1 of the Code of Criminal Procedure.”", "60. The Constitutional Court, in its decision no. U-III-2781/2010 of 9 January 2014, accepted the position of the Supreme Court in decision no. I-Kž-61/09-3 of 3 February 2009 (see paragraph 58 above), noting that :", "“The impugned orders, pursuant to the relevant provisions of the Code of Criminal Procedure, should have contained: (a) a valid assessment of the ‘ probable cause to believe that (the appellant) alone or jointly with others participated ’ in one of the offences listed under Article 181 of the Code of Criminal Procedure: and (b) an assessment that an investigation in respect of the offences ‘ by other means would either not be possible or would be extremely difficult”.", "The Constitutional Court has assessed the relevant part of the judgment of the Supreme Court and finds that the Supreme Court correctly applied the relevant provisions of the Code of Criminal Procedure by holding that, if the orders for the use of special investigative measures do not contain reasons, they can, under certain conditions, be reasoned in the first-instance judgment or the decision concerning the request for the exclusion of unlawfully obtained evidence.”", "61. In several decisions, nos. U-III-535/1996, U -III-1781/2004, U-III-4879/2012 and U-III-2745/2013, the Constitutional Court declared inadmissible constitutional complaints against the dismissal of objections against indictments on the grounds that those were not individual acts against which a constitutional complaint could be lodged. Similarly, in cases nos. U-III-2716/2012, U-III-2783/2012, U-III-423/ 2013 and U-III-1317/2014 the Constitutional Court held that a constitutional complaint could not be lodged against a decision confirming the indictment. It also held, in cases nos. U-III-621/2005 and U-III-4921/2013, that a constitutional complaint could not be lodged directly against an indictment.", "III. RELEVANT INTERNATIONAL MATERIAL", "62. The relevant part of the Recommendation Rec(2005)10 of the Committee of Ministers to member States on “special investigative techniques” in relation to serious crimes including acts of terrorism of 10 April 2005 reads:", "“Chapter I – Definitions and scope", "For the purpose of this Recommendation, “special investigation techniques” means techniques applied by the competent authorities in the context of criminal investigations for the purpose of detecting and investigating serious crimes and suspects, aiming at gathering information in such a way as not to alert the target persons.", "For the purpose of this Recommendation, “competent authorities” means judicial, prosecuting and investigating authorities involved in deciding, supervising or using special investigation techniques in accordance with national legislation.", "Chapter II – Use of special investigation techniques at national level", "a. General principles", "1. Member states should, in accordance with the requirements of the European Convention on Human Rights (ETS No. 5), define in their national legislation the circumstances in which, and the conditions under which, the competent authorities are empowered to resort to the use of special investigation techniques.", "2. Member states should take appropriate legislative measures to allow, in accordance with paragraph 1, the use of special investigation techniques with a view to making them available to their competent authorities to the extent that this is necessary in a democratic society and is considered appropriate for efficient criminal investigation and prosecution.", "3. Member states should take appropriate legislative measures to ensure adequate control of the implementation of special investigation techniques by judicial authorities or other independent bodies through prior authorisation, supervision during the investigation or ex post facto review.", "b. Conditions of use", "4. Special investigation techniques should only be used where there is sufficient reason to believe that a serious crime has been committed or prepared, or is being prepared, by one or more particular persons or an as-yet-unidentified individual or group of individuals.", "5. Proportionality between the effects of the use of special investigation techniques and the objective that has been identified should be ensured. In this respect, when deciding on their use, an evaluation in the light of the seriousness of the offence and taking account of the intrusive nature of the specific special investigation technique used should be made.", "6. Member states should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such methods enable the offence to be detected, prevented or prosecuted with adequate effectiveness.", "7. Member states should, in principle, take appropriate legislative measures to permit the production of evidence gained from the use of special investigation techniques before courts. Procedural rules governing the production and admissibility of such evidence shall safeguard the rights of the accused to a fair trial. ”", "63. Article 23 of the Council of Europe ’ s Criminal Law Convention on Corruption (ETS no. 173, 27 January 1999) provides that each party is to adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, to enable it to facilitate the gathering of evidence in this sphere.", "The explanatory report on the Convention further specifies that “special investigative techniques” may include the use of undercover agents, wiretapping, interception of telecommunications and access to computer systems.", "Article 35 states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters.", "64. Article 4 of the Council of Europe ’ s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141, 8 November 1990) provides that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto.", "65. The use of special investigative techniques, such as controlled deliveries in the context of illicit trafficking in narcotic drugs, is also provided for in Article 73 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders, signed in Schengen on 19 June 1990.", "66. The use of special investigative techniques, including electronic or other forms of surveillance and undercover operations, is also envisaged in Article 20 of the United Nations Convention against Transnational Organized Crime ( A/RES/55/25 ) of 8 January 2001.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "67. The applicant complained that the secret surveillance of his telephone conversations had been in violation of the guarantees of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The parties ’ submissions", "68. The Government pointed out that the applicant had been under secret surveillance between 23 March and 7 August 2007 and subsequently from 17 September 2007, and that he had learnt this when the indictment had been lodged on 10 March 2009. Accordingly, in the Government ’ s view, the six-month time-limit had started running from that time and there had been no reason for the applicant to wait for the outcome of the criminal proceedings. Furthermore, the Government pointed out that in his constitutional complaint the applicant had not expressly relied on the provisions of Article 8 of the Convention and Article 35 of the Constitution. He had only complained about the alleged unlawfulness of the secret surveillance orders and the use of their results in the criminal proceedings against him.", "69. The applicant stressed that throughout the criminal proceedings at the domestic level he had argued before all levels of domestic jurisdiction that his secret surveillance had been unlawful. That had been the only way of allowing him to raise the complaint before the Constitutional Court. Thus, by complaining in substance of a violation of his rights guaranteed under Article 8 of the Convention before the Constitutional Court, and by waiting for a decision of that court, he had properly exhausted the domestic remedies and brought his complaint before the Court within the six-month time-limit.", "2. The Court ’ s assessment", "70. The Court reiterates that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such a correlation (see Hatjianastasiou v. Greece, no. 12945/87, Commission decision of 4 April 1990, and Berdzenishvili v. Russia ( dec. ), no. 31697/03, ECHR 2004 ‑ II (extracts) ).", "71. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. In this regard, the Court has already held that in order to comply with the principle of subsidiarity, before bringing complaints against Croatia to the Court applicants are in principle required to afford the Croatian Constitutional Court the opportunity to remedy their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011; Čamovski v. Croatia, no. 38280/10, § 27, 23 October 2012; Bajić v. Croatia, no. 41108/10, § 66, 13 November 2012; Remetin v. Croatia, no. 29525/10, § 81, 11 December 2012; Tarbuk v. Croatia, no. 31360/10, § 29, 11 December 2012; Damjanac v. Croatia, no. 52943/10, § 70, 24 October 2013; and Šimecki v. Croatia, no. 15253/10, § 29, 30 April 2014).", "72. The Court notes that the use of secret surveillance measures giving rise to the case in issue was ordered in the context of the criminal investigation which eventually led to the applicant ’ s criminal prosecution in the competent courts. Throughout the criminal proceedings before the competent courts the applicant argued that his secret surveillance had been contrary to the relevant domestic law (see paragraphs 35, 42 and 47 above) and he raised the same complaint before the Constitutional Court in his constitutional complaint against the final judgment of the criminal courts (see paragraph 49 above). Indeed, the Court notes, given the Constitutional Court ’ s practice of declaring any constitutional complaint against an indictment inadmissible (see paragraph 61 above), that it was the only way for the applicant to bring his complaints about the alleged unlawful use of secret surveillance before the Constitutional Court, as required under the Court ’ s case-law (see paragraph 71 above; and Blaj v. Romania, no. 36259/04, § 118, 8 April 2014). The Court cannot therefore accept the Government ’ s argument that the six-month time-limit started running from the moment when the applicant learned that the indictment had been lodged.", "73. Furthermore, the Court considers that the applicant, having raised the issue in substance in his constitutional complaint, did raise before the domestic courts the complaint which he has submitted to the Court (see, by contrast, Mađer v. Croatia, no. 56185/07, § 137, 21 June 2011, and Merot d.o.o. and Storitve Tir d.o.o. v. Croatia ( dec. ), nos. 29426/08 and 29737/08, §§ 35 and 36 10 December 2013 ). The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Lelas, cited above, § 51; Gäfgen v. Germany [GC], no. 22978/05, §§ 144-46, ECHR 2010; Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010; Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012; and Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012). The Court also notes that the decision of the Constitutional Court was served on the applicant ’ s representative on 13 June 2011 (see paragraph 51 above) and that the applicant lodged his complaint with the Court on 20 October 2011.", "74. Against the above background, the Court rejects the Government ’ s objection.", "75. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "76. The applicant contended that his secret surveillance had been unlawful because it had been based on orders of the investigating judge issued contrary to the relevant domestic law and the case-law of the higher domestic courts. Those orders of the investigating judge had contained no assessment of the likelihood that an offence had been committed and that the investigation into that offence could not be conducted by other, less intrusive, means. At the same time the relevant domestic law provided for judicial control of secret surveillance measures and required the judicial authority to examine the reasons put forward by the prosecuting authorities before issuing the secret surveillance orders. The statutory requirement for a reasoned order was necessary as a form of effective judicial control of measures interfering with the fundamental rights of an individual.", "77. The Government accepted that there had been interference with the applicant ’ s rights under Article 8 of the Convention. However, they considered that such interference had been justified. In particular, the secret surveillance orders had been based on Article 180 of the Code of Criminal Procedure and had been issued and supervised by an investigating judge pursuant to reasoned and substantiated requests from the OSCOC which the investigating judge had accepted as such. Moreover, such interference had pursued the legitimate aim of investigating and prosecuting crime and had been proportionate to the circumstances and gravity of the offence at issue.", "2. The Court ’ s assessment", "(a) General principles", "78. The Court reiterates that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8. Their monitoring amounts to an interference with the exercise of one ’ s rights under Article 8 (see Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82).", "79. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, amongst many others, Kvasnica v. Slovakia, no. 72094/01, § 77, 9 June 2009).", "80. The expression “in accordance with the law” under Article 8 § 2 in general requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, for example, Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A).", "81. In particular, in the context of secret measures of surveillance as the interception of communications, the requirement of legal “foreseeability” cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. Thus, the domestic law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see, for example, Malone, cited above, § 67; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V; Weber and Saravia v. Germany ( dec. ), no. 54934/00, § 93, ECHR 2006 XI; and Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009).", "82. The Court has also stressed the need for safeguards in this connection (see Kvasnica, cited above, § 79 ). In particular, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Bykov, cited above, § 78, and Blaj, cited above, § 128 ).", "83. Furthermore, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist guarantees against abuse which are adequate and effective. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Weber and Saravia, cited above, § 106; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010 ).", "84. This in particular bears significance as to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, since the Court has held that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions (see Kennedy, cited above, § 153). In assessing the existence and extent of such necessity the Contracting States enjoy a certain margin of appreciation but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica, cited above, § 80; and Kennedy, cited above, § 154).", "(b) Application of these principles to the present case", "( i ) Whether there was an interference", "85. The Court notes that it is not in dispute between the parties that by tapping the applicant ’ s telephone and covertly monitoring him there was an interference with his right to respect for “private life” and “correspondence”, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see, for example, Malone, cited above, § 54; Khan v. the United Kingdom, no. 35394/97, § 25, ECHR 2000 ‑ V; and Drakšas v. Lithuania, no. 36662/04, §§ 52-53, 31 July 2012).", "(ii) Whether the interference was justified", "86. The Court observes that in the instant case the applicant did not complain in general about the existence of legislation allowing measures of covert surveillance. The basis of his complaint was a specific instance of such surveillance which took place in connection with criminal proceedings against him. As the Court must first ascertain whether the interference complained of was “in accordance with the law”, it must inevitably assess the relevant domestic law in force at the time in relation to the requirements of the fundamental principle of the rule of law. Such a review necessarily entails some degree of abstraction (see Kruslin, cited above, § 32). Nevertheless, in cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011).", "87. In this connection the Court notes that the applicant was subjected to the measures of secret surveillance on the basis of Article 180 § 1 (1) of the Code of Criminal Procedure (see paragraph 55 above). It follows that the applicant ’ s covert surveillance had a basis in the relevant domestic law, the accessibility of which does not raise any problem in the instant case (see Kruslin, cited above, §§ 29-30)", "88. The applicant ’ s complaints are primarily focused not on the lack of legal basis in the relevant domestic law but on the failure of the investigating judge to comply with the procedures envisaged by law, in particular those related to an effective assessment as to whether the use of secret surveillance was necessary and justified in the particular case, as required under Article 182 § 1 of the Code of Criminal Procedure (see paragraphs 55 and 70 above).", "89. Thus the central question for the Court to determine is whether the relevant domestic law, including the way in which it was interpreted by the domestic courts, indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities, and in particular whether the domestic system of secret surveillance, as applied by the domestic authorities, afforded adequate safeguards against various possible abuses (compare Malone, cited above, § 70; Kruslin, cited above, §§ 35-36; Huvig, cited above, §§ 34-35; and Kopp v. Switzerland, 25 March 1998, §§ 66-75, Reports of Judgments and Decisions 1998 ‑ II ). Since the existence of adequate safeguards against abuse is a matter closely related to the question whether the “necessity” test was complied with in this case, the Court will address both the requirement that the interference be “in accordance with the law” and that it be “necessary ” (see Kvasnica, cited above, §§ 83-84).", "90. The Court notes that, on the face of it, the relevant domestic law clearly provides that for any secret surveillance measures in the context of criminal proceedings to be lawful, they must be ordered by an investigating judge upon a request by the State Attorney (see paragraph 55 above; Article 182 of the Code of Criminal Procedure). The statutory preconditions for issuing a secret surveillance order are the existence of a probable cause to believe that an individual alone, or jointly with others, has committed one of the offences proscribed by law (see paragraph 55 above; Article 181 of the Code of Criminal Procedure), and that an investigation in respect of the offences in issue is either not possible or would be extremely difficult (see paragraph 55 above; Article 180 § 1 of the Code of Criminal Procedure).", "91. The domestic law also expressly provides that the investigating judge ’ s order authorising the use of secret surveillance must be in written form and must contain a statement of reasons specifying: information concerning the person in respect of whom the measures are carried out, relevant circumstances justifying the need for secret surveillance measures, the time-limits in which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope of the measures (see paragraph 55 above; Article 182 § 1 of the Code of Criminal Procedure).", "92. The domestic law thereby provides for prior authorisation of the use of secret surveillance measures which must be sufficiently thorough and capable of demonstrating that the statutory conditions for the use of secret surveillance have been met and that the use of such measures is necessary and proportionate in the given circumstances. Strictly speaking, every individual under the jurisdiction of the Croatian authorities, when relying on these provisions of the relevant domestic law, should be confident that the powers of secret surveillance will be subjected to prior judicial scrutiny and carried out only on the basis of a detailed judicial order properly stipulating the necessity and proportionality of any such measure.", "93. The importance of the prior judicial scrutiny and reasoning of the secret surveillance orders was emphasised in the decision of the Constitutional Court no. U-III-857/2008 of 1 October 2008. In particular, it explained that only a detailed statement of reasons in the secret surveillance orders “guarantees that the existence of a ‘ probable cause to believe ’ that an offence proscribed under the law has been committed will precede the use of secret surveillance measures, that a minimum degree of probability exists that an actual – and not some possible – offence has been committed, and that the use of State powers will be logical and convincing and subsequently challengeable during the proceedings before the competent courts”. In the absence of this, according to the Constitutional Court, a secret surveillance order will breach the Code of Criminal Procedure (see paragraph 57 above).", "94. In this connection the Court has also emphasised that verification by the authority empowered to authorise the use of secret surveillance, inter alia, that the use of such measures is confined to cases in which there are factual grounds for suspecting a person of planning, committing or having committed certain serious criminal acts and that the measures can only be ordered if there is no prospect of successfully establishing the facts by another method or this would be considerably more difficult, constitutes a guarantee of an appropriate procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration (see Klass and Others, cited above, § 51). It is therefore important that the authorising authority – the investigating judge in the instant case – determines whether there is compelling justification for authorising measures of secret surveillance (compare Iordachi and Others v. Moldova, no. 25198/02, § 51, 10 February 2009 ).", "95. In the instant case the four secret surveillance orders issued by the investigating judge of the Zagreb County Court in respect of the applicant were essentially based only on a statement referring to the existence of the OSCOC ’ s request for the use of secret surveillance and the statutory phrase that “ the investigation could not be conducted by other means or that it would be extremely difficult ” (see paragraphs 9, 11, 13 and 17 above). No actual details were provided based on the specific facts of the case and particular circumstances indicating a probable cause to believe that the offences had been committed and that the investigation could not be conducted by other, less intrusive, means.", "96. Although that apparently conflicted with the requirements of the relevant domestic law and the above-cited case-law of the Constitutional Court (see paragraphs 5 5 and 93 above), it appears to have been approved through the practice of the Supreme Court and later endorsed by the Constitutional Court. In particular, the Supreme Court held, dealing with the matter in the context of the admissibility of evidence, which is a different matter under the Convention (see paragraph 99 below), that a lack of reasons in the secret surveillance orders, contrary to Article 182 § 1 of the Code of Criminal Procedure, could be compensated by retrospective specific reasons with regard to the relevant questions at a later stage of the proceedings by the court being requested to exclude the evidence thus obtained from the case file (see paragraph 58 above). This appears to be accepted by the Constitutional Court, which, in its decision no. U-III-2781/2010 of 9 January 2014, held that if the secret surveillance orders did not contain reasons, under certain conditions reasons could be stated in the first-instance judgment or the decision concerning the request for exclusion of unlawfully obtained evidence (see paragraph 60 above).", "97. It follows from the foregoing that whereas the Code of Criminal Procedure expressly envisaged prior judicial scrutiny and detailed reasons when authorising secret surveillance orders, in order for such measures to be put in place, the national courts introduced the possibility of retrospective justification of their use, even where the statutory requirement of prior judicial scrutiny and detailed reasons in the authorisation was not complied with. In an area as sensitive as the use of secret surveillance, which is tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions, the Court has difficulty in accepting this situation created by the national courts. It suggests that the practice in the administration of law, which is in itself not sufficiently clear given the two contradictory positions adopted by both the Constitutional Court and the Supreme Court (see paragraphs 93 and 96, and 57-61 above), conflicts with the clear wording of the legislation limiting the exercise of the discretion conferred on the public authorities in the use of covert surveillance (compare Kopp, cited above, § 73; and Kvasnica, cited above, § 87).", "98. Moreover, the Court considers that in a situation where the legislature envisaged prior detailed judicial scrutiny of the proportionality of the use of secret surveillance measures, a circumvention of this requirement by retrospective justification, introduced by the courts, can hardly provide adequate and sufficient safeguards against potential abuse since it opens the door to arbitrariness by allowing the implementation of secret surveillance contrary to the procedure envisaged by the relevant law.", "99. This is particularly true in cases where the only effective possibility for an individual subjected to covert surveillance in the context of criminal proceedings is to challenge the lawfulness of the use of such measures before the criminal courts during the criminal proceedings against him or her (see paragraph 72 above). The Court has already held that although the courts could, in the criminal proceedings, consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant ’ s right to respect for his private life was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan, cited above, § 44; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001 ‑ IX; and Goranova-Karaeneva, cited above, § 59).", "100. This can accordingly be observed in the present case, where the competent criminal courts limited their assessment of the use of secret surveillance to the extent relevant to the admissibility of the evidence thus obtained, without going into the substance of the Convention requirements concerning the allegations of arbitrary interference with the applicant ’ s Article 8 rights (see paragraphs 46 and 48 above). At the same time, the Government have not provided any information on remedies – such as an application for a declaratory judgment or an action for damages – which may become available to a person in the applicant ’ s situation (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 102).", "101. Against the above background, the Court finds that the relevant domestic law, as interpreted and applied by the competent courts, did not provide reasonable clarity regarding the scope and manner of exercise of the discretion conferred on the public authorities, and in particular did not secure in practice adequate safeguards against various possible abuses. Accordingly, the procedure for ordering and supervising the implementation of the interception of the applicant ’ s telephone was not shown to have fully complied with the requirements of lawfulness, nor was it adequate to keep the interference with the applicant ’ s right to respect for his private life and correspondence to what was “necessary in a democratic society”.", "102. There has therefore been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION", "103. The applicant complained of the lack of impartiality of the trial bench and the use of evidence obtained by secret surveillance in the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Alleged lack of impartiality of the trial bench", "1. Admissibility", "(a) The parties ’ submissions", "104. The Government submitted that during the proceedings the applicant had never complained about the composition of the trial bench nor had he ever requested that Judge Z. Č. be disqualified from sitting in the case. Moreover, he had not alleged a lack of impartiality of the trial bench in his appeal but only in the constitutional complaint. Thus, in the Government ’ s view, it could not be said that the alleged lack of impartiality of Judge Z.Č. had affected the applicant ’ s right to a fair trial.", "105. The applicant pointed out that, in view of the Supreme Court ’ s decision dismissing the request of the President of the Dubrovnik County Court for the proceedings to be transferred to another court on account of the previous involvement of the judges of that court in the case (see paragraph 40 above), any possibility of complaining about the trial bench ’ s lack of impartiality had been purely theoretical and would not have yielded any result in practice.", "(b) The Court ’ s assessment", "106. The Court notes that after Judge Z. Č. had expressed his concerns about an appearance of his impartiality in the applicant ’ s case to the President of the Dubrovnik County Court and asked to withdraw from the case (see paragraph 38 above), the latter requested permission from the Supreme Court to have the proceedings transferred to another court since all the judges of the Dubrovnik County Court had already been involved in the applicant ’ s case at earlier stages of the proceedings (see paragraph 39 above). However, the Supreme Court dismissed that request as it did not see any reason to doubt the impartiality of the Dubrovnik County Court judges.", "107. In such circumstances any other complaint by the applicant about the composition of the trial bench or a lack of impartiality of the Dubrovnik County Court judges would have been theoretical and illusory, whereas the Convention is intended to guarantee rights which are practical and effective (see, amongst many other authorities, Erkapić v. Croatia, no. 51198/08, § 78, 25 April 2013 ).", "108. The Court therefore rejects the Government ’ s objection. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) The parties ’ submissions", "109. The applicant pointed out that during the proceedings the president of the trial bench, Judge Z. Č ., had, of his own motion, expressed concerns about the appearance of his impartiality as he had previously taken part in the proceedings extending the applicant ’ s pre-trial detention. Referring to the case-law of the Court and the relevant domestic practices, he had submitted that there were ascertainable facts raising doubts as to his impartiality. In the applicant ’ s view, this meant that the judge had lacked impartiality in terms of the subjective aspect of the Court ’ s relevant test and, in any event, that the trial bench had lacked objective impartiality as this had been sufficient evidence to raise legitimate doubts as to the lack of Judge Z. Č. ’ s impartiality. Moreover, the President of the Dubrovnik County Court had shared the concerns expressed by Judge Z. Č. and had therefore requested the Supreme Court to transfer the proceedings to another court, but the Supreme Court had dismissed that request.", "110. The Government submitted that the applicant had failed to rebut the presumption of Judge Z.Č. ’ s impartiality in terms of the subjective aspect of the Court ’ s relevant test as the judge had never expressed any personal bias or prejudice in the applicant ’ s case. As to the objective test of impartiality, the Government considered that the mere participation of a judge at previous stages of the proceedings could not in itself raise any doubts as to his or her lack of impartiality. It was true that during the proceedings Judge Z. Č. had asked to withdraw from the case, but he had merely relied on his interpretation of the relevant domestic requirements without providing concrete grounds for the possible appearance of a lack of impartiality on his part. The final decision concerning his request had been given by the Supreme Court, which had examined the request for transfer of the proceedings to another court submitted by the President of the Dubrovnik County Court. The Supreme Court had explained that the fact that a judge had ordered pre-trial detention could not affect his or her impartiality as such a decision did not concern the same issues that the judge had to decide when examining the case on the merits. In the Government ’ s view, this interpretation had followed the relevant practice of the Court and the Constitutional Court. The applicant had thus misconstrued the request of Judge Z. Č. to withdraw from the case as that request had merely referred to the relevant practice on the matter and not any concrete circumstances of the case.", "(b) The Court ’ s assessment", "( i ) General principles", "111. The Court reiterates that Article 6 § 1 of the Convention requires a court to be impartial. Impartiality denotes the absence of prejudice or bias. According to the Court ’ s case-law, there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1. The first test (subjective) consists in seeking to determine the personal conviction of a particular judge in a given case. The personal impartiality of a judge must be presumed until there is proof to the contrary. As to the second test (objective), it means determining whether, quite apart from the personal conduct of a judge, there are ascertainable facts which may raise doubts as to his/her impartiality (see, for example, Padovani v. Italy, 26 February 1993, § 26, Series A no. 257 ‑ B; Gautrin and Others v. France, 20 May 1998, § 58, Reports 1998 ‑ III ).", "112. The Court notes that in the vast majority of cases raising impartiality issues it has focused on the objective test. However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996 ‑ III).", "113. The Court also emphasises that in this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports of Judgments and Decisions 1998 ‑ VIII; and Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009).", "114. In cases where a judge presiding over the trial has already dealt with the case at an earlier stage of the proceedings and has given various decisions in respect of the applicant at the pre-trial stage – including decisions on continued detention – the Court has observed that, in general, one of the roles of the trial judge is to manage the proceedings with a view to ensuring the proper administration of justice. It is perfectly normal that a judge may consider and dismiss an application for release lodged by a detained defendant. In doing so the judge is required, under both the Convention and the domestic law, to establish the existence of a “reasonable suspicion” against the defendant. The mere fact that a trial judge has already taken pre-trial decisions in the case, including decisions relating to detention, cannot in itself justify fears as to his impartiality; only special circumstances may warrant a different conclusion (see Hauschildt v. Denmark, 24 May 1989, § 51, Series A no. 154; Sainte-Marie v. France, no. 12981/87, § 32, 16 December 1992; and Romenskiy v. Russia, no. 22875/02, § 27, 13 June 2013). What matters is the extent and nature of the pre-trial measures taken by the judge (see Fey v. Austria, 24 February 1993, § 30, Series A no. 255 ‑ A).", "115. Any misgivings which the accused may occasion in these instances are understandable but cannot in themselves be treated as objectively justified. Indeed, the questions which the judge has to answer when taking decisions on continuing detention are not the same as those which are decisive for his final judgment. When taking a decision on detention on remand and other pre-trial decisions of this kind the judge summarily assesses the available data in order to ascertain whether there are prima facie grounds for the suspicion against an accused of having committed an offence; when giving judgment at the conclusion of the trial he must assess whether the evidence that has been produced and debated in court suffices for finding the accused guilty. Suspicion and formal finding of guilt are not to be treated as being the same (see Jasiński v. Poland, no. 30865/96, § 55, 20 December 2005 ).", "(ii) Application of these principles to the present case", "116. The Court notes that during the proceedings in the applicant ’ s case his pre-trial detention was extended four times by a three-judge panel of the Dubrovnik County Court in which Judge Z.Č., who later assumed responsibility for the applicant ’ s case as the president of the trial bench, took part as either the president or member of the panel (see paragraphs 24, 30, 32 and 41 above). The applicant ’ s detention was extended on the grounds of a risk of reoffending and the gravity of the charges.", "117. The assessment of those grounds involved an analysis of all the relevant circumstances of the offence, the manner of its commission and the gravity of specific elements of the charges such as the necessary criminal resolve and engagement in the commission of the offence (see paragraphs 24 and 30 above). However, in the assessment, the judges referred only to the offence as “the subject matter of the charges”, which did not convey their conviction that the applicant had committed the offences in question and cannot be considered tantamount to a finding of guilt ( compare Jasiński, cited above, § 56, and, by contrast, Romenskiy, cited above, § 28).", "118. Similarly, the Court does not consider that the reference to the particular circumstances of the charges, indicating the gravity of the offences and the applicant ’ s previous convictions, could be seen as going beyond what should be regarded as an objective and reasonable evaluation of the situation for the purposes of deciding the question of his pre-trial detention. These elements played a role in the assessment of the grounds for ordering pre-trial detention under the relevant domestic law and, as such, had to be reviewed by Judge Z.Č. from the point of view of justification for the applicant ’ s continued detention. However, they could not be seen as indicating any preconceived view of the applicant ’ s guilt or sentence which should be imposed on him (see Jasiński, cited above, § 56 ).", "119. The Court therefore considers that the mere fact that Judge Z.Č. sat as a member of the three-judge panel of the Dubrovnik County Court which extended the applicant ’ s detention does not raise an issue of lack of impartiality under the Convention.", "120. The Court notes, however, that during the proceedings, owing to his previous involvement in the case, Judge Z.Č., of his own motion, sought leave from the President of the Dubrovnik County Court to withdraw from the case as president of the trial bench (see paragraph 38 above). Leave was granted by the President of the Dubrovnik County Court, who, relying on the same grounds, asked the Supreme Court to transfer the proceedings to another court (see paragraph 39 above) because all the judges of the Criminal Division of that court had already taken part in the proceedings. However, leave was refused by the Supreme Court on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It explained that the mere fact that a judge had presided over the panels extending the applicant ’ s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits (see paragraph 40 above).", "121. Whereas this situation could have raised certain misgivings on the part of the applicant, the Court notes that, in his request, Judge Z.Č. did not refer to any specific reason for his withdrawal but requested leave to withdraw as a merely precautionary measure (see paragraph 38 above). Moreover, in dismissing the request the Supreme Court gave sufficient and relevant reasons for its decision, which were compatible with the Court ’ s case-law (see paragraph 120 above, and, by contrast, Rudnichenko v. Ukraine, no. 2775/07, § § 116- 18, 11 July 2013).", "122. In view of the foregoing, the Court finds that the applicant ’ s misgivings about the impartiality of the judge presiding over his trial cannot be regarded as objectively justified.", "123. There has accordingly been no violation of Article 6 § 1 of the Convention.", "B. Use of evidence obtained by secret surveillance in the proceedings", "1. Admissibility", "124. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) The parties ’ submissions", "125. The applicant contended that he had not had a fair trial because the trial bench had admitted in evidence the recordings unlawfully obtained by virtue of the secret surveillance orders and had based its decisions on that evidence. This had been contrary to the relevant rules on admissibility of evidence under the Code of Criminal Procedure which had rendered his trial unfair.", "126. The Government submitted that during the proceedings the applicant had had every possibility to examine the recordings obtained by secret surveillance and to oppose their use as evidence. Indeed, he had challenged the lawfulness of such evidence and had asked that they be excluded from the case file. The domestic courts had dismissed his request and provided sufficient reasons for their decisions.", "(b) The Court ’ s assessment", "( i ) General principles", "127. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see, amongst many others, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV ).", "128. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX ).", "129. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, amongst many others, Bykov, cited above, § 90).", "130. As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that in several cases it has found the use of covert listening devices to be in breach of Article 8 since such interference was not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of a particular case conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Khan, cited above, §§ 25-28; P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 37-38, ECHR 2001 ‑ IX; and Bykov, cited above, §§ 94-105).", "(ii) Application of these principles to the present case", "131. The Court notes at the outset that the applicant did not put forward any argument disputing the reliability of the information obtained by secret surveillance measures but limited his objection exclusively to the formal use of such information as evidence during the proceedings (compare Khan, cited above, § 38; P.G. and J.H., cited above, § 79; and Bykov, cited above, § 95).", "132. He also had an effective opportunity to challenge the authenticity of the evidence and oppose its use and used that opportunity during the proceedings before the first-instance court (see paragraphs 35 and 42 above), and in his appeal (see paragraph 47 above) and constitutional complaint (see paragraph 49 above). The domestic courts examined his arguments on the merits and provided reasons for their decisions (see paragraphs 46, 48 and 50 above). The fact that the applicant was unsuccessful at each step does not alter the fact that he had an effective opportunity to challenge the evidence and oppose its use (see Schenk, cited above, § 47, and Khan, cited above, § 38).", "133. The Court further notes that the impugned evidence was not the only evidence on which the conviction was based (compare Schenk, cited above, § 48 ). When convicting the applicant the Dubrovnik County Court took into account the applicant ’ s statements and the statements of his co-accused and examined them against the statements of other witnesses and evidence obtained by numerous searches and seizures (see paragraph 45 above).", "134. Against the above background, the Court considers that there is nothing to substantiate the conclusion that the applicant ’ s defence rights were not properly complied with in respect of the evidence adduced or that its evaluation by the domestic courts was arbitrary (see Bykov, cited above, § 98). In conclusion, the Court finds that the use of the impugned recordings in evidence did not as such deprive the applicant of a fair trial.", "135. There has accordingly been no violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "136. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "137. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.", "138. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated.", "139. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7 ,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.", "B. Costs and expenses", "140. The applicant also claimed 16,493.75 Croatian kunas for the costs and expenses incurred before the Court.", "141. The Government considered the applicant ’ s claim unsubstantiated and unfounded.", "142. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,160 plus any tax that may be chargeable, covering costs for the proceedings before the Court.", "C. Default interest", "143. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1989 and lives in Newtownabbey, Northern Ireland.", "A. Background", "6. In 2006 a solicitor in Northern Ireland was arrested and charged with a number of offences, including inciting paramilitaries to murder and perverting the course of justice. The case arose out of the covert recording of his consultations with clients at Antrim police station. As a direct consequence of the criminal proceedings, solicitors in Northern Ireland became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. Thereafter, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of such surveillance.", "7. When the police refused to give assurances, judicial review proceedings were initiated on the basis that there had been a breach of the common law right to legal and professional privilege, the statutory right to a private consultation with a lawyer, and Articles 6 and 8 of the Convention.", "8. In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply.", "9. The applicants in these judicial review proceedings appealed against the court ’ s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia, legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued.", "10. As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court ’ s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance.", "11. Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance.", "B. The facts of the present case", "12. On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans.", "13. When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the Constable ’ s murder.", "14. The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance.", "15. On 25 March 2009 the applicant was charged with withholding information about the Constable ’ s murder.", "16. Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans.", "17. The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without charge.", "18. On 4 May 2010 the applicant was arrested for a third time in connection with the Constable ’ s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations would not be subjected to covert surveillance. The PSNI informed him that", "“[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”.", "19. The applicant sought permission to apply for judicial review of the PSNI ’ s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise.", "20. On 6 May 2010 he was granted permission to apply for judicial review. In granting permission, the court directed that any subsequent consultations with his solicitor and his medical adviser should not be subject to covert surveillance.", "21. On 7 May 2010 the applicant had his first consultation with a Consultant Psychiatrist.", "22. The applicant was released without charge on 8 May 2010.", "23. The charge of withholding evidence appears to have concluded without trial.", "C. The domestic proceedings", "24. The hearing of the judicial review application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant ’ s claim.", "25. In dismissing the claim, the court relied on Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”.", "26. The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be justified if it was a truly proportionate response to a real risk posed by the individual who was the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy, the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear.", "27. With regard to the applicant ’ s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy, were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private.", "28. Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance.", "29. On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows:", "“a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations?", "b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:-", "(i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or", "(ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed.", "c. Is the Police Service of Northern Ireland ’ s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR?", "d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?”", "30. An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011.", "i. Surveillance Commissioners", "76. Section 91(2) of the Police Act 1997 (“the 1997 Act”) provides that the ordinary Surveillance Commissioners and the Chief Surveillance Commissioner must hold or have held high judicial office. They are appointed for fixed terms of three years and they enjoy statutory protection from arbitrary removal from office.", "77. Section 62(1) of RIPA requires the Chief Surveillance Commissioner to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. He may be assisted in the performance of his duties by Assistant Surveillance Commissioners.", "78. The ordinary Surveillance Commissioners have power to quash authorisations and to order the destruction of any records relating to information obtained by the authorised conduct (section 37(1) – (5) of RIPA).", "j. The Investigatory Powers Tribunal", "79. The Investigatory Powers Tribunal (“ IPT ”) was established under section 65(1) of RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA. Members of the IPT must hold or have held high judicial office or be a qualified lawyer of at least ten years ’ standing. Any person may bring a claim before the IPT and, save for vexatious or frivolous applications, the IPT must determine all claims brought before it (sections 67(1), (4) and (5) RIPA).", "80. Section 65(2) of RIPA provides that the IPT is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services and complaints by persons who allege to have been subject to the investigatory powers of RIPA. It has jurisdiction to investigate any complaint that a person ’ s communications have been intercepted and, where interception has occurred, to examine the authority for such interception. Sections 67(2) and 67(3)(c) provide that the IPT is to apply the principles applicable by a court on an application for judicial review.", "81. Under section 67(8) of RIPA, there is no appeal from a decision of the IPT “except to such extent as the Secretary of State may by order otherwise provide”. No order has been passed by the Secretary of State.", "82. Under section 68(2), the IPT has the power to require a relevant Commissioner to provide it with all such assistance (including the Commissioner ’ s opinion as to any issue falling to be determined by the IPT) as it thinks fit.", "83. Section 68(4) deals with reasons for the IPT ’ s decisions and provides that:", "“Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either—", "(a) a statement that they have made a determination in his favour; or", "(b) a statement that no determination has been made in his favour.”", "84. The IPT has the power to award compensation and to make such other orders as it thinks fit, including orders quashing or cancelling any warrant or authorisation and requiring the destruction of any records obtained (section 67(7) RIPA). In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)).", "C. Police Service of Northern Ireland Service Procedure, “Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material”", "85. The Service Procedure was issued and implemented on 22 June 2010. Its aim is to set out the position of the PSNI regarding the steps to be taken in relation to any material which is obtained by virtue of the covert surveillance of legal consultations.", "86. Section 6 of the Service Procedure echoes the Revised Code in making clear that deliberately acquired knowledge of legally privileged matters cannot be admitted in court and is to be kept separate from law enforcement investigations and criminal prosecutions.", "87. The section further provides guidance on the retention, destruction and handling of material subject to legal privilege. In particular, it provides that legally privileged material must clearly be marked as such and dissemination should be limited to authorised persons; the material should be handled in a manner consistent with the procedures set out for the storage and handling of classified material; legally privileged material that is deliberately acquired will only be disseminated for the purpose of countering the identified threat; legally privileged material that is acquired and is not deemed relevant must not be copied or disseminated; the master and working copy must be sealed and securely stored; material subject to legal privilege must not be used to further other investigations unless explicitly approved within the authorisation or any review; the copying and handling of any material must be fully audited; material subject to legal privilege will not be recorded on the PSNI intelligence databases; dissemination to an outside body will only be considered when it is necessary and material so disseminated will retain any additional handling conditions which must be notified to that body as a condition of dissemination; any PSNI employee given access to the information will be required to sign to confirm that they will not disclose the material other than in accordance with the Dissemination Policy; material subject to legal privilege will only be retained as long as necessary to counter the threat in respect of which it was obtained or to comply with other statutory obligations; where any such obligations have been discharged the senior authorising officer will direct that the material be destroyed and disposal should be witnessed by a legal advisor; and, finally, a legal advisor will be consulted on all aspects of the acquisition, retention, handling, dissemination and disposal of legally privileged material.", "D. The July 2005 Criminal Procedure and Investigations Act 1996 Code of Practice for Northern Ireland (“the CIPA Code”)", "88. The CIPA Code sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation which may be relevant to the investigation. Insofar as intrusive surveillance by the PSNI results in the acquisition of material that was not legally privileged, its retention and potential use or disclosure in any subsequent criminal proceedings is governed by CIPA.", "E. The Data Protection Act 1998 (“DPA”)", "89. Material obtained as a result of intrusive surveillance of legal consultations will generally be “personal data” for the purposes of the DPA and in certain circumstances may amount to “sensitive personal data”. Moreover, the PSNI is a “data controller” for the purposes of that Act. Therefore, the PSNI must in general comply with the data protection principles set out in Part I of Schedule 1.", "90. As read with paragraph 5 of Schedule 2 to the DPA, the first data protection principle permits the PSNI to process personal data insofar as it is “necessary” for the exercise of any of its public functions. More restrictive conditions apply in respect of sensitive personal data.", "91. Pursuant to the fifth personal data principle, personal data should be destroyed as soon as it is no longer necessary for the PSNI to retain it for the purpose for which it was being processed.", "92. The Information Commissioner, an independent regulator, oversees compliance with the DPA by data controllers. He has the power to impose a fine of up to GBP 500,000 in the event of serious contravention of the data protection principles by a data controller.", "F. Guidance relating to “appropriate adults”", "93. The Police and Criminal Evidence Act 1984 Code of practice in connection with the detention, treatment and questioning by police officers of persons under section 41 of, and Schedule 8 to, the Terrorism Act 2000 sets out the circumstances in which an appropriate adult should be appointed.", "94. Pursuant to paragraph 11.9 of the Code, a juvenile or person who is mentally disordered or otherwise mentally vulnerable should not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult.", "95. According to paragraph 1.13, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people.", "96. Paragraph 3.17 provides that the appropriate adult must be informed by police “as soon as practicable” of the arrest and detention of the mentally disordered or mentally vulnerable person and the adult must be asked to come to the police station. Paragraph 3.19 further provides that the detainee should be advised that the duties of the appropriate adult “include giving advice and assistance” and that they can “consult privately ... at any time”." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The interception, acquisition and disclosure of communication data", "31. The provisions of domestic law which govern the interception, acquisition and disclosure of communication data (including Part I of the Regulation of Investigatory Powers Act 2000 (“RIPA”) together with the relevant sections of the Code) are set out in Kennedy v. the United Kingdom, no. 26839/05, § § 25 – 61, 18 May 2010.", "B. Surveillance", "1. Re McE (Northern Ireland) [2009] UKHL 15 and Re C and Others [2007] NIQB 101", "32. Like the applicant in the present case, the claimants in Re McE had sought to judicially review the PSNI ’ s refusal to grant assurances that their consultations with their legal representatives while in detention would not be the subject of covert surveillance. They asserted that the failure to provide assurances was incompatible with Articles 6 and 8 of the Convention; and that it breached both their common law right to legal professional privilege (“LPP”) and their statutory right to consult a legal advisor in private.", "33. In the Divisional Court, where the case was referred to as Re C and Others [2007] NIQB 101, Kerr LCJ, giving the leading judgment, held that RIPA imposed limits on both the common law right of legal professional privilege and the statutory right to consult a lawyer privately while in detention. In relation to the claimants ’ Convention rights, he did not find any evidence that the possibility of surveillance in any way affected the fairness of their trials contrary to Article 6 §§ 1 or 3 (b). He did, however, consider that insufficient reasons had been given to justify why this form of surveillance was not subject to the enhanced safeguarding regime used in respect of intrusive surveillance. He therefore found that there had been a violation of Article 8 of the Convention.", "34. Somewhat unusually, the claimants were granted leave to appeal to the House of Lords, where the case was referred to as Re McE (Northern Ireland) [2009] UKHL 15. Before the House of Lords, the sole issue was whether RIPA permitted covert surveillance of consultations with legal and medical advisors notwithstanding that such communication enjoyed LPP and there was a statutory right to consult these advisors in private. Lord Carswell, with whom Lords Hope and Neuberger and Lady Hale agreed, observed that RIPA and the relevant Code of Practice had clearly envisaged the surveillance of legal consultations. Relying on the Court ’ s case-law, he accepted that “covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances” and found that in the present case there was a need to incorporate exceptions to the inviolability of privileged consultations.", "35. Their Lordships unanimously agreed with the Divisional Court judgment that the authorisation regime relating to directed surveillance could not be considered to be adequate when put against the intrusiveness of covert surveillance of legal or medical consultations.", "36. In respect of the Code of Practice, Lord Phillips of Worth Matravers noted that", "“The draughtsman of the Code appears to have preceded on the premise that: (i) it is undesirable that communications subject to LPP which are disclosed in consequence of authorised surveillance should be used in criminal or civil proceedings; (ii) such communications would not be admissible in criminal proceedings; (iii) knowledge of such communications could prejudice criminal or civil proceedings.", "None of these premises is axiomatic. I would expect the Strasbourg Court to require English law to state clearly what use, if any, is permitted to be made of material covered by LLP that is disclosed by surveillance.", "The majority have held that RIPA permits the Code to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. The Code does not at present do so in a manner which is compliant with the Convention. I would make this observation. Covert surveillance is of no value if those subject to it suspect that it may be taking place. If it is to take place in respect of consultations between solicitors and their clients in prison or the police station, it will be of no value unless this is such a rare occurrence that its possibility will not inhibit the frankness with which those in custody speak with their lawyers. It would seem desirable, if not essential, that the provisions of the Code should be such as to reassure those in custody that, save in exceptional circumstances, their consultations with their lawyers will take place in private. The chilling factor that LLP is intended to prevent will not then occur.”", "37. Likewise, Lord Neuberger of Abbotsbury indicated that:", "“Lord Phillips has characterised the nature of the decision of the majority of your Lordships as being that RIPA permits the Code to authorise surveillance of communications between lawyers and their clients, whether or not in custody. That is indeed as far as our decision in this case goes, and we should not, I think, be taken as thereby endorsing the provisions of the Code, as we are not directly concerned with those provisions, and, in particular, whether they comply with the requirements of the Convention. Indeed, in my view, it must be highly questionable whether the Code sufficiently clearly identifies (or limits) either the circumstances in which surveillance may or may not occur, or how the information thereby obtained may or may not be used. At least as at present advised I share the doubts and concerns about the Code expressed by Lord Phillips [ ... ] .”", "2. Amendments to the RIPA regime following Re McE (Northern Ireland) [2009] UKHL 15", "38. As a consequence of the decision of the House of Lords in Re McE the Secretary of State produced the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”). So far as relevant the 2010 Order provides, under Article 3, that directed surveillance carried out in relation to anything taking place in, inter alia, a police station used for the purpose of legal consultations should be treated, for the purposes of Part II of RIPA, as intrusive surveillance.", "39. A Revised Code of Practice “the Revised Code”) was also drawn up and duly approved by both Houses of Parliament. Chapter 4 of the Revised Code specifically addressed legally privileged and confidential information (see paragraph 75 below).", "3. The regime in place at the date of the applicant ’ s detention", "a. Directed and intrusive surveillance", "40. Section 26 of RIPA defines directed and intrusive surveillance as follows:", "“(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken —", "(a) for the purposes of a specific investigation or a specific operation;", "(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and", "(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.", "(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that —", "(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and", "(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.", "(4) For the purposes of this Part surveillance is not intrusive to the extent that—", "(a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or", "(b) it is surveillance consisting in any such interception of a communication as falls within section 48(4).", "(5) For the purposes of this Part surveillance which—", "(a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but", "(b) is carried out without that device being present on the premises or in the vehicle,", "is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.", "(6) For the purposes of this Part surveillance which—", "(a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of the Wirelss Telegraphy Act 1949) and", "(b) is carried out from outside those premises exclusively for that purpose,", "is neither directed nor intrusive.", "...", "(9) For the purposes of this section—", "(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;", "(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and", "(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.", "(10) In this section “private information”, in relation to a person, includes any information relating to his private or family life.", "(11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.”", "b. Authorisation", "α. Directed surveillance", "41. According to paragraph 5.8 of the Revised Code, a written application for a directed surveillance authorisation should describe any conduct to be authorised and the purpose of the investigation or operation. The application should include the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 28(3) of RIPA; the nature of the surveillance; the identities, where known, of those to be the subject of the surveillance; a summary of the intelligence case and appropriate unique intelligence references where applicable; an explanation of the information which it is desired to obtain as a result of the surveillance; the details of any potential collateral intrusion and why the intrusion is justified; the details of any confidential information that is likely to be obtained as a consequence of the surveillance; the reasons why the surveillance is considered proportionate to what it seeks to achieve; and the level of authority required (or recommended where that is different) for the surveillance. A subsequent record should be made of whether authorisation was given or refused, by whom, and the time and date this happened.", "42. Section 30 of RIPA permits directed surveillance to be authorised by individuals holding such office, rank or position with relevant public authorities as prescribed by the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010. In the case of the PSNI, only an officer of (or above) the rank of Superintendent may authorise directed surveillance.", "43. Pursuant to paragraph 5.5 of the Revised Code, except in urgent cases the authorising officer must give authorisation in writing.", "44. Section 28 of RIPA sets out the requirements for granting the authorisation of directed surveillance:", "“(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.", "(2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—", "(a) that the authorisation is necessary on grounds falling within subsection (3); and", "(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.", "(3) An authorisation is necessary on grounds falling within this subsection if it is necessary —", "(a) in the interests of national security;", "(b) for the purpose of preventing or detecting crime or of preventing disorder;", "(c) in the interests of the economic well-being of the United Kingdom;", "(d) in the interests of public safety;", "(e) for the purpose of protecting public health;", "(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or", "(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.", "(4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that —", "(a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and", "(b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.", "(5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.”", "45. In urgent cases paragraph 5.9 permits the necessary information to be supplied orally. Where this happens the authorising officer and the applicant should also record the following information as soon as it is reasonably practicable to do so: the identities of those subject to surveillance; the nature of the surveillance; the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; and where the officer entitled to act in urgent cases has given written authority, the reasons why it was not reasonably practicable for the application to be considered by the authorising officer.", "46. In such cases authorisation may be given orally by the authorising officer or in writing by an officer entitled to act in urgent cases. A record that the authorising officer has expressly authorised the action should be recorded in writing by both the authorising officer and applicant as soon as reasonably practicable.", "47. Paragraph 5.6 of the Revised Code states that a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant ’ s own making.", "β. Intrusive surveillance", "48. According to paragraph 6.19 of the Revised Code, applications for intrusive surveillance operations need to set out a wide range of information about the authorisation in question, including the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 32(3) of the 2000 Act; the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place, where known; the identities, where known, of those to be the subject of the surveillance; an explanation of the information which it is desired to obtain as a result of the surveillance; details of any potential collateral intrusion and why the intrusion is justified; details of any confidential information that is likely to be obtained as a consequence of the surveillance; and the reasons why the surveillance is considered proportionate to what it seeks to achieve. A record should be made of whether the authorisation was given or refused, by whom and the time and date at which this happened.", "49. Section 32 of RIPA sets out the requirements for granting the authorisation of intrusive surveillance:", "“ (1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.", "(2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes—", "(a) that the authorisation is necessary on grounds falling within subsection (3); and", "(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.", "(3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary—", "(a) in the interests of national security;", "(b) for the purpose of preventing or detecting serious crime; or", "(c) in the interests of the economic well-being of the United Kingdom.", "(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.", "(5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—", "(a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;", "(b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and", "(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.", "(6) For the purposes of this section the senior authorising officers are—", "... ... ...", "(e) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary; ... ”", "50. Section 32(6) of RIPA provides a list of senior authorising officers. In the case of the PSNI, the senior authorising officer is the Chief Constable.", "51. Paragraph 6.6 of the Revised Code provides that the senior authorising officer or designated deputy should generally give authorisations in writing.", "52. According to section 35(1), once authorisation is granted notice of the grant must be given to a Surveillance Commissioner. The Surveillance Commissioner must then scrutinise the authorisation and decide whether or not to approve it (section 35(4)). Unless the case is one of urgency, the authorisation of intrusive surveillance by a senior authorising officer will not take effect until a Surveillance Commissioner has given written notice of his approval (section 36(2) and (3)).", "53. In urgent cases paragraph 6.20 of the Revised Code allows information required at the time of application to be supplied orally. Where this occurs the applicant should record the following information as soon as reasonably practicable: the identities of those subject to the surveillance; the nature and location of the surveillance; the reasons why the authorising officer or the officer entitled to act in urgent cases considered the case so urgent that an oral instead of written authorisation was given; and/or the reasons why it was not reasonably practicable for the application to be considered by the authorising officer.", "54. Pursuant to paragraph 6.6, oral authorisations may be given by the senior authorising officer or designated deputy and a statement that he or she has expressly authorised the conduct should be recorded in writing by the applicant as soon as reasonably practicable. Where it is not reasonably practicable having regard to the urgency of the case for either the senior authorising officer or the designated deputy to consider the application, paragraph 6.7 provides that an authorisation may be granted in writing by a person entitled to act only in urgent cases by section 34(4) of RIPA.", "55. Pursuant to paragraph 6.8, a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant ’ s own making.", "56. When the authorisation is urgent it will take effect from the time it is granted provided notice is given to a Surveillance Commissioner.", "γ. Rules and guidance applicable to both", "57. Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria:", "“(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;", "(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.”", "58. Section 81(5) provides:", "“For the purposes of this Act detecting crime shall be taken to include–", "(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and", "(b) the apprehension of the person by whom any crime was committed;", "and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...”", "59. Paragraphs 3.1 to 3.7 of the Revised Code provide additional guidance on the application of the necessity and proportionality test in respect of both directed and intrusive surveillance:", "“ The 2000 Act, 1997 Act and 1994 Act stipulate that the person granting an authorisation or warrant for directed or intrusive surveillance, or interference with property, must believe that the activities to be authorised are necessary on one or more statutory grounds.", "If the activities are deemed necessary on one of more of the statutory grounds, the person granting the authorisation or warrant must also believe that they are proportionate to what is sought to be achieved by carrying them out. This involves balancing the seriousness of the intrusion into the privacy of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms.", "The authorisation will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render intrusive actions proportionate. Similarly, an offence may be so minor that any deployment of covert techniques would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.", "The following elements of proportionality should therefore be considered:", "It is important therefore that all those involved in undertaking directed or intrusive surveillance activities or interference with property under the 2000 Act, 1997 Act or 1994 Act are fully aware of the extent and limits of the authorisation or warrant in question. ”", "60. With regard to collateral intrusion, paragraphs 3.8 to 3.10 of the Revised Code provide that:", "“Before authorising applications for directed or intrusive surveillance, the authorising officer should also take into account the risk of obtaining private information about persons who are not subjects of the surveillance or property interference activity (collateral intrusion).", "Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the privacy of those who are not the intended subjects of the surveillance activity. Where such collateral intrusion is unavoidable, the activities may still be authorised, provided this intrusion is considered proportionate to what is sought to be achieved. The same proportionality tests apply to the likelihood of collateral intrusion as to intrusion into the privacy of the intended subject of the surveillance.", "All applications should therefore include an assessment of the risk of collateral intrusion and details of any measures taken to limit this, to enable the authorising officer fully to consider the proportionality of the proposed actions.”", "61. Pursuant to paragraph 3.27 of the Revised Code, where authorisations were granted orally under urgency procedures a record detailing the actions authorised and the reasons why the urgency procedures were used should be recorded by the applicant and the authorising officer as a priority. There would then be no requirement to submit a full written application.", "c. Review of authoritsations", "62. Paragraphs 3.22 to 3.26 of the Revised Code provides for the regular review of authorisations:", "“Regular reviews of all authorisations should be undertaken to assess the need for the surveillance or property interference activity to continue. The results of a review should be retained for at least three years (see Chapter 8). Particular attention is drawn to the need to review authorisations frequently where the surveillance or property interference involves a high level of intrusion into private life or significant collateral intrusion, or confidential information is likely to be obtained.", "In each case the frequency of reviews should be considered at the outset by the authorising officer or, for those subject to authorisation by the Secretary of State, the member or officer who made the application within the public authority concerned. This should be as frequently as is considered necessary and practicable.", "In some cases it may be appropriate for an authorising officer to delegate the responsibility for conducting any reviews to a subordinate officer. The authorising officer is, however, usually best placed to assess whether the authorisation should continue or whether the criteria on which he based the original decision to grant an authorisation have changed sufficiently to cause the authorisation to be revoked. Support staff can do the necessary research and prepare the review process but the actual review is the responsibility of the original authorising officer and should, as a matter of good practice, be conducted by them or, failing that, by an officer who would be entitled to grant a new authorisation in the same terms.", "Any proposed or unforeseen changes to the nature or extent of the surveillance operation that may result in the further or greater intrusion into the private life of any person should also be brought to the attention of the authorising officer by means of a review. The authorising officer should consider whether the proposed changes are proportionate (bearing in mind any extra intended intrusion into privacy or collateral intrusion), before approving or rejecting them. Any such changes must be highlighted at the next renewal if the authorisation is to be renewed.", "Where a directed or intrusive surveillance authorisation provides for the surveillance of unidentified individuals whose identity is later established, the terms of the authorisation should be refined at a review to include the identity of these individuals. It would be appropriate to convene such a review specifically for this purpose. This process will not require a fresh authorisation, providing the scope of the original authorisation envisaged surveillance of such individuals. Such changes must be highlighted at the next renewal if the authorisation is to be renewed. ”", "d. Duration and renewal of authorisation", "α. Directed surveillance", "63. Pursuant to paragraphs 5.10 and 5.11 of the Revised Code, a written authorisation granted by an authorising officer will cease to have effect (unless renewed or cancelled) at the end of a period of three months beginning with the time at which it took effect, while urgent oral authorisations or written authorisations granted by a person who is entitled to act only in urgent cases will, unless renewed, cease to have effect after seventy-two hours beginning with the time the authorisation was granted.", "64. Paragraph 5.13 provides that at any time before a directed surveillance authorisation (other than one granted by a member of the intelligence services) would cease to have effect, the authorising officer may renew it in writing for a period of three months if he or she considers it necessary for the authorisation to continue for the purpose for which it was given. Renewals may also be granted orally in urgent cases and last for a period of seventy-two hours. The renewal will take effect at the time at which the authorisation would have ceased to have effect but for the renewal.", "65. According to paragraph 5.15 of the Revised Code all applications for the renewal of a directed surveillance authorisation should record, either at the time of authorisation or, in the case of urgent cases renewed orally, when reasonably practicable: whether it is the first renewal or every occasion on which renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authorisation should continue; the content and value to the investigation or operation of the information so far obtained by the surveillance; and the results of regular reviews of the investigation or operation.", "β. Intrusive surveillance", "66. Paragraph 6.23 of the Revised Code provides that a written authorisation granted by the Secretary of State, a senior authorising officer or a designated deputy will cease to have effect (unless renewed) at the end of a period of three months beginning with the day on which it took effect. Oral authorisations given in urgent cases by the Secretary of State, a senior authorising officer or designated deputy, and written authorisations given by those entitled to act in urgent cases, will cease to have effect (unless renewed) at the end of the period of seventy-two hours beginning with the time when they took effect.", "67. If, at any time before the authorisation expires, the senior authorising officer or, in his absence, the designated deputy considers that the authorisation should continue to have effect for the purpose for which it was issued, paragraph 6.27 of the Revised Code permits him to renew it in writing for a further period of three months. As with the initial authorisation, paragraph 6.28 requires the senior authorising officer to seek the approval of a Surveillance Commissioner. The renewal will not take effect until the notice of the Surveillance Commissioner ’ s approval has been received in the office of the person who granted the authorisation within the relevant force or organisation (but not before the day on which the authorisation would otherwise have ceased to have effect). In urgent cases, paragraph 6.29 permits a renewal to take effect immediately, provided that this is not before the day on which the authorisation would otherwise have ceased to have effect.", "68. Pursuant to paragraph 6.30, all applications for a renewal of an intrusive surveillance should record whether it is the first renewal or every occasion on which the authorisation was previously renewed; any significant changes to the information provided in the original application; the reason why it is necessary to continue with intrusive surveillance; the content and value to the investigation or operation of the product so far obtained by the authorisation; and the results of any reviews of the investigation or operation.", "e. Cancellation of authorisation", "α. Directed surveillance", "69. Paragraph 5.17 of the Revised Code provides that during a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of the authorisation. He or she must cancel an authorisation if satisfied that the directed surveillance as a whole no longer meets the criteria upon which it was authorised. According to paragraph 5.18, as soon as the decision is taken that directed surveillance should be discontinued, the instruction must be given to those involved to stop all surveillance of the subject. The date that the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained.", "β. Intrusive surveillance", "70. According to paragraph 6.32, the senior authorising officer who granted or last renewed the authorisation must cancel it if he is satisfied that the surveillance no longer meets the criteria upon which it was authorised. Paragraph 6.33 further provides that as soon as the decision is taken that intrusive surveillance should be discontinued, the instruction must be given to those involved to stop the intrusive surveillance. The date the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained. Following cancellation of any intrusive surveillance, other than one granted by the Secretary of State, paragraph 6.34 requires that the Surveillance Commissioners be notified of the cancellation.", "71. Where a police authorisation is quashed or cancelled by a Surveillance Commissioner, paragraph 6.35 requires that the senior authorising officer immediately instruct those involved to stop carrying out the intrusive surveillance.", "f. Handling, use and destruction of material", "72. Chapter 9 of the Revised Code provides, as relevant:", "“ Use of material as evidence", "9.1 Subject to the provisions in chapter 4 of this Code, material obtained through directed or intrusive surveillance, or entry on, or interference with, property or wireless telegraphy, may be used as evidence in criminal proceedings. The admissibility of evidence is governed primarily by the common law, the Civil Procedure Rules, section 78 of the Police and Criminal Evidence Act 1984 and the Human Rights Act 1998.", "9.2 Any decisions by a Surveillance Commissioner in respect of granting prior approval for intrusive surveillance activity or entry on, or interference with, property or with wireless telegraphy, shall not be subject to appeal or be liable to be questioned in any court.", "Retention and destruction of material", "9.3 Each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance or property interference. Authorising officers, through their relevant Data Controller, must ensure compliance with the appropriate data protection requirements under the Data Protection Act 1998 and any relevant codes of practice produced by individual authorities relating to the handling and storage of material.", "9.4 Where the product of surveillance or interference with property or wireless telegraphy could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements for a suitable further period, commensurate to any subsequent review.", "9.5 There is nothing in the 2000 Act, 1994 Act or 1997 Act which prevents material obtained under directed or intrusive surveillance or property interference authorisations from being used to further other investigations.", "Law enforcement agencies", "9.6 In the cases of the law enforcement agencies, particular attention is drawn to the requirements of the code of practice issued under the Criminal Procedure and Investigations Act 1996. This requires that material which is obtained in the course of a criminal investigation and which may be relevant to the investigation must be recorded and retained.”", "g. Records", "73. Paragraphs 8.1 and 8.2 of the Revised Code provide:", "“A record of the following information pertaining to all authorisations shall be centrally retrievable within each public authority for a period of at least three years from the ending of each authorisation. This information should be regularly updated whenever an authorisation is granted, renewed or cancelled and should be made available to the relevant Commissioner or an Inspector from the Office of Surveillance Commissioners upon request.", "The following documentation should also be centrally retrievable for at least three years from the ending of each authorisation:", "h. Special rules on communications subject to legal privilege", "74. Paragraph 2.18 of the Revised Code provides that:", "“The 2010 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in Article 3(2) of the Order as is, at any time during the surveillance, used for the purpose of legal consultations shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance. The premises identified in article 3(2) are:", "(a) any place in which persons who are serving sentences of imprisonment or detention, remanded in custody or committed in custody for trial or sentence may be detained;", "(b) any place in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Border Act 2007;", "(c) police stations;", "(d) hospitals where high security psychiatric services are provided;", "(e) the place of business of any professional legal adviser; and", "(f) any place used for the sittings and business of any court, tribunal, inquest or inquiry.”", "75. Chapter 4, which was added to the Revised Code following the judgment of the House of Lords in Re McE, provides further guidance in respect of legally privileged and confidential information:", "“ Overview", "4.1 The 2000 Act does not provide any special protection for ‘ confidential information ’, although the 1997 Act makes special provision for certain categories of confidential information. Nevertheless, particular care should be taken in cases where the subject of the investigation or operation might reasonably expect a high degree of privacy, or where confidential information is involved. Confidential information consists of communications subject to legal privilege, communications between a Member of Parliament and another person on constituency matters, confidential personal information, or confidential journalistic material. So, for example, extra care should be taken where, through the use of surveillance, it is likely that knowledge will be acquired of communications between a minister of religion and an individual relating to the latter ’ s spiritual welfare, or between a Member of Parliament and a constituent relating to constituency matters, or wherever matters of medical or journalistic confidentiality or legal privilege may be involved. References to a Member of Parliament include references to Members of both Houses of the UK Parliament, the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.", "4.2 Authorisations under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege, confidential personal information or confidential journalistic material require (other than in urgent cases) the approval of a Surveillance Commissioner.", "4.3 Authorisations for directed surveillance of legal consultations falling within the 2010 Order must comply with the enhanced authorisation regime described below. In cases where it is likely that knowledge of confidential information will be acquired, the use of covert surveillance is subject to a higher level of authorisation eg a Chief Officer. Annex A lists the authorising officer for each public authority permitted to authorise such surveillance.", "Material subject to legal privilege: introduction", "4.4 Covert surveillance likely or intended to result in the acquisition of knowledge of matters subject to legal privilege may take place in circumstances covered by the 2010 Order, or in other circumstances. Similarly, property interference may be necessary in order to effect surveillance described in the 2010 Order, or in other circumstances where knowledge of matters subject to legal privilege is likely to be obtained.", "4.5 The 2010 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘ legal consultations ’ shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance.", "4.6 The 2010 Order defines ‘ legal consultation ’ for these purposes. It means:", "(a) a consultation between a professional legal adviser and his client or any person representing his client, or", "(b) a consultation between a professional legal adviser or his client or any such representative and a medical practitioner made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.", "4.7 The definition of ‘ legal consultation ’ in the 2010 Order does not distinguish between legal consultations which are legally privileged, wholly or in part, and legal consultations which may be in furtherance of a criminal purpose are therefore not protected by legal privilege. Covert surveillance of all legal consultations covered by the 2010 Order (whether protected by legal privilege or not) is to be treated as intrusive surveillance.", "4.8 ‘ Legal privilege ’ is defined in section 98 of the 1997 Act. This definition should be used to determine how to handle material obtained through surveillance authorised under RIPA, including through surveillance which is treated as intrusive surveillance as a result of the 2010 Order. As discussed below, special safeguards apply to matters subject to legal privilege.", "4.9 Under the definition in the 1997 Act, legal privilege does not apply to communications or items held, or oral communications made, with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably). Legally privileged communications or items will lose their protection for these other purposes if the professional legal adviser intends to hold or use them for a criminal purpose. But privilege is not lost if a professional legal adviser is properly advising a person who is suspected of having committed a criminal offence. Tests to be applied when authorising or approving covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege", "4.10 All applications for covert surveillance or property interference that may result in the acquisition of knowledge of matters subject to legal privilege should state whether the covert surveillance or property interference is intended to obtain knowledge of matters subject to legal privilege as defined by section 98 of the 1997 Act.", "4.11 If the covert surveillance or property interference is not intended to result in the acquisition of knowledge of matters subject to legal privilege, but it is likely that such knowledge will nevertheless be acquired during the operation, the application should identify all steps which will be taken to mitigate the risk of acquiring it. If the risk cannot be removed entirely, the application should explain what steps will be taken to ensure that any knowledge of matters subject to legal privilege which is obtained is not used in law enforcement investigations or criminal prosecutions.", "4.12 Where covert surveillance or property interference is likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, an authorisation shall only be granted or approved if the authorising officer, Secretary of State or approving Surveillance Commissioner, as appropriate, is satisfied that there are exceptional and compelling circumstances that make the authorisation necessary:", "4.13 Further, in considering any authorisation for covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer, Secretary of State or approving Surveillance Commissioner, as appropriate, must be satisfied that the proposed covert surveillance or property interference is proportionate to what is sought to be achieved. In relation to intrusive surveillance, including surveillance to be treated as intrusive as a result of the 2010 Order, section 32(4) will apply.", "4.14 Directed surveillance likely to result in the acquisition of knowledge of matters subject to legal privilege may be authorised only by authorising officers entitled to grant authorisations in respect of confidential information. Intrusive surveillance, including surveillance which is treated as intrusive by virtue of the 2010 Order, or property interference likely to result in the acquisition of material subject to legal privilege may only be authorised by authorising officers entitled to grant intrusive surveillance or property interference authorisations.", "4.15 Property interference likely to result in the acquisition of such material is subject to prior approval by a Surveillance Commissioner (unless the Secretary of State is the relevant authorising officer or the case is urgent). Intrusive surveillance, including surveillance which is treated as intrusive by virtue of the 2010 Order, is subject to prior approval by a Surveillance Commissioner (unless the Secretary of State is the relevant authorising officer or the case is urgent).", "Surveillance under the 2010 Order", "4.16 As noted above, the 20 10 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘ legal consultations ’ shall be treated for the purposes of Part II of the 2000 Act as intrusive surveillance.", "4.17 As a result of the 2010 Order, such surveillance cannot be undertaken without the prior approval of a Surveillance Commissioner (with the exception of urgent authorisations or authorisations granted by the Secretary of State).", "4.18 The locations specified in the Order are:", "(a) any place in which persons who are serving sentences of imprisonment or detention, remanded in custody or committed in custody for trial or sentence may be detained;", "(b) any place in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Border Act 2007;", "(c) any place in which persons may be detained under Part VI of the Criminal Procedure (Scotland) Act 1995, the Mental Health (Care and Treatment) (Scotland ) Act 2003 or the Mental Health Act 1983;", "(d) police stations;", "(e) the place of business of any professional legal adviser;", "(f) any place used for the sittings and business of any court, tribunal, inquest or inquiry.", "4.19 With the exception of urgent applications and authorisations granted by the Secretary of State, authorisations for surveillance which is to be treated as intrusive surveillance as a result of the 2010 Order shall not take effect until such time as:", "(a) the authorisation has been approved by a Surveillance Commissioner; and", "b) written notice of the Commissioner ’ s decision to approve the authorisation has been given to the authorising officer.", "4.20 If an authorisation is to be granted by the Secretary of State, the provisions in Chapter 6 apply.", "Property interference under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege", "4.21 With the exception of urgent authorisations, where it is believed that the action authorised is likely to result in the acquisition of knowledge of matters subject to legal privilege an authorisation under the 1997 Act shall not take effect until such time as:", "(a) the authorisation has been approved by a Surveillance Commissioner; and", "b) written notice of the Commissioner ’ s decision to approve the authorisation has been given to the authorising officer.", "The use and handling of matters subject to legal privilege", "4.22 Matters subject to legal privilege are particularly sensitive and surveillance which acquires such material may give rise to issues under Article 6 of the ECHR (right to a fair trial) as well as engaging Article 8.", "4.23 Where public authorities deliberately acquire knowledge of matters subject to legal privilege, they may use that knowledge to counter the threat which led them to acquire it, but it will not be admissible in court. Public authorities should ensure that knowledge of matters subject to legal privilege, whether or not it is acquired deliberately, is kept separate from law enforcement investigations or criminal prosecutions.", "4.24 In cases likely to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer or Surveillance Commissioner may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the relevant Commissioner or Inspector during his next inspection (at which the material should be made available if requested).", "4.25 A substantial proportion of the communications between a lawyer and his client(s) may be subject to legal privilege. Therefore, in any case where a lawyer is the subject of an investigation or operation, authorising officers should consider whether the special safeguards outlined in this chapter apply. Any material which has been retained from any such investigation or operation should be notified to the relevant Commissioner or Inspector during his next inspection and made available on request.", "4.26 Where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the information takes place. Similar advice should also be sought where there is doubt over whether information is not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The retention of legally privileged material, or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings to which the information relates. Any dissemination of legally privileged material to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection.", "Confidential information", "4.27 Special consideration must also be given to authorisations that involve confidential personal information, confidential constituent information and confidential journalistic material. Where such material has been acquired and retained, the matter should be reported to the relevant Commissioner or Inspector during his next inspection and the material be made available to him if requested.", "4.28 Confidential personal information is information held in confidence relating to the physical or mental health or spiritual counselling of a person (whether living or dead) who can be identified from it. Such information, which can include both oral and written communications, is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. Examples include consultations between a health professional and a patient, or information from a patient ’ s medical records.", "4.29 Confidential constituent information is information relating to communications between a Member of Parliament and a constituent in respect of constituency matters. Again, such information is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation.", "4.30 Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking.", "4.31 Where there is any doubt as to the handling and dissemination of confidential information, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "97. The applicant complained that the regime for covert surveillance of consultations between detainees and their lawyers, medical personnel, and appropriate adults was in breach of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "98. The Government contested that argument.", "99. Following receipt of the Government ’ s observations, the applicant accepted that he did not consult with any medical personnel until 7 May 2010, by which time the High Court had directed that consultations with his solicitor and his medical advisor should not be subject to covert surveillance (see paragraphs 20 – 21 above). He therefore accepted that he could not have suffered any interference with his Article 8 rights in this regard.", "A. Lawyer/client consultations", "1. Admissibility", "100. The Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "a. The parties ’ submissions", "α. The applicant", "101. The applicant argued that Article 8 was clearly engaged by the covert surveillance of consultations with his legal advisor. Although he accepted that the purposes identified in the legislation permitting covert surveillance amounted to a legitimate aim, he maintained that the relevant legal framework failed both the “quality of law” and “necessity” tests under paragraph 2 of Article 8 of the Convention.", "102. The applicant submitted that the combined effect of Part II of RIPA, the Revised Code and the PSNI Service Procedure did not provide, in relation to covert surveillance of lawyer/client consultations, the “adequate and effective guarantees against abuse” required by Article 8 of the Convention, especially when compared with the clear and precise statutory guidelines outlined in Part I of RIPA in respect of the interception of communications ( see Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010 ).", "103. Unlike Part I of RIPA, Part II, read together with the Revised Code, did not indicate with sufficient clarity the test for authorising covert surveillance of lawyer-client consultations; in particular, paragraph 4.12 of the Revised Code only provided examples of when surveillance intended to result in the acquisition of legally privileged material would be permitted, for example “where there is a threat to life or limb, or to national security”. In any case, the applicant argued that in view of the importance and sensitivity of the issue, any “threat to life or limb” should have to be “real or immediate”.", "104. Moreover, the procedures for the handling, dissemination and destruction of legally privileged material were not sufficiently precise and did not satisfy the minimum safeguards identified by the Court in Valenzuela Contreras v. Spain, 30 July 1998, Reports of Judgments and Decisions 1998 ‑ V. Although the applicant acknowledged that Valenzuela Contreras was an “interception case”, he argued that the principles derived from the Court ’ s “interception” case-law could be “read across” to the present case because, first, the Court had not drawn a distinction between the principles which applied in interception cases and covert- surveillance cases; secondly, it was the nature and degree of intrusion in certain types of covert surveillance cases which allowed the Court to “read across” from the principles set out in interception cases; thirdly, any distinction was therefore not appropriate when dealing with covert surveillance of the kind in issue in the present case; and finally, given that both types of case involved the handling of material obtained as a result of listening to and recording private conversations, it was difficult to see what valid distinction could be made between an interception operation and a covert - surveillance operation of the kind at issue in the present case.", "105. The applicant pointed to paragraph 9.3 of the Revised Code, which provided that each public authority had to ensure that arrangements were in place for the secure handling and destruction of material obtained through directed or intrusive surveillance. This was the function of the PSNI Service Procedure, which went much further than the Code in providing for limits on dissemination, storage, access, retention and destruction. However, it was not in force at the relevant time and, in any case, the applicant contended that such important matters should not be left to the discretion of the individual public authorities.", "106. The applicant acknowledged the existence of the July 2005 Criminal Procedure and Investigations Act 1996 Code of Practice for Northern Ireland (“the CIPA Code”), which set out the manner in which police officers were to record, retain and reveal to the prosecutor material obtained in a criminal investigation which may be relevant to the investigation. However, he submitted that the different legislative schemes taken together did not present a clear picture or provide sufficient clarity to enable an individual to be able to ascertain the arrangements for handling any material obtained as a result of covert surveillance of his legal consultations.", "107. Finally, the applicant argued that even if the interference with his Article 8 rights was “ in accordance with the law ”, it was not “necessary in a democratic society”. Consultations between a detainee and his legal advisor were particularly sensitive in view of the fundamental rights at stake, and yet the detainee could only avoid covert surveillance by electing not to speak to his lawyer. As such, the legislation had the potential to undermine some of the basic protections underlying the criminal justice system in the United Kingdom.", "β. The Government", "108. The Government accepted that the applicant could claim to be a victim of an alleged violation of Article 8 in relation to his legal consultations with his solicitor between 4 May 2010 and 6 May 20 10. It also noted that it did not appear to be in dispute that the surveillance pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention.", "109. The Government argued that any interference was “ in accordance with the law ” : it had its basis in domestic law; the law in question was accessible as it took the form of primary and secondary legislation and a published Revised Code (the Government accepted that it could not rely on the PSNI Service Procedure in the present case as it was not issued until 22 June 2010); and finally, the law was sufficiently foreseeable.", "110. In particular, the law at issue indicated the scope of the PSNI ’ s discretionary power with sufficient clarity, as it afforded citizens an adequate indication of the circumstances in which the PSNI was empowered to authorise intrusive surveillance of legal consultations in police stations. Insofar as the applicant argued that the Revised Code did not satisfy the detailed requirements set out in Valenzuela-Contreras v. Spain (because it did not make provision for the destruction of legally privileged material obtained as a result of intrusive surveillance and did not set a test for the circumstances in which retention or onward dissemination could occur), the Government contended that that case concerned interception powers and had not been applied by the Court in cases concerning covert surveillance. Indeed, the Government maintained that in view of the wide range of surveillance powers, and the wide range of circumstances in which they might properly be deployed, it would be inappropriate as a matter of principle to be overly prescriptive as to the specific features that must be present within any surveillance regime.", "111. In the Government ’ s submission, the true test was therefore whether the “manner of [the] exercise” of the PSNI ’ s discretionary power to conduct surveillance of legal consultations was indicated in the law with sufficient clarity to give the individual adequate protection against arbitrary interference; and that test was clearly satisfied in the present case. The Revised Code obliged the PSNI to put in place arrangements for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance; if the PSNI obtained legally privileged material through intrusive surveillance of legal consultations, that material had to be kept separate from any criminal investigation or prosecution and handled in accordance with the Revised Code; pursuant to the fifth data protection principle in the Data Protection Act 1998, the retained material would in general need to be destroyed once its retention was no longer necessary for the purpose for which the PSNI had been processing it; if legally privileged material was disseminated by the PSNI to another body, it had to be accompanied by a clear warning that it was subject to legal privilege, the Surveillance Commissioners would have to be notified during their next inspection and any dissemination would have to be compatible with the Data Protection Act; and finally, insofar as intrusive surveillance by the PSNI resulted in the acquisition of material that was not legally privileged, its retention and potential use or disclosure in any subsequent criminal proceedings was governed by the detailed Criminal Procedure and Investigations Act 1996 Code of Practice.", "112. The Government referred to Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 92 – 92, 28 June 2007, which indicated that the Court should consider evidence of the actual operation of the system of surveillance, in particular whether it was working properly or whether it was subject to abuse. In the United Kingdom only one intrusive surveillance order had been granted in the three years since the 2010 Order came into force. It was therefore clear that in practice authorisations were only being granted in highly exceptional cases.", "113. In the alternative, the Government argued that if the standards developed in the context of interception of communications ought to be applied in the present case, the above regime satisfied them.", "114. The Government further submitted that the regime satisfied the requirement of “ necessity ”. Indeed, the Contracting States enjoyed a wide margin of appreciation in determining the precise conditions under which a system of covert surveillance was to be operated; and in the present case the safeguards offered adequate and effective guarantees against abuse: only the Chief Constable or Deputy Chief Constable could in general grant an authorisation for intrusive surveillance of legal consultations; save in cases of urgency, such authorisation would not take effect unless and until it was approved by a Surveillance Commissioner; even in urgent cases the ordinary Surveillance Commissioners retained the power to quash any order retrospectively and order the destruction of any relevant records; the regime was overseen by the Chief Surveillance Officer, who was independent of the PSNI and had to have held high judicial office; the regime was subject to further judicial oversight in the form of the Investigatory Powers Tribunal, which had jurisdiction to hear complaints by any person regarding the operation of the regime and had power to order appropriate relief; and finally, the Revised Code required that knowledge of matters subject to legal privilege be kept separate from law enforcement investigations or criminal prosecutions.", "b. The Court ’ s assessment", "α. The existence of an interference", "115. Insofar as the applicant ’ s complaints concern the regime for conducting covert surveillance of consultations between detainees and their legal advisors, the Government have accepted that he can claim to be a victim of the alleged violation.", "116. In this regard, it is now well-established that an individual may under certain conditions claim to be the victim of a violation occasioned by the mere existence of legislation permitting secret measures without having to demonstrate that such measures were in fact applied to him ( Klass and Others v. Germany, 6 September 1978, § 34, Series A no. 28).", "117. Consequently, the Court will proceed on the basis that there has been an “ interference ”, within the meaning of Article 8 § 2 of the Convention, with the applicant ’ s right to respect for his private life.", "β. Was the interference justified?", "118. In order to be justified under Article 8 § 2 of the Convention, the interference must be “ in accordance with the law ”, in pursuit of a legitimate aim, and “ necessary in a democratic society ”.", "119. In respect of Part I of RIPA the Court considered that the interception regime pursued the legitimate aims of the protection of national security and the prevention of disorder and crime ( Kennedy v. the United Kingdom, no. 26839/05, § 155, 18 May 2010). The Court considers that the surveillance regime under Part II of RIPA pursues the same legitimate aims and this has not been disputed by the parties. It therefore falls to the Court to consider the remaining two questions: was the regime “ in accordance with the law ”, and was it “ necessary ” to achieve the legitimate aim pursued?", "120. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 will only be met when three conditions are satisfied: the impugned measure must have some basis in domestic law; the domestic law must be compatible with the rule of law and accessible to the person concerned; and the person concerned must be able to foresee the consequences of the domestic law for him (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V, Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008, and Iordachi and Others v. Moldova, no. 25198/02, § 37, 10 February 2009 ).", "121. In the present case it is not in dispute that the surveillance regime had a basis in domestic law, namely RIPA and the Revised Code of Practice. Moreover, both RIPA and the Revised Code were public documents – like the Interception of Communications Code of Practice, the Revised Code is available on the internet. This being so, the Court accepts that the relevant domestic law was adequately accessible for the purposes of Article 8 of the Convention.", "122. In the special context of secret surveillance measures, the Court has found that “foreseeability” requires that domestic law be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see, for example, the admissibility decision in Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 ‑ XI). This is very similar to – and at times considered together with – the test for deciding whether an interference is “necessary in a democratic society” in pursuit of a legitimate aim; namely, whether the minimum safeguards set out in statute law in order to avoid abuses of power are adequate (see Klass and Others v. Germany, cited above, § 50; and Weber and Saravia v. Germany, cited above, § 95).", "123. In Valenzuela Contreras v. Spain, cited above, § 59, an interception - of - communications case, the Court set the standard high, finding that the relevant legislation was not adequately foreseeable because neither the Constitution nor the Code of Criminal Procedure included", "“the conditions regarding the definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations and the use and destruction of the recordings made. ”", "124. Similarly, in considering whether an interception of communications was “necessary in a democratic society, in Weber and Saravia v. Germany, cited above, § 95 the Court stated:", "“ In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924 ‑ 25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”", "125. Consequently, in Kennedy v. the United Kingdom, cited above, § 155 the Court examined in some detail the provisions of both RIPA and the Interception of Communications Code of Practice insofar as they concerned the definition of the categories of people liable to have their telephones tapped by judicial order; the nature of the offences which might give rise to such an order; a limit on the duration of telephone tapping; the provisions on duration, renewal and cancellation of intercept warrants; the procedure for examining, using and storing the data; the general safeguards which applied to the processing and communication of intercept material; the destruction of intercept material; the keeping of records of intercept warrants; and the supervision of the RIPA regime.", "126. However, the Government have argued that in its case-law the Court has distinguished between the minimum safeguards required in interception-of- communication cases and those required in other surveillance cases. As the present case concerns covert surveillance and not the interception of communications, so the Government submitted, the relevant test should be less strict; namely, whether the manner of the exercise of the authorities ’ discretionary power to conduct surveillance of legal consultations was indicated in the law with sufficient clarity to give the individual adequate protection against arbitrary interference.", "127. It is true that the Court has generally only applied the strict criteria in Valenzuela-Contreras in the context of interception of communication cases. However, it has suggested that the precision required by the legislation will depend on all the circumstances of the case and, in particular, the level of interference with the individual ’ s rights under Article 8 of the Convention.", "128. In Bykov v. Russia [GC], no. 4378/02, § 78, 10 March 2009, a case which concerned the recording of a private conversation by way of a radio transmitting device, the Court made it clear that the degree of precision required of the law would depend upon the particular subject-matter of the case. It held that in terms of the nature and degree of the intrusion involved the recording of the conversation in that case was “virtually identical” to telephone tapping and, this being so, it should assess the relevant legislation using the same principles as applied to the interception of communications. Nevertheless, although it cited Valenzuela-Contreras, it defined the relevant test as being whether the law was sufficiently clear to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities were empowered to resort to a secret interference with the right to respect for private life and correspondence. It did not refer to the stricter requirements set out in that judgment, although it is arguable that it was not necessary on the facts of that case as the legal discretion of the authorities to order the interception had not been subject to any conditions and the scope and manner of its exercise had not been defined.", "129. In Uzun v. Germany, no. 35623/05, § 66, ECHR 2010 (extracts) the Court accepted that the monitoring of a car ’ s movements by GPS interfered with the applicant ’ s Article 8 rights. However, it distinguished this kind of surveillance from other methods of visual or acoustic surveillance which were generally more susceptible of interfering with Article 8 rights because they disclosed more information on a person ’ s conduct, opinions or feelings. Therefore, the Court indicated that, while it would not be barred from drawing inspiration from the principles set up and applied in the specific context of surveillance of telecommunications, those principles would not be directly applicable in a case concerning surveillance of movements in public places via GPS because such a measure “must be considered to interfere less with the private life of the person concerned than the interception of his or her telephone conversations”. Instead, the Court applied the more general principles on adequate protection against arbitrary interference with Article 8 rights (see, for example, Weber and Saravia, cited above, § 94, and the test applied in Bykov, set out at paragraph 128 above ).", "130. The Court has not, therefore, excluded the application of the principles developed in the context of interception cases in covert- surveillance cases; rather, it has suggested that the decisive factor will be the level of interference with an individual ’ s right to respect for his or her private life and not the technical definition of that interference.", "131. The present case concerns the surveillance of legal consultations taking place in a police station, which the Court considers to be analogous to the interception of a telephone call between a lawyer and client. The Court has recognised that, while Article 8 protects the confidentiality of all correspondence between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential ( Michaud v. France, no. 12323/11, § 118, ECHR 2012). The Court therefore considers that the surveillance of a legal consultation constitutes an extremely high degree of intrusion into a person ’ s right to respect for his or her private life and correspondence; higher than the degree of intrusion in Uzun and even in Bykov. Consequently, in such cases it will expect the same safeguards to be in place to protect individuals from arbitrary interference with their Article 8 rights as it has required in cases concerning the interception of communications, at least insofar as those principles can be applied to the form of surveillance in question.", "132. The Court has emphasised that although sufficient detail should be provided of the nature of the offences in question, the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception (see, for example, Kennedy v. the United Kingdom, cited above, § 159). In Part II of RIPA, section 32 provides that intrusive surveillance can take place where the Secretary of State or senior authorising officer believes it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime, or in the interests of the economic well-being of the United Kingdom. In this respect it is almost identical to section 5 in Part I of RIPA. Paragraph 4.12 of the Revised Code further clarifies that where the surveillance is likely to result in the acquisition of knowledge of matters subject to legal privilege, it is subject to an enhanced authorisation regime and the circumstances in section 32 will arise only in a very restricted range of cases, such as where there is a threat to life or limb, or to national security, and the surveillance is reasonably regarded as likely to yield intelligence necessary to counter that threat see paragraph 75 above).", "133. In Kennedy, the Court accepted that the reference to national security and serious crime in section 5, together with the interpretative clarifications in RIPA, gave citizens an adequate indication as to the circumstances in which and the conditions on which public authorities were empowered to resort to interception. As noted in Kennedy, though the term “national security” is not defined in RIPA, it is frequently employed in national and international legislation and constitutes one of the legitimate aims to which Article 8 § 2 itself refers. The terms “serious crime” and “detecting” are defined in the interpretive provisions of RIPA (see paragraphs 57 and 58 above), which apply to both Part I and Part II. In fact, the only discernible difference between the authorisation of the interception of communications provided for in Part I and the authorisation of intrusive surveillance in Part II is that under Part I authorisation is given by the Secretary of State whereas under Part II it may be given by a senior authorising officer (see paragraph 49 above). However, in view of the fact that authorisation by a senior authorising officer generally only takes effect when it has been approved by the Surveillance Commissioner, an independent officer who must have held high judicial office (see paragraph 76 above), the Court does not consider that this fact by itself merits a departure from its conclusions in Kennedy. Consequently, the Court considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to intrusive surveillance is sufficiently clear.", "134. RIPA does not provide any limitation on the persons who may be subjected to intrusive surveillance. Indeed, it is clear from section 27(3) that the conduct that may be authorised under Part II includes conduct outside the United Kingdom. However, as indicated in paragraphs 48 – 49 above, the RIPA regime does set out the relevant circumstances which can give rise to intrusive surveillance, which in turn provides guidance as to the categories of person likely in practice to be subject to such surveillance (see also Kennedy, cited above, § 160). As already noted, those circumstances are further restricted where the surveillance is intended to result in the acquisition of knowledge of matters subject to legal privilege (see paragraph 75 above).", "135. In Kennedy, the Court noted that the warrant authorising interception specified the person or premises in respect of which it had been ordered. Although intrusive surveillance is not usually authorised by virtue of a warrant, pursuant to paragraph 6.19 of the Revised Code the application for authorisation must set out the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place, where known; the identities, where known, of those to be the subject of the surveillance; an explanation of the information which it is desired to obtain as a result of the surveillance; details of any potential collateral intrusion and why that intrusion is justified; details of any confidential information likely to be obtained as a consequence of the surveillance; the reasons why the surveillance is considered proportionate to what it seeks to achieve; and a record of whether authorisation was given and refused, by whom, and the time and date when this happened (see paragraph 48 above). The senior authorising officer may only grant authorisation if he considers it necessary and proportionate, and, unless it is an urgent case, this decision is subject to further scrutiny by a Surveillance Commissioner before the authorisation takes effect (see paragraph 56 above).", "136. Bearing in mind the fact that intrusive surveillance under Part II of RIPA concerns the covert surveillance of anything taking place on residential premises or in private vehicles by a person or listening device, the Court accepts that it will not necessarily be possible to know in advance either on what premises the surveillance will take place or what individuals will be affected by it. However, Part II requires the application to set out in full the information that is known, and the proportionality of the measure will subsequently be scrutinised at two separate levels (by the senior authorising officer and by the Surveillance Commissioner). In the circumstances, the Court considers that no further clarification of the categories of persons liable to be subject to secret surveillance can reasonably be required.", "137. With regard to the duration of intrusive surveillance, unless renewed a written authorisation will cease to have effect after three months from the time it took effect (see paragraph 66 above). The senior authorising officer or designated deputy may grant a renewal for a period of three months if it is considered necessary for the authorisation to continue for the purpose for which it was issued; however, except in urgent cases the authorisation will only take effect once it has been approved by a Surveillance Commissioner (see paragraph 67 above). Applications for renewal must record whether it is the first renewal or every occasion on which the authorisation was previously renewed; any significant changes to the information contained in the original application; the reason why it is necessary to continue with intrusive surveillance; the content and value to the investigation or operation of the product so far obtained by the authorisation; and the results of any reviews of the investigation or operation. Furthermore, regular reviews of all authorisations must be undertaken and the senior authorising officer who granted or last renewed an authorisation must cancel it if he or she is satisfied that it no longer meets the criteria upon which it was authorised (see paragraph 68 above). The Court therefore considers that the provisions of Part II of RIPA and the Revised Code which deal with duration, renewal and cancellation are sufficiently clear.", "138. In contrast, fewer details concerning the procedures to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which recordings may or must be erased or the tapes destroyed are provided in Part II of RIPA and /or the Revised Code. Although material obtained by directed or intrusive surveillance can normally be used in criminal proceedings and law enforcement investigations, paragraph 4 .23 of the Revised Code makes it clear that material subject to legal privilege which has been deliberately acquired cannot be so used (see paragraph 75 above). Certain other safeguards are included in Chapter 4 of the Revised Code with regard to the retention and dissemination of material subject to legal privilege (see paragraph 75 above). Paragraph 4.25 of the Revised Code provides that where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the relevant Commissioner or Inspector during his next inspection. The material should be made available during the inspection if requested. Furthermore, where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, Paragraph 4.26 of the Revised Code states that advice should be sought from a legal advisor before any further dissemination takes place; the retention or dissemination of legally privileged material should be accompanied by a clear warning that it is subject to legal privilege; it should be safeguarded by taking “reasonable steps” to ensure there is no possibility of it becoming available, or it contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings; and finally, any dissemination to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection.", "139. These provisions, although containing some significant safeguards to protect the interests of persons affected by the surveillance of legal consultations, are to be contrasted with the more detailed provisions in Part I of RIPA and the Interception of Communications Code of Practice, which the Court approved in Kennedy ( cited above, §§ 4 2 – 49). In particular, in relation to intercepted material there are provisions in Part I and the Code of Practice limiting the number of persons to whom the material is made available and restricting the extent to which it is disclosed and copied; imposing a broad duty on those involved in interception to keep everything in the intercepted material secret; prohibiting disclosure to persons who do not hold the necessary security clearance and to persons who do not “need to know” about the material; criminalising the disclosure of intercept material with an offence punishable by up to five years ’ imprisonment; requiring intercepted material to be stored securely; and requiring that intercepted material be securely destroyed as soon as it is no longer required for any of the authorised purposes.", "140. Paragraph 9.3 of the Revised Code does provide that each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through directed or intrusive surveillance. In the present case the relevant arrangements are contained in the PSNI Service Procedure on Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material. The Administrative Court accepted that taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. However, the Service Procedure was only implemented on 22 June 2010. It was therefore not in force during the applicant ’ s detention in May 2010.", "141. The Court has noted the statement of the Government in their observations that only one intrusive surveillance order had been granted up till then in the three years since the 2010 Order (introducing the Revised Code) had come into force in April 2010 (see paragraphs 11 and 12 above). Nevertheless, in the absence of the “arrangements” anticipated by the covert surveillance regime, the Court, sharing the concerns of Lord Phillips and Lord Neuberger in the House of Lords in this regard (see paragraphs 36 – 37 above) is not satisfied that the provisions in Part II of RIPA and the Revised Code concerning the examination, use and storage of the material obtained, the precautions to be taken when communicating the material to other parties, and the circumstances in which recordings may or must be erased or the material destroyed provide sufficient safeguards for the protection of the material obtained by covert surveillance.", "142. Consequently, the Court considers that, to this extent, during the relevant period of the applicant ’ s detention (4 – 6 May 2010 – see paragraphs 18 – 2 0 above), the impugned surveillance measures, insofar as they may have been applied to him, did not meet the requirements of Article 8 § 2 of the Convention as elucidated in the Court ’ s case-law.", "143. There has therefore been a breach of Article 8 of the Convention.", "B. Consultations between a detainee who is a “vulnerable person” and an appropriate adult", "1. Admissibility", "144. The Court is satisfied that this complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "a. The parties ’ submissions", "α. The applicant", "145. The applicant contended that the regime covering covert surveillance between a detainee who was a “vulnerable person” within the meaning of the Code of Practice and an “ appropriate adult ” (see paragraph 13 above) was not “ in accordance with the law ” as required by paragraph 2 of Article 8 of the Convention. In particular, he submitted that even though these consultations were not protected by legal professional privilege, in view of the vulnerability of the detainee they should be as frank as possible. As such, they were analogous to consultations with legal and medical advisors and their covert surveillance should also have been treated as intrusive – rather than directed – surveillance.", "146. On account of being treated as directed surveillance, the present regime allowed for surveillance where it was necessary for one of six purposes set out in section 28(3) of RIPA, including for the purpose of assessing any tax, duty, or levy, and the authorisation was proportionate to what was sought to be achieved; the authorisation could be made by a large number of public authorities; the authorisation did not have to be made by officers at a very senior level within those authorities (a Superintendent within the PSNI); and there was no requirement for prior or subsequent supervision or scrutiny of the individual authorisation by a Surveillance Commissioner or any other independent person or body.", "147. The applicant further argued that section 28(6) identified a broad range of circumstances in which covert surveillance of consultations with an appropriate adult could take place, and those circumstances were ill-defined in the legislation; the statutory scheme entitled an extensive number of public authorities to engage in such surveillance and therefore reduced the level of foreseeability in terms of an individual being able to regulate their conduct; the number of individuals within those public authorities who could authorise the use of directed surveillance was not narrowly circumscribed; there were no meaningful limitations on the circumstances in which such material could be deployed; and there was a significant absence of any limits in relation to the retention, storage, transmission, dissemination and destruction of such material.", "148. The applicant also submitted that the aims identified under section 28(3) of RIPA were not “legitimate”; this was particularly the case in respect of the aim of furthering the collection of taxes, levies and other duties.", "149. Finally, and in any case, the applicant contended that the regime in respect of the covert surveillance of the detainee ’ s consultation with an appropriate adult did not satisfy the test of “necessity” in Article 8 § 2 of the Convention. In particular, there was no reason why the authorisation of such surveillance could not be carried out by an independent person with a judicial background.", "Β The Government", "150. The Government accepted that the applicant could claim to be a victim of an alleged violation of Article 8 of the Convention in relation to his consultations with his appropriate adult from 4 May 2010 to 8 May 2010 ( consultations with the appropriate adult were not affected by the court ’ s direction on 6 May 2010 that the applicant ’ s consultations with his solicitor and medical advisor should not be subject to surveillance ).", "151. The Government argued that the surveillance of consultations between a detainee and an appropriate adult pursued a legitimate aim. The applicant had only sought an assurance from the PSNI that his consultations would not be subject to covert surveillance. He could therefore only complain about potential surveillance by the PSNI and that body was not permitted to conduct such surveillance to further the collection of taxes, levies or other duties.", "152. Furthermore, the Government submitted that the interference with the applicant ’ s Article 8 rights was similarly justified. There was no close analogy between the meetings with an appropriate adult and consultations with doctors or solicitors, the latter two being subject to legal privilege. This was the reason why consultations with doctors and solicitors were brought within the intrusive surveillance regime and made subject to a test of exceptionality. Appropriate adults, however, were not lawyers and their function was not to provide legal advice or to assist in the preparation of a criminal defence.", "153. In any case, the Government argued that the directed surveillance regime contained adequate safeguards against abuse: the PSNI ’ s use of directed surveillance powers was subject to oversight by the Chief Surveillance Commissioner; any individual could complain to the IPT if he was concerned that he might have been subject to directed surveillance and the IPT had the power to grant appropriate relief if any such complaint was found to have substance; and, if criminal proceedings followed, under the court ’ s abuse of process jurisdiction any relevant use of directed surveillance would be subject to further control by the trial judge, both in relation to admissibility of material obtained thereby and in the event of any allegation of abuse or unlawfulness.", "b. The Court ’ s assessment", "α. The existence of an interference", "154. Insofar as the applicant complains about the regime for conducting covert surveillance of consultations between detainees and their appropriate adults, the Government have accepted that he can claim to be a victim of the alleged violation.", "155. For the reasons set out in paragraphs 115 – 117 above, the Court would agree that there has been an “ interference ”, within the meaning of Article 8 § 2 of the Convention, with the applicant ’ s right to respect for his private life.", "β. Was the interference justified?", "156. The Court has already noted that in order to be justified under Article 8 § 2 of the Convention the interference must be “ in accordance with the law ”, in pursuit of a legitimate aim, and “ necessary ” in a democratic society.", "157. As with the regime for surveillance of lawyer/client consultations, the Court considers that the regime in question pursues the legitimate aims of protection of national security and the prevention of disorder and crime (see paragraph 119 above). Furthermore, for the reasons set out at paragraph 121 above, the Court finds that the regime had a basis in domestic law, namely Part II of RIPA and the Revised Code of Practice, and that that law was sufficiently accessible. It therefore falls to the Court to decide if the law was adequately foreseeable and whether the interference was “necessary in a democratic society”. As the lawfulness of the interference is closely related to the question of its “necessity”, the Court will jointly address the foreseeability and the “ necessity ” requirements (see also Kennedy, cited above, § 155).", "158. The Court has indicated at paragraph 130 above that the subject-matter of the surveillance and the degree of intrusion will determine the degree of precision with which the law must indicate the circumstances in which and the conditions on which the public authorities are entitled to resort to covert measures. The surveillance of consultations between a vulnerable detainee and an appropriate adult, appointed to assist him or her following an arrest, undoubtedly constitutes a significant degree of intrusion. As such, the present case is distinguishable from that of Uzun, cited above, which concerned the monitoring of a car ’ s movements by GPS and, as a consequence, the collection and storage of data determining the applicant ’ s whereabouts and movements in the public sphere.", "159. That being said, the surveillance was not taking place in a private place, such as a private residence or vehicle. Rather, it was being conducted in a police station. Moreover, unlike legal consultations, consultations with an appropriate adult are not subject to legal privilege and do not attract the “strengthened protection” accorded to consultations with lawyers or medical personnel. The detainee would not, therefore, have the same expectation of privacy that he or she would have during a legal consultation. Consequently, the Court does not consider it appropriate to apply the strict standard set down in Valenzuela-Contreras and will instead focus on the more general question of whether the legislation adequately protected detainees against arbitrary interference with their Article 8 rights, and whether it was sufficiently clear in its terms to give individuals adequate indication as to the circumstances in which and the conditions on which public authorities were entitled to resort to such covert measures ( Bykov, cited above, § 76).", "160. As it is classified as directed rather than intrusive surveillance, the surveillance of consultations with appropriate adults is permissible in a wider range of circumstances than the surveillance of legal consultations (see paragraph 44 above). In Part II of RIPA, section 28 provides that directed surveillance can take place where the authorising officer (in this case a PSNI officer of the rank of Superintendant or above) believes it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime, in the interests of the economic well-being of the United Kingdom, in the interests of public safety, for the purposes of protecting public health, for the purposes of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department, and for any other purpose specified for the purposes of this subsection by an order of the Secretary of State. Nevertheless, the differences are not so great as they might first appear. The PSNI could not authorise the surveillance of a consultation with an appropriate adult for the purposes of assessing or collecting any tax or levy, and the Secretary of State has not specified any other purpose by way of an order. Consequently, consultations with an appropriate adult can only be subject to surveillance on two additional grounds: the interests of public safety, and protecting public health. Like “national security”, both terms are frequently employed in national and international legislation and constitute two of the legitimate aims to which Article 8 § 2 refers. Consequently, the Court considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to intrusive surveillance is sufficiently clear.", "161. As with intrusive surveillance, RIPA does not provide any limitation on the persons who may be subjected to directed surveillance. However, paragraph 5.8 of the Revised Code, which sets out the information to be included in an application for directed surveillance, is drafted in identical terms to paragraph 6.19, which concerns intrusive surveillance (see paragraph 41 above), and, similarly, the authorising officer may only authorise directed surveillance if he considers it necessary and proportionate. It is true that fewer safeguards exist than in respect of the surveillance of legal consultations. First, the surveillance is not subject to the enhanced authorisation regime which applies to surveillance intended to result in the obtaining of information subject to legal privilege. Secondly, surveillance carried out by the PSNI may be authorised by a police officer at the level of Superintendent or above, whereas intrusive surveillance may only be authorised by a senior authorising officer, namely the Chief Constable of the PSNI or the Secretary of State. Thirdly, authorisation does not have to be approved by a Surveillance Commissioner. However, while the Court believes these safeguards to be important in the context of intrusive surveillance, particularly that of legal consultations, in the context of surveillance of consultations with appropriate adults the Court considers that no further clarification of the categories of persons liable to be subject to secret surveillance can reasonably be required.", "162. With regard to additional safeguards, the Court notes that authorisations for directed surveillance must be regularly reviewed to assess the need for the surveillance to continue (see paragraph 62 above). During a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of it. He must cancel the authorisation if satisfied that it no longer meets the criteria on which it was authorised. As soon as the decision is taken that it be discontinued, the instruction must be given to stop all surveillance of the subject and the date of the cancellation should be directly recorded.", "163. In any case, the written authorisation will cease to have effect ( unless renewed or cancelled) at the end of a period of three months beginning with the time it took effect (see paragraph 63 above). Written renewals may only be granted for three months at a time, and in order to grant them the authorising officer must be satisfied that it is necessary for the authorisation to continue for the purposes for which it was given (see paragraph 64 above). All applications for renewal should record whether it is the first renewal or every occasion a renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authoristion should continue; the content and value to the investigation or operation of the information so far obtained; and the results of regular reviews of the investigation or operation (see paragraph 65 above).", "164. Detailed records pertaining to all authorisations must be centrally retrievable within each public authority and be retained for at least three years from the end of each authorisation (see paragraph 73 above). Moreover, it is the role of the surveillance commissioners to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. In doing so, they have the power to quash authorisations and order the destruction of any records relating to information obtained by authorised conduct (see paragraph 78 above).", "165. Other than that which is subject to legal professional privilege, information obtained by secret surveillance may be used in evidence in criminal proceedings. However, the admissibility of such evidence would be subject to the control of the trial judge. In certain circumstances it would also be open to the trial judge to stay a prosecution for abuse of process (see paragraph 153 above).", "166. Finally, any citizen who believes that they have wrongfully been subject to surveillance may bring a claim to the IPT and, save for vexatious or frivolous claims, the latter tribunal must determine any such claim. The IPT has the power to award compensation and make such orders as it thinks fit, including the quashing or cancelling of any order and the destruction of any records (see paragraph 79 above).", "167. The foregoing considerations are sufficient to enable the Court to conclude that the provisions concerning directed surveillance, insofar as they related to the possible surveillance of consultations between detainees and appropriate adults, were accompanied by adequate safeguards against abuse.", "168. Accordingly, no violation of Article 8 of the Convention can be found under that head.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "169. The applicant complained of a violation of 6 of the Convention, which provides as relevant:", "“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ....", "... ... ...", "3. Everyone charged with a criminal offence has the following minimum rights:", "... ... ...", "(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”", "170. In particular, he complained that his ability to communicate effectively with a solicitor in private was damaged in breach of Article 6 § 3(c) of the Convention and that his ability to communicate with an appropriate adult was compromised in breach of Article 6 generally.", "171. Although the applicant was charged with the offence of withholding information, he did not stand trial for this or any other offence. Consequently, he cannot complain that any “restriction” imposed on him by virtue of the possibility of covert surveillance deprived him of a fair hearing in breach of Article 6.", "172. Furthermore, even if the possibility of covert surveillance of his legal consultations could give rise to an issue under Article 6 § 3(c) of the Convention, the Court recalls that on 6 June 2010 the Administrative Court ordered that there should be no surveillance of the applicant ’ s consultations with his lawyer or doctor pending the outcome of the judicial review proceedings. Consequently, the applicant would have had ample opportunity to consult with both his legal and medical advisors safe in the knowledge that those consultations would not be subject to covert surveillance.", "173. In light of the above, the Court considers that the applicant ’ s complaints under Article 6 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "174. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "175. The applicant made no claim for pecuniary damage. However, he claimed six thousand euros (EUR 6,000 ) in respect of non-pecuniary damage. In particular, he argued that as a vulnerable person with a history of drug and alcohol abuse, anxiety and depression the concern that his legal consultations might be subject to covert surveillance caused him significant distress.", "176. The Government argued that a declaration of a breach would be sufficient just satisfaction. In particular, they argued that there was no evidence that the applicant had experienced any suffering or distress related to the possibility that his legal consultations might have been subject to covert surveillance.", "177. The Court agrees that the applicant has submitted no evidence to substantiate his claim that the possibility that his legal consultations were subject to covert surveillance caused him any real suffering or distress. Nevertheless, the applicant was undoubtedly a vulnerable young man at the time of his arrest and the Court is therefore prepared to accept that the possibility of not being able to speak freely with his solicitor was capable of having caused him some anguish. However, the possibility of covert surveillance only existed from 4 May 2010 to 6 May 2010, on which date the Administrative Court ordered that his legal consultations should not be subject to surveillance.", "178. The Court therefore awards the applicant EUR 1,500 in respect of non-pecuniary damage.", "B. Costs and expenses", "179. The applicant also claimed GBP 26,126.08 for the costs and expenses incurred before the Court.", "180. The Government argued that that sum was excessive.", "181. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,00 0 covering costs under all for the proceedings before the Court.", "C. Default interest", "182. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1977 and lives in Kranj.", "A. The investigation", "6. In 2006 the Swiss law - enforcement authorities of the Canton of Valais conducted a monitoring exercise of users of the so-called “Razorback” network. The Swiss police established that some of the users owned and exchanged child pornography in the form of pictures or videos. Files containing illegal content were exchanged through the so-called “p2p” (peer-to-peer) file - sharing network in which each of the connected computers acted as both a client and a server. Hence, each user could access all files made available for sharing by other users of the network and download them for his or her use. Among the dynamic Internet Protocol (“IP”) addresses recorded by the Swiss police was also a certain dynamic IP address, which was later linked to the applicant.", "7. Based on the data obtained by the Swiss police, on 7 August 2006 the Slovenian police, without obtaining a court order, requested company S., a Slovenian Internet service provider (hereinafter “the ISP”), to disclose data regarding the user to whom the above -mentioned IP address had been assigned at 1.28 p.m. on 20 February 2006. The police based their request on section 149b(3) of the Criminal Procedure Act (hereinafter “the CPA”, see paragraph 36 below ), which required the operators of electronic communication networks to disclose to the police information on the owners or users of certain means of electronic communication whose details were not available in the relevant directory. In response, on 10 August 2006 the ISP gave the police the name and address of the applicant ’ s father, who was a subscriber to the Internet service relating to the respective IP address.", "8. On 12 December 2006 the police proposed that the Kranj District State Prosecutor ’ s Office request the investigating judge of the Kranj District Court to issue an order demanding that the ISP disclose both the personal data of the subscriber and traffic data linked to the IP address in question. On 14 December 2006 such a court order was obtained on the basis of section 149b(1) of the CPA and the ISP gave the police the required data.", "9. On 12 January 2007 the investigating judge of the Kranj District Court issued an order to carry out a house search of the applicant ’ s family home. The order indicated the applicant ’ s father as the suspect. During the house search the police and the investigating judge of the Kranj District Court seized four computers and later made copies of their hard disks.", "10. Based on a conversation with the applicant ’ s family members, of which no record is available, the police changed the suspect to the applicant.", "11. Reviewing the hard disks, the police found that one of them contained files with pornographic material involving minors. The police established that the applicant had installed eMule, a file - sharing program, on one of the computers by means of which he had been able to download different files from other users of the program and had also automatically offered and distributed his own files to them. Among the files downloaded by the applicant, a small percentage had contained child pornography.", "12. On 26 November 2007 the Kranj District prosecutor requested that a judicial investigation be opened against the applicant.", "13. In his defence before the investigating judge, the applicant argued, inter alia, that he had not been aware of the content of the files in question. He also argued that the ISP had unlawfully, without a judicial warrant, passed his data, including his address, to the police.", "14. On 5 March 2008 the investigating judge of the Kranj District Court, opened a judicial investigation against the applicant on the basis of a reasonable suspicion that he had committed the criminal offence of displaying, manufacturing, possessing and distributing pornographic material under section 187(3) of the Criminal Code. The judge noted, among other things, that the applicant ’ s father had been the holder of the identified IP address and that the applicant had allegedly been logging into the respective program under the name of “Benet ”.", "15. On 17 March 2008 the applicant ’ s counsel lodged an appeal against the decision to open a judicial investigation. He argued, inter alia, that the evidence concerning the identity of the user of the respective IP address had been obtained unlawfully. That information concerned the traffic data and should therefore not have been obtained without a judicial warrant.", "16. On 21 March 2008 an interlocutory panel of the court rejected the appeal finding that, although counsel had argued that the identity of the user of the IP address had been obtained unlawfully, he had not requested that certain documents be excluded from the file.", "B. The trial", "17. On 29 May 2008, the Kranj District State Prosecutor ’ s Office lodged an indictment against the applicant for the above-mentioned criminal offence.", "18. At the hearing of 8 October 2008 the applicant lodged a written request for exclusion of evidence obtained unlawfully, including the information concerning the user of the respective IP address obtained without a court order.", "19. On 5 December 2008 the court rejected the applicant ’ s request, finding that the data concerning the user of the respective IP address had been obtained in compliance with section 149b(3) of the CPA.", "20. On 5 December 2008 the Kranj District Court found the applicant guilty of the criminal offence with which he had been charged. Based on the opinion of an expert in computer science, the District Court held that the applicant must have been aware of the 630 pornographic pictures and 199 videos involving minors which he had downloaded through p2p networks and made available for sharing with other users. The applicant was sentenced to a suspended prison term of eight months with a probation period of two years.", "C. Proceedings before the Ljubljana Higher Court", "21. Both the applicant and the district state prosecutor appealed against the first-instance judgment. The applicant challenged the facts as established by the District Court. He also alleged that the subscriber information the Slovenian police had acquired without a court order, and thus unlawfully, should have been excluded as evidence. Consequently, all the evidence based on such unlawfully acquired data should also have been excluded.", "22. On 4 November 2009 the Ljubljana Higher Court granted the appeal of the district state prosecutor in part, converting the applicant ’ s suspended sentence into a prison term of six months. The applicant ’ s appeal was dismissed as unfounded. The Higher Court confirmed that the first-instance court had correctly established the facts of the case; moreover, it held that the data concerning the user of the IP address had been obtained lawfully, as no court order was required for such a purpose.", "D. Proceedings before the Supreme Court", "23. The applicant lodged an appeal on points of law before the Supreme Court, reiterating that a dynamic IP address could not be compared to a telephone number which was not entered in a telephone directory, as a new IP address was assigned to a computer each time the user logged on. Accordingly, such data should be considered as traffic data constituting circumstances and facts connected to the electronic communication and attracting the protection of privacy of communication. The applicant argued that the Swiss police should not have obtained the respective dynamic IP address without a court order, and nor should the Slovenian police have obtained the data on the identity of the subscriber associated with the IP address without such an order.", "24. On 20 January 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law, reasoning that given the general accessibility of websites and the fact that the Swiss police could check the exchanges in the p2p network simply by monitoring the users sharing certain contents, that is without any particular intervention in internet traffic, such communication could not be considered private and thus protected by Article 37 of the Constitution. Moreover, in the Supreme Court ’ s view, the Slovenian police had not acquired traffic data about the applicant ’ s electronic communication, but only data regarding the user of a particular computer through which the Internet had been accessed.", "E. Proceedings before the Constitutional Court", "25. The applicant lodged a constitutional complaint before the Constitutional Court, reiterating the complaints adduced before the lower courts.", "26. The Constitutional Court asked the Information Commissioner to express her position on the issue. The Information Commissioner was of the view that the reason for obtaining the identity of an individual user of electronic communication was precisely that he or she communicated by means of more or less publicly accessible websites. In the Information Commissioner ’ s view, it was impossible to separate traffic data from subscriber data, as traffic data alone did not make any sense if one did not ascertain who the person behind those data was – this latter information was thus considered to be an extremely important element of communication privacy. The Information Commissioner also highlighted that the provisions of the Electronic Communications Act in force at the material time required a court order regarding all data related to electronic communications, irrespective of whether they related to traffic or identification data. In the Information Commissioner ’ s view, section 149b (3) of the CPA, which required only a written request from the police to obtain data on who was communicating, was constitutionally problematic.", "27. On 13 February 2014 the Constitutional Court dismissed the applicant ’ s complaint, holding that his constitutional rights had not been violated. The Constitutional Court ’ s decision was adopted by seven votes to two. Judge J. Sovdat and Judge D. Jadek Pensa wrote dissenting opinions. The decision was served on the applicant on 11 March 20 1 4.", "1. The Constitutional Court ’ s decision", "28. The Constitutional Court pointed out, at the outset, that in addition to the content of communications, Article 37 of the Constitution also protected traffic data, that is any data processed for the transmission of communications in an electronic communications network. It considered that IP addresses were included in such traffic data. The Constitutional Court, however, concluded that the applicant, who had not hidden in any way the IP address through which he had accessed the Internet, had consciously exposed himself to the public and could not legitimately have expected privacy. As a result, the data concerning the identity of the user of the IP address were not protected as communication privacy under Article 37 of the Constitution, but only as information privacy under Article 3 8 of the Constitution, and no court order was required in order to disclose them in the applicant ’ s case.", "29. The most relevant parts of the Constitutional Court ’ s decision are as follows (as translated into English on the Constitutional Court ’ s website):", "“ Review of the objections regarding access to the complainant ’ s IP address by the Swiss police", "11. The second paragraph of Article 37 of the Constitution provides a higher level of protection than Article 8 of the ECHR as it requires a court order for any interference with the right to communication privacy ... The right to communication privacy determined by the first paragraph of Article 37 of the Constitution primarily protects the content of the communicated message. ... In addition to the message content, the circumstances and facts related to the communication are also protected. In accordance with this view, in Decision No. Up-106/05, dated 2 October 2008 (Official Gazette RS, No. 100/08, and OdlUS XVII, 84) the Constitutional Court extended the protection provided by Article 37 of the Constitution also to such data regarding telephone calls that by their nature constitute an integral part of communication so that such data cannot be obtained without a court order. The mentioned Decision refers otherwise to telephone communication, but the same conclusion can be applied mutatis mutandis to other types of communication at a distance. The crucial constitutional review test for the review of the Constitutional Court whether a particular communication is protected under Article 37 of the Constitution is the test of the legitimate expectation of privacy.", "12. Communication via the internet takes place, in principle, in an anonymous form, which is essential for the free development of personality, freedom of speech, and the expression of ideas, and, consequently, for the development of a free and democratic society. The privacy of communication protected by the strict conditions determined by the second paragraph of Article 37 of the Constitution is therefore a very important human right that is becoming increasingly important due to technological advances and the related growing possibilities of monitoring. It entails individuals ’ legitimate expectation that the state will leave them alone also in their communication through modern communication channels and that they do not necessary have to defend themselves for what they do, say, write or think. If there is a suspicion of a criminal offense the Police must have the ability to identify the individuals who have participated in a certain communication related to an alleged criminal offense, because the perpetrators are harder to trace due to this principle of anonymity on the internet. The conditions under which the Police can carry out investigative actions and whether they need a court order, however, depend on whether such entail an interference with the right to communication privacy.", "13. As was pointed out above, in addition to the content of communications, Article 37 of the Constitution also protects traffic data. Traffic data signifies any data processed for the transmission of communications in an electronic communications network or for the billing thereof. Such entails that the IP address is a traffic datum. The Constitutional Court must therefore answer the question whether the complainant legitimately expected privacy regarding this datum.", "14. Two factors must be weighed in relation to this review: the expectation of privacy regarding the IP address and the legitimacy of this expectation, where the latter must be of such nature that the society is willing to accept it as legitimate. The complainant in the case at issue communicated with other users of the Razorback network by using the eMule application to exchange various files, including those that contained child pornography. With regard to the general anonymity of internet users and also the content of the files, the Constitutional Court has no doubt that the complainant expected that his communications would remain private, and he also certainly expected that his identity would not be disclosed. The question therefore is whether such expectation of privacy was legitimate. The complainant has not established that the IP address through which he accessed the internet was hidden in any way, and thus invisible to other users, or that access to the Razorback network (and thus to the content of the files) was in any way restricted, for example by passwords or other means. ... In contrast, in the complainant ’ s case anyone interested in exchanging such data could have accessed the contested files, and the complainant has not demonstrated that his IP address was in any way concealed or inaccessible by other users of this network. This leads to the conclusion that this entailed an open line of communication with a previously undetermined circle of strangers using the internet worldwide who have shown interest in sharing certain files, while at the same time access to the IP addresses of other users was not limited to users of this network. Therefore, in the view of the Constitutional Court, the complainant ’ s expectation of privacy was not legitimate; that which a person knowingly exposes to the public, even if from a home computer and the shelter of his or her own home, cannot be a subject of the protection afforded by Article 37 of the Constitution. In view of the foregoing, the contested standpoint of the Supreme Court does not raise concerns regarding constitutional law. Obtaining the data regarding the complainant ’ s dynamic IP address does not interfere with his right to communication privacy determined by the first paragraph of Article 37 of the Constitution taking into account all the circumstances of the case, therefore a court order was not necessary to access it. By his conduct the complainant himself waived his right to privacy and therefore could not have a legitimate expectation of privacy therewith.", "...", "Review of the objections regarding access to data on the user of a certain IP address", "16. The complainant also challenges the standpoint of the Supreme Court that by its request to the service provider under the third paragraph of Article 149.b of the CPA the Police did not acquire traffic data, but only data regarding a particular user of a determined means of communication ...", "17. In the case at issue, on 7 June 2006, on the basis of the third paragraph of Article 149.b of the CPA, the Police sent a request to the service provider for data regarding the user to whom IP address 195.210.223.200 was assigned on 20 February 2006 at 13:28. In the response, they received data regarding the user ’ s name, surname, and address, while the time of the communication set to the nearest second was already known. Then on 14 December 2006 the Police also obtained an order issued by the investigating judge on the basis of the first paragraph 149.b of the CPA and the service provider also provided the traffic data on the basis of this order. The main issue for the Constitutional Court at this point is therefore whether obtaining the data regarding the identity of the user of a determined IP address falls within the framework of communication privacy.", "18. In accordance with the position of the Constitutional Court in Decision No. Up-106/05, Article 37 of the Constitution also protects traffic data, i.e. data regarding, for example, who, when, with whom, and how often someone communicated. The identity of the communicating individual is one of the important aspects of communication privacy, therefore it is necessary to obtain a court order for its disclosure in accordance with the second paragraph of Article 37 of the Constitution. Despite this standpoint, the Constitutional Court decided that the complainant ’ s allegation of a violation of Article 37 of the Constitution is unfounded in the case at issue. By his conduct, the complainant has himself waived protection of his privacy by publicly revealing both his own IP address as well as the content of his communications, and therefore can no longer rely on it as regards the disclosure of his identity. Since by such he also waived the legitimate expectation of privacy, the data regarding the identity of the IP address user no longer enjoyed protection in terms of communication privacy, but only in terms of information privacy determined by Article 38 of the Constitution. Therefore, by obtaining the data on the name, surname, and address of the user of the dynamic IP address through which the complainant communicated the Police did not interfere with his communication privacy and therefore did not require a court order to disclose his identity. In view of the foregoing, the contested position of the Supreme Court is not inconsistent with Article 37 of the Constitution, and the complainant ’ s complaints in this part are unfounded. ”", "2. Dissenting opinion by Judge J. Sovdat", "30. Judge J. Sovdat welcomed the Constitutional Court ’ s departure from the Supreme Court ’ s view that the information concerned had not amounted to traffic data. However, in her view, the police wishing to obtain identification of the subscriber should have requested a court order. She pointed out that the Constitutional Court ’ s conclusion implied that the protection of privacy of traffic data was always dependent on the protection of the content of communication. Accordingly, traffic data concerning certain communication were protected as long as the content of that communication was protected. Consequently, an individual could not enjoy separate and independent protection of traffic data. Judge Sovdat disagreed with this view, pointing out that the applicant had not appeared in public under his own name, but only through the digits of his dynamic IP address.", "31. Judge Sovdat agreed with the Information Commissioner that the police had been interested not in the ownership of the device but in “the identity of the person communicating and precisely because he had been communicating”. She endorsed the Commissioner ’ s view that “the content of communication alone did not have any particular weight in the absence of identification of those communicating”. She also pointed out that under sections 166 and 168 of the new Electronic Communications Act (“ ECA -1”, see paragraph 39 below ), the Internet provider was not allowed to transfer the stored information without a court order. Compared with section 14 9 b(3) of the CPA, the ECA was definitely more recent and therefore the decision of the majority ran contrary to the level of rights protection already achieved.", "3. Dissenting opinion by Judge D. Jadek Pensa", "32. Judge D. Jadek Pensa argued that the constitutional guarantees set out in Article 37 of the Constitution were aimed at strengthening the expectation of privacy in this area of life and preventing disproportionate interferences and an abuse of power by the executive.", "33. As regards the applicant ’ s expectation of online anonymity, Judge Jadek Pensa argued that none of the data publicly disclosed by the complainant revealed his identity. In her view, anonymity was what prevented the police from linking a particular communication with a particular person – that is, linking a dynamic IP address and an individual with his or her name and address. She further argued that the question whether the applicant ’ s manner of communication could lead to the conclusion that his expectation of privacy had not been objectively justified had to be approached by taking all the circumstances into account, including the law that had been in force at the relevant time. She explained that the ECA (sections 103(1(2)), 104(1) and 107 – see paragraphs 37 below ) required Internet providers to delete traffic data as soon as they were no longer needed for the transfer of messages. Moreover, section 1 0 7 of the ECA provided that the secrecy of communication could be interfered with only on the basis of a decision by a competent authority. A letter from the police to an Internet provider could not be considered to amount to such a decision. Thus, even if section 149b(3) of the CPA could be interpreted as allowing the police to ask for information on an Internet subscriber, it should not apply in the situations covered by the ECA, which explicitly concerned the “protection of secrecy and confidentiality of electronic communications”. Otherwise, the legislation would be contradictory. The judge concluded that the applicable legal framework could not therefore have led to the conclusion that the applicant, as a reasonably and sufficiently informed individual, could not have expected privacy; that is, he could not have expected that his anonymity would be protected.", "34. Judge Jadek Pensa went on to elaborate on the neutrality of traffic data, such as data on the user of a certain dynamic IP address:", "“ 9. The traffic datum – the dynamic IP address that was assigned randomly at a given moment – as I understand it, reveals how the internet was used on some computer, because it is inextricably attached to a specific connection. ... This is because only the two data jointly communicate how the internet was used in a non-anonymised way, i.e. regarding internet use in connection with an identified person. This essential circumstance in my opinion negates the notion of the neutrality of the datum regarding a specific user of services for a certain (known) dynamic IP address that the police sought through the service provider - namely, the neutrality of the datum in terms of denying its ability to communicate anything more than the name and address of a certain person (who has a subscription contract with the service provider). Precisely because this datum is inseparably linked to a specific communication, the traffic datum falls within the scope of protected communication privacy.", "10. Even if the service provider communicated to the police ‘ only ’ the data identifying a person who had a subscription contract with it, by doing so, as I understand it, the service provider in fact communicated (to put it simply) traffic data in an electronic communications network regarding this person. The police also, as I have already explained, wanted to determine more than just the name and surname of a certain person who had concluded a contract. Since, as I understand it, they asked for traffic data associated with a particular person they would have to proceed according to the first paragraph of Article 149.b of the CPA and obtain an order from the investigating judge.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "35. Articles 37 and 38 of the Constitution, which provide for the protection of privacy of correspondence and other means of communication and the protection of personal data, respectively, provide as follows:", "Article 37", "“The privacy of correspondence and other means of communication shall be guaranteed.", "Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where such is necessary for the institution or course of criminal proceedings or for reasons of national security.”", "Article 38", "“The protection of personal data shall be guaranteed. The use of personal data contrary to the purpose for which it was collected is prohibited.", "The collection, processing, designated use, supervision, and protection of the confidentiality of personal data shall be provided for by law.", "Everyone has the right of access to the collected personal data that relates to him and the right to judicial protection in the event of any abuse of such data.”", "B. Criminal Procedure Act", "36. Section 149b of the Criminal Procedure Act (Official Gazette no. 8/06), in the chapter regulating measures taken by the police in pre-trial proceedings, provided:", "“(1) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed, is being committed or is being prepared or organised, and information on communications using electronic communications networks needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the investigating judge may, at the request of the public prosecutor adducing reasonable grounds, order the operator of the electronic communications network to furnish him with information on the participants and the circumstances and facts of electronic communications, such as: the number or other form of identification of users of electronic communications services; the type, date, time and duration of the call or other form of electronic communications service; the quantity of data transmitted; and the place where the electronic communications service was performed.", "(2) The request and order must be in written form and must contain information that allows the means of electronic communication to be identified, an indication of reasonable grounds, the time period for which the information is required and other important circumstances that dictate use of the measure.", "(3) If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed or is being prepared, and information on the owner or user of a certain means of electronic communication whose details are not available in the relevant directory, as well as information on the time that the means of communication was or is in use, needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the police may request that the operator of the electronic communications network furnish them with this information, at their written request and even without the consent of the individual to whom the information refers.", "(4) The operator of electronic communications networks may not disclose to its clients or a third party the fact that it has given certain information to an investigating judge (first paragraph of this section) or the police (preceding paragraph), or that it intends to do so.”", "C. Electronic Communications Act", "37. At the time the data in question were obtained (August 2006), the Electronic Communications Act ( “ECA”, Official Gazette nos. 43/04 and 86/04) was in force. This Act implemented, among other things, Directive 2002/58/EC (see paragraph 56 below). The following provisions were relevant:", "Section 1", "Content of the Act", "“This Act regulates the conditions for the provision of electronic communication networks and for the provision of electronic communication services ... determines the rights of users ... regulates the protection of the secrecy and confidentiality of electronic communications and regulates other questions related to electronic communications.”", "Section 3", "Terms used", "“ The terms used in this Act have the following meaning:", "...", "25. Traffic data are any data processed for the purpose of the conveyance of communication on an electronic communications network or for the billing thereof.", "... ”", "Section 103", "Confidentiality of communications", "“ (1) Confidentiality of communications refers to :", "1. the content of communications;", "2. traffic data and location data connected to the communication mentioned in subsection (1)1 above;", "3. facts and circumstances relating to unsuccessful attempts to establish connections.", "(2) An operator and anyone involved in the provision and performance of its activities must continue to safeguard the confidentiality of communications after ceasing performance of the activity for which it was bound to safeguard confidentiality.", "(3) Those entities liable under subsection (2) above may only obtain the information on communications referred to in subsection (1) above to the extent necessary for the provision of specific publicly available communications services, and may only use or transfer [ posreduje ] this information to others in order to provide these services.", "(4) Where operators obtain information on the content of communications or record or retain communications and the traffic data related to them under subsection (3) above, they must notify the user of this when the subscriber contract is signed or upon the commencement of provision of the publicly available communications service, and erase information on the content of communications or the communications themselves as soon as this is technically feasible and the information is no longer necessary for the provision of the particular publicly available communications service.", "(5) All forms of surveillance or interception, such as listening, tapping, recording, retention and transfer [ posredovanje ] of the communications referred to in subsection (1) above shall be prohibited, unless this is permitted under subsection (4) above or under section 107 of this Act, or if this form of surveillance or interception is necessary for the sending of messages (e.g. facsimile messages, electronic mail, electronic mailboxes, voicemail and SMS services).", "... ”", "Section 104", "Traffic data", "“ (1) Traffic data relating to subscribers and users, and processed and stored by the operator, should be deleted or rendered anonymous, as soon as they are no longer needed for the transfer of messages.", "(2) Without prejudice to the provision of subsection (1) above, an operator may, until complete payment for a service but no longer than until the expiry of the limitation period, retain and process traffic data required for the purposes of calculation and of payment relating to interconnection.", "(3) For the purpose of marketing electronic communications services or for the provision of value-added services, the provider of a publicly available electronic communications service may process the data referred to in subsection (1) above to the extent and for the duration necessary for such services or marketing, but only if the subscriber or user to whom the data relate has given his prior consent. Subscribers or users must be informed, prior to giving consent, of the types of traffic data which are processed and the duration of such processing. A user or subscriber shall have the right to withdraw his or her consent at any time.", "(4) For the purposes referred to in subsection (2) above, a service provider must indicate in the general terms and conditions which traffic data will be retained and processed, and the duration thereof, and declare that they will be treated in accordance with the law on data protection.", "(5) Traffic data may only be processed under subsections (1) to (4) above by persons acting under the authority of an operator and handling billing or traffic management, responding to customer enquiries, detecting fraud, marketing electronic communications services or providing a value-added service, and this processing must be limited to what is necessary for the purposes of such activities.", "(6) Without prejudice to the provisions of subsections (1), (2), (3) and (5) above, an operator shall, upon a written request of a competent body set up for the purpose of settling disputes, in particular interconnection or billing disputes, and in accordance with the applicable legislation, send traffic data to such body. ”", "Section 107", "Lawful interception of communications", "“ ... (2) An operator should enable the lawful interception of communications at a determined point of the public communication network as soon as it receives a copy of the operative part of the order of the competent authority indicating the point ... at which a lawful interception of communications should take place and other data related to the means, scope and duration of this measure. ”", "38. Further amendments to the ECA, namely ECA-A, which were enacted on 28 November 2006, that is after the contested measures had been taken in the present case ( Official Gazette no. 129/06 ), regulated the retention of traffic data for the purposes of, inter alia, criminal proceedings. This included data necessary for the identification of the source of communication, such as the name and address of the subscriber to whom a certain IP address was assigned, data needed for the identification of the destination of communications, and data needed to identify the date, time and duration of communications (sections 107.a and 107.b). No distinction between the static and the dynamic IP address was made in this regard. Furthermore, the amendment, introduced by section 107.č, stipulated that the operator was under an obligation to allow access to or to transfer the retained data immediately and no later than three days after receiving the transcript of the “order” issued by the “competent body”. Section 107.e of the amended Act provided that “the court that has ordered that certain data be accessed should keep a record of data concerning orders for access and transfer of the retained data ”. It also regulated the reporting procedure on access to retained data – from the courts to the Ministry of Justice and then from the ministry to the European Commission.", "39. On 20 December 2012 a new Electronic Communications Act (“ECA-1”, Official Gazette 109/2012) was adopted. Its sections 166 and 168 provide as follows:", "Section 166", "Transfer of retained data to competent bodies", "“ (1) An operator must, immediately or without undue delay, transfer retained data as soon as it receives a copy of the operative part of an order from a competent body stating all the required data on the scope of access.", "...", "(4) An operator may not disclose an order to the persons to whom the order ... relates or to third parties, nor disclose that it has transferred or will transfer retained data to the competent body under this section.", "...", "(7) The information commissioner shall monitor the fulfilment of the obligations by the providers under this section, in so far as they do not fall under the supervision of other competent bodies on the basis of other laws.”", "Section 168", "Data on access orders and data transfers", "“ (1) A court that has ordered access to data shall keep a record of access orders and the transfers of data retained pursuant to section 166 of this Act, comprising:", "1. the number of cases in which access to retained data was ordered;", "2. a statement of the date or period for which the data was requested, the date on which the competent body issued the data access order and the date of the transfer of the data;", "3. the number of cases in which data access orders could not be executed.", "(2) The competent court shall forward the record referred to in subsection (1) above for the current year to the ministry responsible for justice by no later than 31 January the following year.", "(3) The ministry responsible for justice shall, on the basis of the records received from all courts, prepare a joint report on access to retained data by no later than 20 February each year for the previous year. It shall forward it to the ministry, which shall in turn forward it without delay to the European Commission and to the National Assembly Committee responsible for supervising the intelligence and security services.", "(4) The ministry responsible for justice shall, after obtaining the prior opinion of the President of the Supreme Court of the Republic of Slovenia, issue instructions using the reporting forms under this section. ”", "D. Personal Data Protection Act", "40. Further to Slovenia becoming a member of the European Union, the Slovenian Parliament adopted, on 15 July 2004, a new Personal Data Protection Act (Official Gazette no. 86/ 04 ), underpinned by Directive 95/46/ES (see paragraph 53 below). It provides, in so far as relevant, as follows:", "Section 1", "Contents of the Act", "“This Act determines the rights, responsibilities, principles and measures to prevent unconstitutional, unlawful and unjustified encroachments on the privacy and dignity of an individual (hereinafter: individual) in the processing of personal data.”", "Section 6", "Meaning of terms", "“The terms used in this Act shall have the following meanings:", "1. Personal data - are any data relating to an individual, irrespective of the form in which they are expressed.", "2. Individual - is an identified or identifiable natural person to whom personal data relate; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, where the method of identification does not incur significant costs or a disproportionate effort or require a large amount of time.", "...", "18. Anonymising - is an alteration to the form of personal data such that they can no longer be linked to the individual or where such link can only be made with disproportionate efforts, expense or use of time.", "19. Sensitive personal data - are data on racial, national or ethnic origin, political, religious or philosophical beliefs, trade-union membership, health status, sexual life, ... ”", "41. Section 2 of the Personal Data Protection Act provided that personal data should be processed lawfully and fairly. Section 8 provided that personal data could be processed if the law provided for doing so or on the basis of the consent of the individual affected. Under section 12, personal data could be processed without any other legal basis if this was urgently necessary for the protection of a person ’ s life or limb.", "42. The Personal Data Protection Act also provided that data could be collected only for defined and lawful purposes and processed accordingly ( section 16) and only on condition that this was necessary for the achievement of those purposes ( section 21). Thereafter they should be deleted, destroyed, blocked or anonymised (ibid). The Act also set out the measures and procedures that should be taken by operators and contracted processors to secure personal data, and to prevent accidental or deliberate unauthorised destruction of data, their alteration, loss or unauthorised processing ( sections 24 and 25).", "E. Criminal Code", "43. The Criminal Code applicable at the material time prohibited, in its Article 187, the presentation of pornographic material to minors under the age of fourteen and the manufacturing and distributing of pornographic material depicting minors. The relevant provision reads as follows:", "“ ...", "(2) Whosoever abuses a minor for the manufacturing of pornographic pictures, audio-visual or other objects of pornographic content, or uses a minor to act in a pornographic performance, shall be sentenced to a term of imprisonment of between six months and five years.", "(3) Whosoever produces, distributes, sells, imports or exports pornographic or other sexual material depicting minors, supplies it in any other way, or possesses such material with the intent of producing, distributing, selling, importing, exporting or offering it in any other way, shall be liable to the same sentence as in subsection (2) above.", "... ”", "F. Constitutional Court decision no. Up-106/05 of 2 October 2008", "44. Case no. Up-106/05 concerned a complainant who had been convicted of the illicit manufacture and trade in narcotics, based on data (a list of telephone numbers and text messages) obtained from his SIM card, without a court order. He complained that his conviction had been based on unlawfully obtained evidence, as the police had monitored his mobile telephone communication without a court order. The Constitutional Court upheld the complaint and quashed the lower courts ’ judgments.", "45. The Constitutional Court found that not only the content of the communication but also the circumstances and facts connected to the communication were protected, including the data stored in the telephone ’ s memory, which were an integral element of communication privacy. Therefore, obtaining data on the last dialled and last unanswered calls entailed an examination of the content and circumstances of the communication, and were consequently an interference with the right determined in the first paragraph of Article 37 of the Constitution. The court pointed out that such interference was, pursuant to Article 37 § 2 of the Constitution, admissible if the following conditions were met: ( 1) the interference was prescribed by law; ( 2) the interference was allowed on the basis of a court order; ( 3) the duration of the interference was precisely determined; and ( 4) the interference was necessary for the institution or course of criminal proceedings or for reasons of national security.", "III. RELEVANT INTERNATIONAL LAW", "A. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "46. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (opened for signature on 28 January 1981, ETS No. 108, hereinafter “the 1981 Convention”) was ratified by all Council of Europe Member States and entered into force with respect to Slovenia on 1 September 1994. Article 1 sets out the object and purpose of the Convention, which is “to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him ( ‘ data protection ’ ).” The 1981 Convention, among other things, protects individuals against abuses and applies to all data processing carried out by both the private and public sector, such as data processing by the judiciary and law - enforcement authorities. In Article 2 “ personal data ” are defined as any information relating to an identified or identifiable individual. Article 5 requires that personal data undergoing automatic processing be obtained and processed fairly and lawfully.", "B. Convention on Cybercrime", "47. The Convention on Cybercrime ( opened for signature on 23 November 2001, came into force on 1 July 2004, ETS No. 185, hereinafter “the Cybercrime Convention”) took effect in Slovenia on 1 January 2005.", "48. The Cybercrime Convention is the first international treaty on crimes committed via the Internet and is open to all States. It requires countries to establish as criminal offences, among others, child pornography.", "49. Article 1 defines, for the purposes of the Cybercrime Convention, “ traffic data ” as “any computer data relating to a communication by means of a computer system, generated by a computer system that formed a part in the chain of communication, indicating the communication ’ s origin, destination, route, time, date, size, duration, or type of underlying service.” Its Explanatory Report further provides, in the relevant part, as follows ( § 30) :", "“The ‘ origin ’ refers to a telephone number, Internet Protocol (IP) address, or similar identification of a communications facility to which a service provider renders services. The ‘ destination ’ refers to a comparable indication of a communications facility to which communications are transmitted. The term ‘ type of underlying service ’ refers to the type of service that is being used within the network, e.g., file transfer, electronic mail, or instant messaging.”", "50. Pursuant to the Cybercrime Convention the following measures should be available to the authorities to combat the crimes listed therein:", "Article 18 – Production order", "“1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:", "...", "b ) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control.", "2. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.", "3. For the purpose of this article, the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which can be established:", "a ) the type of communication service used, the technical provisions taken thereto and the period of service;", "b ) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;", "c ) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.”", "Article 20 – Real-time collection of traffic data", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to:", "a) collect or record through the application of technical means on the territory of that Party, and", "b) compel a service provider, within its existing technical capability:", "( i ) to collect or record through the application of technical means on the territory of that Party; or", "( ii ) to co-operate and assist the competent authorities in the collection or recording of,", "traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.", "...", "4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.”", "Article 21 – Interception of content data", "“ 1. Each Party shall adopt such legislative and other measures as may be necessary, in relation to a range of serious offences to be determined by domestic law, to empower its competent authorities to:", "a) collect or record through the application of technical means on the territory of that Party, and", "b) compel a service provider, within its existing technical capability:", "( i ) to collect or record through the application of technical means on the territory of that Party, or", "( ii ) to co-operate and assist the competent authorities in the collection or recording of,", "content data, in real-time, of specified communications in its territory transmitted by means of a computer system.", "...", "4. The powers and procedures referred to in this article shall be subject to Articles 14 and 15.”", "51. With regard to the production order, the Explanatory Report to the Convention on Cybercrime ( Budapest, 23 November 2001, ETS No. 185 ) states that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used (for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the email address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. According to the explanatory report, a production order provides a less intrusive and less onerous measure which law - enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences.", "52. The Cybercrime Convention requires that the aforementioned measures provided for in Articles 18, 20 and 21 be subject to the conditions set out in Articles 14 and 15, which, as far as relevant, read as follows:", "Article 14 – Scope of procedural provisions", "“1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.", "... ”", "Article 15 – Conditions and safeguards", "“1. Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.", "2. Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.”", "IV. RELEVANT EUROPEAN UNION LAW", "A. Directive 95/46/EC and Regulation (EU) 2016/679", "53. Article 2 (1) (a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31, hereinafter “the Data Protection Directive”) provides that “ personal data ” means “any information relating to an identified or identifiable natural person ( ‘ data subject ’ )”. Furthermore, under the aforementioned provision, an “ identifiable person ” is “one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity”. The Data Protection Directive does not apply to the area of police and criminal justice.", "54. Recital 26 provides that in determining whether a person is identifiable, “ account should be taken of all the means likely reasonably to be used ... to identify the said person ”; the principles of protection will not apply to data rendered anonymous in such a way that the data subject is no longer identifiable.", "55. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119/1, p. 1 ), entered into force on 24 May 2016. When it takes effect (25 May 2018), it will replace the Data Protection Directive. Article 4 defines an “ identifiable natural person ” as “one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier ... ”. Recital 26 further provides that, in ascertaining whether means are reasonably likely to be used to identify the natural person, “account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments.” It further explains that “[t]he principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.”", "B. Directive 2002/58/EC", "56. In addition, specifically for the field of electronic communications, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37 ) was adopted on 12 July 2002. It does not apply to the area of police and criminal justice but harmonises the provisions of the member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communications sector. Article 2 provides a definition of a “ user ” as meaning “any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service”. It further defines “ traffic data ” as “any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof”. Moreover, it defines “ communication ” as “any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service”.", "C. Council Framework Decision 2008/977/JHA and Directive (EU) 2016/680", "57. Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters ( OJ 2008 L 350, p. 60, hereinafter “ Data Protection Framework Decision ” ) aims at providing protection of personal data of natural persons when their personal data are processed for the purpose of preventing, investigating, detecting or prosecuting a criminal offence or of executing a criminal penalty. The Data Protection Framework Decision relies to a large extent on the principles and definitions which are contained in the 1981 Convention and in the Data Protection Directive.", "58. Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89) governs the handling of data by competent authorities, such as police and criminal justice authorities, for the purposes of, inter alia, investigation and prosecution of criminal offence. Article 3(1) contains the same definition of “ identifiable natural person ” and recital 21 the same explanation concerning the means of identification as the General Data Protection Regulation (see paragraph 55 above). Furthermore, Article 4 requires that personal data should be, inter alia, processed lawfully and fairly. Article 1 (3) provides that member States may provide for higher safeguards than those contained in the directive.", "59. The directive replaces Framework Decision 2008/977/JHA with effect from 6 May 2018.", "D. Selected decisions of the Court of Justice of the European Union", "60. As regards the concept of “ personal data ” under Article 2(a) of the Data Protection Directive, the Court of Justice of the European Union (CJEU) found in a judgment of 24 November 2011 in Scarlet Extended, C-70/10, EU:C:2011:771, paragraph 51, that users ’ IP addresses “were protected personal data because they allow those users to be precisely identified”.", "61. In its judgment of 19 October 2016 in Breyer, C-582/14, EU:C:2016:779, the CJEU dealt with the question of the specific character of dynamic IP addresses. It noted as follows :", "“[ 15] IP addresses are series of digits assigned to networked computers to facilitate their communication over the internet. When a website is accessed, the IP address of the computer seeking access is communicated to the server on which the website consulted is stored. That connection is necessary so that the data accessed maybe transferred to the correct recipient.", "[16] Furthermore, it is clear from the order for the reference and the documents before the Court that internet service providers allocate to the computers of internet users either a ‘ static ’ IP address or a ‘ dynamic ’ IP address, that is to say an IP address which changes each time there is a new connection to the internet. Unlike static IP addresses, dynamic IP addresses do not enable a link to be established, through files accessible to the public, between a given computer and the physical connection to the network used by the internet service provider.”", "62. The CJEU was of the view that a dynamic IP address did not constitute information relating to an “ identified natural person ”, since such an address did not directly reveal the identity of the natural person who owned the computer from which a website had been accessed, or that of another person who might have used that computer (ibid, § 38). The CJEU went on to determine whether a dynamic IP address, in that case registered by an online media service provider, may be treated as data relating to an “ identifiable natural person ” within the meaning of Article 2(a) of the Data Protection Directive. For that purpose the CJEU, relying on recital 26, considered whether the possibility to combine the dynamic IP address, which was in the case at issue in the hands of the online media service provider, with the additional data held by the ISP constituted a means likely reasonably to be used to identify the data subject (§§ 41 and 45). The ECJU drew the following conclusion on that point:", "“[49] Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person.”", "V. COMPARATIVE LAW", "A. German Federal Constitutional Court", "63. The applicant referred to the judgment of the German Federal Constitutional Court (“ the GFCC”) of 24 January 2012, BVerfG, 1 BvR 1299/05. The GFCC partly upheld complaints concerning, inter alia, manual retrieval of information on dynamic IP addresses stored by the telecommunications service providers.", "64. Under section 113 of the Telecommunications Act (“ the TCA ”) the telecommunications service providers were required to supply, at the request of the competent (including law - enforcement) agencies, information on certain data collected, for the purpose of, inter alia, prosecuting criminal offences or regulatory offences. The impugned statutory provision was designed to be able to attribute if possible all telecommunications numbers to their respective subscribers (and in addition, ultimately, if possible, to their users). As found by the GFCC, the provision gave no specific thresholds of encroachment which would have defined its scope in more detail. Instead, it always permitted information in the individual case if this was necessary to perform the aforementioned duties. The GFCC did not find this in itself unconstitutional. However, the question that also arose was whether the impugned provision also covered information on the owner of a dynamic IP address. At the outset, the GFCC addressed the issue of a link between the subscriber information and the pre-existing content information which could be attributed to it. It found as follows ( § 113, a citation from a translation provided on the GFCC ’ s website ):", "“ ... the secrecy of telecommunications [Article 10.1 of the Basic Law] does not protect the confidentiality of the circumstances of each provision of telecommunications services, such as for example the attribution of the telecommunications numbers allocated by the service providers to particular subscribers.”", "65. The GFCC went on to note the distinction between static and dynamic IP addresses, finding as follows ( §§ 115 and 116):", "“ ... the attribution of a static IP address to a particular subscriber – more precisely, to a network interface of the subscriber – as a rule also gives indirect information on a particular telecommunications event involving the person in question, since such addresses, even if they are static, are registered and become the subject of attributions identifying an individual almost only in connection with specific communications events. However, here too the conveying of information in this connection is as such limited exclusively to the abstract attribution of number and subscriber.", "... In contrast, the situation is different when dynamic IP addresses are attributed to identified persons, for such addresses are particularly closely related to specific telecommunications events. This attribution is within the area of protection of Article 10.1 of the Basic Law. However, here too this does not automatically follow from the fact that the attribution of a dynamic IP address necessarily always relates to a specific telecommunications event of which it therefore indirectly also provides information. For in this connection too the information itself only relates to data which are abstractly attributed to a subscriber. There is therefore no fundamental difference from the attribution of static IP addresses. However, the application of Article 10.1 of the Basic Law is here based on the fact that when the telecommunications enterprises identify a dynamic IP address, they have to take an intermediate step, in which they examine the relevant connection data of their customers, that is, [they] must access specific telecommunications events. These telecommunications connections individually stored by the service providers are subject to the secrecy of telecommunications, irrespective of whether they have to be kept available by the service providers under a statutory duty ... or whether they are stored by them on a contractual basis. Insofar as the legislature imposes a duty on the telecommunications enterprises to access these data and to evaluate them in the interest of the state ’ s performance of its duties, this is an encroachment upon Article 10.1 of the Basic Law. This is the case not only if the service providers must supply the connection data themselves, but also if they have to use the data as a preliminary question for information. ”", "66. The GFCC concluded that section 113.1 of the TCA was in breach of Article 10.1 of the Basic Law to the extent that it was a basis for the supply of information on dynamic IP addresses.", "67. Furthermore, although the GFCC did not find automated retrieval of data ( section 12 of the TCA) concerning the static IP address unconstitutional, such a finding was made against the limited use of such addresses in the following context ( §§ 160 and 161) :", "“ ... The allocation of static IP addresses, whose attribution is at present in any case publicly accessibly in practice, is essentially restricted to institutions and large-scale users. The possibility of retrieving such numbers has little weight in these circumstances.", "However, § 112 TKG [TCA] may acquire substantially greater weight of encroachment if static IP addresses in future – for example on the basis of Internet Protocol Version 6 – should become more widely used as the basis of internet communication. For the question of the weight of encroachment of the identification of an IP address does not primarily depend – even if a number of fundamental rights apply in this case – on whether an IP address is technically dynamic or static, but on the actual significance of the creation of a duty of information in this connection. But if in practice static IP addresses are allocated to a great extent to private persons too, this may possibly mean that the identities of internet users are broadly or at least largely determined and that communications events in the internet are de-anonymised not only for a limited period of time, but permanently. Such a far-reaching possibility of de-anonymisation of communication in the internet goes beyond the effect of a traditional telephone number register. ... [T]he weight for the person affected of the attribution of an IP address to a subscriber may not be equated to that of the identification of a telephone number, because the former makes it possible to access information whose scope and content are substantially more far-reaching .... In view of this increased information potential, the general possibility of the identification of IP addresses would only be constitutionally permissible subject to narrower limits ... ”", "B. The Canadian Supreme Court", "68. The R v. Spencer (2014 SCC 43, [2014] 2 S.C.R. 212) case concerned the retrieval, without prior judicial authorisation, of the appellant ’ s sister ’ s subscriber information associated with a dynamic IP address, which the police had obtained in relation to online file-sharing involving child pornography. On the basis of the subscriber information received from the ISP, the police obtained a search warrant against the appellant. The latter sought to exclude the evidence found on his computer on the basis that the police actions in obtaining his address from the ISP without prior judicial authorisation amounted to an unreasonable search contrary to the Canadian Charter of Rights and Freedom. The judgment of the Supreme Court of Canada ( “the SCC ” ) of 13 June 2014, finding in favour of the appellant, was delivered by Judge Cromwell.", "69. Referring to the previous case-law on the matter, the judgment noted that the reasonable expectation of privacy standard was normative rather than simply descriptive and that it was inevitably “laden with value judgments which [were] made from the independent perspective of the reasonable and informed person who [was] concerned about the long-term consequences of government action for the protection of privacy” ( § 18). The SCC, contrary to the opinion of the trial judge, found that the appellant ’ s subjective expectation of privacy was justified by the fact that he had been the one using the network connection to transmit sensitive information. The judgment went on to determine whether the appellant ’ s subjective expectation of privacy had been reasonable. For that purpose the judgment looked at two circumstances: the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP ’ s disclosure of subscriber information. As to the former, Judge Cromwell drew the following conclusions:", "“ [ 31 Thus, it is clear that the tendency of information sought to support inferences in relation to other personal information must be taken into account in characterizing the subject matter of the search.", "[ 36 ] ... The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought ...", "[ 41 ] There is also a third conception of informational privacy that is particularly important in the context of Internet usage. This is the understanding of privacy as anonymity. In my view, the concept of privacy potentially protected by s. 8 [right to be secure against unreasonable search or seizure] must include this understanding of privacy.", "[ 50 ] ... In the circumstances of this case, the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which have been recognized by the Court in other circumstances as engaging significant privacy interests ....", "[51] I conclude therefore that the police request to Shaw [ISP] for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy. I agree with Caldwell J.A. ’ s conclusion on this point:", ".. . a reasonable and informed person concerned about the protection of privacy would expect one ’ s activities on one ’ s own computer used in one ’ s own home would be private.. .. In my judgment, it matters not that the personal attributes of the Disclosed Information pertained to Mr. Spencer ’ s sister because Mr. Spencer was personally and directly exposed to the consequences of the police conduct in this case. As such, the police conduct prima facie engaged a personal privacy right of Mr. Spencer and, in this respect, his interest in the privacy of the Disclosed Information was direct and personal ... ”", "70. The judgment also answered the concerns of the prosecution authorities to the effect that recognising a right to online anonymity would carve out a crime-friendly Internet landscape. While acknowledging that this concern could not be taken lightly, Judge Cromwell explained that recognising an interest could not be equated to a right to anonymity and that in the present case, for example, it had seemed clear that the police could have easily obtained a production order for the subscriber information.", "71. As regards the question whether the expectation of privacy was reasonable in the face of the relevant contractual and statutory provisions, the judgment found that the ISP ’ s collection, use and disclosure of the personal information of its subscribers had been subject to the Personal Information Protection and Electronic Documents Act ( “ PIPEDA ” ), which protected personal information held by organisations engaged in commercial activity from being disclosed without the knowledge or consent of the person to whom the information related. The judgment found as follows:", "“[ 62 ] Section 7(3) ( c. 1)(ii) allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. But the issue is whether there was such lawful authority which in turn depends in part on whether there was a reasonable expectation of privacy with respect to the subscriber information. PIPEDA thus cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy ... Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” ( s. 3 ), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA ’ s general prohibition on the disclosure of personal information without consent.”", "72. The judgment went on to establish that the police request had had no lawful authority and that the information had therefore been obtained unconstitutionally. The court refused to draw a parallel with other police routine inquires, such as an interview with the victim of a crime. Referring to R. v. Duarte, [1990] 1 S.C.R. 30, it found as follows:", "“[ 67 ] ... In Duarte, the Court distinguished between a person repeating a conversation with a suspect to the police and the police procuring an audio recording of the same conversation. The Court held that the danger is ‘ not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words ’ ... Similarly in this case, the police request that the ISP disclose the subscriber information was in effect a request to link Mr. Spencer with precise online activity that had been the subject of monitoring by the police and thus engaged a more significant privacy interest than a simple question posed by the police in the course of an investigation.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "73. The applicant complained that his right to privacy had been breached because (i) the Internet service provider (hereinafter “ the ISP ” ) had retained his alleged personal data unlawfully and (ii) the police had obtained subscriber data associated with his dynamic IP address and consequently his identity arbitrarily, without a court order, in breach of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. As regards the alleged unlawful retention of personal data by the Internet service provider (ISP)", "74. The Government argued that the applicant had failed to complain to the domestic courts of the unlawful retention of his personal data by the ISP. Consequently, the domestic courts had not addressed this issue in the impugned decisions. They further argued that as the ISP was a private entity, the applicant could have sued it for damages in civil proceedings. One way or another, this part of the application should, in their view, be declared inadmissible for non-exhaustion.", "75. In addition, the Government maintained that the applicant could not claim to be a victim of the alleged violation of Article 8 concerning the retention of the personal data, as those data had not concerned him but the Internet service subscriber, which was his father.", "76. The applicant argued that the ISP had retained his personal data for almost six months without having a clear legal basis for such action and thus in violation of Article 8 of the Convention. In his observations, submitted on 15 October 2015, the applicant claimed that he had lodged his application with the Court not because the ISP had failed to keep his personal data secret or because it had retained them beyond the statutory time-limit, but because the State had obtained and used the data in question in the criminal proceedings against him. He argued that he had maintained, throughout the criminal proceedings, that the courts had relied on illegally obtained evidence.", "77. The Court notes that the Government objected to the applicant ’ s victim status with respect to this complaint. However, it does not consider it necessary to address this objection because this part of the application is in any event inadmissible for the following reasons.", "78. The Court observes that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, §§ 43-44, ECHR 2006 ‑ II).", "79. In the present case, the applicant complained in his application to the Court of the retention by the ISP of what he alleged were his personal data. However, he has failed to exhaust domestic remedies in this regard as he had not made this complaint – at least in substance – in the domestic proceedings.", "80. Consequently, this part of the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.", "2. As regards the disclosure of the subscriber information", "81. The Government argued that the applicant could not claim to be a victim because the subscriber information that the ISP had disclosed to the police concerned his father.", "82. The applicant disputed that view. He argued that it was his privacy that had been breached, not the subscriber ’ s, and that the issue at stake was not that of ownership but that of the right to privacy.", "83. The Court notes that this issue is closely related to the merits of the complaint and therefore joins the Government ’ s objection to the merits.", "84. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "85. The applicant referred to the definition of personal data in the 1981 Convention (see paragraph 46 above), arguing that the obtaining of data without a court order (see paragraph 7 above) had led to his identification.", "86. He also argued that although he had disclosed the contents of his communication to an unidentifiable public, he had not waived his right to privacy with regard to traffic (metering ) data, that is data relating to the length and time of the use of the Internet and data relating to who used the Internet and what site he or she accessed during that use. In his view, such data enjoyed separate protection under the concept of private life, comprising the privacy of communications and informational privacy.", "87. He submitted in this connection that the significant distinction between static and dynamic IP addresses should be recognised. While it might be possible to draw an analogy between a static IP address which was permanently attributed to the device, and a telephone number, a dynamic IP address was assigned every time the computer accessed the Internet. Referring to the German Federal Constitutional Court ’ s judgment of 24 January 2012 (see paragraph 63 above), the applicant argued that by choosing a dynamic IP address, as had the subscriber in the present case, one chose to have his or her identity concealed, as additional data were required for identifying the computer used to access the Internet and thereby the subscriber. In his view, the dynamic IP address therefore fell within the scope of traffic data (metering), to which section 149b(1) applied.", "88. The applicant further pointed out that the data on the content of communication had been obtained without the Slovenian authorities ’ involvement. The Slovenian authorities would have needed a court order for obtaining such data, but had avoided that otherwise necessary step by requesting the subscriber information on the basis of section 149b(3) of the CPA. As regards the letter, the applicant alleged that at the time when the Slovenian police had obtained the data connecting his IP address to his identity, the law regulating access to such data had not been clear ( lex certa ) and therefore the lawfulness required by the second paragraph of Article 8 had not been met. In particular, at the time of the interference (August 2006), the domestic law provisions regarding this issue had been contradictory. The second paragraph of Article 37 of the Constitution required a court order for interference with the right to privacy of communication. The ECA provided that traffic data should be kept secret and that communication could be intercepted only on the basis of an order by a competent authority. In the domestic legal system that could only be a court order or, theoretically, a prosecution order. Anyhow, under section 107 it was possible only to “intercept” data and not to hand over certain retained data. Moreover, the providers were under an obligation to delete retained data pursuant to section 104 as soon as they no longer needed them for billing purposes. On the other hand, section 149b ( 1 ) and ( 3 ) of the CPA provided for different conditions of accessing data and it was unclear what the distinction in application between the two was. As a result of that uncertainty in the domestic legislation, one could not say that the legal protection against arbitrary interference by public authorities with the right to privacy was sufficient.", "89. In the applicant ’ s opinion, the ECA was lex specialis in relation to the CPA and it did not provide for a possibility to transfer personal data to the police. In such a situation of lacunae in the law, the Constitution should be applied directly, and the Constitution clearly required a court order for the transfer of such data.", "(b) The Government", "90. The Government explained that IP addresses were personal data and that likewise dynamic IP addresses were personal data but did not amount to traffic data. The only difference between the two was that the static IP address stayed with the subscriber as long as he did not change ISP, whereas a new dynamic IP address was assigned every time the subscriber accessed the Internet. With regard to both, the ISP stored data concerning the time of the use of a specific IP address.", "91. The Government argued that the investigation had focused on the applicant only after the seizure and inspection of the computers had taken place and after those living at his address had been questioned. Thus the link between the subscriber and the applicant had become apparent only after the home search, which had been carried out on the basis of a valid court order.", "92. While acknowledging that the IP address was an item of personal data because it allowed for the identification of an individual, the Government pointed out that it was each user ’ s choice whether to use a website that allowed disclosure of personal data and/or content of communication to an unidentifiable and unlimited circle of individuals. The Government submitted that the applicant had not argued that he had hidden the IP address he had used to access the file-exchange program. As the disclosure of the IP address implied the disclosure of subscriber information, the applicant had not shown intent to keep his identity private or hidden and his right to private life was thus not engaged in the present case.", "93. The Government argued that the applicant could not have expected that the subscriber information related to the dynamic IP address would have been withheld from the police. In their view, the contested measures had been lawful and proportionate to the aim of safeguarding the integrity of children, who, as particularly vulnerable individuals, enjoyed special protection under the Convention.", "94. The Government drew a parallel with the situation where a suspect had been caught on closed-circuit television camera when driving. In such a situation, the suspect ’ s photograph and his registration plates sufficed to identify him. Similarly, in the present case, it must be assumed that the moment the police had had the dynamic IP address and the timeline of its use, the user had been identified by way of such data. The Government thus argued that the domestic courts had correctly applied section 149b(3) instead of section 149b(1), as the latter concerned traffic data, not data concerning the owner or user of a communication device.", "2. The Court ’ s assessment", "(a) Preliminary observations and scope of the Court ’ s assessment", "95. The Court at the outset observes the particular context of the present case, which concerns the disclosure of subscriber information associated with a dynamic IP address. It takes note of the extensive legislation and of the case-law concerning personal data protection and privacy of electronic communication within the European Union and will rely on them and on other relevant comparative-law material in assessing some of the technical matters applicable to the present case. It will also have regard, where appropriate, to the legal doctrines established therein.", "96. As a preliminary matter, the Court further notes that an IP address is a unique number assigned to every device on a network, which allows the devices to communicate with each other. Unlike the static IP address, which is permanently allocated to a particular network interface of a particular device, a dynamic IP address is assigned to a device by the ISP temporarily, typically each time the device connects to the Internet (see paragraphs 61, 87 and 90 above). The IP address alone enables certain details, such as the ISP to which the user is connected and a broader physical location, most likely the location of the ISP, to be determined. Most dynamic IP addresses can thus be traced to the ISP and not to a specific computer. To obtain the name and address of the subscriber using a dynamic IP address, the ISP is normally required to look up this information and for that purpose to examine the relevant connection data of its subscribers (see paragraphs 61 and 65 above).", "97. In the present case the information on the dynamic IP address and the time it had been assigned were collected by the Swiss police, who had carried out a monitoring exercise of users of the specific Internet network involving child pornography material. They forwarded the information to the Slovenian police, who obtained from the ISP the name and address of the subscriber associated with the dynamic IP address in question – the applicant ’ s father (see paragraphs 6 and 7 above).", "98. The Government argued that Article 8 of the Convention did not apply in this case because the applicant had not been directly affected by the contested measure and because even if he had been affected, he had willingly renounced his right to privacy by publicly exchanging the files in question (see paragraphs 92 and 93 above). In order to answer those questions, the Court must consider whether the applicant, or any other individual using the Internet, had a reasonable expectation that his otherwise public online activity would remain anonymous (see paragraphs 115 to 118 above).", "99. The Court reiterates in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives, and that protection includes a need to identify the offenders and bring them to justice (see K.U. v. Finland, no. 2872/02, § 46, ECHR 2008-V ). However, the questions raised by the Government concerning the applicability of Article 8 are to be answered independently from the legal or illegal character of the activity in question, as well as without any prejudice to the Convention ’ s requirement that protection of vulnerable individuals must be provided by the member States, as pointed out in, amongst others, K.U. v. Finland (cited above).", "(b ) Applicability of Article 8", "(i) Recapitulation of the relevant principles", "100. The Court reiterates that private life is a broad term not susceptible to exhaustive definition. Article 8 protects, inter alia, the right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Uzun v. Germany, no. 35623/05, § 43, ECHR 2010-VI (extracts) ).", "101. There are a number of elements relevant to the consideration of whether a person ’ s private life is concerned by measures affected outside his or her home or private premises. In order to ascertain whether the notions of “private life” and “correspondence” are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected ( see Bărbulescu v. Romania [GC], no. 61496/08, § 73, ECHR 2017, and Copland v. the United Kingdom, no. 62617/00, § § 41- 42, ECHR 2007-I ). In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Bărbulescu, cited above, § 73 ).", "102. In the context of personal data, the Court has pointed out that the term “private life” must not be interpreted restrictively. It has found that the broad interpretation corresponds with that of the 1981 Convention, the purpose of which is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1). Such personal data are defined as “any information relating to an identified or identifiable individual” (Article 2) ( see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000 ‑ II; see also paragraph 46 above ).", "103. It further follows from well-established case-law that where there has been a compilation of data on a particular individual, the processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise ( see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 136, ECHR 2017 (extracts) ). Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (ibid., § 137).", "104. The Court has previously considered information such as metering data on the telephone numbers dialled ( see Malone v. the United Kingdom, 2 August 1984, § 84, Series A no. 82), personal information relating to telephone, email and Internet usage ( see Copland, cited above, §§ 41 and 43), information stored by the prosecution authorities on a card concerning the facts relating to the applicant ’ s business relations ( see Amann, cited above, § 66) and public information stored by the authorities on the applicant ’ s distant past ( see Rotaru v. Romania [GC], no. 28341/95, §§ 43 and 44, ECHR 2000 ‑ V) to fall within the ambit of Article 8.", "105. Moreover, the Court has previously acknowledged in Delfi AS v. Estonia ([GC] no. 64569/09, § 147, ECHR 2015) the importance of online anonymity, noting that it has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media (ibid).", "106. In the aforementioned case the Court elaborated also on different degrees of anonymity engaged in online activity and observed as follows ( ibid., § 148) :", "“The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.”", "(ii ) Application of the above principles to the present case", "( α ) Nature of the interest involved", "107. The Government did not dispute that the subscriber information in principle concerned personal data (see paragraphs 90 and 92 above). Such a conclusion also follows from the definitions contained in the 1981 Convention, the legislation of the European Union, as well as domestic legislation aimed at their implementation (see paragraphs 40, 46, 53 and 57 above).", "108. In addition, the Court notes that the subscriber information associated with specific dynamic IP addresses assigned at certain times was not publicly available and therefore could not be compared to the information found in the traditional telephone directory or public database of vehicle registration numbers referred to by the Government (see paragraph 94 above). Indeed, it would appear that in order to identify a subscriber to whom a particular dynamic IP address had been assigned at a particular time, the ISP must access stored data concerning particular telecommunication events (see, for instance, paragraphs 29, 61, 65 and 95 above ). Use of such stored data may on its own give rise to private life considerations (see paragraph 103 above).", "109. Furthermore, the Court cannot ignore the particular context in which the subscriber information was sought in the present case. The sole purpose of obtaining the subscriber information was to identify a particular person behind the independently collected content revealing data he had been sharing. The Court notes in this connection that there is a zone of interaction of a person with others which may fall within the scope of “private life” (see paragraph 100 above). Information on such activities engages the privacy aspect the moment it is linked to or attributed to an identified or identifiable individual ( for reference to identifiability, albeit in a rather different context, see Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I, and J.S. v. the United Kingdom (dec.), no. 445/10, §§ 70 and 72, 3 March 2015). Therefore what would appear to be peripheral information sought by the police, namely the name and address of a subscriber, must in situations such as the present one be treated as inextricably connected to the relevant pre - existing content revealing data ( see the dissenting Constitutional Court judges ’ opinions cited in paragraphs 31 and 34; compare also with the position of the Canadian Supreme Court, cited in paragraphs 69 and 72 above, and the German Federal Constitutional Court, cited in paragraphs 64 and 65 above ). To hold otherwise would be to deny the necessary protection to information which might reveal a good deal about the online activity of an individual, including sensitive details of his or her interests, beliefs and intimate lifestyle.", "110. In view of the above considerations, the Court concludes that the present case concerns privacy issues capable of engaging the protection of Article 8 of the Convention.", "( β ) Whether the applicant was identified by the contested measure", "111. The Court must next address the Government ’ s argument that the subscriber information obtained by the police disclosed only the name and address of the applicant ’ s father, and not the applicant (see paragraph 91 above ). In this connection, the Court observes that it has been generally accepted that the definition of personal data refers to information relating not only to identified but also to identifiable individuals ( see paragraphs 40, 47, 53, 54, 55 and 58 above ).", "112. In the present context, the applicant was no doubt the user of the Internet service in question (see paragraph 56 above) and it was his online activity that was monitored by the police. The Court further observes that the applicant used the Internet by means of what would appear to be his own computer at his own home. It is of little significance that the applicant ’ s name was not mentioned in the subscriber information obtained by the police. Indeed, it is not unusual for one household to have a single subscription to the Internet service used by several members of the family. The fact that they are not personally subscribed to the Internet service has no effect on their privacy expectations, which are indirectly engaged once the subscriber information relating to their private use of the Internet is revealed.", "113. It is clear that the purpose of the contested measure, that is the obtaining by the police, without a court order, of subscriber information associated with the dynamic IP address provided by the Swiss police (see paragraph 7 above), was to connect the computer usage to a location and, potentially, to a person. The subscriber information, which contained also the address, allowed the police to identify the home from which the Internet connections in question had been made. This led them to identify the applicant as the then suspected user of the Razorback network.", "114. Having regard to the foregoing and bearing also in mind that the domestic courts did not dismiss the case on the grounds that the applicant had not been the subscriber to the Internet service in question, the Court concludes that this fact cannot be taken as a bar to the application of Article 8 in the present case. It accordingly dismisses the Government ’ s objection concerning the alleged lack of victim status (see paragraph 83 above).", "( γ ) Whether the applicant had a reasonable expectation of privacy", "115. In order to ascertain whether the notion of a “private life” is applicable to the present case, it remains for the Court to examine whether, in view of the publicly accessible nature of the network in question, the applicant had a reasonable expectation that his privacy would be respected and protected ( see paragraph 101 above ). In this connection, the Slovenian Constitutional Court and the respondent Government (see paragraphs 14 and 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above; see also paragraph 92 above) found it important that the applicant had participated in the Razorback network to which access had not been restricted. They considered that he had knowingly exposed his online activity and associated dynamic IP address to the public. Thus, in their opinion, his expectation of privacy had not been legitimate and, moreover, he should have been considered to have waived it ( ibid. ).", "116. The Court, like the Constitutional Court, accepts that the applicant, when exchanging files with pornographic material through the Razorback network, expected, from his subjective angle, that that activity would remain private and that his identity would not be disclosed (see paragraph 14 of the Constitutional Court ’ s decision cited in paragraph 29 above). However, unlike the Constitutional Court, the Court considers that the fact that he did not hide his dynamic IP address, assuming that it is possible to do so, cannot be decisive in the assessment of whether his expectation of privacy was reasonable from an objective standpoint. In this connection, it notes that the question is clearly not whether the applicant could have reasonably expected to keep his dynamic IP address private but whether he could have reasonably expected privacy in relation to his identity.", "117. The Court has previously acknowledged the anonymity aspect of online privacy (see Delfi AS, cited in paragraph 105 above, see also paragraph 12 of the Constitutional Court ’ s decision, cited in paragraph 29 above ), relating to the nature of the online activity, in which the users participate without necessarily being identifiable. This anonymity conception of privacy is an important factor to be taken into account in the present assessment. In particular, it has not been argued that the applicant had ever disclosed his identity in relation to the online activity in question (see in this connection the dissenting opinion of Judge Jadek Pensa, cited in paragraph 33 above ) or that he was for example identifiable by the particular website provider through an account or contact data. His online activity therefore engaged a high degree of anonymity (see Delfi AS, cited in paragraph 105 above, § 148), as confirmed by the fact that the assigned dynamic IP address, even if visible to other users of the network, could not be traced to the specific computer without the ISP ’ s verification of data following a request from the police.", "118. Lastly, the Court notes that the applicable legal and regulatory framework might also be a relevant, though not necessarily decisive, factor in determining the reasonable expectation of privacy ( see, for instance, J.S. v. the United Kingdom (dec.), cited above, § 70, and Peev v. Bulgaria, no. 64209/01, § 39, 26 July 2007 ). In the present case, neither of the parties submitted information regarding the terms of the contract on the basis of which the Internet service had been provided to the applicant ’ s father. As to the statutory framework, the Court finds it sufficient to note that Article 37 of the Constitution guaranteed the privacy of correspondence and of communications and required that any interference with this right be based on a court order (see paragraph 35 above). Therefore, also from the standpoint of the legislation in force at the relevant time, the applicant ’ s expectation of privacy with respect to his online activity could not be said to be unwarranted or unreasonable.", "( δ ) Conclusion", "119. For all of the above reasons, the Court concludes that the applicant ’ s interest in having his identity with respect to his online activity protected falls with the scope of the notion of “private life” and that Article 8 is therefore applicable to this complaint.", "(c) Compliance with Article 8", "(i) Whether there was interference", "120. Having regard to the above conclusion that the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 was engaged in the present case, the Court further finds it established that the police request to the ISP and their use of the subscriber information leading to the applicant ’ s identification amounted to an interference with this right (see, mutatis mutandis, Rotaru, cited above, § 46, and Uzun, cited above, § 52). In view of the foregoing, it does not consider it necessary to determine whether the measure in question amounted also to an interference with the applicant ’ s right to respect for his correspondence.", "121. The Court must therefore examine whether the interference with the applicant ’ s right to privacy was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.", "(ii) Whether the interference was in accordance with the law", "122. The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the contested measure should have some basis in domestic law. Second, the domestic law must be accessible to the person concerned. Third, the person affected must be able to foresee the consequences of the domestic law for him, and fourth, the domestic law must be compatible with the rule of law (see, among many other authorities, Rotaru, cited above, § 52; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Sallinen and Others v. Finland, no. 50882/99, § 76, 27 September 2005 ).", "123. The Court also reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court ’ s case-law (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 81 and 82, ECHR 2006 ‑ V).", "124. In the present case, assuming that the obtaining by the police of the subscriber information associated with the dynamic IP address in question had some basis in domestic law because section 149b(3) of the CPA provided that the police could obtain information on the owner or user of a certain means of electronic communication from the ISP (see paragraph 36 above), the Court must examine whether that law was accessible and foreseeable and compatible with the rule of law.", "125. It notes that the present case raises no issues with respect to the accessibility of the law. As regards the remaining requirements, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct (see Rotaru, cited above, § 55 and the principles summarised therein). In addition, compatibility with the rule of law requires that domestic law provides adequate protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Amann, cited above, §§ 76-77; Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009; see also Weber and Saravia v. Germany (dec.), no. 54934/00, § 94, ECHR 2006 ‑ XI; and Liberty and Others, cited above, § 62). The Court must thus be satisfied also that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007, with reference to Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28, and Uzun, cited above, § 63 ).", "126. Having regard to the particular context of the case, the Court would emphasise that the Cybercrime Convention obliges the States to make measures such as the real-time collection of traffic data and the issuing of production orders available to the authorities in combating, inter alia, crimes related to child pornography (see paragraphs 47 to 51 above). However, such measures are, pursuant to Article 15 of that Convention, “ subject to conditions and safeguards provided for under [State parties ’ ] domestic law” and must “as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure” (see paragraph 52 above).", "127. In the present case, the Court notes that section 149 b (3) of the CPA (see paragraph 36 above), relied on by the domestic authorities, concerned a request for information on the owner or user of a certain means of electronic communication. It did not contain specific rules as to the association between the dynamic IP address and subscriber information. The Court further notes that Article 37 of the Constitution required a court order for any interference with privacy of communication (see paragraph 35 above). Furthermore, the ECA (see paragraph 37 above), which specifically regulated the secrecy and confidentiality of electronic communication, did not at the relevant time provide for the possibility that subscriber information and related traffic data be accessed and transferred for the purposes of criminal proceedings. It provided that electronic communications, including the related traffic data, were confidential and as such should be protected by the ISP (see paragraph 37 above). It further stipulated that the ISP should not transfer the traffic data to others unless this was necessary for the provision of the service, except where the lawful interception of communications had been ordered by the competent authority (see section 103 of the ECA, cited in paragraph 37 above). Therefore, the legislation was, at the very least, not coherent as regards the level of protection afforded to the applicant ’ s privacy interest.", "128. Having said that, the Court would be usurping the function of national courts were it to attempt to make an authoritative statement as to which law should have prevailed in the present case. It must instead turn to the reasoning offered by the domestic courts. It notes in this connection that the Constitutional Court considered that the “ identity of the communicating individual [was] one of the important aspects of communication privacy” and that its disclosure required a court order pursuant to paragraph 2 of Article 37 of the Constitution (see paragraph 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above). More specifically, according to the Constitutional Court ’ s interpretation, which was consistent with its previous case-law finding that the traffic data, as defined under the domestic law, fell within the protection of Article 37 of the Constitution ( ibid. ), the disclosure of subscriber information associated with a certain dynamic IP address in principle required a court order and could not be obtained by means of a simple written request by the police.", "129. The Court observes that, indeed, the only reason for the Constitutional Court dismissing the applicant ’ s complaint – that is, for approving of the disclosure of the subscriber information without a court order – was the presumption that the applicant had “waived the legitimate expectation of privacy” (see paragraph 18 of the Constitutional Court ’ s decision, cited in paragraph 29 above). However, the Court, having regard to its findings in the context of the applicability of Article 8, does not find the Constitutional Court ’ s position on that question to be reconcilable with the scope of the right to privacy under the Convention (see paragraphs 115 to 118 above). Bearing in mind the Constitutional Court ’ s finding that the “identity of the communicating individual” fell within the scope of the protection of Article 37 of the Constitution (see paragraph 128 above) and the Court ’ s conclusion that the applicant had a reasonable expectation that his identity with respect to his online activity would remain private ( see paragraphs 115 to 118 above), a court order was necessary in the present case. Moreover, nothing in the domestic law prevented the police from obtaining it given that they, a few months after obtaining the subscriber information, during which time apparently no investigative steps had been taken in the case, requested and obtained a court order for what would seem to be, at least in part, the same information as that which had already been in their possession (see paragraph 8 above). The domestic authorities ’ reliance on section 149b(3) of the CPA was therefore manifestly inappropriate and, what is more, it offered virtually no protection from arbitrary interference.", "130. In this connection, the Court notes that at the relevant time there appears to have been no regulation specifying the conditions for the retention of data obtained under section 149b(3) of the CPA and no safeguards against abuse by State officials in the procedure for access to and transfer of such data. As regards the latter, the police, having at their disposal information on a particular online activity, could have identified an author by merely asking the ISP provider to look up that information. Furthermore no independent supervision of the use of these police powers has been shown to have existed at the relevant time, despite the fact that those powers, as interpreted by the domestic courts, compelled the ISP to retrieve the stored connection data and enabled the police to associate a great deal of information concerning online activity with a particular individual without his or her consent (see paragraphs 108 and 109 above).", "131. The Court further notes that soon after the contested measure had been taken against the applicant, the Parliament adopted amendments to the ECA (see paragraph 38 above, as well as the relevant provisions in the subsequent new law cited in paragraph 39 ). Those amendments provided, among other things, rules on the retention of data concerning the origin of communications, that is, inter alia, the name and address of the subscriber to whom a certain IP address had been assigned, and the procedure for accessing and transferring them. This, however, had no effect on the applicant ’ s situation.", "132. Bearing in mind the above, the Court is of the view that the law on which the contested measure, that is the obtaining by the police of subscriber information associated with the dynamic IP address in question (see paragraph 7 above), was based and the way it was applied by the domestic courts lacked clarity and did not offer sufficient safeguards against arbitrary interference with Article 8 rights.", "133. In these circumstances, the Court finds that the interference with the applicant ’ s right to respect for his private life was not “in accordance with the law” as required by Article 8 § 2 of the Convention. Consequently, the Court need not examine whether the contested measure had a legitimate aim and was proportionate.", "134. Having considered all of the above, the Court concludes that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "135. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "136. The applicant claimed 32,000 euros (EUR) in respect of non-pecuniary damage, which included EUR 7,000 for the distress he had suffered because of the trial against him, EUR 15,000 because he had been unjustifiably imprisoned and EUR 10,000 for the stigmatisation he had suffered in the society as a result of his conviction.", "137. The Government argued that the applicant ’ s claim for non-pecuniary damage was unsubstantiated and excessive. They further argued that there was no connection between the violation of Article 8 alleged in the present case and the alleged non-pecuniary damage in relation to the applicant ’ s criminal conviction and prison sentence. In particular, even if the information in question had been excluded from the file, the applicant could not have avoided the criminal proceedings against him. Moreover, the Government maintained that as the applicant had admitted that he could request the reopening of the proceedings in the event of the finding of a violation, a declaratory finding by the Court should suffice.", "138. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.", "B. Costs and expenses", "139. The applicant also claimed EUR 4,335.50 for the costs and expenses incurred before the domestic courts and EUR 2,600 for those incurred before the Court plus value-added tax ( VAT ). He argued that those sums had been calculated on the basis of the official tariff for lawyers.", "140. The Government argued that the costs the applicant had claimed with respect to his representation in the domestic proceedings included VAT. They also included the costs of a legal opinion, namely EUR 2,000, which had clearly not been produced for the purposes of the domestic proceedings. As regards the claim for the cost of the proceedings before the Court, the Government argued that it was excessive. Moreover, except for the bill for the aforementioned legal opinion, the applicant had not submitted any evidence that he had incurred costs on account of his legal representation.", "141. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 922 for costs and expenses in the domestic proceedings and EUR 2,600 for the proceedings before the Court. In total, he should thus be awarded EUR 3,522 for costs and expenses.", "C. Default interest", "142. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1956 and lived in Yerevan prior to her detention. At the time when the applicant lodged her application with the Court she was serving her sentence in Abovyan correctional facility.", "6. The applicant worked as the deputy chief of the women ’ s unit of Abovyan correctional facility.", "7. On 2 February 2010 one of the prisoners in the same unit, A.S., reported to the Head of the Department Against Organised Crime of the Armenian Police (“the Department Against Organised Crime”) that the applicant had demanded a bribe in return for transfer to an open-type prison.", "8. On the same date the Head of the Department Against Organised Crime applied to the Kentron and Nork-Marash District Court of Yerevan (“the District Court”), seeking authorisation to carry out operative and intelligence measures. The application stated the following:", "“On [2 February 2010] ... [A.S.] applied to the [Department Against Organised Crime] stating that ... [the applicant] had requested a bribe from her ...", "Thus, [A.S. ’ s] actions contain the elements of a crime prescribed by Article 311.", "In order to establish fully the circumstances of the crime in question and identify those involved it is necessary to carry out operative and intelligence measures, in particular, video and audio recordings.", "In view of the foregoing and with reference to the Operative and Intelligence Measures Act of [the Republic of Armenia] and Article 284 of the [Code of Criminal Procedure] I decide to lodge an application with the [District Court] seeking authorisation to carry out video and audio recordings for a period of one month.”", "9. On 3 February 2010 the District Court granted the application. The relevant decision stated the following:", "“On [2 February 2010] ... [A.S.] applied to the [Department Against Organised Crime] stating that ... [the applicant] had requested a bribe from her ...", "Thus, [A.S. ’ s] actions contain the elements of a crime prescribed by Article 311.", "In view of the fact that in order to establish fully the circumstances of the crime in question and identify those involved it has become necessary to carry out operative and intelligence measures, the Head of the [Department Against Organised Crime] has submitted an application to carry out operative and intelligence measures, i.e. video and audio recordings.", "Having studied the collected materials and the application submitted, the court finds that the application is substantiated and must be granted.", "In view of the foregoing and with reference to Articles 14, 41, 278, 281, 284, 286 of the [Code of Criminal Procedure] and the Operative and Intelligence Measures Act of [the Republic of Armenia] the court decides:", "To grant the application.", "To authorise the conduct of video and audio recordings for a period of one month for the purpose of disclosure of the above-mentioned crime.", "To assign the execution of the decision to the [Department Against Organised Crime].", "The decision is subject to appeal to the Criminal Court of Appeal within fifteen days.”", "10. On the same date the police launched a covert operation targeting the applicant. A.S. contacted the applicant by telephone to set up a meeting during which the applicant, inter alia, asked A.S. whether she would be able finally to pay the money. This conversation was intercepted by the police. For their meeting, which took place later the same day, the police equipped A.S. with a tape recorder and instructed her to record her conversation with the applicant. A.S. and the applicant met near the applicant ’ s home and discussed matters related to the amounts to be paid.", "11. On 4 February 2010 police officers gave A.S. banknotes treated with a special chemical, to be handed over to the applicant.", "On the same day the applicant received the money from A.S. and the conversation during their meeting was again recorded on a tape recorder. The moment after the applicant received the money the police approached and arrested her, while capturing this incident on video camera.", "12. On 7 February 2010 the applicant was arrested and charged under Article 311 of the Criminal Code with bribe-taking involving a particularly large amount of money. The applicant did not admit her guilt and submitted that A.S. had owed her a certain amount of money, which she was actually returning.", "13. On 8 February 2010 the recordings made as a result of the covert operation were submitted to the investigating authority. They were later examined by a forensic video/audio expert and an expert report was produced.", "14. On 11 May 2010 the investigator brought new charges against the applicant under Articles 178 § 3 (1), 3 11 §§ 3 (3 and 4) and 4 (2) and 34 ‑ 313 § 2 (2) of the Criminal Code for fraud, bribe-taking and attempt to act as an intermediary in bribe-taking.", "15. On 12 May 2010 the investigation was completed. On the same day the applicant and her lawyer were given access to the case file. On this day she became aware of the court warrant of 3 February 2010 and the secret surveillance conducted on the basis of that warrant.", "16. On 25 May 2010 the bill of indictment was finalised and the case was sent to court.", "17. In the proceedings before the District Court the applicant filed an application seeking to exclude from evidence the audio recordings made as a result of the covert operation and the relevant expert report. She argued that the warrant of 3 February 2010 was vague since it did not name her as the person to be subjected to secret surveillance. She alleged that the court warrant could have served as a basis for surveillance of any person. Thus, she had been subjected to secret surveillance without a court warrant, in violation of the requirements of Article 23 of the Constitution, including the right to respect for private life and to secrecy of communications, and Article 286 of the Code of Criminal Procedure. She further relied on Article 22 of the Constitution and Article 105 of the Code of Criminal Procedure as regards the admissibility of evidence.", "18. According to the applicant ’ s submission, the District Court decided to adjourn the examination of this application and deal with it in the judgment.", "19. By its judgment of 9 November 2010 the District Court found the applicant guilty as charged and handed down a nine-year sentence. In substantiating the applicant ’ s guilt, the District Court relied, inter alia, on the recordings made on the basis of the court warrant of 3 February 2010 and the conversations between the applicant and A.S. during their meetings of 3 and 4 February 2010, as well as the expert report of the forensic video/audio expert. The following evidence was further cited: the statement of A.S. who had been recognised as a victim in the proceedings, witness statements, the relevant banknotes, the expert report of the forensic chemical expert, A.S. ’ s personal file, the information received from mobile network operators concerning telephone calls made by the applicant to A.S. ’ s number, the application of 2 February 2010 and the court warrant of 3 February 2010. The District Court stated, inter alia, that the applicant ’ s allegations of procedural violations had not been confirmed.", "20. The applicant lodged an appeal in which she raised similar arguments in respect of the warrant of 3 February 2010 and claimed that the results of the surveillance should not have been relied on by the District Court.", "21. On 1 March 2011 the Criminal Court of Appeal rejected the applicant ’ s appeal finding, in particular, the following:", "“As regards the arguments raised in the appeal, that [the applicant] was video and audio-taped and that her telephone conversations were intercepted by the police in violation of her rights and freedoms guaranteed by the Constitution and the Code of Criminal Procedure, namely in the absence of a relevant court warrant authorising the video and audio recordings, it must be noted that the materials of the case include a judicial act granting such authorisation. Thus, the video and audio recordings in question were made in accordance with a procedure prescribed by law and in this case the relevant restrictions were justified. Consequently, the arguments of the defence are unsubstantiated and not based on the objective information available in the case and cannot have any legal consequences if granted.", "Furthermore, the arguments raised do not have any impact on the credibility of the information contained in the above-mentioned recordings and on reaching an accurate decision in this case.”", "22. The applicant lodged an appeal on points of law which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 28 April 2011.", "RELEVANT DOMESTIC LAWThe Constitution (as in force at the material time)", "The Constitution (as in force at the material time)", "The Constitution (as in force at the material time)", "23. Article 22 prohibits the use of unlawfully obtained evidence.", "Article 23 provides that everyone has the right to respect for his private and family life. Everyone has the right to secrecy of his correspondence, telephone conversations and postal, telegraphic and other means of communication, which can be restricted only in cases and in accordance with a procedure prescribed by law and upon a court warrant.", "The Code of Criminal Procedure", "24. Article 278 § 1 prescribes that applications seeking the implementation of investigative, operative and intelligence and procedural measures limiting a person ’ s constitutional rights are examined by the court.", "25. Article 281 prescribes that operative and intelligence measures which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out upon a court decision. The types of operative and intelligence measures carried out upon a court order are set out in the Operative and Intelligence Measures Act.", "26. Article 284 prescribes that operative and intelligence measures which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has consented beforehand to his conversations being intercepted or monitored. It further prescribes the procedure for the judicial examination of applications for authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and intelligence measures. The application must indicate the grounds justifying such measures, the information sought to be obtained through such measures, the place and time-limit for such measures, as well as all other relevant elements. The materials substantiating the need to carry out such measures must be attached to the application. The court must indicate the reasons for granting or refusing the application.", "27. Article 286 prescribes that a court warrant must include: the date and the place of drafting the decision, the judge ’ s last name, the official who has submitted the application, an indication of the investigative activity or the operative and intelligence measure or the measure of restraint to be applied, specifying the activity or the measure and the persons in whose respect it is applied, the time-limit during which the measure is effective, the official or authority competent to carry out the warrant and the judge ’ s signature certified by a seal.", "28. Article 289 prescribes that appeals against judicial warrants authorising the implementation of investigative and operative and intelligence measures and the application of measures of judicial restraint and their review are carried out in accordance with the rules contained in Articles 287 and 288 (which prescribe the procedure for lodging appeals against detention orders).", "29. Article 376.1 (8) states that judicial acts other than those stated in the same provision are subject to appeal in cases prescribed by the Code of Criminal Procedure.", "30. Article 379 sets out the time-limits for lodging appeals against judgments and decisions of first instance courts.", "According to Article 379 § 1 (3), appeals against all other procedural decisions ( գործն ըստ էության չլուծող մյուս ակտեր ) of a first instance court can be lodged within ten days from the date they are pronounced.", "Article 379 § 2 provides that appeals lodged out of time are not examined in which regard the court adopts a decision.", "The Operative and Intelligence Measures Act", "31. Section 14 (1) prescribes the following types of operative and intelligence measures:", "1) operative enquiry;", "2) acquisition of operative information;", "3) collection of samples for comparative examination;", "4) control purchase;", "5) controlled supply and purchase;", "6) examination of items and documents;", "7) external surveillance;", "8) internal surveillance;", "9) identification of a person;", "10) examination of buildings, structures, locality, premises and means of transport;", "11) interception of correspondence, postal, telegraphic and other communications;", "12) interception of telephone conversations;", "13) operative infiltration;", "14) operative experiment;", "15) ensuring access to financial data and secret surveillance of financial transactions;", "16) simulation of taking and giving a bribe.", "Operative and intelligence measures are prescribed only by law.", "32. Section 21 prescribes that external surveillance is the tracing of persons or monitoring the course of various events and developments in open air or public places, without infringing the inviolability of residence, and with or without the use of special and other technical means, as well as the recording of surveillance results with or without the use of video recording, photographic, electronic and other data-carrying devices.", "33. Section 26 prescribes that interception of telephone conversations is the secret surveillance of conversations, including internet telephone conversations and electronic communication carried out with the use of special and other technical means.", "Relevant case-law of the Court of Cassation", "34. In its decision no. S-903/05 of 28 March 2014 the Court of Cassation examined a complaint about the refusal of the Criminal Court of Appeal to admit an appeal lodged by a person in respect of whom criminal proceedings had been terminated, against a judicial warrant authorising search and seizure which had been issued years before the relevant proceedings were terminated and of which that person had become aware when granted access to the case file. The relevant parts of the decision read as follows:", "“ ... the purpose of the review of the disputed judicial act is to ensure uniform application of the law ... In this respect the Court of Cassation considers that there exists an issue of ensuring uniform application of the law in relation to providing a person with an effective remedy for judicial protection in the context of [application of] time-limits for lodging appeals against procedural judicial acts. Therefore, [the Court of Cassation] finds it necessary to state its legal position ... which could serve as guidance for the establishment of correct judicial practice in similar cases.", "... a person ’ s right to appeal against a procedural judicial act rendered within the framework of pre-trial judicial supervision of the proceedings arises from the moment when the given judicial act actually becomes available to him... [That is] ... the person has actually received the procedural judicial act ... or has been actually acquainted with it.", "...", "The moment when procedural judicial acts ... “actually become available” may vary. In particular, a person may be informed of a procedural decision ... during the performance of the given investigative measure (for instance, a search), upon completion of the investigation (for instance, in cases of surveillance of correspondence, telephone conversations, postal, telegraphic and other communications and in other cases), when sending the case to the court and so on. That is, the calculation of the time-limit for lodging an appeal against the above ‑ mentioned judicial act should start from:", "a) the moment when the person actually received or became acquainted with the [judicial] act in question (for instance, as regards cases of surveillance of correspondence, telephone conversations, postal, telegraphic and other communications...);", "b) the moment of starting the given investigative measure authorised by the judicial warrant, for example a search, if during the search the person is officially notified of the grounds for investigative measures being carried out ...", "... in each case the court should find out at which moment a person ’ s right to become acquainted with the disputed decision had arisen and whether the latter had become acquainted with the relevant judicial act in a reasonable time...”" ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "35. The applicant complained that her secret surveillance had been in violation of the guarantees of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe parties ’ submissions", "The parties ’ submissions", "The parties ’ submissions", "36. The Government submitted that the applicant had failed to exhaust the domestic remedies and to lodge her complaints within six months from the date of the final decision as required by Article 35 § 1 of the Convention.", "37. The Government submitted that the applicant had become acquainted with the judicial warrant of 3 February 2010 when granted access to the case file on 12 May 2010 but failed to lodge an appeal against it within fifteen days from that date, in breach of the procedure envisaged in Articles 376.1 and 379 of the Code of Criminal Procedure. Had the applicant considered that procedure not to constitute an effective remedy for her complaints under Article 8 of the Convention, the six-month time-limit should be considered to have started to run from 12 May 2010, the date when she familiarised herself with the warrant. In any event, contesting the admissibility of the recordings as evidence in the proceedings before the trial court could not be regarded as an effective remedy in respect of a complaint under Article 8. The Government relied on the Court ’ s findings in the case of Kirakosyan (no. 2) where it was concluded that contesting the validity of the grounds of a search warrant before the court examining the merits of the criminal case was not an effective remedy for the purposes of Article 8 (see Kirakosyan v. Armenia (no. 2), no. 24723/05, § 49, 4 February 2016).", "38. The applicant maintained that throughout the criminal proceedings at the domestic level she had argued that her secret surveillance had been unlawful once she became aware of the judicial warrant of 3 February 2010 and of the covert operation carried out on the basis of that warrant. Had she lodged an appeal against the warrant of 3 February 2010 more than three months after its adoption, her appeal would have been considered to be lodged out of time. In any event, issues in relation to evidence collected as a result of her secret surveillance could not be the subject of examination in separate proceedings in the circumstances where that evidence formed part of the body of evidence submitted to the court determining the criminal charge against her. The Code of Criminal Procedure did not provide for a procedure whereby it would be possible to challenge evidence, subject to examination by the trial court, in separate proceedings.", "The Court ’ s assessment", "39. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70 and 71, 25 March 2014).", "40. The only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001 ‑ XI (extracts)).", "41. If no remedies are available or if they are judged to be ineffective, the six-month time-limit contained in Article 35 § 1 of the Convention in principle runs from the date of the act complained of (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III). Thus, the time ‑ limit only starts to run from the final decision resulting from the exhaustion of remedies which are adequate and effective to provide redress in respect of the matter complained of.", "In this sense the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such a correlation (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004 ‑ II (extracts).", "42. Turning to the circumstances of the present case the Court notes at the outset that the applicant raised the issue of covert surveillance in the proceedings before the trial court and later in her appeals against her conviction.", "43. The Court agrees with the Government that the courts determining the criminal charge against the applicant were not capable of providing an effective remedy in so far as her complaints under Article 8 of the Convention were concerned. Although those courts were empowered to examine questions relating to the admissibility of evidence, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant ’ s right to respect for her private life and correspondence was not “in accordance with the law” or not “necessary in a democratic society”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001 ‑ IX; Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 59, 8 March 2011; İrfan Güzel v. Turkey, no. 35285/08, §§ 106 and 107, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 72-74, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 40-44, 31 March 2016, and Radzhab Magomedov v. Russia, no. 20933/08, §§ 77-79, 20 December 2016).", "44. The Court therefore concludes that raising the issue of covert surveillance before the courts examining the merits of the criminal case against the applicant, in view of the state of the domestic law and practice, cannot be regarded as an effective remedy in respect of her complaints under Article 8.", "45. Having reached this conclusion, the Court should next examine whether the applicant had at her disposal an effective remedy which she was required to exhaust before applying to the Court. The Government argued that it was open to the applicant to lodge an appeal against the judicial warrant authorising her secret surveillance when she found out about it.", "46. The Court notes that the Government failed to specify the scope of the potential review of the warrant of 3 February 2010 by the Court of Appeal, had the applicant lodged an appeal against it. In the absence of any specific domestic provisions it is not at all clear whether the Court of Appeal was empowered to examine whether the contested interference answered a pressing social need and was proportionate to the aims pursued ( Peck v. the United Kingdom, no. 44647/98, §§105-107, ECHR 2003 ‑ I; and Keegan v. the United Kingdom, no. 28867/03, §§ 40-43, ECHR 2006 ‑ X).", "47. The Court further notes that the judicial warrant in question stated that it was subject to appeal within fifteen days whereas Article 379 of the Code of Criminal Procedure sets out a time-limit of ten days to lodge appeals against procedural decisions (see paragraphs 9 and 30 above). In any event, it is obvious that the person concerned would not be able to lodge a timely appeal in a situation where the latter became aware of the warrant and the secret surveillance conducted on its basis after that period. Relying on the decision of the Court of Cassation of 28 March 2014 (see paragraph 34 above), the Government submitted that the applicant could have lodged an appeal against the warrant of 3 February 2010 within fifteen days from the moment when she became acquainted with it, that is 12 May 2010, which she failed to do. It should be noted, however, that the relevant decision of the Court of Cassation concerned a specific situation where a person had attempted to appeal against a judicial warrant authorising an operative and intelligence measure in a case where the prosecution had not pursued the charges against him in court. Therefore the given example of domestic case ‑ law cannot be regarded as supporting the Government ’ s claim that the applicant had an effective possibility of lodging an appeal against the warrant, having found out about it at the end of the investigation in the circumstances where the criminal case against her was about to be sent to the trial court for examination on the merits. The Government has not submitted any example of domestic case-law where the Court of Appeal accepted for examination an appeal against a procedural decision concerning a piece of evidence forming part of an indictment in a case which had been transmitted or was about to be transmitted to the trial court determining the criminal charge against a person. Furthermore, the relevant provisions of the Code of Criminal Procedure set out the regular procedure for lodging appeals against procedural decisions within ten days of their pronouncement (see paragraph 30 above) while in its decision of 28 March 2014 the Court of Cassation clarified the principles with regard to calculation of the time-limits for such appeals (see paragraph 34 above). However, the Court of Cassation was not called to examine the powers and competence of the Court of Appeal when examining appeals against procedural decisions rendered in the course of criminal proceedings where an indictment had been finalised, with the result that the case file had been transmitted to the trial court whereas the Government, as noted above, has not produced any example of domestic case-law where the Court of Appeal agreed to adjudicate an appeal against a judicial warrant relating to evidence forming part of the body of incriminating evidence submitted to a court determining a criminal charge.", "48. It is not disputed between the parties that the applicant and her lawyer found out about the secret surveillance measures and the relevant judicial warrant authorising them on 12 May 2010. The indictment was finalised and the case transmitted to the trial court on 25 May 2010 (see paragraphs 15 and 16 above), that is less than two weeks later. In the absence of a clear procedure and, as already noted, of a consistent domestic practice concerning remedies in respect of procedural judicial acts, a fact acknowledged by the Court of Cassation in its decision of 28 March 2014 (see paragraph 34 above), the Court is not convinced that lodging an appeal against the judicial warrant of 3 February 2010 in a separate procedure at the close of the investigation was an available and sufficient remedy to afford the applicant redress in respect of the alleged breach of Article 8 of the Convention.", "49. In view of the above considerations, the Court finds that lodging an appeal against the District Court ’ s warrant of 3 February 2010 was not an effective remedy to be exhausted. It therefore dismisses the Government ’ s objection as to the non-exhaustion of domestic remedies.", "50. The Court observes that the applicant introduced her application with the Court within six months of the final judgment in the criminal proceedings against her. In view of the Court ’ s above-mentioned finding that raising the Convention complaints in relation to the secret surveillance before the court determining the criminal charge against the applicant did not constitute an effective remedy within the meaning of Article 35 § 1 of the Convention, the Court must now determine whether the applicant could be considered to have complied with the six-month rule.", "51. Referring to the Court ’ s judgment in the case of Kirakosyan (no. 2), the Government argued that the applicant ’ s complaints under Article 8 should be considered to have been lodged out of time (see Kirakosyan (no. 2), cited above, § 49) since she had failed to introduce them within a period of six months from the moment when she found out about the surveillance measures and became acquainted with the relevant judicial warrant which had served as their basis. The Court observes, however, that the Kirakosyan (no. 2) case concerned a search carried out in the applicant ’ s presence (see Kirakosyan (no. 2), cited above, §§ 14 and 15) hence a measure of which the applicant had been aware during the investigation as opposed to the situation in the present case where the applicant learnt about the secret surveillance measures after the completion of the investigation with the criminal case against her being sent to the trial court for examination. Notably, in its decision of 28 March 2014 the Court of Cassation also acknowledged the need to adopt a different approach, in so far as the procedure for lodging appeals against procedural decisions was concerned, depending on the type of the operative and intelligence measure. It stated that, for example, in the case of a search the relevant time-limit could start from the moment when it was carried out, as opposed to secret surveillance in which case the moment when the person became aware of the measure was the date to be taken into account (see paragraph 34 above).", "52. The Court notes that the applicant learned about the covert surveillance at the final stage of the investigation when she was granted access to the case file and that shortly thereafter her indictment, where the prosecution had used the intercepted material as evidence to substantiate the case against her, was finalised with the case being sent to the trial court for examination on the merits. Against this background, and in view of the Court ’ s above finding that lodging an appeal in a separate procedure at that stage of the proceedings did not constitute an effective remedy either, in view of the uncertainty as to the effectiveness of this remedy, the Court considers that it was not unreasonable for the applicant to try to bring her grievances to the attention of the trial court. This finding is further reinforced by the fact that the domestic courts did in fact examine the applicant ’ s complaints, which primarily concerned the alleged unlawfulness of surveillance measures (see paragraphs 19 and 21 above) and therefore addressed, in substance, her Convention complaints. In these circumstances, the Court considers that the applicant cannot be reproached for her attempt to bring her grievances to the attention of the domestic courts through the remedies which she mistakenly considered effective (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 107, 7 November 2017).", "53. Against this background, the Court finds that it was not unreasonable for the applicant to raise her Convention complaints before the courts determining the criminal charge against her in order to give the domestic courts an opportunity to put matters right through the national legal system, thereby respecting the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 141, ECHR 2012).", "54. Accordingly, the Court also rejects the Government ’ s objection as to the failure to comply with the six-month rule.", "55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties ’ submissions", "The parties ’ submissions", "The parties ’ submissions", "56. The applicant contended that her secret surveillance had been unlawful as it had been based on a court warrant issued contrary to the relevant domestic law. That warrant, contrary to the requirements of Article 286 of the Code of Criminal Procedure, had contained no indication of the person in whose respect the secret surveillance measures authorised by it were to be applied. The material in the case file did not include any court warrant authorising her video and audio surveillance. Neither did it include any court order authorising the interception of her telephone conversations.", "57. The Government accepted that there had been an interference with the applicant ’ s rights under Article 8 of the Convention. However, they considered that such interference had been justified. The Government submitted that the court warrant authorising the applicant ’ s secret surveillance had been issued in compliance with the requirements of Articles 278, 281 and 284 of the Code of Criminal Procedure and the Operative and Intelligence Measures Act. They argued that it was apparent from the text of the court warrant of 3 February 2010 that the authorised operative and intelligence measures, namely audio and video recordings, were to be carried out in respect of the applicant. Moreover, such interference had pursued the legitimate aim of investigating and prosecuting crime and had been proportionate to such aim.", "The Court ’ s assessment", "(a) Whether there was an interference", "58. It is common ground between the parties that the recording of the applicant ’ s personal and telephone conversations with A.S. constituted an interference with her rights under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Khan cited above, §§ 9, 10 and 25; Vetter v. France, no. 59842/00, §§ 10 and 20, 31 May 2005, Dragojević, cited above, § 78).", "(b) Whether the interference was justified", "(i) General principles", "59. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see, among other authorities, Kennedy v. the United Kingdom, no. 26839/05, § 130, 18 May 2010).", "60. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-230, ECHR 2015 with further references).", "61. As to the question of whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court reiterates that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In practice, this means that there must be adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Kennedy, cited above, § 153).", "62. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, § 154).", "(ii) Application of these principles to the present case", "63. The applicant in the present case did not complain in general about the existence of legislation allowing measures of covert surveillance. The basis of her complaint was a specific instance of such surveillance which took place in connection with criminal proceedings against her. In those circumstances, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Kennedy, cited above, § 119; and Goranova ‑ Karaeneva, cited above, § 48).", "64. The Court observes that the applicant ’ s complaints are primarily focused not on the lack of a legal basis for the interference in the domestic law but on the failure of the District Court to comply with the relevant requirements of the law when authorising secret surveillance measures in her respect.", "65. The applicant submitted that the court warrant of 3 February 2010 did not comply with the requirements of Article 286 of the Code of Criminal Procedure. The Government did not engage with this submission. In particular, the operative part of the warrant did not state the applicant ’ s name as the person in whose respect audio and video recording was permitted to be carried out by the police (see paragraph 9 above). The Government submitted that it was clear from the reasoning of the warrant that the secret surveillance was authorised in respect of the applicant. The Court observes, however, that the reasoning part of the court warrant of 3 February 2010 is a literal reproduction of the relevant application lodged by the Head of the Department Against Organised Crime where the latter had stated that A.S. ’ s actions had contained the elements of a crime prescribed by Article 311, that is of bribe-taking (see paragraphs 8 and 9 above). To follow the Government ’ s approach would entail speculation as to whether the relevant application and the court warrant issued on its basis mistakenly stated A.S. ’ s name instead of that of the applicant and that the secret surveillance measures had eventually been authorised in respect of the applicant and not any other person. In any event, the Court is of the opinion that secret surveillance being a serious interference with a person ’ s right to respect for private life, a judicial authorisation serving as its basis cannot be drafted in such vague terms as to leave room for speculation and assumptions with regard to its content and, most importantly, to the person in whose respect the given measure is being applied.", "66. Furthermore, Article 286 of the Criminal Code requires that a court warrant contain, inter alia, an indication of the investigative activity or the operative and intelligence measure to be applied, specifying the activity or the measure (see paragraph 27 above). The Court observes that Section 14 (1) of the Operative and Intelligence Measures Act contains an exhaustive list of types of operative and intelligence measures and that list does not contain a measure called “audio and video recordings” (see paragraph 31 above) referred to in the court warrant of 3 February 2010. In the present case the police recorded the applicant ’ s conversations with A.S. during their meetings of 3 and 4 February as well as their telephone conversation on the former date (see paragraphs 10 and 11 above). It appears therefore that the police carried out two distinct types of operative and intelligence measures, that is external surveillance and interception of telephone communications (see paragraphs 32 and 33 above), whereas the court warrant of 3 February 2010 did not specify those measures.", "Having regard to the aforementioned, the Court finds that overall the authorisation of the applicant ’ s secret surveillance has not been subject to proper judicial supervision.", "67. The foregoing considerations are sufficient for the Court to conclude that the applicant ’ s secret surveillance was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 of the Convention in this case (see Petrova v. Latvia, no. 4605/05, § 98, 24 June 2014).", "68. There has accordingly been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "69. The applicant complained of the use of evidence obtained by secret surveillance in the criminal proceedings against her. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Admissibility", "70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties ’ submissions", "The parties ’ submissions", "The parties ’ submissions", "71. The applicant contended that she had not had a fair trial because the courts had admitted in evidence the recordings unlawfully obtained as a result of her unlawful secret surveillance and had based their decisions on that evidence. This had been contrary to the relevant rules on admissibility of evidence under the Code of Criminal Procedure, which had rendered her trial unfair.", "72. The Government submitted that during the proceedings the applicant had had an effective possibility to oppose the use of the recordings as evidence. The recordings in question were not the only evidence on which her conviction had been based while the domestic courts ’ evaluation of the impugned evidence was not arbitrary.", "The Court ’ s assessment", "(a) General principles", "73. The Court reiterates that, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV; Jalloh v. Germany [GC ], no. 54810/00, §§ 94-96, ECHR 2006 ‑ IX; and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017).", "74. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Bykov v. Russia [GC], no. 4378/02, § 89, 10 March 2009; Lee Davies v. Belgium, no. 18704/05, § 41, 28 July 2009; and Prade v. Germany, no. 7215/10, § 33, 3 March 2016).", "75. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be established, in particular, whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Szilagyi v. Romania (dec.), no. 30164/04, 17 December 2013). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see, among other authorities, Bykov, cited above, § 90 and Lisica v. Croatia, no. 20100/06, § 49, 25 February 2010). While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Lee Davies, cited above, § 42; Bykov, cited above, § 90; and Bašić v. Croatia, no. 22251/13, § 48, 25 October 2016).", "76. Furthermore, when determining whether the proceedings as a whole have been fair, the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and be weighed against the individual interest that the evidence against him be gathered lawfully (see Jalloh, cited above, § 97, and Prade, cited above, § 35).", "77. As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that in several cases it has found the use of covert listening devices to be in breach of Article 8 since such interference was not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of a particular case conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Khan, cited above, §§ 25-28; Bykov, cited above, §§ 94-105, and P.G. and J.H., cited above, §§ 37-38).", "(b) Application of these principles to the present case", "78. The Court notes that the applicant had an effective opportunity to challenge the authenticity of the evidence and oppose its use. She did so during the proceedings before the District Court and in her appeals ( see paragraphs 17 and 20 above). Admittedly, the District Court addressed the applicant ’ s arguments very vaguely, merely stating that the applicant ’ s allegations of procedural violations had not been confirmed (see paragraph 19 above). However, in its judgment the Court of Appeal did examine the applicant ’ s arguments on the merits and provided reasons for its decision to uphold the District Court ’ s findings in respect of the impugned evidence (see paragraph 21 above). Hence, the fact that the applicant ’ s attempts to exclude the impugned recordings from evidence were unsuccessful is immaterial to the conclusion that the applicant had the opportunity – which she took – of challenging its authenticity and opposing its use (see Dragojević, cited above, § 132).", "79. The Court further notes that the impugned evidence was not the only evidence on which the applicant ’ s conviction was based (compare Schenk, cited above, § 48; and Khan, cited above, § 37). The District Court, when convicting the applicant, relied on A.S. ’ s statement, witness statements, material evidence, forensic evidence as well as operative data (see paragraph 19 above).", "80. In these circumstances, the Court finds that the use at the applicant ’ s trial of the secretly-taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.", "81. There has accordingly been no violation of Article 6 § 1 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "82. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "83. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage.", "84. The Government considered the applicant ’ s claim to be excessive.", "85. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, and in view of the specific circumstances of the case, the Court awards the applicant EUR 1,200 in respect of non-pecuniary damage.", "Costs and expenses", "86. The applicant made no claim for costs and expenses.", "Default interest", "87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1979 and lives in Bucharest.", "11. From 1 August 2004 to 6 August 2007 he was employed in the Bucharest office of S., a Romanian private company (“the employer”), as a sales engineer. At his employer’s request, for the purpose of responding to customers’ enquiries, he created an instant messaging account using Yahoo Messenger, an online chat service offering real-time text transmission over the internet. He already had another personal Yahoo Messenger account.", "12. The employer’s internal regulations prohibited the use of company resources by employees in the following terms:", "Article 50", "“Any disturbance of order and discipline on company premises shall be strictly forbidden, in particular:", "...", "– ... personal use of computers, photocopiers, telephones or telex or fax machines.”", "13. The regulations did not contain any reference to the possibility for the employer to monitor employees’ communications.", "14. It appears from documents submitted by the Government that the applicant had been informed of the employer’s internal regulations and had signed a copy of them on 20 December 2006 after acquainting himself with their contents.", "15. On 3 July 2007 the Bucharest office received and circulated among all its employees an information notice that had been drawn up and sent by the Cluj head office on 26 June 2007. The employer asked employees to acquaint themselves with the notice and to sign a copy of it. The relevant parts of the notice read as follows:", "“1. ... Time spent in the company must be quality time for everyone! Come to work to deal with company and professional matters, and not your own personal problems! Don’t spend your time using the internet, the phone or the fax machine for matters unconnected to work or your duties. This is what [elementary education], common sense and the law dictate! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault!", "Your misconduct will be carefully monitored and punished!", "2. Because of repeated [disciplinary] offences vis-à-vis her superior, [as well as] her private use of the internet, the telephone and the photocopier, her negligence and her failure to perform her duties, Ms B.A. was dismissed on disciplinary grounds! Take a lesson from her bad example! Don’t make the same mistakes!", "3. Have a careful read of the collective labour agreement, the company’s internal regulations, your job description and the employment contract you have signed! These are the basis of our collaboration! Between employer and employee! ...”", "16. It also appears from the documents submitted by the Government, including the employer’s attendance register, that the applicant acquainted himself with the notice and signed it between 3 and 13 July 2007.", "17. In addition, it transpires that from 5 to 13 July 2007 the employer recorded the applicant’s Yahoo Messenger communications in real time.", "18. On 13 July 2007 at 4.30 p.m. the applicant was summoned by his employer to give an explanation. In the relevant notice he was informed that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes, in breach of the internal regulations. Charts were attached indicating that his internet activity was greater than that of his colleagues. At that stage, he was not informed whether the monitoring of his communications had also concerned their content. The notice was worded as follows:", "“Please explain why you are using company resources (internet connection, Messenger) for personal purposes during working hours, as shown by the attached charts.”", "19. On the same day, the applicant informed the employer in writing that he had used Yahoo Messenger for work-related purposes only.", "20. At 5.20 p.m. the employer again summoned him to give an explanation in a notice worded as follows:", "“Please explain why the entire correspondence you exchanged between 5 to 12 July 2007 using the S. Bucharest [internet] site ID had a private purpose, as shown by the attached forty-five pages.”", "21. The forty-five pages mentioned in the notice consisted of a transcript of the messages which the applicant had exchanged with his brother and his fiancée during the period when he had been monitored; the messages related to personal matters and some were of an intimate nature. The transcript also included five messages that the applicant had exchanged with his fiancée using his personal Yahoo Messenger account; these messages did not contain any intimate information.", "22. Also on 13 July, the applicant informed the employer in writing that in his view it had committed a criminal offence, namely breaching the secrecy of correspondence.", "23. On 1 August 2007 the employer terminated the applicant’s contract of employment.", "24. The applicant challenged his dismissal in an application to the Bucharest County Court (“the County Court”). He asked the court, firstly, to set aside the dismissal; secondly, to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post; and thirdly, to order the employer to pay him 100,000 Romanian lei (approximately 30,000 euros) in damages for the harm resulting from the manner of his dismissal, and to reimburse his costs and expenses.", "25. As to the merits, relying on Copland v. the United Kingdom (no. 62617/00, §§ 43-44, ECHR 2007 ‑ I), he argued that an employee’s telephone and email communications from the workplace were covered by the notions of “private life” and “correspondence” and were therefore protected by Article 8 of the Convention. He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law.", "26. With regard specifically to the harm he claimed to have suffered, the applicant noted the manner of his dismissal and alleged that he had been subjected to harassment by his employer through the monitoring of his communications and the disclosure of their contents “to colleagues who were involved in one way or another in the dismissal procedure”.", "27. The applicant submitted evidence including a full copy of the transcript of his Yahoo Messenger communications and a copy of the information notice (see paragraph 15 above).", "28. In a judgment of 7 December 2007 the County Court rejected the applicant’s application and confirmed that his dismissal had been lawful. The relevant parts of the judgment read as follows:", "“The procedure for conducting a disciplinary investigation is expressly regulated by the provisions of Article 267 of the Labour Code.", "In the instant case it has been shown, through the written documents included in the file, that the employer conducted the disciplinary investigation in respect of the applicant by twice summoning him in writing to explain himself [and] specifying the subject, date, time and place of the interview, and that the applicant had the opportunity to submit arguments in his defence regarding his alleged acts, as is clear from the two explanatory notices included in the file (see copies on sheets 89 and 91).", "The court takes the view that the monitoring of the internet conversations in which the employee took part using the Yahoo Messenger software on the company’s computer during working hours – regardless of whether or not the employer’s actions were illegal in terms of criminal law – cannot undermine the validity of the disciplinary proceedings in the instant case.", "The fact that the provisions containing the requirement to interview the suspect ( învinuitul ) in a case of alleged misconduct and to examine the arguments submitted in that person’s defence prior to the decision on a sanction are couched in imperative terms highlights the legislature’s intention to make respect for the rights of the defence a prerequisite for the validity of the decision on the sanction.", "In the present case, since the employee maintained during the disciplinary investigation that he had not used Yahoo Messenger for personal purposes but in order to advise customers on the products being sold by his employer, the court takes the view that an inspection of the content of the [applicant’s] conversations was the only way in which the employer could ascertain the validity of his arguments.", "The employer’s right to monitor ( monitoriza ) employees in the workplace, [particularly] as regards their use of company computers, forms part of the broader right, governed by the provisions of Article 40 (d) of the Labour Code, to supervise how employees perform their professional tasks.", "Given that it has been shown that the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes, and that the employees had been warned that their activities were being monitored (see notice no. 2316 of 3 July 2007, which the applicant had signed [after] acquainting himself with it – see copy on sheet 64), the employer cannot be accused of showing a lack of transparency and of failing to give its employees a clear warning that it was monitoring their computer use.", "Internet access in the workplace is above all a tool made available to employees by the employer for professional use, and the employer indisputably has the power, by virtue of its right to supervise its employees’ activities, to monitor personal internet use.", "Such checks by the employer are made necessary by, for example, the risk that through their internet use, employees might damage the company’s IT systems, carry out illegal activities in cyberspace for which the company could incur liability, or disclose the company’s trade secrets.", "The court considers that the acts committed by the applicant constitute a disciplinary offence within the meaning of Article 263 § 2 of the Labour Code since they amount to a culpable breach of the provisions of Article 50 of S.’s internal regulations ..., which prohibit the use of computers for personal purposes.", "The aforementioned acts are deemed by the internal regulations to constitute serious misconduct, the penalty for which, in accordance with Article 73 of the same internal regulations, [is] termination of the contract of employment on disciplinary grounds.", "Having regard to the factual and legal arguments set out above, the court considers that the decision complained of is well-founded and lawful, and dismisses the application as unfounded.”", "29. The applicant appealed to the Bucharest Court of Appeal (“the Court of Appeal”). He repeated the arguments he had submitted before the first-instance court and contended in addition that that court had not struck a fair balance between the interests at stake, unjustly prioritising the employer’s interest in enjoying discretion to control its employees’ time and resources. He further argued that neither the internal regulations nor the information notice had contained any indication that the employer could monitor employees’ communications.", "30. The Court of Appeal dismissed the applicant’s appeal in a judgment of 17 June 2008, the relevant parts of which read:", "“The first-instance court has rightly concluded that the internet is a tool made available to employees by the employer for professional use, and that the employer is entitled to set rules for the use of this tool, by laying down prohibitions and provisions which employees must observe when using the internet in the workplace; it is clear that personal use may be refused, and the employees in the present case were duly informed of this in a notice issued on 26 June 2007 in accordance with the provisions of the internal regulations, in which they were instructed to observe working hours, to be present at the workplace [during those hours and] to make effective use of working time.", "In conclusion, an employer who has made an investment is entitled, in exercising the rights enshrined in Article 40 § 1 of the Labour Code, to monitor internet use in the workplace, and an employee who breaches the employer’s rules on personal internet use is committing a disciplinary offence that may give rise to a sanction, including the most serious one.", "There is undoubtedly a conflict between the employer’s right to engage in monitoring and the employees’ right to protection of their privacy. This conflict has been settled at European Union level through the adoption of Directive no. 95/46/EC, which has laid down a number of principles governing the monitoring of internet and email use in the workplace, including the following in particular.", "- Principle of necessity: monitoring must be necessary to achieve a certain aim.", "- Principle of purpose specification: data must be collected for specified, explicit and legitimate purposes.", "- Principle of transparency: the employer must provide employees with full information about monitoring operations.", "- Principle of legitimacy: data-processing operations may only take place for a legitimate purpose.", "- Principle of proportionality: personal data being monitored must be relevant and adequate in relation to the specified purpose.", "- Principle of security: the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties.", "In view of the fact that the employer has the right and the duty to ensure the smooth running of the company and, to that end, [is entitled] to supervise how its employees perform their professional tasks, and the fact [that it] enjoys disciplinary powers which it may legitimately use and which [authorised it in the present case] to monitor and transcribe the communications on Yahoo Messenger which the employee denied having exchanged for personal purposes, after he and his colleagues had been warned that company resources should not be used for such purposes, it cannot be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence, or that a fair balance was not struck between the need to protect [the employee’s] privacy and the employer’s right to supervise the operation of its business.", "...", "Accordingly, having regard to the considerations set out above, the court finds that the decision of the first-instance court is lawful and well-founded and that the appeal is unfounded; it must therefore be dismissed, in accordance with the provisions of Article 312 § 1 of the C[ode of] Civ[il] Pr[ocedure].”", "31. In the meantime, on 18 September 2007 the applicant had lodged a criminal complaint against the statutory representatives of S., alleging a breach of the secrecy of correspondence. On 9 May 2012 the Directorate for Investigating Organised Crime and Terrorism (DIICOT) of the prosecutor’s office attached to the Supreme Court of Cassation and Justice ruled that there was no case to answer, on the grounds that the company was the owner of the computer system and the internet connection and could therefore monitor its employees’ internet activity and use the information stored on the server, and in view of the prohibition on personal use of the IT systems, as a result of which the monitoring had been foreseeable. The applicant did not avail himself of the opportunity provided for by the applicable procedural rules to challenge the prosecuting authorities’ decision in the domestic courts." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "32. The relevant parts of the Romanian Constitution provide:", "Article 26", "“1. The public authorities shall respect and protect intimate, family and private life.”", "Article 28", "“The secrecy of letters, telegrams, other postal communications, telephone conversations and any other lawful means of communication is inviolable.”", "B. The Criminal Code", "33. The relevant parts of the Criminal Code as in force at the material time read as follows:", "Article 195 – Breach of secrecy of correspondence", "“1. Anyone who unlawfully opens somebody else’s correspondence or intercepts somebody else’s conversations or communication by telephone, by telegraph or by any other long-distance means of transmission shall be liable to imprisonment for between six months and three years.”", "C. The Civil Code", "34. The relevant provisions of the Civil Code as in force at the time of the events were worded as follows:", "Article 998", "“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”", "Article 999", "“Everyone shall be liable for damage he has caused not only through his own acts but also through his failure to act or his negligence.”", "D. The Labour Code", "35. As worded at the material time, the Labour Code provided:", "Article 40", "“1. The employer shall in principle have the following rights:", "...", "(d) to supervise how [employees] perform their professional tasks;", "...", "2. The employer shall in principle have the following duties:", "...", "(i) to guarantee the confidentiality of employees’ personal data.”", "E. Law no. 677/2001 on the protection of individuals with regard to the processing of personal data and on the free movement of such data", "36. The relevant parts of Law no. 677/2001 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Law no. 677/2001”), which reproduces certain provisions of Directive 95/46/EC of the European Parliament and of the Council of the European Union of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (see paragraph 45 below), provide:", "Article 3 – Definitions", "“For the purposes of this Law:", "(a) ’personal data’ shall mean any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;", "...”", "Article 5 – Conditions for the legitimacy of data processing", "“1. Personal data ... may not be processed in any way unless the data subject has explicitly and unambiguously consented to it.", "2. The consent of the data subject shall not be necessary in the following circumstances:", "(a) where processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;", "...", "(e) where processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject;", "...", "3. The provisions of paragraph 2 are without prejudice to the statutory provisions governing the public authorities’ duty to respect and protect intimate, family and private life.”", "Article 18 – Right to apply to the courts", "“1. Data subjects shall be entitled, without prejudice to the possibility of lodging a complaint with the supervisory authority, to apply to the courts for protection of the rights safeguarded by this Act that have been infringed.", "2. Any person who has suffered damage as a result of the unlawful processing of his or her personal data may apply to the competent court for compensation [for the damage].", "...”", "III. INTERNATIONAL LAW AND PRACTICE", "A. United Nations standards", "37. The Guidelines for the regulation of computerized personal data files, adopted by the United Nations General Assembly on 14 December 1990 in Resolution 45/95 (A/RES/45/95), lay down the minimum guarantees that should be provided for in national legislation. The relevant principles read as follows:", "“ 1. Principle of lawfulness and fairness", "Information about persons should not be collected or processed in unfair or unlawful ways, nor should it be used for ends contrary to the purposes and principles of the Charter of the United Nations.", "2. Principle of accuracy", "Persons responsible for the compilation of files or those responsible for keeping them have an obligation to conduct regular checks on the accuracy and relevance of the data recorded and to ensure that they are kept as complete as possible in order to avoid errors of omission and that they are kept up to date regularly or when the information contained in a file is used, as long as they are being processed.", "3. Principle of purpose specification", "The purpose which a file is to serve and its utilization in terms of that purpose should be specified, legitimate and, when it is established, receive a certain amount of publicity or be brought to the attention of the person concerned, in order to make it possible subsequently to ensure that:", "(a) All the personal data collected and recorded remain relevant and adequate to the purposes so specified;", "(b) None of the said personal data is used or disclosed, except with the consent of the person concerned, for purposes incompatible with those specified;", "(c) The period for which the personal data are kept does not exceed that which would enable the achievement of the purposes so specified.", "4. Principle of interested-person access", "Everyone who offers proof of identity has the right to know whether information concerning him is being processed and to obtain it in an intelligible form, without undue delay or expense, and to have appropriate rectifications or erasures made in the case of unlawful, unnecessary or inaccurate entries and, when it is being communicated, to be informed of the addressees. Provision should be made for a remedy, if need be with the supervisory authority specified in principle 8 below. The cost of any rectification shall be borne by the person responsible for the file. It is desirable that the provisions of this principle should apply to everyone, irrespective of nationality or place of residence.", "...", "6. Power to make exceptions", "Departures from principles 1 to 4 may be authorized only if they are necessary to protect national security, public order, public health or morality, as well as, inter alia, the rights and freedoms of others, especially persons being persecuted (humanitarian clause) provided that such departures are expressly specified in a law or equivalent regulation promulgated in accordance with the internal legal system which expressly states their limits and sets forth appropriate safeguards.", "...”", "38. The International Labour Office (ILO) issued a Code of Practice on the Protection of Workers’ Personal Data (“the ILO Code of Practice”) in 1997, laying down the following principles:", "“ 5. General principles", "5.1. Personal data should be processed lawfully and fairly, and only for reasons directly relevant to the employment of the worker.", "5.2. Personal data should, in principle, be used only for the purposes for which they were originally collected.", "5.3. If personal data are to be processed for purposes other than those for which they were collected, the employer should ensure that they are not used in a manner incompatible with the original purpose, and should take the necessary measures to avoid any misinterpretations caused by a change of context.", "5.4. Personal data collected in connection with technical or organizational measures to ensure the security and proper operation of automated information systems should not be used to control the behaviour of workers.", "5.5. Decisions concerning a worker should not be based solely on the automated processing of that worker’s personal data.", "5.6. Personal data collected by electronic monitoring should not be the only factors in evaluating worker performance.", "5.7. Employers should regularly assess their data processing practices:", "(a) to reduce as far as possible the kind and amount of personal data collected; and", "(b) to improve ways of protecting the privacy of workers.", "5.8. Workers and their representatives should be kept informed of any data collection process, the rules that govern that process, and their rights.", "...", "5.13. Workers may not waive their privacy rights.”", "39. With regard to the more specific issue of monitoring of workers, the ILO Code of Practice states as follows:", "“ 6. Collection of personal data", "6.1. All personal data should, in principle, be obtained from the individual worker.", "...", "6.14. (1) If workers are monitored they should be informed in advance of the reasons for monitoring, the time schedule, the methods and techniques used and the data to be collected, and the employer must minimize the intrusion on the privacy of workers.", "(2) Secret monitoring should be permitted only:", "(a) if it is in conformity with national legislation; or", "(b) if there is suspicion on reasonable grounds of criminal activity or other serious wrongdoing.", "(3) Continuous monitoring should be permitted only if required for health and safety or the protection of property.”", "40. The ILO Code of Practice also includes an inventory of workers’ individual rights, particularly as regards information about the processing of personal data, access to such data and reviews of any measures taken. The relevant parts read as follows:", "“ 11. Individual rights", "11.1. Workers should have the right to be regularly notified of the personal data held about them and the processing of that personal data.", "11.2. Workers should have access to all their personal data, irrespective of whether the personal data are processed by automated systems or are kept in a particular manual file regarding the individual worker or in any other file which includes workers’ personal data.", "11.3. The workers’ right to know about the processing of their personal data should include the right to examine and obtain a copy of any records to the extent that the data contained in the record includes that worker’s personal data.", "...", "11.8. Employers should, in the event of a security investigation, have the right to deny the worker access to that worker’s personal data until the close of the investigation and to the extent that the purposes of the investigation would be threatened. No decision concerning the employment relationship should be taken, however, before the worker has had access to all the worker’s personal data.", "11.9. Workers should have the right to demand that incorrect or incomplete personal data, and personal data processed inconsistently with the provisions of this code, be deleted or rectified.", "...", "11.13. In any legislation, regulation, collective agreement, work rules or policy developed consistent with the provisions of this code, there should be specified an avenue of redress for workers to challenge the employer’s compliance with the instrument. Procedures should be established to receive and respond to any complaint lodged by workers. The complaint process should be easily accessible to workers and be simple to use.”", "41. In addition, on 18 December 2013 the United Nations General Assembly adopted Resolution no. 68/167 on the right to privacy in the digital age (A/RES/68/167), in which, inter alia, it called upon States:", "“( a ) To respect and protect the right to privacy, including in the context of digital communication;", "( b ) To take measures to put an end to violations of those rights and to create the conditions to prevent such violations, including by ensuring that relevant national legislation complies with their obligations under international human rights law;", "( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law;", "( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data[.]”", "B. Council of Europe standards", "42. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981, ETS no. 108), which came into force in respect of Romania on 1 June 2002, includes the following provisions in particular:", "Article 2 – Definitions", "“For the purposes of this Convention:", "(a) ’personal data’ means any information relating to an identified or identifiable individual (‘data subject’);", "...", "(c) ’automatic processing’ includes the following operations if carried out in whole or in part by automated means: storage of data, carrying out of logical and/or arithmetical operations on those data, their alteration, erasure, retrieval or dissemination;", "...”", "Article 3 – Scope", "“1. The Parties undertake to apply this Convention to automated personal data files and automatic processing of personal data in the public and private sectors.", "...”", "Article 5 – Quality of data", "“Personal data undergoing automatic processing shall be:", "(a) obtained and processed fairly and lawfully;", "(b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "(c) adequate, relevant and not excessive in relation to the purposes for which they are stored;", "(d) accurate and, where necessary, kept up to date;", "(e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”", "Article 8 – Additional safeguards for the data subject", "“Any person shall be enabled:", "(a) to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "(b) to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "...", "(d) to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”", "Article 9 – Exceptions and restrictions", "“...", "2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "(a) protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "(b) protecting the data subject or the rights and freedoms of others;", "...”", "Article 10 – Sanctions and remedies", "“Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.”", "43. Recommendation CM/Rec(2015)5 of the Committee of Ministers to member States on the processing of personal data in the context of employment, which was adopted on 1 April 2015, states in particular:", "“ 4. Application of data processing principles", "4.1. Employers should minimise the processing of personal data to only the data necessary to the aim pursued in the individual cases concerned.", "...", "6. Internal use of data", "6.1. Personal data collected for employment purposes should only be processed by employers for such purposes.", "6.2. Employers should adopt data protection policies, rules and/or other instruments on internal use of personal data in compliance with the principles of the present recommendation.", "...", "10. Transparency of processing", "10.1. Information concerning personal data held by employers should be made available either to the employee concerned directly or through the intermediary of his or her representatives, or brought to his or her notice through other appropriate means.", "10.2. Employers should provide employees with the following information:", "– the categories of personal data to be processed and a description of the purposes of the processing;", "– the recipients, or categories of recipients of the personal data;", "– the means employees have of exercising the rights set out in principle 11 of the present recommendation, without prejudice to more favourable ones provided by domestic law or in their legal system;", "– any other information necessary to ensure fair and lawful processing.", "10.3. A particularly clear and complete description must be provided of the categories of personal data that can be collected by ICTs, including video surveillance and their possible use. This principle also applies to the particular forms of processing provided for in Part II of the appendix to the present recommendation.", "10.4. The information should be provided in an accessible format and kept up to date. In any event, such information should be provided before an employee carries out the activity or action concerned, and made readily available through the information systems normally used by the employee.", "...", "14. Use of Internet and electronic communications in the workplace", "14.1. Employers should avoid unjustifiable and unreasonable interferences with employees’ right to private life. This principle extends to all technical devices and ICTs used by an employee. The persons concerned should be properly and periodically informed in application of a clear privacy policy, in accordance with principle 10 of the present recommendation. The information provided should be kept up to date and should include the purpose of the processing, the preservation or back-up period of traffic data and the archiving of professional electronic communications.", "14.2. In particular, in the event of processing of personal data relating to Internet or Intranet pages accessed by the employee, preference should be given to the adoption of preventive measures, such as the use of filters which prevent particular operations, and to the grading of possible monitoring on personal data, giving preference for non ‑ individual random checks on data which are anonymous or in some way aggregated.", "14.3. Access by employers to the professional electronic communications of their employees who have been informed in advance of the existence of that possibility can only occur, where necessary, for security or other legitimate reasons. In case of absent employees, employers should take the necessary measures and foresee the appropriate procedures aimed at enabling access to professional electronic communications only when such access is of professional necessity. Access should be undertaken in the least intrusive way possible and only after having informed the employees concerned.", "14.4. The content, sending and receiving of private electronic communications at work should not be monitored under any circumstances.", "14.5. On an employee’s departure from an organisation, the employer should take the necessary organisational and technical measures to automatically deactivate the employee’s electronic messaging account. If employers need to recover the contents of an employee’s account for the efficient running of the organisation, they should do so before his or her departure and, when feasible, in his or her presence.”", "IV. EUROPEAN UNION LAW", "44. The relevant provisions of the Charter of Fundamental Rights of the European Union (2007/C 303/01) are worded as follows:", "Article 7 – Respect for private and family life", "“Everyone has the right to respect for his or her private and family life, home and communications.”", "Article 8 – Protection of personal data", "“1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.", "3. Compliance with these rules shall be subject to control by an independent authority.”", "45. Directive 95/46/EC of the European Parliament and of the Council of the European Union of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive 95/46/EC”) states that the object of national laws on the processing of personal data is notably to protect the right to privacy, as recognised both in Article 8 of the Convention and in the general principles of Community law. The relevant provisions of Directive 95/46/EC read as follows:", "Article 2 – Definitions", "“For the purposes of this Directive:", "(a) ’personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;", "...”", "Article 6", "“1. Member States shall provide that personal data must be:", "(a) processed fairly and lawfully;", "(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards;", "(c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;", "(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified;", "(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use.", "2. It shall be for the controller to ensure that paragraph 1 is complied with.”", "Article 7", "“Member States shall provide that personal data may be processed only if:", "(a) the data subject has unambiguously given his consent; or", "(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or", "(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or", "(d) processing is necessary in order to protect the vital interests of the data subject; or", "(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or", "(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).”", "Article 8 – The processing of special categories of data", "“1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.", "2. Paragraph 1 shall not apply where:", "(a) the data subject has given his explicit consent to the processing of those data, except where the laws of the Member State provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject’s giving his consent; or", "(b) processing is necessary for the purposes of carrying out the obligations and specific rights of the controller in the field of employment law in so far as it is authorized by national law providing for adequate safeguards; or", "(c) processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent; or", "...", "(e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims.", "...", "4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority.”", "46. A Working Party on Data Protection (“the Working Party”) has been set up under Article 29 of the Directive and, in accordance with Article 30, is empowered to:", "“(a) examine any question covering the application of the national measures adopted under this Directive in order to contribute to the uniform application of such measures;", "(b) give the Commission an opinion on the level of protection in the Community and in third countries;", "(c) advise the Commission on any proposed amendment of this Directive, on any additional or specific measures to safeguard the rights and freedoms of natural persons with regard to the processing of personal data and on any other proposed Community measures affecting such rights and freedoms;", "(d) give an opinion on codes of conduct drawn up at Community level.”", "The Working Party is an independent advisory body of the European Union. It issued an opinion in September 2001 on the processing of personal data in an employment context (opinion 8/2001), which summarises the fundamental data-protection principles: finality, transparency, legitimacy, proportionality, accuracy, security and staff awareness. In the opinion, which it adopted in conformity with its role of contributing to the uniform application of national measures adopted under Directive 95/46/EC, the Working Party pointed out that the monitoring of email involved the processing of personal data, and expressed the view that any monitoring of employees had to be", "“a proportionate response by an employer to the risks it faces taking into account the legitimate privacy and other interests of workers.”", "47. In May 2002 the Working Party produced a working document on surveillance and monitoring of electronic communications in the workplace (“the working document”), in which it expressly took into account the provisions of Directive 95/46/EC read in the light of the provisions of Article 8 of the Convention. The working document asserts that the simple fact that a monitoring activity or surveillance is considered convenient to serve an employer’s interest cannot in itself justify an intrusion into workers’ privacy, and that any monitoring measure must satisfy four criteria: transparency, necessity, fairness and proportionality.", "48. Regarding the technical aspect, the working document states:", "“Prompt information can be easily delivered by software such as warning windows, which pop up and alert the worker that the system has detected and/or has taken steps to prevent an unauthorised use of the network.”", "49. More specifically, with regard to the question of access to employees’ emails, the working document includes the following passage:", "“It would only be in exceptional circumstances that the monitoring of a worker’s [e]mail or Internet use would be considered necessary. For instance, monitoring of a worker’s email may become necessary in order to obtain confirmation or proof of certain actions on his part. Such actions would include criminal activity on the part of the worker insofar as it is necessary for the employer to defend his own interests, for example, where he is vicariously liable for the actions of the worker. These activities would also include detection of viruses and in general terms any activity carried out by the employer to guarantee the security of the system.", "It should be mentioned that opening an employee’s email may also be necessary for reasons other than monitoring or surveillance, for example in order to maintain correspondence in case the employee is out of office (e.g. due to sickness or leave) and correspondence cannot be guaranteed otherwise (e.g. via auto reply or automatic forwarding).”", "50. The Court of Justice of the European Union has interpreted the provisions of Directive 95/46/EC in the light of the right to respect for private life, as guaranteed by Article 8 of the Convention, in the case of Österreichischer Rundfunk and Others (C-465/00, C ‑ 138/01 and C ‑ 139/01, judgment of 20 May 2003, ECLI:EU:C:2003:294, paragraphs 71 et seq.).", "51. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), published in OJ 2016 L 119/1, entered into force on 24 May 2016 and will repeal Directive 95/46/EC with effect from 25 May 2018 (Article 99). The relevant provisions of the Regulation read as follows:", "Article 30 – Records of processing activities", "“1 Each controller and, where applicable, the controller’s representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information:", "(a) the name and contact details of the controller and, where applicable, the joint controller, the controller’s representative and the data protection officer;", "(b) the purposes of the processing;", "(c) a description of the categories of data subjects and of the categories of personal data;", "(d) the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations;", "(e) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards;", "(f) where possible, the envisaged time limits for erasure of the different categories of data;", "(g) where possible, a general description of the technical and organisational security measures referred to in Article 32(1).", "2. Each processor and, where applicable, the processor’s representative shall maintain a record of all categories of processing activities carried out on behalf of a controller, containing:", "(a) the name and contact details of the processor or processors and of each controller on behalf of which the processor is acting, and, where applicable, of the controller’s or the processor’s representative, and the data protection officer;", "(b) the categories of processing carried out on behalf of each controller;", "(c) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards;", "(d) where possible, a general description of the technical and organisational security measures referred to in Article 32(1).", "3. The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.", "4. The controller or the processor and, where applicable, the controller’s or the processor’s representative, shall make the record available to the supervisory authority on request.", "5. The obligations referred to in paragraphs 1 and 2 shall not apply to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10.”", "Article 47 – Binding corporate rules", "“1. The competent supervisory authority shall approve binding corporate rules in accordance with the consistency mechanism set out in Article 63, provided that they:", "(a) are legally binding and apply to and are enforced by every member concerned of the group of undertakings, or group of enterprises engaged in a joint economic activity, including their employees;", "(b) expressly confer enforceable rights on data subjects with regard to the processing of their personal data; and", "(c) fulfil the requirements laid down in paragraph 2.", "2. The binding corporate rules referred to in paragraph 1 shall specify at least:", "(a) the structure and contact details of the group of undertakings, or group of enterprises engaged in a joint economic activity and of each of its members;", "(b) the data transfers or set of transfers, including the categories of personal data, the type of processing and its purposes, the type of data subjects affected and the identification of the third country or countries in question;", "(c) their legally binding nature, both internally and externally;", "(d) the application of the general data protection principles, in particular purpose limitation, data minimisation, limited storage periods, data quality, data protection by design and by default, legal basis for processing, processing of special categories of personal data, measures to ensure data security, and the requirements in respect of onward transfers to bodies not bound by the binding corporate rules;", "(e) the rights of data subjects in regard to processing and the means to exercise those rights, including the right not to be subject to decisions based solely on automated processing, including profiling in accordance with Article 22, the right to lodge a complaint with the competent supervisory authority and before the competent courts of the Member States in accordance with Article 79, and to obtain redress and, where appropriate, compensation for a breach of the binding corporate rules;", "(f) the acceptance by the controller or processor established on the territory of a Member State of liability for any breaches of the binding corporate rules by any member concerned not established in the Union; the controller or the processor shall be exempt from that liability, in whole or in part, only if it proves that that member is not responsible for the event giving rise to the damage;", "(g) how the information on the binding corporate rules, in particular on the provisions referred to in points (d), (e) and (f) of this paragraph is provided to the data subjects in addition to Articles 13 and 14;", "(h) the tasks of any data protection officer designated in accordance with Article 37 or any other person or entity in charge of the monitoring compliance with the binding corporate rules within the group of undertakings, or group of enterprises engaged in a joint economic activity, as well as monitoring training and complaint-handling;", "(i) the complaint procedures;", "(j) the mechanisms within the group of undertakings, or group of enterprises engaged in a joint economic activity for ensuring the verification of compliance with the binding corporate rules. Such mechanisms shall include data protection audits and methods for ensuring corrective actions to protect the rights of the data subject. Results of such verification should be communicated to the person or entity referred to in point (h) and to the board of the controlling undertaking of a group of undertakings, or of the group of enterprises engaged in a joint economic activity, and should be available upon request to the competent supervisory authority;", "(k) the mechanisms for reporting and recording changes to the rules and reporting those changes to the supervisory authority;", "(l) the cooperation mechanism with the supervisory authority to ensure compliance by any member of the group of undertakings, or group of enterprises engaged in a joint economic activity, in particular by making available to the supervisory authority the results of verifications of the measures referred to in point (j);", "(m) the mechanisms for reporting to the competent supervisory authority any legal requirements to which a member of the group of undertakings, or group of enterprises engaged in a joint economic activity is subject in a third country which are likely to have a substantial adverse effect on the guarantees provided by the binding corporate rules; and", "(n) the appropriate data protection training to personnel having permanent or regular access to personal data.", "3. The Commission may specify the format and procedures for the exchange of information between controllers, processors and supervisory authorities for binding corporate rules within the meaning of this Article. Those implementing acts shall be adopted in accordance with the examination procedure set out in Article 93(2).”", "Article 88 – Processing in the context of employment", "“1. Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, protection of employer’s or customer’s property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.", "2. Those rules shall include suitable and specific measures to safeguard the data subject’s human dignity, legitimate interests and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of undertakings, or a group of enterprises engaged in a joint economic activity and monitoring systems at the work place.", "3. Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to paragraph 1, by 25 May 2018 and, without delay, any subsequent amendment affecting them.”", "V. COMPARATIVE LAW", "52. The documents available to the Court concerning the legislation of the Council of Europe member States, in particular a study of thirty-four of them, indicate that all the States concerned recognise in general terms, at constitutional or statutory level, the right to privacy and to secrecy of correspondence. However, only Austria, Finland, Luxembourg, Portugal, Slovakia and the United Kingdom have explicitly regulated the issue of workplace privacy, whether in labour laws or in special legislation.", "53. With regard to monitoring powers, thirty-four Council of Europe member States require employers to give employees prior notice of monitoring. This may take a number of forms, for example notification of the personal data-protection authorities or of workers’ representatives. The existing legislation in Austria, Estonia, Finland, Greece, Lithuania, Luxembourg, Norway, Poland, Slovakia and the former Yugoslav Republic of Macedonia requires employers to notify employees directly before initiating the monitoring.", "54. In, Austria, Denmark, Finland, France, Germany, Greece, Italy, Portugal and Sweden, employers may monitor emails marked by employees as “private”, without being permitted to access their content. In Luxembourg employers may not open emails that are either marked as “private” or are manifestly of a private nature. The Czech Republic, Italy and Slovenia, as well as the Republic of Moldova to a certain extent, also limit the extent to which employers may monitor their employees’ communications, according to whether the communications are professional or personal in nature. In Germany and Portugal, once it has been established that a message is private, the employer must stop reading it.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "55. The applicant submitted that his dismissal by his employer had been based on a breach of his right to respect for his private life and correspondence and that, by not revoking that measure, the domestic courts had failed to comply with their obligation to protect the right in question. He relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber’s findings", "56. In its judgment of 12 January 2016 the Chamber held, firstly, that Article 8 of the Convention was applicable in the present case. Referring to the concept of reasonable expectation of privacy, it found that the present case differed from Copland (cited above, § 41) and Halford v. the United Kingdom (25 June 1997, § 45, Reports of Judgments and Decisions 1997 ‑ III) in that the applicant’s employer’s internal regulations in the present case strictly prohibited employees from using company computers and resources for personal purposes. The Chamber had regard to the nature of the applicant’s communications and the fact that a transcript of them had been used as evidence in the domestic court proceedings, and concluded that the applicant’s right to respect for his “private life” and “correspondence” was at stake.", "57. Next, the Chamber examined the case from the standpoint of the State’s positive obligations, since the decision to dismiss the applicant had been taken by a private-law entity. It therefore determined whether the national authorities had struck a fair balance between the applicant’s right to respect for his private life and correspondence and his employer’s interests.", "58. The Chamber noted that the applicant had been able to bring his case and raise his arguments before the labour courts. The courts had found that he had committed a disciplinary offence by using the internet for personal purposes during working hours, and to that end they had had regard to the conduct of the disciplinary proceedings, in particular the fact that the employer had accessed the contents of the applicant’s communications only after the applicant had declared that he had used Yahoo Messenger for work-related purposes.", "59. The Chamber further noted that the domestic courts had not based their decisions on the contents of the applicant’s communications and that the employer’s monitoring activities had been limited to his use of Yahoo Messenger.", "60. Accordingly, it held that there had been no violation of Article 8 of the Convention.", "B. Scope of the case before the Grand Chamber", "61. The Court notes that in the proceedings before the Chamber the applicant alleged that his employer’s decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence as enshrined in Article 8 of the Convention and that, by not revoking that measure, the domestic courts had failed to comply with their obligation to protect the right in question. The Chamber declared this complaint admissible on 12 January 2016.", "62. The Court reiterates that the case referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR 2007 ‑ IV; and Blokhin v. Russia [GC], no. 47152/06, § 91, ECHR 2016).", "63. In his observations before the Grand Chamber, the applicant complained for the first time about the rejection in 2012 of the criminal complaint filed by him in connection with an alleged breach of the secrecy of correspondence (see paragraph 90 below).", "64. This new complaint was not mentioned in the decision of 12 January 2016 as to admissibility, which defines the boundaries of the examination of the application. It therefore falls outside the scope of the case as referred to the Grand Chamber, which accordingly does not have jurisdiction to deal with it and will limit its examination to the complaint that was declared admissible by the Chamber.", "C. Applicability of Article 8 of the Convention", "1. The parties’ submissions", "(a) The Government", "65. The Government argued that the applicant could not claim any expectation of “privacy” as regards the communications he had exchanged via an instant messaging account created for professional use. With reference to the case-law of the French and Cypriot courts, they submitted that messages sent by an employee using the technical facilities made available to him by his employer had to be regarded as professional in nature unless the employee explicitly identified them as private. They noted that it was not technically possible using Yahoo Messenger to mark messages as private; nevertheless, the applicant had had an adequate opportunity, during the initial stage of the disciplinary proceedings, to indicate that his communications had been private, and yet had chosen to maintain that they had been work-related. The applicant had been informed not only of his employer’s internal regulations, which prohibited all personal use of company resources, but also of the fact that his employer had initiated a process for monitoring his communications.", "66. The Government relied on three further arguments in contending that Article 8 of the Convention was not applicable in the present case. Firstly, there was no evidence to suggest that the transcript of the applicant’s communications had been disclosed to his work colleagues; the applicant himself had produced the full transcript of the messages in the proceedings before the domestic courts, without asking for any restrictions to be placed on access to the documents concerned. Secondly, the national authorities had used the transcript of the messages as evidence because the applicant had so requested, and because the prosecuting authorities had already found that the monitoring of his communications had been lawful. Thirdly, the information notice had contained sufficient indications for the applicant to have been aware that his employer could monitor his communications, and this had rendered them devoid of any private element.", "(b) The applicant", "67. The applicant did not make any submissions as to the applicability of Article 8 of the Convention, but repeatedly maintained that his communications had been private in nature.", "68. He further argued that, since he had created the Yahoo Messenger account in question and was the only person who knew the password, he had had a reasonable expectation of privacy regarding his communications. He also asserted that he had not received prior notification from his employer about the monitoring of his communications.", "2. The Court’s assessment", "69. The Court notes that the question arising in the present case is whether the matters complained of by the applicant fall within the scope of Article 8 of the Convention.", "70. At this stage of its examination it considers it useful to emphasise that “private life” is a broad term not susceptible to exhaustive definition (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 43, ECHR 2004 ‑ VIII). Article 8 of the Convention protects the right to personal development (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, § 83, 17 February 2005), whether in terms of personality (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI) or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Court acknowledges that everyone has the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX (extracts)). It also considers that it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his or her own personal life as he or she chooses, thus excluding entirely the outside world not encompassed within that circle (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B). Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bigaeva v. Greece, no. 26713/05, § 22, 28 May 2009, and Özpınar v. Turkey, no. 20999/04, § 45 in fine, 19 October 2010).", "71. The Court considers that the notion of “private life” may include professional activities (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110, ECHR 2014 (extracts), and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165-66, ECHR 2013), or activities taking place in a public context (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012). Restrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others. It should be noted in this connection that it is in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world (see Niemietz, cited above, § 29).", "72. Furthermore, as regards the notion of “correspondence”, it should be noted that in the wording of Article 8 this word is not qualified by any adjective, unlike the term “life”. And indeed, the Court has already held that, in the context of correspondence by means of telephone calls, no such qualification is to be made. In a number of cases relating to correspondence with a lawyer, it has not even envisaged the possibility that Article 8 might be inapplicable on the ground that the correspondence was of a professional nature (see Niemietz, cited above, § 32, with further references). Furthermore, it has held that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see Roman Zakharov v. Russia [GC], no. 47143/06, § 173, ECHR 2015). In principle, this is also true where telephone calls are made from or received on business premises (see Halford, cited above, § 44, and Amann v. Switzerland [GC], no. 27798/95, § 44, ECHR 2000 ‑ II). The same applies to emails sent from the workplace, which enjoy similar protection under Article 8, as does information derived from the monitoring of a person’s internet use (see Copland, cited above, § 41 in fine ).", "73. It is clear from the Court’s case-law that communications from business premises as well as from the home may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 of the Convention (see Halford, cited above, § 44; and Copland, cited above, § 41). In order to ascertain whether the notions of “private life” and “correspondence” are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected (ibid.; and as regards “private life”, see also Köpke v. Germany (dec.), no. 420/07, 5 October 2010). In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Köpke, cited above).", "74. Applying these principles in the present case, the Court first observes that the kind of internet instant messaging service at issue is just one of the forms of communication enabling individuals to lead a private social life. At the same time, the sending and receiving of communications is covered by the notion of “correspondence”, even if they are sent from an employer’s computer. The Court notes, however, that the applicant’s employer instructed him and the other employees to refrain from any personal activities in the workplace. This requirement on the employer’s part was reflected in measures including a ban on using company resources for personal purposes (see paragraph 12 above).", "75. The Court further notes that with a view to ensuring that this requirement was met, the employer set up a system for monitoring its employees’ internet use (see paragraphs 17 and 18 above). The documents in the case file, in particular those relating to the disciplinary proceedings against the applicant, indicate that during the monitoring process, both the flow and the content of the applicants’ communications were recorded and stored (see paragraphs 18 and 20 above).", "76. The Court observes in addition that despite this requirement on the employer’s part, the applicant exchanged messages of a personal nature with his fiancée and his brother (see paragraph 21 above). Some of these messages were of an intimate nature (ibid.).", "77. The Court considers that it is clear from the case file that the applicant had indeed been informed of the ban on personal internet use laid down in his employer’s internal regulations (see paragraph 14 above). However, it is not so clear that he had been informed prior to the monitoring of his communications that such a monitoring operation was to take place. Thus, the Government submitted that the applicant had acquainted himself with the employer’s information notice on an unspecified date between 3 and 13 July 2007 (see paragraph 16 above). Nevertheless, the domestic courts omitted to ascertain whether the applicant had been informed of the monitoring operation before the date on which it began, given that the employer recorded communications in real time from 5 to 13 July 2007 (see paragraph 17 above).", "78. In any event, it does not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual contents of his communications.", "79. The Court also takes note of the applicant’s argument that he himself had created the Yahoo Messenger account in question and was the only person who knew the password (see paragraph 68 above). In addition, it observes that the material in the case file indicates that the employer also accessed the applicant’s personal Yahoo Messenger account (see paragraph 21 above). Be that as it may, the applicant had created the Yahoo Messenger account in issue on his employer’s instructions to answer customers’ enquiries (see paragraph 11 above), and the employer had access to it.", "80. It is open to question whether – and if so, to what extent – the employer’s restrictive regulations left the applicant with a reasonable expectation of privacy. Be that as it may, an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.", "81. In the light of all the above considerations, the Court concludes that the applicant’s communications in the workplace were covered by the concepts of “private life” and “correspondence”. Accordingly, in the circumstances of the present case, Article 8 of the Convention is applicable.", "D. Compliance with Article 8 of the Convention", "1. The parties’ submissions and third-party comments", "(a) The applicant", "82. In his written observations before the Grand Chamber, the applicant submitted that the Chamber had not taken sufficient account of certain factual aspects of the case. Firstly, he emphasised the specific features of Yahoo Messenger, which was designed for personal use. His employer’s decision to use this tool in a work context did not alter the fact that it was essentially intended to be used for personal purposes. He thus considered himself to be the sole owner of the Yahoo Messenger account that he had opened at his employer’s request.", "83. Secondly, the applicant argued that his employer had not introduced any policy on internet use. He had not had any warning of the possibility that his communications might be monitored or read; nor had he given any consent in that regard. If such a policy had been in place and he had been informed of it, he would have refrained from disclosing certain aspects of his private life on Yahoo Messenger.", "84. Thirdly, the applicant contended that a distinction should be drawn between personal internet use having a profit-making purpose and “a small harmless private conversation” which had not sought to derive any profit and had not caused any damage to his employer; he pointed out in that connection that during the disciplinary proceedings against him, the employer had not accused him of having caused any damage to the company. The applicant highlighted developments in information and communication technologies, as well as in the social customs and habits linked to their use. He submitted that contemporary working conditions made it impossible to draw a clear dividing line between private and professional life, and disputed the legitimacy of any management policy prohibiting personal use of the internet and of any connected devices.", "85. From a legal standpoint, the applicant submitted that the Romanian State had not fulfilled its positive obligations under Article 8 of the Convention. More specifically, the domestic courts had not overturned his dismissal despite having acknowledged that there had been a violation of his right to respect for his private communications.", "86. Firstly, he submitted that the Chamber had incorrectly distinguished the present case from Copland (cited above, § 42). In his view, the decisive factor in analysing the case was not whether the employer had tolerated personal internet use, but the fact that the employer had not warned the employee that his communications could be monitored. In that connection, he contended that his employer had first placed him under surveillance and had only afterwards given him the opportunity to specify whether his communications were private or work-related. The Court had to examine both whether an outright ban on personal internet use entitled the employer to monitor its employees, and whether the employer had to give reasons for such monitoring.", "87. Secondly, the applicant submitted that the Chamber’s analysis in relation to the second paragraph of Article 8 was not consistent with the Court’s case-law in that it had not sought to ascertain whether the interference with his right to respect for his private life and correspondence had been in accordance with the law, had pursued a legitimate aim and had been necessary in a democratic society.", "88. With regard to the jurisdiction of the labour courts, the applicant contended that they were competent to carry out a full review of the lawfulness and justification of the measure referred to them. It was for the courts to request the production of the necessary evidence and to raise any relevant factual or legal issues, even where they had not been mentioned by the parties. Accordingly, the labour courts had extensive jurisdiction to examine any issues relating to a labour-law dispute, including those linked to respect for employees’ private life and correspondence.", "89. However, in the applicant’s case the domestic courts had pursued a rigid approach, aimed simply at upholding his employer’s decision. They had performed an incorrect analysis of the factual aspects of the case and had failed to take into account the specific features of communications in cyberspace. The violation of the applicant’s right to respect for his private life and correspondence had thus been intentional and illegal and its aim had been to gather evidence enabling his contract to be terminated.", "90. Lastly, the applicant complained for the first time in the proceedings before the Grand Chamber of the outcome of the criminal complaint he had lodged in 2007: in 2012 the department of the prosecutor’s office with responsibility for investigating organised crime and terrorism (DIICOT) had rejected the complaint without properly establishing the facts of the case.", "91. At the hearing before the Grand Chamber the applicant stated, in reply to a question from the judges, that because his employer had only made a single printer available to employees, all his colleagues had been able to see the contents of the forty-five-page transcript of his Yahoo Messenger communications.", "92. The applicant urged the Grand Chamber to find a violation of Article 8 of the Convention and to take the opportunity to confirm that monitoring of employees’ correspondence could only be carried out in compliance with the applicable legislation, in a transparent manner and on grounds provided for by law, and that employers did not have discretion to monitor their employees’ correspondence.", "(b) The Government", "93. The Government stated that the employer had recorded the applicant’s communications from 5 to 13 July 2007 and had then given him an opportunity to account for his internet use, which was more substantial than that of his colleagues. They pointed out that since the applicant had maintained that the contents of his communications were work-related, the employer had investigated his explanations.", "94. The Government argued that in his appeal against the decision of the first-instance court the applicant had not challenged the court’s finding that he had been informed that his employer was monitoring internet use. In that connection, they produced a copy of the information notice issued by the employer and signed by the applicant. On the basis of the employer’s attendance register, they observed that the applicant had signed the notice between 3 and 13 July 2007.", "95. The Government further submitted that the employer had recorded the applicant’s communications in real time. There was no evidence that the employer had accessed the applicant’s previous communications or his private email.", "96. The Government indicated their agreement with the Chamber’s conclusions and submitted that the Romanian State had satisfied its positive obligations under Article 8 of the Convention.", "97. They observed firstly that the applicant had chosen to raise his complaints in the domestic courts in the context of a labour-law dispute. The courts had examined all his complaints and weighed up the various interests at stake, but the main focus of their analysis had been whether the disciplinary proceedings against the applicant had been compliant with domestic law. The applicant had had the option of raising before the domestic courts his specific complaint of a violation of his right to respect for his private life, for example by means of an action under Law no. 677/2001 or an action in tort, but he had chosen not to do so. He had also filed a criminal complaint, which had given rise to a decision by the prosecuting authorities to take no further action on the grounds that the monitoring by the employer of employees’ communications had not been unlawful.", "98. Referring more specifically to the State’s positive obligations, the Government submitted that approaches among Council of Europe member States varied greatly as regards the regulation of employee monitoring by employers. Some States included this matter within the wider scope of personal data processing, while others had passed specific legislation in this sphere. Even among the latter group of States, there were no uniform solutions regarding the scope and purpose of monitoring by the employer, prior notification of employees or personal internet use.", "99. Relying on Köpke (cited above), the Government maintained that the domestic courts had performed an appropriate balancing exercise between the applicant’s right to respect for his private life and correspondence and his employer’s right to organise and supervise work within the company. In the Government’s submission, where communications were monitored by a private entity, an appropriate examination by the domestic courts was sufficient for the purposes of Article 8 and there was no need for specific protection by means of a legislative framework.", "100. The Government further submitted that the domestic courts had reviewed the lawfulness and the necessity of the employer’s decision and had concluded that the disciplinary proceedings had been conducted in accordance with the legislation in force. They attached particular importance to the manner in which the proceedings had been conducted, especially the opportunity given to the applicant to indicate whether the communications in question had been private. If he had made use of that opportunity, the domestic courts would have weighed up the interests at stake differently.", "101. In that connection, the Government noted that in the proceedings before the domestic authorities the applicant himself had produced the full transcripts of his communications, without taking any precautions; he could instead have disclosed only the names of the relevant accounts or submitted extracts of his communications, for example those that did not contain any intimate information. The Government also disputed the applicant’s allegations that his communications had been disclosed to his colleagues and pointed out that only the three-member disciplinary board had had access to them.", "102. The Government further contended that the employer’s decision had been necessary, since it had had to investigate the arguments raised by the applicant in the disciplinary proceedings in order to determine whether he had complied with the internal regulations.", "103. Lastly, the Government argued that a distinction should be made between the nature of the communications and their content. They observed, as the Chamber had, that the domestic courts had not taken the content of the applicant’s communications into account at all but had simply examined their nature and found that they were personal.", "104. The Government thus concluded that the applicant’s complaint under Article 8 of the Convention was ill-founded.", "(c) Third parties", "(i) The French Government", "105. The French Government referred, in particular, to their conception of the scope of the national authorities’ positive obligation to ensure respect for employees’ private life and correspondence. They provided a comprehensive overview of the applicable provisions of French civil law, labour law and criminal law in this sphere. In their submission, Article 8 of the Convention was only applicable to strictly personal data, correspondence and electronic activities. In that connection, they referred to settled case-law of the French Court of Cassation to the effect that any data processed, sent and received by means of the employer’s electronic equipment were presumed to be professional in nature unless the employee designated them clearly and precisely as personal.", "106. The French Government submitted that States had to enjoy a wide margin of appreciation in this sphere since the aim was to strike a balance between competing private interests. The employer could monitor employees’ professional data and correspondence to a reasonable degree, provided that a legitimate aim was pursued, and could use the results of the monitoring operation in disciplinary proceedings. They emphasised that employees had to be given advance notice of such monitoring. In addition, where data clearly designated as personal by the employee were involved, the employer could ask the courts to order investigative measures and to instruct a bailiff to access the relevant data and record their content.", "(ii) The European Trade Union Confederation", "107. The European Trade Union Confederation submitted that it was crucial to protect privacy in the working environment, taking into account in particular the fact that employees were structurally dependent on employers in this context. After summarising the applicable principles of international and European law, it stated that internet access should be regarded as a human right and that the right to respect for correspondence should be strengthened. The consent, or at least prior notification, of employees was required, and staff representatives had to be informed, before the employer could process employees’ personal data.", "2. The Court’s assessment", "(a) Whether the case concerns a negative or a positive obligation", "108. The Court must determine whether the present case should be examined in terms of the State’s negative or positive obligations. It reiterates that by Article 1 of the Convention, the Contracting Parties “shall secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”. While the essential object of Article 8 of the Convention is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Von Hannover (no. 2), cited above, § 98; and Hämäläinen v. Finland [GC], no. 37359/09, § 62, ECHR 2014).", "109. In the present case the Court observes that the measure complained of by the applicant, namely the monitoring of Yahoo Messenger communications, which resulted in disciplinary proceedings against him followed by his dismissal for infringing his employer’s internal regulations prohibiting the personal use of company resources, was not taken by a State authority but by a private commercial company. The monitoring of the applicant’s communications and the inspection of their content by his employer in order to justify his dismissal cannot therefore be regarded as “interference” with his right by a State authority.", "110. Nevertheless, the Court notes that the measure taken by the employer was accepted by the national courts. It is true that the monitoring of the applicant’s communications was not the result of direct intervention by the national authorities; however, their responsibility would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicant the enjoyment of a right enshrined in Article 8 of the Convention (see, mutatis mutandis, Obst v. Germany, no. 425/03, §§ 40 and 43, 23 September 2010, and Schüth v. Germany, no. 1620/03, §§ 54 and 57, ECHR 2010).", "111. In the light of the particular circumstances of the case as described in paragraph 109 above, the Court considers, having regard to its conclusion concerning the applicability of Article 8 of the Convention (see paragraph 81 above) and to the fact that the applicant’s enjoyment of his right to respect for his private life and correspondence was impaired by the actions of a private employer, that the complaint should be examined from the standpoint of the State’s positive obligations.", "112. While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011).", "(b) General principles applicable to the assessment of the State’s positive obligation to ensure respect for private life and correspondence in an employment context", "113. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Söderman v. Sweden [GC], no. 5786/08, § 79, ECHR 2013, with further references).", "114. The Court’s task in the present case is therefore to clarify the nature and scope of the positive obligations that the respondent State was required to comply with in protecting the applicant’s right to respect for his private life and correspondence in the context of his employment.", "115. The Court observes that it has held that in certain circumstances, the State’s positive obligations under Article 8 of the Convention are not adequately fulfilled unless it secures respect for private life in the relations between individuals by setting up a legislative framework taking into consideration the various interests to be protected in a particular context (see X and Y v. the Netherlands, cited above, §§ 23, 24 and 27, and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII, both concerning sexual assaults of minors; see also K.U. v. Finland, no. 2872/02, §§ 43 and 49, ECHR 2008, concerning an advertisement of a sexual nature placed on an internet dating site in the name of a minor; Söderman, cited above, § 85, concerning the effectiveness of remedies in respect of an alleged violation of personal integrity committed by a close relative; and Codarcea v. Romania, no. 31675/04, §§ 102-04, 2 June 2009, concerning medical negligence).", "116. The Court accepts that protective measures are not only to be found in labour law, but also in civil and criminal law. As far as labour law is concerned, it must ascertain whether in the present case the respondent State was required to set up a legislative framework to protect the applicant’s right to respect for his private life and correspondence in the context of his professional relationship with a private employer.", "117. In this connection it considers at the outset that labour law has specific features that must be taken into account. The employer-employee relationship is contractual, with particular rights and obligations on either side, and is characterised by legal subordination. It is governed by its own legal rules, which differ considerably from those generally applicable to relations between individuals (see Saumier v. France, no. 74734/14, § 60, 12 January 2017).", "118. From a regulatory perspective, labour law leaves room for negotiation between the parties to the contract of employment. Thus, it is generally for the parties themselves to regulate a significant part of the content of their relations (see, mutatis mutandis, Wretlund v. Sweden (dec.), no. 46210/99, 9 March 2004, concerning the compatibility with Article 8 of the Convention of the obligation for the applicant, an employee at a nuclear plant, to undergo drug tests; with regard to trade-union action from the standpoint of Article 11, see Gustafsson v. Sweden, 25 April 1996, § 45, Reports 1996 ‑ II, and, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 140 ‑ 46, ECHR 2008, for the specific case of civil servants). It also appears from the comparative-law material at the Court’s disposal that there is no European consensus on this issue. Few member States have explicitly regulated the question of the exercise by employees of their right to respect for their private life and correspondence in the workplace (see paragraph 52 above).", "119. In the light of the above considerations, the Court takes the view that the Contracting States must be granted a wide margin of appreciation in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace.", "120. Nevertheless, the discretion enjoyed by States in this field cannot be unlimited. The domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28, and Roman Zakharov, cited above, §§ 232-34).", "121. The Court is aware of the rapid developments in this area. Nevertheless, it considers that proportionality and procedural guarantees against arbitrariness are essential. In this context, the domestic authorities should treat the following factors as relevant:", "( i ) whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. While in practice employees may be notified in various ways depending on the particular factual circumstances of each case, the Court considers that for the measures to be deemed compatible with the requirements of Article 8 of the Convention, the notification should normally be clear about the nature of the monitoring and be given in advance;", "( ii ) the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this regard, a distinction should be made between monitoring of the flow of communications and of their content. Whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results (see Köpke, cited above). The same applies to the spatial limits to the monitoring;", "( iii ) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content (see paragraphs 38, 43 and 45 above for an overview of international and European law in this area). Since monitoring of the content of communications is by nature a distinctly more invasive method, it requires weightier justification;", "( iv ) whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications. In this connection, there should be an assessment in the light of the particular circumstances of each case of whether the aim pursued by the employer could have been achieved without directly accessing the full contents of the employee’s communications;", "( v ) the consequences of the monitoring for the employee subjected to it (see, mutatis mutandis, the similar criterion applied in the assessment of the proportionality of an interference with the exercise of freedom of expression as protected by Article 10 of the Convention in Axel Springer AG v. Germany [GC], no. 39954/08, § 95, 7 February 2012, with further references); and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure (see Köpke, cited above);", "( vi ) whether the employee had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.", "In this context, it is worth reiterating that in order to be fruitful, labour relations must be based on mutual trust (see Palomo Sánchez and Others, cited above, § 76).", "122. Lastly, the domestic authorities should ensure that an employee whose communications have been monitored has access to a remedy before a judicial body with jurisdiction to determine, at least in substance, how the criteria outlined above were observed and whether the impugned measures were lawful (see Obst, cited above, § 45, and Köpke, cited above).", "123. In the present case the Court will assess how the domestic courts to which the applicant applied dealt with his complaint of an infringement by his employer of his right to respect for his private life and correspondence in an employment context.", "(c) Application of the above general principles in the present case", "124. The Court observes that the domestic courts held that the interests at stake in the present case were, on the one hand, the applicant’s right to respect for his private life, and on the other hand, the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company (see paragraphs 28 and 30 above). It considers that, by virtue of the State’s positive obligations under Article 8 of the Convention, the national authorities were required to carry out a balancing exercise between these competing interests.", "125. The Court observes that the precise subject of the complaint brought before it is the alleged failure of the national courts, in the context of a labour-law dispute, to protect the applicant’s right under Article 8 of the Convention to respect for his private life and correspondence in an employment context. Throughout the proceedings the applicant complained in particular, both before the domestic courts and before the Court, about his employer’s monitoring of his communications via the Yahoo Messenger accounts in question and the use of their contents in the subsequent disciplinary proceedings against him.", "126. As to whether the employer disclosed the contents of the communications to the applicant’s colleagues (see paragraph 26 above), the Court observes that this argument is not sufficiently substantiated by the material in the case file and that the applicant did not produce any further evidence at the hearing before the Grand Chamber (see paragraph 91 above).", "127. It therefore considers that the complaint before it concerns the applicant’s dismissal based on the monitoring carried out by his employer. More specifically, it must ascertain in the present case whether the national authorities performed a balancing exercise, in accordance with the requirements of Article 8 of the Convention, between the applicant’s right to respect for his private life and correspondence and the employer’s interests. Its task is therefore to determine whether, in the light of all the circumstances of the case, the competent national authorities struck a fair balance between the competing interests at stake when accepting the monitoring measures to which the applicant was subjected (see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 62). It acknowledges that the employer has a legitimate interest in ensuring the smooth running of the company, and that this can be done by establishing mechanisms for checking that its employees are performing their professional duties adequately and with the necessary diligence.", "128. In the light of the above considerations, the Court will first examine the manner in which the domestic courts established the relevant facts in the present case. Both the County Court and the Court of Appeal held that the applicant had had prior notification from his employer (see paragraphs 28 and 30 above). The Court must then ascertain whether the domestic courts observed the requirements of the Convention when considering the case.", "129. At this stage, the Court considers it useful to reiterate that when it comes to establishing the facts, it is sensitive to the subsidiary nature of its task and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 182, 14 April 2015). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247 ‑ B). Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 180, ECHR 2011 (extracts), and Aydan v. Turkey, no. 16281/10, § 69, 12 March 2013).", "130. The evidence produced before the Court indicates that the applicant had been informed of his employer’s internal regulations, which prohibited the personal use of company resources (see paragraph 12 above). He had acknowledged the contents of the document in question and had signed a copy of it on 20 December 2006 (see paragraph 14 above). In addition, the employer had sent all employees an information notice dated 26 June 2007 reminding them that personal use of company resources was prohibited and explaining that an employee had been dismissed for breaching this rule (see paragraph 15 above). The applicant acquainted himself with the notice and signed a copy of it on an unspecified date between 3 and 13 July 2007 (see paragraph 16 above). The Court notes lastly that on 13 July 2007 the applicant was twice summoned by his employer to provide explanations as to his personal use of the internet (see paragraphs 18 and 20 above). Initially, after being shown the charts indicating his internet activity and that of his colleagues, he argued that his use of his Yahoo Messenger account had been purely work-related (see paragraphs 18 and 19 above). Subsequently, on being presented fifty minutes later with a forty-five-page transcript of his communications with his brother and fiancée, he informed his employer that in his view it had committed the criminal offence of breaching the secrecy of correspondence (see paragraph 22 above).", "131. The Court notes that the domestic courts correctly identified the interests at stake – by referring explicitly to the applicant’s right to respect for his private life – and also the applicable legal principles (see paragraphs 28 and 30 above). In particular, the Court of Appeal made express reference to the principles of necessity, purpose specification, transparency, legitimacy, proportionality and security set forth in Directive 95/46/EC, and pointed out that the monitoring of internet use and of electronic communications in the workplace was governed by those principles (see paragraph 30 above). The domestic courts also examined whether the disciplinary proceedings had been conducted in an adversarial manner and whether the applicant had been given the opportunity to put forward his arguments.", "132. It remains to be determined how the national authorities took the criteria set out above (see paragraph 121) into account in their reasoning when weighing the applicant’s right to respect for his private life and correspondence against the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company.", "133. As to whether the applicant had received prior notification from his employer, the Court observes that it has already concluded that he did not appear to have been informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual content of his messages (see paragraph 78 above). With regard to the possibility of monitoring, it notes that the County Court simply observed that “the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed” (see paragraph 28 above) and that the Court of Appeal found that the applicant had been warned that he should not use company resources for personal purposes (see paragraph 30 above). Accordingly, the domestic courts omitted to determine whether the applicant had been notified in advance of the possibility that the employer might introduce monitoring measures, and of the scope and nature of such measures. The Court considers that to qualify as prior notice, the warning from the employer must be given before the monitoring activities are initiated, especially where they also entail accessing the contents of employees’ communications. International and European standards point in this direction, requiring the data subject to be informed before any monitoring activities are carried out (see paragraphs 38 and 43 above; see also, for a comparative-law perspective, paragraph 53 above).", "134. As regards the scope of the monitoring and the degree of intrusion into the applicant’s privacy, the Court observes that this question was not examined by either the County Court or the Court of Appeal (see paragraphs 28 and 30 above), even though it appears that the employer recorded all the applicant’s communications during the monitoring period in real time, accessed them and printed out their contents (see paragraphs 17 and 21 above).", "135. Nor does it appear that the domestic courts carried out a sufficient assessment of whether there were legitimate reasons to justify monitoring the applicant’s communications. The Court is compelled to observe that the Court of Appeal did not identify what specific aim in the present case could have justified such strict monitoring. Admittedly, this question had been touched upon by the County Court, which had mentioned the need to avoid the company’s IT systems being damaged, liability being incurred by the company in the event of illegal activities in cyberspace, and the company’s trade secrets being disclosed (see paragraph 28 above). However, in the Court’s view, these examples can only be seen as theoretical, since there was no suggestion that the applicant had actually exposed the company to any of those risks. Furthermore, the Court of Appeal did not address this question at all.", "136. In addition, neither the County Court nor the Court of Appeal sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the actual contents of the applicant’s communications.", "137. Moreover, neither court considered the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings. In this respect the Court notes that the applicant had received the most severe disciplinary sanction, namely dismissal.", "138. Lastly, the Court observes that the domestic courts did not determine whether, when the employer summoned the applicant to give an explanation for his use of company resources, in particular the internet (see paragraphs 18 and 20 above), it had in fact already accessed the contents of the communications in issue. It notes that the national authorities did not establish at what point during the disciplinary proceedings the employer had accessed the relevant content. In the Court’s view, accepting that the content of communications may be accessed at any stage of the disciplinary proceedings runs counter to the principle of transparency (see, to this effect, Recommendation CM/Rec(2015)5, cited in paragraph 43 above; for a comparative-law perspective, see paragraph 54 above).", "139. Having regard to the foregoing, the Court finds that the Court of Appeal’s conclusion that a fair balance was struck between the interests at stake (see paragraph 30 above) is questionable. Such an assertion appears somewhat formal and theoretical. The Court of Appeal did not explain the specific reasons linked to the particular circumstances of the applicant and his employer that led it to reach that finding.", "140. That being so, it appears that the domestic courts failed to determine, in particular, whether the applicant had received prior notice from his employer of the possibility that his communications on Yahoo Messenger might be monitored; nor did they have regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence. In addition, they failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into the applicant’s private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge (see paragraphs 120 and 121 above).", "141. Having regard to all the above considerations, and notwithstanding the respondent State’s margin of appreciation, the Court considers that the domestic authorities did not afford adequate protection of the applicant’s right to respect for his private life and correspondence and that they consequently failed to strike a fair balance between the interests at stake. There has therefore been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "142. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "143. Before the Chamber, the applicant claimed 59,976.12 euros (EUR) in respect of the pecuniary damage he had allegedly sustained. He explained that this amount represented the current value of the wages to which he would have been entitled if he had not been dismissed. At the hearing before the Grand Chamber, the applicant’s representatives stated that they maintained their claim for just satisfaction.", "144. In their observations before the Chamber, the Government stated that they were opposed to any award in respect of the pecuniary damage alleged to have been sustained. In their submission, the sum claimed was based on mere speculation and there was no link between the applicant’s dismissal and the damage alleged.", "145. The Court observes that it has found a violation of Article 8 of the Convention in that the national courts failed to establish the relevant facts and to perform an adequate balancing exercise between the applicant’s right to respect for his private life and correspondence and the employer’s interests. It does not discern any causal link between the violation found and the pecuniary damage alleged, and therefore dismisses this claim.", "2. Non-pecuniary damage", "146. Before the Chamber, the applicant also claimed EUR 200,000 in respect of the non-pecuniary damage he had allegedly sustained as a result of his dismissal. He stated that because of the disciplinary nature of the dismissal, he had been unable to find another job, that his standard of living had consequently deteriorated, that he had lost his social standing and that as a result, his fiancée had decided in 2010 to end their relationship.", "147. The Government submitted in reply that the finding of a violation could in itself constitute sufficient just satisfaction. In any event, they submitted that the sum claimed by the applicant was excessive in the light of the Court’s case-law in this area.", "148. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.", "B. Costs and expenses", "149. Before the Chamber, the applicant also claimed 3,310 Romanian lei (RON) (approximately EUR 750) in respect of the costs and expenses incurred in the domestic courts, and RON 500 (approximately EUR 115) for the fees of the lawyer who had represented him in the domestic proceedings. He claimed a further EUR 500 for the fees of the lawyers who had represented him before the Court. He produced the following in support of his claim:", "- copies of the legal-aid agreement and of the receipt for payment of the sum of RON 500, corresponding to his lawyer’s fees in the domestic proceedings;", "- documents proving that he had paid his employer the sums of RON 2,700 and RON 610.30 in respect of costs and expenses;", "- a copy of the receipt for payment of the sum of RON 2,218.64, corresponding to the fees of one of the lawyers who had represented him before the Court.", "The applicant did not seek the reimbursement of the expenses incurred in connection with the proceedings before the Grand Chamber.", "150. In their observations before the Chamber, the Government requested the Court to award the applicant only those sums that were necessary and corresponded to duly substantiated claims. In that connection, they submitted that the applicant had not proved that he had paid EUR 500 in fees to the lawyers who had represented him before the Court, and that the receipt for payment of a sum of RON 500 in fees to the lawyer who had represented him in the domestic courts had not been accompanied by any supporting documents detailing the hours worked.", "151. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 187, ECHR 2016 (extracts)). In the present case, having regard to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,365 covering costs under all heads.", "C. Default interest", "152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1958 and lives in Louvencourt.", "7. He was hired in 1976 by the French national railway company ( Société nationale des chemins de fer – “the SNCF” ), where he last worked as Deputy Head of the Amiens Regional Surveillance Unit. He stated that in 2007 he had complained to senior management about the conduct of one of his subordinates, who, he alleged, had used extreme language when addressing a colleague. The employee in question had then filed a complaint against him, following which the applicant had been charged with making false accusations. The applicant had subsequently been suspended from duty by the SNCF on grounds of that charge.", "8. The proceedings were discontinued a few months later, whereupon the applicant notified his employers of his wish to be reinstated in his former post. He received a reply inviting him to consider appointment to another post, but maintained his original request.", "9. On the day of his reinstatement, on 17 March 2008, the applicant found that his work computer had been seized. After being summoned by his superiors, he was informed on 5 April 2008 that the hard disk on the computer had been analysed and that “ address change certificates drawn up for third persons and bearing the Lille General Security Service logo ” had been found, as well as a large number of files containing pornographic images and films. It can be seen from the judgment of the Amiens Court of Appeal of 15 December 2010 ( see paragraphs 14-15 below ) that the person who had replaced the applicant during his suspension from post had found “ documents which had caught his attention” on the computer, and that he had alerted his superiors in March 2007 and January 2008.", "10. A request for a written explanation was sent to the applicant on 7 May 2008. He replied that in 2006, following problems with his personal computer, he had transferred the contents of one of his USB keys to his work computer. He added that the files containing pornographic material had been sent to him by people he did not know, via the SNCF ’ s Intranet.", "11. The applicant was summoned to a disciplinary hearing, which took place on 21 May 2008. On 9 June 2008 he was informed by the “ resources management director ” of Amiens head office that a proposal had been made to dismiss him from the service and that he would be summoned to appear before the disciplinary board. The board convened on 15 July 2008.", "12. On 17 July 2008 the SNCF regional director decided to dismiss the applicant from the service. His decision was worded as follows :", "“ ... the analysis of the files stored on the hard disk of [the applicant ’ s] work computer, used for his professional duties, contained the following :", "i) change of address certificate, signed in his name, certifying the transfer on 01/11/2003 of Ms Catherine [T.] to the Lille General Security Service; the original certificate, sent to ICF North -East enabled the notice period for vacating her flat to be shortened;", "ii) change of address certificate, bearing the Ministry of Justice logo, in the name of M. [S.-J.], governor of Fresnes Prison, certifying the transfer of M. [P.] Frédéric to Strasbourg Prison, from 1 November 2006;", "iii) draft documents drawn up in the name of Michel [V.], director of the SOCRIF, certifying his financial situation with regard to that company;", "iv) a very large number of files containing pornographic images and films (zoophilia and scatophilia ).", "These facts are in breach of the special obligation of exemplary conduct inherent in the duties formerly performed by him within the General Security Service, and of the following provisions:", "i) Article 5.2 of the RH 0006 on the principles governing the conduct of SNCF officials;", "ii) the general security database RG 0029 (information systems security policy – user ’ s charter );", "iii) the RA 0024 “ code of professional conduct” - conduct to be observed with regard to the company ’ s information system;", "iv) Article 441-1 of the Criminal Code.”", "13. On 28 October 2008 the applicant brought proceedings before the Amiens Industrial Tribunal ( conseil des prud ’ hommes ) seeking a ruling that he had been dismissed without genuine or serious cause. On 10 May 2010 the Industrial Tribunal held that the decision dismissing the applicant from the service had been justified and, accordingly, rejected his claims.", "14. On 15 December 2010 the Amiens Court of Appeal upheld the substance of that judgment. It held, in particular, as follows :", "“ ... [ The applicant] submitted that the SNCF had infringed his private life by opening, in his absence, files identified as personal in his computer.", "As a matter of policy, documents kept by employees in the company ’ s office, save those identified by them as personal, are presumed to be for professional use, meaning that the employer can have access to them in the employee ’ s absence.", "It can be seen from the report drawn up by the SEF that the pornographic photos and videos were found in a file called “fun” stored on a hard disk labelled “ D:/ personal data”.", "The SNCF explained, without being challenged, that the “D” drive was called “ D:/ data” by default and was traditionally used by staff to store their work documents.", "An employee cannot use an entire hard disk, which is supposed to record professional data, for his or her private use. The SNCF were therefore entitled to consider that the description “personal data” appearing on the hard disk could not validly prohibit their access to it. In any event, the generic term “personal data” could have referred to work files being personally processed by the employee and did not therefore explicitly designate elements relating to his private life. That had been the case here, moreover, since the analysis of the hard disk yielded numerous work documents ( “ LGV photos” file, “warehouse photos” ....", "The term “ fun ”, moreover, does not clearly convey that the file in question is necessarily private. The term can denote exchanges between colleagues at work or work documents kept as “ bloopers” by the employee. The employer also rightly pointed out that the user ’ s charter provided that “private information [ had to ] be clearly identified as such ( “private” option in the Outlook criteria ) ” and that the same was true of the media receiving that information (“private” folder ). The lower court was therefore correct in considering that the file had not been identified as personal.", "The same applies to the files containing the impugned certificates registered under the names “Fred [P.]”, “SOCRIF” and “Catherine”. ”", "15. The Court of Appeal also held that the applicant ’ s dismissal from the service had not been disproportionate. It observed that both the SNCF ’ s Code of Professional Conduct and the internal rules provided that staff were required to use the computers provided to them for exclusively professional ends, with the occasional private use being merely tolerated. It found that the applicant had committed a “ massive breach of those rules, going as far as using his work tools to produce a forged document”. In the court ’ s view, those acts had been particularly serious because, as an official responsible for general surveillance, he would have been expected to be of exemplary conduct.", "16. The applicant appealed on points of law. He submitted, in particular, that there had been a violation of Article 8 of the Convention. The Social Division of the Court of Cassation dismissed the appeal in a judgment of 4 July 2012. It held as follows :", "“ ... whilst files created by an employee with the assistance of the computer facilities supplied to him by his employer for work purposes are presumed to be professional in nature, meaning that the employer is entitled to open them in the employee ’ s absence, unless they are identified as personal, the description given to the hard disk itself cannot confer privacy on all the data contained in it. The Court of Appeal, which found that labelling the hard disk in the employee ’ s computer “D:/ personal data” could not enable him to use it for purely private purposes and prohibit access by the employer, drew the legitimate conclusion that the files in question, which had not been identified as “private” according to the recommendations of the IT charter, could be lawfully opened by the employer.", "The Court of Appeal, which found that the employee had stored 1, 562 pornographic files representing a volume of 787 megabytes over a period of four years, and that he had also used his work computer to produce forged certificates, rightly held that such misuse of his office equipment in breach of the rules in force at the SNCF amounted to a breach of his contractual obligations. ... ”.", "...", "III. USER ’ S CHARTER REGARDING USE OF THE SNCF ’ S INFORMATION SYSTEM", "19. The user ’ s charter regarding use of the SNCF ’ s information system contains the following provisions :", "“ ... Access to resources", "The resources provided by the SNCF ’ s information system shall be used exclusively for the staff ’ s professional activities, as defined by their job description and within the limits of the tasks assigned to them. Occasional and reasonable use of the electronic mail system and Internet for personal purposes shall nonetheless be tolerated in order to assist practical or family needs provided that this is not liable to affect the quality of the associated service. Private information must be clearly identified as such ( inter alia “private” option in the Outlook criteria ). The same applies to the media receiving this information ( “Private” folder). Such use is authorised on a strictly personal basis and cannot in any way be transferred, even temporarily, to a third party without engaging the responsibility of the postholder. Authorisation can be revoked at any time and shall cease in the event of temporary or definitive suspension of the professional activity justifying it. ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "17. Articles L. 1121-1 and L. 1321-3 of the Labour Code read as follows :", "Article L. 1121-1", "“ No one shall restrict the rights of persons or individual and collective liberties in a manner that is neither justified by the nature of the task to be performed nor proportionate to the aim pursued. ”", "Article L. 1321-3", "The internal rules shall not contain : ... 2. Provisions restricting the rights of persons or individual and collective liberties in a manner that is neither justified by the nature of the task to be performed nor proportionate to the aim pursued ... .”", "18. In a judgment of 2 October 2001, the Social Division of the Court of Cassation held that employees were entitled, even during working time and at the workplace, to respect for their privacy, which included in particular confidentiality of communications. It concluded, accordingly, that an employer could not read personal messages sent or received by an employee via computer facilities made available to him or her for work purposes, even where the employer had prohibited use of the computer for non-professional purposes ( Bulletin 2001 V No. 291, p. 233). In a judgment of 17 May 2005, it specified that, “ save in a case of serious risk or in exceptional circumstances, an employer c[ould] only open files identified by an employee as personal and stored on the hard disk of his or her work computer in the employee ’ s presence or after he or she had been duly called ” ( Bulletin 2005 V No. 165, p. 143). In a judgment of 18 October 2006, it added that folders and files created by an employee using the computer facilities supplied by his or her employer for work purposes were presumed to be professional documents unless the employee had identified them as personal, and the employer could therefore have access to them in the employee ’ s absence ( Bulletin 2006 V No. 308, p. 294).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "20. The applicant complained of a violation of his right to respect for his private life on the grounds that his employer had opened, in his absence, personal files stored on the hard disk of his work computer. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "21. The Government submitted that Article 8 of the Convention was inapplicable on the grounds that at the material time or at the time of introduction of the application the SNCF could not be regarded as a public authority within the meaning of the second paragraph of Article 8 and that there had been no interference with the exercise of the applicant ’ s right to respect for his private life within the meaning of that provision.", "22. The question whether or not there had been an “interference by a public authority with the exercise of this right” within the meaning of the second paragraph of Article 8 is distinct, however, from that of the applicability of that provision, as it concerns the merits of the case; the Court will accordingly analyse it in the context of its examination of the complaint on the merits ( see paragraphs 37-41 below ).", "23. That having been established, the Court nonetheless considers it relevant to rule on the applicability of Article 8 in the present case. It observes in this connection that it has previously had the opportunity to rule that telephone calls for non - professional purposes from the workplace could fall within the concepts of “private life” and “ correspondence ”, within the meaning of Article 8 § 1 of the Convention ( see Halford v. the United Kingdom, 25 June 1997, § § 44-46, Reports of Judgments and Decisions 1997 ‑ III; see also Amann v. Switzerland [GC], no. 27798/95, § 44, ECHR 2000 ‑ II ). In the case of Halford, the Court specified that the applicant could have had a reasonable expectation of privacy for such calls, which expectation was reinforced by the fact that as Assistant Chief Constable she had sole use of her office, where there were two telephones, one of which was specifically designated for her private use. Furthermore, she had been given the assurance, in response to a memorandum she had sent, that she could use her office telephones for the purposes of her sex-discrimination case.", "24. Emails sent from the workplace, information derived from the monitoring of personal Internet usage at the workplace ( see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007 ‑ I ), and electronic data consisting of emails or computer records ( see, mutatis mutandis, Vinci Construction and GTM Génie Civil and Services v. France, nos. 63629/10 and 60567/10, §§ 69-70, 2 April 2015; the circumstances of that case were different, however, from those of the present case as it concerned companies complaining, in substance, about the search and seizure of electronic data consisting of computer records and emails from a number of their employees, containing, inter alia, messages covered by lawyer-client privilege ) can also attract the protection of Article 8.", "25. The Court can therefore accept that in some circumstances non-professional data, for example data clearly identified as being private and stored by an employee on a computer supplied to him by his employer for professional use, may be deemed to relate to his “private life”. In the instant case, as observed in the judgment given on 15 December 2010 by the Amiens Court of Appeal in the applicant ’ s case, the SNCF tolerates the occasional use of work computer facilities by staff for their private use, while specifying the rules to be followed in that regard ( see, mutatis mutandis, Bărbulescu, cited above, § 80).", "26. That being said, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It therefore declares it admissible.", "B. Merits", "1. The parties ’ submissions", "a) The applicant", "27. On the question of whether there had been an “interference by a public authority”, within the meaning of Article 8 § 2 of the Convention, the applicant submitted at the outset that the SNCF was a group composed of three public bodies of an industrial and commercial nature ( établissement public à caractère industriel et commercial – “ EPIC ”). He observed that the description “ public body ” already indicated that it was a public authority, and added that the three EPIC in question were fully State owned, that the most senior officials of the SNCF were appointed directly by the Government, and that the SNCF was under State supervision through the General Directorate of Infrastructures, Transport and the Sea of the Ministry of Ecology, Sustainable Development and Energy.", "28. The applicant admitted having used his work computer for personal ends, but denied having personalised the entire contents of the hard disk, submitting that he had labelled only part of the contents “ D:/ personal data”. He added that the volume of documents in question was not such as to support a presumption that they were work related as he had taken care to divide the storage space of his hard disk into two parts, only one of which was labelled “ D:/ personal data”. He pointed out that his employer had consulted a file labelled “ fun ” whereas there was no doubt that this term denoted a non- professional content.", "29. The applicant then submitted that the interference of which he complained had not been in accordance with the law, observing, among other things, that Articles L. 1121-1 and L. 1321-3 of the Labour Code, to which the Government referred, were limited to indicating in general terms that such a measure was possible if it was justified by the nature of the task to be performed and proportionate to the aim pursued.", "30. The applicant submitted, further, that the measure of which he complained had not been carried out in pursuit of a legitimate aim. In his view, the need to give the employer the possibility of monitoring execution of the employees ’ work and satisfying themselves that they were adhering to the rules was an irrelevant consideration in his case because his computer had been seized and the contents searched at a time when he had been absent for more than a year and the computer had not therefore been used for a long time. Nor could his employer rely on the need to prevent crime, as the possession of erotic, pornographic or humorous images was not contrary to French law. He submitted, further, that such grounds presupposed the prior existence of a suspicion, whereas his employer could not have been aware of the contents of the files in question until after he had opened them. He challenged the Government ’ s assertion that the existence of the files had been disclosed to his employer by the employee who had been replacing him, as that employee had not been using his computer but other computer facilities. He alleged that his employer had in truth sought a pretext to get rid of a very long-standing management employee cheaply.", "31. The applicant submitted that he had suffered a material infringement of his right to respect for his private life. In his view, that infringement could not be regarded as proportionate if the employee did not have the benefit of substantive and formal guarantees. French positive law failed to provide such guarantees.", "b) The Government", "32. The Government submitted that there had not been an “interference”, within the meaning of Article 8 § 2 of the Convention, with the applicant ’ s right to respect for his private life because he had not properly identified the files opened by his superiors as private. They added that even if there had been an interference, it had not been by a “public authority”, within the meaning of that provision, because the SNCF was an EPIC whose employees were subject to private law, the non-regulatory decisions taken in their regard were acts subject to private law and employer-employee disputes fell within the jurisdiction of the ordinary courts.", "33. In the alternative, the Government submitted that the interference had been in accordance with the law (Articles L. 1121-1 and L. 1321-3 of the Labour Code, supplemented by the case-law of the Court of Cassation), pursued legitimate aims and been necessary in a democratic society.", "34. With regard to the aims pursued, the Government submitted, first, that the interference in question had sought to guarantee the protection of the “rights and freedoms of others” : those of the employer, who should be able to monitor execution of the employees ’ work, satisfy itself that they adhered to the applicable rules, protect the company ’ s electronic networks and prevent risks related to the unauthorised use of work computers. Secondly, they referred to the “prevention of crime”, pointing out in that respect that the applicant had been suspended from duty at the beginning of 2007 on account of the criminal charge against him and that it was following the discovery of suspicious documents on his computer by the employee temporarily replacing him that his employer had carried out fuller investigations.", "35. The Government then pointed out that the Court had held, in Copland (cited above), that it would not exclude that the monitoring of an employee ’ s telephone, email or Internet usage at the workplace may be considered “necessary in a democratic society” in certain situations in pursuit of a legitimate aim. They pointed to the margin of appreciation available to States in the area of labour relations, where two competing private interests had to be weighed up, and the protection offered by French positive law to the effect that the employer could not consult and open, in the absence of the employee concerned, files and folders identified as personal. They submitted, however, that under the employment contract and the relationship of subordination deriving from it, employers were entitled to expect employees to carry out the tasks assigned to them. They specified that the Court of Cassation had thus held – in particular – that employers could find that employees had breached their contractual obligations by misusing computer facilities for private purposes (Cass. Soc. 16 May 2007, no. 05-46.455) or immoral purposes liable to harm the company ’ s interests (Cass. Soc. 2 June 2004, no. 03-45.269). In their submission, as the applicant had been attached to the department responsible for rail safety, his employer had to be able to access the work documents contained in his work computer. As the applicant had put his entire hard disk in the file marked “ personal data”, his employer had had no alternative but to access that file. The SNCF had had a duty to investigate because it had been informed by the employee replacing the applicant of the presence “ of [the] files in question ” on the hard disk of his computer.", "36. The Government observed that the SNCF ’ s Code of Professional Conduct and the internal rules stipulated that staff must use the company ’ s computer facilities exclusively for work purposes, and that their use for private purposes was authorised only exceptionally, occasionally and reasonably, and in the context of everyday and family life; any use resulting in substantial use of storage space and any access to sites whose content infringed public order, dignity of persons or morals was proscribed. They concluded that the applicant could not have been unaware that the storage of 1, 562 pornographic files corresponding to 787 megabytes on his hard disk over a period of four years was liable to contravene the user ’ s charter, the Professional Code of Conduct and the SNCF ’ s internal rules. Adding that the presence of those files “could have caused problems for the employer, who could subsequently have been sued for passive collusion”, the Government concluded that the measure complained of had been fully justified and proportionate.", "2. The Court ’ s assessment", "a) Whether there was an “interference by a public authority” and whether the case concerned a negative or a positive obligation", "37. The Court is not convinced by the Government ’ s submission that there had been no “interference” with the right to respect for the applicant ’ s private life because he had not properly labelled as private the files opened by his superiors. It observes that the Government did not deny that the applicant ’ s files had been opened on his work computer without his knowledge and in his absence. Having regard to the special circumstances of the case, the Court is willing to accept that there was an interference with his right to respect for private life.", "38. Nor is the Court convinced by the Government ’ s submission that the SNCF was not a public authority within the meaning of Article 8 § 1 of the Convention. Admittedly, as they observed, the SNCF carries on an “industrial and commercial” activity, its staff are subject to private law, the non-regulatory decisions it takes in their regard are acts subject to private law and employment disputes to which it is a party are tried by the ordinary courts. It is, however, a public-law entity ( a “ public body of an industrial and commercial nature ”), placed under State supervision, and with State-appointed directors, which provides a public service, holds a monopoly and enjoys an implicit State guarantee. In the light of the Court ’ s case-law on the concept of “public authority” ( see, in particular, Kotov v. Russia [GC], no. 54522/00, § 92-107, 3 April 2012; Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, § 183-192, 9 October 2014; and Samsonov v. Russia ( (dec.) no. 2880/10, §§ 63-66, 16 September 2014), those factors substantiate the description of the SNCF as a public authority for the purposes of Article 8 of the Convention.", "39. The present case must also be compared with the cases of RENFE v. Spain (dec.) no. 35216/97, 8 September 1997 ) and Copland (cited above, §§ 43-44 ). In the former case the European Commission of Human Rights held that the Spanish national railway company was a “ governmental organisation ” because it was answerable to the government and held a monopoly ( without disregarding the differences between the concepts of “governmental organisation ” and “public authority”, the pattern of analysis used by the Court in these two situations is similar; see, for example, Kotov, cited above, § 95). In the latter case the Court held that a measure taken by a State employer against one of its employees could amount to an interference by a public authority with the right to respect for the latter ’ s private and family life ( the case concerned the monitoring of correspondence of an employee of a State college by the establishment ’ s authorities ).", "40. The present case is therefore distinguishable from the case of Bărbulescu, cited above (§§ 108-11), in which the right to respect for private life and private correspondence had been infringed by a strictly private-sector employer.", "41. Since the interference was by a public authority, the complaint must be analysed from the angle not of the State ’ s positive obligations, as in the case of Bărbulescu, cited above, but of its negative obligations.", "42. Such interference violates Article 8, unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” to achieve the aim or aims concerned.", "b) In accordance with the law", "43. The Court observes that it is well established in the case-law that the term “in accordance with the law” implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Article 8 § 1. This expression not only requires compliance with domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. In order to fulfil the requirement of foreseeability, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances and conditions in which the authorities are empowered to resort to any such measures (see, for example, Copland, cited above §§ 45-46).", "44. The Government referred to Articles L. 1121-1 and L. 1321-3 of the Labour Code, which merely indicate, however, in general terms, that within a company no one may restrict the rights of persons or individual and collective liberties in a manner that is neither justified by the nature of the task to be performed nor proportionate to the aim pursued, and that the internal rules laid down by the employer cannot contain provisions restricting the rights of persons or individual and collective liberties in a manner that is neither justified by the nature of the task to be performed nor proportionate to the aim pursued ( see paragraph 17 above ). The Court observes, however, that the Court of Cassation – examining a complaint under Article 8 – had already held at the material time that, save in a case of serious risk or in exceptional circumstances, an employer could only open files identified by an employee as personal and stored on the hard disk of his or her work computer in the employee ’ s presence or after he or she had been duly called. It had added that folders and files created by an employee using the computer supplied by his or her employer for work purposes were presumed to be professional documents, unless the employee had identified them as personal, and the employer could therefore have access to them in the employee ’ s absence ( see paragraph 18 above ). The Court concludes that, at the material time, positive law had already allowed the employer, within the said limits, to open files stored on an employee ’ s work computer. It therefore accepts that the interference complained of by the applicant had a legal basis and that positive law contained adequate provisions specifying the circumstances and conditions in which such a measure could validly be regarded as “in accordance with the law”.", "c) Legitimate aim", "45. Whilst an interference with files stored on an employee ’ s computer can have the legitimate aim of “ prevent [ ing] crime”, the Court cannot agree with the Government ’ s assertion that this was the case here. It notes the Government ’ s submission in this regard that the applicant had been suspended from duty at the beginning of 2007 on account of the criminal charge against him and that it was following the discovery of suspicious documents on his computer by the employee temporarily replacing him that the SNCF had carried out more thorough investigations. The Court observes, however, that the opening of the files in question was not done in the context of the criminal proceedings brought against the applicant and that neither the domestic decisions nor the other documents in the case showed that it had been considered at any stage of the domestic proceedings that the contents of the files might constitute a criminal offence.", "46. The Court acknowledges, however, that, as also submitted by the Government, the interference was intended to safeguard the protection of the “rights of others”, that is to say, in this case, those of the employer, who may legitimately wish to ensure that the employees are using the computer facilities placed at their disposal for the purpose of carrying out their duties in line with their contractual obligations and the applicable regulations. It reiterates in this connection its observation in Bărbulescu, cited above (§ 127 ), that the employer has a legitimate interest in ensuring the smooth running of the company, and that this can be done by establishing mechanisms for checking that its employees are performing their professional duties adequately and with the necessary diligence.", "d) Necessary in a democratic society", "47. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. Whilst, in ruling on the “ necessity ” of an interference “ in a democratic society ”, the Court must have regard to the margin of appreciation afforded to the Contracting States, it does not, however, confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith. In exercising its supervisory jurisdiction, the Court must consider the impugned decisions in the light of the case as a whole and determine whether the reasons adduced to justify the interference at issue are relevant and sufficient. It must also examine whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness. For that purpose, it refers, mutatis mutandis to the recent judgment Bărbulescu (cited above, §§ 120-21), in which it held, in the context of the application of Article 8 to the relationship between private employers and their employees, that the domestic courts had to ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, was accompanied by adequate and sufficient safeguards against abuse. It stressed, in this context, that proportionality and procedural guarantees against arbitrariness were essential.", "48. Having pointed that out, the Court observes that French positive law contains provisions for the protection of private life. The principle is that, whilst the employer can open any professional files stored on the hard disks of the computers placed at the employees ’ disposal for the purposes of their duties, it cannot surreptitiously open files identified as being personal “ save in a case of serious risk or in exceptional circumstances ”. It can only open such files in the presence of the employee concerned or after the latter has been duly called.", "49. The Court observes that the domestic courts applied that principle in the present case. Both the Amiens Court of Appeal ( see paragraph 14 above ) and the Court of Cassation ( see paragraph 16 above ) explicitly reiterated it, with the Court of Cassation observing in particular that “files created by the employee with the assistance of the computer facilities supplied to him by his employer for work purposes [were] presumed to be professional in nature, meaning that the employer [was] entitled to open them without the employee being present, unless they [were] identified as personal”.", "50. Addressing the applicant ’ s submission that there had been a violation of his right to respect for his private life, they held that, in the circumstances of the case, that principle did not preclude his employer from opening the files in question, as these had not been duly identified as private.", "51. The Court reiterates at the outset that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation; save in cases of arbitrary or manifestly unreasonable interpretation (see, for example, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007 ‑ I), its role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for example, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I, and Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015 ). It observes next that, in reaching the conclusion summarised above, the Amiens Court of Appeal (see paragraphs 14-15 above) based itself on the finding that the pornographic photographs and videos in question were stored in a file labelled “fun” contained in a hard disk called “D:/personal data”, and on the SNCF ’ s explanation that “the ‘ D ’ drive [was] called ‘ D:/ data ’ by default and [was] traditionally used by staff to store their work documents”. It went on to consider that an employee could not “use a whole hard disk, which was supposed to record professional data, for private use and that “in any event the generic term “personal data” could have referred to work files being processed personally by the employee and did not therefore explicitly designate elements related to private life ”. More specifically, the Court of Appeal found that the term “ fun ” did not clearly confer a necessarily private designation on the file, as the term [could] refer to exchanges between colleagues at work or professional documents kept by the employee as “bloopers”. The Court of Appeal had, furthermore, accepted the SNCF ’ s argument that the “user ’ s charter provided that private information should be clearly identified as such ( ‘ private ’ option in the Outlook criteria)”, and that the same applied to the “media receiving that information ( ‘ private ’ folder )”. It also considered that the measure taken against the applicant – his dismissal from the service – was not disproportionate, given that the applicant had committed a “ massive breach ” of the SNCF ’ s Code of Professional Conduct and its internal rules, which provided that staff were required to use the computer facilities supplied to them for exclusively professional purposes, with the occasional private use being merely tolerated. According to the Court of Appeal, his actions were particularly serious because, as an official responsible for general surveillance, he would have been expected to be of exemplary conduct.", "52. The Court, which observes that the domestic courts thus properly assessed the applicant ’ s allegation of a violation of his right to respect for his private life, finds their decisions to have been based on relevant and sufficient grounds. Admittedly, in using the word “personal” rather than “private”, the applicant used the same word as that found in the Court of Cassation ’ s case-law to the effect that an employer cannot, in principle, open files identified as “personal” by the employee (see paragraph 18 above). However, in terms of the Court ’ s task of assessing the compatibility of the impugned measures with Article 8 of the Convention, that is insufficient to call into question the relevance or adequacy of the grounds on which the domestic courts based their decisions, having regard to the fact that the user ’ s charter for use of the SNCF ’ s information system specifically states that “private data must be clearly identified as such ( inter alia ‘ private ’ option in the Outlook criteria) [ and that ] the same is true of the media receiving that information ( ‘ private ’ folder )”. The Court also accepts that, having noted that the applicant had used a substantial amount of the storage space on his work computer to store the files in question (1,562 files representing a volume of 787 megabytes), the SNCF and the domestic courts deemed it necessary to examine his case thoroughly.", "53. Consequently, the Court, observing, moreover, that it is required to consider the impugned decisions in the light of the case in its entirety, considers that the domestic authorities did not exceed their margin of appreciation, and that there has therefore been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "54. The applicant submitted that, in the light of the Court of Cassation ’ s previous case-law, he could not have expected it to conclude in his case that the opening of the files by his employer was compatible with his right to respect for his private life. In his view, by transforming conduct which had hitherto been lawful into wrongful conduct, it had “limited” its established case-law and, applying it retroactively, had “undermined legal certainty and the expectations of defendants ”. He also submitted that the fact that a former legal director of the SNCF had been an advocate-general at the Court of Cassation since 2000 cast a “real doubt” on the impartiality of that court. He relied on Article 6 § 1 of the Convention, which provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "55. As the Court has already noted (see paragraph 44 above), the Court of Cassation – on examining a complaint under Article 8 – had held prior to the facts of the present case that, save in a case of serious risk or in exceptional circumstances, an employer could only open files identified as personal by the employee and contained in the hard disk of his work computer in the presence of the employee concerned or after the latter had been duly called. It had added, however, that files and folders created by an employee with the computer facilities supplied by his or her employer for professional use were presumed to be professional in nature unless the employee identified them as personal, which meant that the employer could access them in the employee ’ s absence. Accordingly, at the material time positive law, as then established, allowed the employer, within those limits, to open files stored on an employee ’ s work computer. The Court observes, further, that the complaint that the Court of Cassation ’ s impartiality had been affected by the fact that a former legal director of the SNCF was now an advocate-general is not substantiated as the applicant did not even claim that the advocate-general had sat on the bench examining his appeal.", "56. The Court consequently concludes that this part of the application is manifestly ill-founded and accordingly declares it inadmissible and rejects it under Article 35 §§ 3 a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. On 28 February 1995 Detective Inspector Mann (D.I. Mann), received information that an armed robbery of a Securicor Ltd cash-collection van was going to be committed on or around 2 March 1995 by the first applicant and B. at one of several possible locations. The police knew where B. lived and began visual surveillance of those same premises the same day. D.I. Mann learnt that B. was suspected of being a drug dealer and that surveillance operations mounted against B. in the past had proved unsuccessful because they had been compromised. It was therefore concluded that B. was “surveillance-conscious”. B. was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery. This was something that all the officers, and particularly the Chief Constable, were aware of when the police operation was being planned.", "9. No robbery took place on 2 March 1995. By 3 March 1995, however, the police had received further information that the robbery was to take place “somewhere” on 9 March 1995. Further information as to the location or target of the proposed robbery could not be obtained on 3 March 1995. In order to obtain further details about the proposed robbery, D.I. Mann prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in B.’s flat. Some of the contents of this report were the subject of a successful application for non-disclosure by the Crown on the ground that serious damage would be caused to the public interest were they to be made public.", "10. The use of covert listening devices was governed by the “Guidelines on the Use of Equipment in Police Surveillance Operations” issued by the Home Office in 1984 (“the Guidelines”). On 3 March 1995 the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible. Reconnaissance during the night of 3/4 March established that it was feasible.", "11. On 4 March 1995 the Chief Constable gave oral authorisation to proceed with its use. However, he did not provide written confirmation as required by the Guidelines because he was on annual leave, so he gave the authority by telephone from home. The Chief Constable stated that the use of the device was to be reviewed on a daily basis. He said that he had asked the Deputy Chief Constable to look after the written formalities and to ensure, inter alia, that there was written confirmation of the message that the installation of the device was feasible. He did not receive this confirmation until 8 March. On 8 March 1995 the Deputy Chief Constable gave “retrospective” written authorisation for use of the listening device.", "12. On 4 March a covert listening device was therefore installed in a sofa in B.’s flat before the Deputy Chief Constable had confirmed the authorisation in writing. Conversations between B. and others in B.’s living room were monitored and recorded until 15 March 1995.", "13. On 14 March 1995 the police made a request to BT (British Telecommunications PLC) for itemised billing in relation to the telephone number of B. at his flat for the period from 1 January 1995 to the date of the request. The data-protection form was countersigned by a police superintendent in line with BT’s requirements, stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers. While the request was originally made in an effort to identify the unknown third person in the conspiracy (now known to have been the second applicant), the data was also used later in court to corroborate the times and dates recorded by the officers in respect of the covert listening device in the flat.", "14. On 15 March 1995 B. and others who were with him in his home discovered the listening device and abandoned the premises. The robbery did not take place. The police had been continuing their visual surveillance of the premises, taking photographs and video footage whilst the audio surveillance was in progress. The applicants were identified by various officers going in and out of the flat and observed on some occasions to be carrying various hold-alls. The police had also been keeping watch on a cache in a rural location and observed the first applicant collecting an item from this location on the evening of 15 March 1995. An officer had earlier inspected the hidden item, which he stated he could tell through the plastic bag was a revolver. It appeared that the vehicle which the first applicant used for transport that evening was a stolen vehicle in which he was subsequently arrested.", "15. On 16 March 1995 the applicants were arrested in the stolen Vauxhall car. In the boot of the vehicle were found two hold-alls containing, inter alia, two black balaclavas, five black plastic cable ties, two pairs of leather gloves and two army kitbags. Following legal advice, the applicants declined to comment during interview and refused to provide speech samples to the police. The police obtained a search warrant for the flat and searched it. Fingerprints of the applicants were found, as well as items such as a pair of overalls and a third balaclava. Three vehicles were recovered and examined. The items retained included balaclavas, hold-alls, overalls and a broken petrol cap.", "16. As they wished to obtain speech samples to compare with the tapes, the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were examined. Written authorisation was given by the Chief Constable in accordance with the Home Office Guidelines. Samples of the applicants’ speech were recorded without their knowledge or permission. In the case of the second applicant, the conversations that were recorded included, on one occasion, the second applicant taking advice from his solicitor. The Government state that, when the police officer realised what the conversation was about, it was not listened to. That recording was not adduced in evidence at trial.", "17. The voice samples of the applicants were sent to an expert who compared them with the voices on the taped recordings of conversations held in B.’s home between 4 and 15 March. The expert concluded that it was “likely” that the first applicant’s voice featured on the taped recordings and that it was “very likely” that the second applicant’s voice featured on them.", "18. B. and the applicants were charged with conspiracy to rob Securicor Ltd of monies. B. pleaded guilty in view of the House of Lords decision in R. v. Khan ([1996] 3 All England Law Reports 289). The House of Lords held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means (for example, trespass). The applicants, however, challenged the admissibility of the evidence derived from the use of the covert listening devices at B.’s home on two grounds.", "(a) The Chief Constable should not have authorised the use of a covert listening device at B.’s premises because other forms of investigation had not been tried and failed as required by paragraph 4 (b) of the Guidelines, with the result that it would be unfair to admit evidence which ought never to have been obtained.", "(b) The covert listening device had been installed and used before written confirmation of the Chief Constable’s authorisation had been received and there was no specific permission for the recordings obtained from the device to be used in evidence.", "Before the jury was sworn in at the trial, Judge Brodrick heard evidence by means of a voir dire (submissions on a point of law in the absence of the jury) on matters relating to the admissibility of the challenged evidence. The prosecution conceded that the relevant evidence had been obtained by unlawful means, namely trespass. During this procedure the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence given, in other words claiming public interest immunity. The prosecution argued that the test of admissibility was relevance. The defence argued that the judge had the discretion to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE), and that he should do so because the Chief Constable had failed to abide by the Guidelines.", "19. Judge Brodrick decided that some documents, including D.I. Mann’s report, which led to the Chief Constable’s decision to authorise the use and installation of a covert listening device in B.’s flat, were to be withheld from the applicants and their lawyers. The judge kept under review the non-disclosure during the proceedings and at one point some disclosure was made, although not D.I. Mann’s report in its entirety. D.I. Mann also declined to answer questions put to him in cross-examination by defence counsel on the ground that it might reveal sensitive material. Judge Brodrick asked defence counsel whether they wanted him to put the unanswered questions to D.I. Mann under oath, in chambers, and they agreed. The judge proceeded to put the questions to D.I. Mann in private in the absence of the applicants and their lawyers. He heard evidence from D.I. Mann concerning the ability of the police to “control” B. in order to install the device in the flat, which the defence asserted indicated that normal methods of surveillance would have been possible. He also heard D.I. Mann concerning the arrangements made and put into effect for this period. The answers to those questions were not divulged, the judge indicating in open court that the benefit to the defence from the answers given was slight, if any at all, while the damage to the public interest if the answers were made public would be great. Accordingly, he held that D.I. Mann was entitled on public immunity grounds to refuse to answer those questions.", "20. Judge Brodrick rejected the applicants’ challenge to the admissibility of the evidence derived from the covert listening devices in B’s flat. In reaching his decision, Judge Brodrick stated:", "“61. It follows that I must apply the test set out in section 78 on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered. At most there were one or possibly two breaches of procedure, but neither, in my judgment, could be described as either significant or substantial. It is conceded by the Crown that the installation of the device amounted to a civil trespass. In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private.", "62. I was invited to take into account, and I do, that the installation of the device may well amount to an invasion of the general right to privacy under Article 8 [of the Convention]. It is not for me to determine whether there has, in fact, been a breach of Article 8, but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in Article 8 § 2. In those circumstances I cannot see any reason for concluding that the possible breach of Article 8 was either substantial or significant.", "63. I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable’s decision breached Article 6 of the Convention ... I am satisfied beyond reasonable doubt that to the extent that there has been a breach of Article 6 it has not in fact deprived these Defendants of the right to a fair trial.”", "21. The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents. Judge Brodrick stated:", "“75. ... it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained. The fact that they provide relevant evidence, in the sense that they are a reliable sample of speech, which can be clearly attributed to each of these Defendants, weighs more heavily in my judgment. On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them.”", "22. The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat, and the searches of the flat and the recovered vehicles. There was also evidence from officers who had been keeping watch on a cache. One officer stated that the item hidden under a tree was in fact a revolver. The first applicant was seen collecting this item on the evening of 15 March 1995.", "23. On 9 August 1996 the applicants were convicted of conspiracy to commit armed robbery and were sentenced to fifteen years’ imprisonment. They applied to the Court of Appeal for leave to appeal on grounds relating to the judge’s rulings to admit taped evidence. They did not challenge the judge’s decisions with respect to non-disclosure of certain evidence on public interest immunity grounds. Their applications were refused on 12 November 1996, a single judge finding that the judge’s exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal. Notification of the refusal was sent to them on 10 and 20 December 1996 respectively. It does not appear that the applicants made any complaints to the Police Complaints Authority in respect of the covert listening devices." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Home Office Guidelines", "24. At the relevant time, guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. They provided, inter alia :", "“4. In each case, the authorising officer should satisfy himself that the following criteria are met:", "(a) the investigation concerns serious crime;", "(b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried;", "(c) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;", "(d) use of equipment must be operationally feasible.", "5. In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.”", "25. The Guidelines also stated that there might be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.", "B. The Police Complaints Authority", "26. The Police Complaints Authority was created by section 89 of the Police and Criminal Evidence Act 1984. It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges.", "C. The Police and Criminal Evidence Act 1984 (PACE)", "27. Section 78(1) of this Act provides as follows:", "“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”", "D. The Police Act 1997", "28. The 1997 Act provides for a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1999.", "29. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.", "E. Disclosure of evidence to the defence", "30. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.", "31. The case of R. v. Ward ([1993] 1 Weekly Law Reports 619) dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure:", "“In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.”", "This judgment also clarified that, where an accused appeals to the Court of Appeal on the grounds that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.", "F. Disclosure of personal data", "32. Section 45 of the Telecommunications Act 1945 prohibits the disclosure by a person engaged in a telecommunications system of any information concerning the use made of the telecommunications services provided for any other person by means of that system.", "33. However, pursuant to section 28(3) of the Data Protection Act 1984:", "“Personal data are exempt from non-disclosure provisions in any case in which –", "(a) the disclosure is for any of the purposes mentioned in subsection 1 above; and", "(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection.”", "Subsection 1 refers to data held for the purpose of:", "“(a) the prevention or detection of crime;", "(b) the apprehension or prosecution of offenders; or", "(c) the assessment or collection of any tax or duty.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION", "34. The applicants complained that covert listening devices were used by the police to monitor and record their conversations at a flat, that information was obtained by the police concerning the use of a telephone at the flat and that listening devices were used while they were at the police station to obtain voice samples. They relied on Article 8 of the Convention, the relevant parts of which provide as follows:", "“1. Everyone has the right to respect for his private ... life ... and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”", "A. The use of a covert listening device at B.’s flat", "1. The parties’ submissions", "35. The applicants submitted that the use of a covert listening device at B.’s flat to monitor and record conversations was an interference with their rights under Article 8 § 1 of the Convention which was not justified under the second paragraph of that provision. At the time of the events in their case there existed no statutory system to regulate the use of covert listening devices, although the Police Act 1997 now provides such a statutory framework. The Home Office Guidelines which provided the relevant instructions to the police were neither legally binding nor directly publicly accessible. The interference with their right to respect for their private life was therefore not “in accordance with the law” and there had been a violation of Article 8 in that respect.", "36. The Government acknowledged that the use of this device interfered with the applicants’ right to respect for their private life. They submitted that it was justifiable under the second paragraph of Article 8 as being necessary in a democratic society in the interests of public safety, for the prevention of crime and/or for the protection of the rights of others. They referred, inter alia, to the serious nature of the crime under investigation, the fact that B. was regarded as being surveillance-conscious, rendering conventional forms of surveillance insufficient, and that the conversations proved that an armed robbery was being planned. They recalled, however, that in Khan v. the United Kingdom (no. 35394/97, §§ 26-28, ECHR 2000-V), the Court found that the Home Office Guidelines governing such devices did not satisfy the requirement of “in accordance with the law” and recognised that the Court was liable to reach the same conclusion in the present case.", "2. The Court’s assessment", "37. The Court notes that it is not disputed that the surveillance carried out by the police at B.’s flat amounted to an interference with the right of the applicants to respect for their private life. As regards conformity with the requirements of the second paragraph of Article 8 – that any such interference be “in accordance with the law” and “necessary in a democratic society” for one or more of the specified aims – it is conceded by the Government that the interference was not “in accordance with the law” as at the time of the events there existed no statutory system to regulate the use of covert listening devices. Such measures were governed by the Home Office Guidelines, which were neither legally binding nor directly publicly accessible.", "38. As there was no domestic law regulating the use of covert listening devices at the relevant time (see Khan, cited above, §§ 26-28), the interference in this case was not “in accordance with the law” as required by Article 8 § 2 of the Convention, and there has therefore been a violation of Article 8 in this regard. In the light of this conclusion, the Court is not required to determine whether the interference was, at the same time, “necessary in a democratic society” for one of the aims enumerated in paragraph 2 of Article 8.", "B. Concerning information obtained about the use of B.’s telephone", "1. The parties’ submissions", "39. The applicants submitted that the telephone metering of the telephone in B.’s flat constituted an interference with their rights under Article 8 of the Convention, referring to Malone v. the United Kingdom (judgment of 2 August 1984, Series A no. 82, pp. 30-31, § 64). They conceded that the information was disclosed in accordance with the applicable domestic law (namely section 45 of the Telecommunications Act 1984 and section 28(3) of the Data Protection Act 1984). However, neither, of these legislative provisions, nor any common-law rule, provided the safeguards envisaged in the Court’s case-law (see Khan, cited above, §§ 26-28; Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, §§ 49-51; and Huvig v. France, judgment of 24 April 1990, Series A no. 176-B, pp. 55-57, §§ 32-35), in particular as regards the use to which the material could be put, the conditions under which it would be stored, provision for its destruction, etc. They argued that section 45 of the 1984 Act merely exempted telephone operatives from prosecution if they disclosed information in connection with a criminal offence. Equally, the Data Protection Act rendered personal data liable to disclosure for the purpose of preventing or detecting crime. Neither Act stipulated any of the restraints on abuse which, for instance, are to be found in the Police Act 1997 in relation to covert recordings. Accordingly, the interference with the applicants’ rights under Article 8 was effected otherwise than “in accordance with the law”.", "40. The Government acknowledged that those who used the telephone had an expectation of privacy in respect of the numbers which they dialled and that obtaining detailed billing information concerning that telephone constituted an interference with the applicants’ rights under Article 8. The obtaining of the information was, however, necessary in a democratic society in the interests of public safety, for the prevention of crime and/or the protection of the rights of others, as the investigation concerned a very serious crime, the applicants had guns for use in the intended robbery and, as B. was surveillance-conscious, conventional surveillance would not suffice. The only use of the information was to corroborate the times recorded by police officers in respect of the covert listening device in the flat.", "41. In the Government’s view, the interference was also “in accordance with the law” as there was a statutory prohibition in the Telecommunications Act 1984 against disclosure of such information, save where a specific exception was satisfied. Similarly under the Data Protection Act 1984 which governed the storage, processing and disclosure of “personal data”, there was a strict regime which, however, permitted disclosure for the purposes of the apprehension or prosecution of offenders. Accordingly, the disclosure to, and use by, the police of the itemised telephone bill was made in accordance with domestic law. Material not covered by the Data Protection Act would have been stored or destroyed according to the policy of the police force in question. In this case, under the Dorset Police Policy and Procedure Guideline System, the billing records concerning serious crime would have been retained in paper form for six years or longer at the discretion of a detective inspector.", "2. The Court’s assessment", "42. It is not in dispute that the obtaining by the police of information relating to the numbers called on the telephone in B.’s flat interfered with the private lives or correspondence (in the sense of telephone communications) of the applicants who made use of the telephone in the flat or were telephoned from the flat. The Court notes, however, that metering, which does not per se offend against Article 8 if, for example, done by the telephone company for billing purposes, is by its very nature to be distinguished from the interception of communications which may be undesirable and illegitimate in a democratic society unless justified (see Malone, cited above, pp. 37-38, §§ 83-84).", "43. The Court has examined whether the interference in the present case was justified under Article 8 § 2, notably whether it was “in accordance with the law” and “necessary in a democratic society” for one or more of the purposes enumerated in that paragraph.", "(a) “In accordance with the law”", "44. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law; secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and that it is compatible with the rule of law (see, amongst other authorities, Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, p. 540, § 55).", "45. Both parties agreed that the obtaining of the billing information was based on statutory authority, in particular, section 45 of the Telecommunications Act 1984 and section 28(3) of the Data Protection Act 1984. The first requirement therefore poses no difficulty. The applicants argued that the second requirement was not fulfilled in their case, as there were insufficient safeguards in place concerning the use, storage and destruction of the records.", "46. The Court observes that the quality of law criterion in this context refers essentially to considerations of foreseeability and lack of arbitrariness (see Kopp, cited above, p. 541, § 64). What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question. In this case, the information obtained concerned the telephone numbers called from B.’s flat between two specific dates. It did not include any information about the contents of those calls, or who made or received them. The data obtained, and the use that could be made of them, were therefore strictly limited.", "47. While it does not appear that there are any specific statutory provisions (as opposed to internal policy guidelines) governing storage and destruction of such information, the Court is not persuaded that the lack of such detailed formal regulation raises any risk of arbitrariness or misuse. Nor is it apparent that there was any lack of foreseeability. Disclosure to the police was permitted under the relevant statutory framework where necessary for the purposes of the detection and prevention of crime, and the material was used at the applicants’ trial on criminal charges to corroborate other evidence relevant to the timing of telephone calls. It is not apparent that the applicants did not have an adequate indication as to the circumstances in, and conditions on, which the public authorities were empowered to resort to such a measure.", "48. The Court concludes that the measure in question was “in accordance with the law”.", "(b) “Necessary in a democratic society”", "49. The Court notes that the applicants have not sought to argue that the measure was not in fact justified, as submitted by the Government, as necessary for the protection of public safety, the prevention of crime and the protection of the rights of others.", "50. The information was obtained and used in the context of an investigation into, and trial of, a suspected conspiracy to commit armed robberies. No issues of proportionality have been identified. The measure was accordingly justified under Article 8 § 2 as “necessary in a democratic society” for the purposes identified above.", "51. The Court concludes that there has been no violation of Article 8 of the Convention in respect of the applicants’ complaints about the metering of the telephone in this case.", "C. Concerning the use of listening devices in the police station", "1. The parties’ submissions", "52. The applicants complained that their voices were recorded secretly when they were being charged at the police station and while they were being held in their cells. They submitted that what was said, which ranged from the giving of personal details to a conversation about football instigated by a police officer, was irrelevant. They considered that it was the circumstances in which the words were spoken which was significant and that there was a breach of privacy if the speaker believed that he was only speaking to the person addressed and had no reason to believe that the conversation was being broadcast or recorded. The key issue in their view was whether the speaker knew or had any reason to suspect that the conversation was being recorded. In the present case, the police knew that the applicants had refused to provide voice samples voluntarily and sought to trick to them into speaking in an underhand procedure which was wholly unregulated, arbitrary and attended by bad faith. It was also irrelevant that the recording was used for forensic purposes rather than to obtain information about the speaker, as it was the covert recording itself, not the use made of it, which amounted to the breach of privacy.", "53. The applicants further submitted that the use of the covert listening devices was not “in accordance with the law” as there was no domestic law regulating the use of such devices and that there were no safeguards provided within the law to protect against abuse of such surveillance methods. They rejected any assertion that the police could rely on any general power to obtain and store evidence.", "54. The Government submitted that the use of the listening devices in the cells and when the applicants were being charged did not disclose any interference, as these recordings were not made to obtain any private or substantive information. The aural quality of the applicants’ voices was not part of private life but was rather a public, external feature. In particular, the recordings made while they were being charged – a formal process of criminal justice, in the presence of at least one police officer – did not concern their private life. The applicants could have had no expectation of privacy in that context. In any event, to the extent that the Court might find that the recordings did engage Article 8, any interference was so negligible as not to amount to a violation of their rights under that provision. By analogy, if the obtaining of samples of breath, blood or urine would not raise problems under Article 6, the obtaining of voice samples would equally not offend Articles 6 or 8 (see Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, pp. 2064-65, § 69).", "55. Assuming that there was an interference with any right under Article 8, the Government contended that it was justified under the second paragraph as necessary in a democratic society to protect public safety, prevent crime and/or protect the rights of others. They relied, inter alia, on the fact that the investigation concerned a very serious crime, that the applicants were known to have guns, that the voice samples were needed to establish fairly whether the voices recorded in the flat belonged to the applicants, and that the judge ruled at the trial that the voice samples represented relevant, reliable and probative evidence of the identity of those planning the robbery. The measure was proportionate as it did not involve any act of trespass, the use of the samples was limited to identification and the applicants had the opportunity at trial to challenge their admissibility. Any interference was also conducted “in accordance with the law” as the making of the recordings after arrest was an exercise by the police of their normal common-law powers to obtain and store evidence and had not been found by the trial judge to contravene any requirements regarding cautioning or interview codes.", "2. The Court’s assessment", "(a) The existence of an interference with private life", "56. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-1, p. 131, § 36). Article 8 also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). It may include activities of a professional or business nature (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and Halford, cited above, p. 1016, § 44). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.", "57. There are a number of elements relevant to a consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private-life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain. It is for this reason that files gathered by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert method (see Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V). The Court has referred in this context to the Council of Europe’s Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which came into force on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such data being defined as “any information relating to an identified or identifiable individual” (Article 2) (see Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the storing of information about the applicant on a card in a file was found to be an interference with private life, even though it contained no sensitive information and had probably never been consulted).", "58. In the case of photographs, the Commission previously had regard, for the purpose of delimiting the scope of protection afforded by Article 8 against arbitrary interference by public authorities, to whether the taking of the photographs amounted to an intrusion into the individual’s privacy, whether the photographs related to private matters or public incidents and whether the material obtained was envisaged for a limited use or was likely to be made available to the general public (see Friedl, cited above, opinion of the Commission, p. 21, §§ 49-52). Where photographs were taken of an applicant at a public demonstration in a public place and retained by the police in a file, the Commission found no interference with private life, giving weight to the fact that the photograph was taken and retained as a record of the demonstration and no action had been taken to identify the persons photographed on that occasion by means of data processing (ibid., §§ 51-52).", "59. The Court’s case-law has, on numerous occasions, found that the covert taping of telephone conversations falls within the scope of Article 8 in both aspects of the right guaranteed, namely, respect for private life and correspondence. While it is generally the case that the recordings were made for the purpose of using the content of the conversations in some way, the Court is not persuaded that recordings taken for use as voice samples can be regarded as falling outside the scope of the protection afforded by Article 8. A permanent record has nonetheless been made of the person’s voice and it is subject to a process of analysis directly relevant to identifying that person in the context of other personal data. Though it is true that when being charged the applicants answered formal questions in a place where police officers were listening to them, the recording and analysis of their voices on this occasion must still be regarded as concerning the processing of personal data about the applicants.", "60. The Court concludes therefore that the recording of the applicants’ voices when being charged and when in their police cell discloses an interference with their right to respect for private life within the meaning of Article 8 § 1 of the Convention.", "(b) Compliance with the requirements of the second paragraph of Article 8", "61. The Court has examined, firstly, whether the interference was “in accordance with the law.” As noted above, this criterion comprises two main requirements: that there be some basis in domestic law for the measure and that the quality of the law is such as to provide safeguards against arbitrariness (see paragraph 44).", "62. It recalls that the Government relied as the legal basis for the measure on the general powers of the police to store and gather evidence. While it may be permissible to rely on the implied powers of police officers to note evidence and collect and store exhibits for steps taken in the course of an investigation, it is trite law that specific statutory or other express legal authority is required for more invasive measures, whether searching private property or taking personal body samples. The Court has found that the lack of any express basis in law for the interception of telephone calls on public and private telephone systems and for using covert surveillance devices on private premises does not conform with the requirement of lawfulness (see Malone, Halford and Khan, all cited above). It considers that no material difference arises where the recording device is operated, without the knowledge or consent of the individual concerned, on police premises. The underlying principle that domestic law should provide protection against arbitrariness and abuse in the use of covert surveillance techniques applies equally in that situation.", "63. The Court notes that the Regulation of Investigatory Powers Act 2000 contains provisions concerning covert surveillance on police premises. However, at the relevant time, there existed no statutory system to regulate the use of covert listening devices by the police on their own premises.", "The interference was not therefore “in accordance with the law” as required by the second paragraph of Article 8 and there has been a violation of this provision. In these circumstances, an examination of the necessity of the interference is no longer required.", "II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION", "64. The applicants complained that part of the evidence relating to the authorisation of a listening device was not disclosed to the defence during the trial, that part of the police officer’s oral evidence was heard by the judge alone and that the evidence obtained from the listening device at the flat and voice samples from the devices in the police station were used in evidence at their trial. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”", "A. Non-disclosure of evidence during the trial", "1. The parties’ submissions", "65. The applicants complained that the non-disclosure of evidence in this case deprived them of a fair trial. It went beyond the mere withholding of documents from the defence since it also concerned the judge taking and recording evidence in the absence of the defence. This was not fair or capable of providing an adequate substitute for cross-examination. The witness in question was a key officer in the investigation and, since the defence did not hear the evidence, they could not put forward any meaningful arguments. While they did not dispute the accuracy of the description of the voir dire, it could not be suggested that defence counsel had “consented” to the manner in which the witness D.I. Mann was heard in private – he had a choice between the judge putting the questions and possibly deciding to reveal the answers, on the one hand, and the questions not being put at all, on the other. In any event, such a clandestine procedure cried out for review at the appeal stage, but since the defence did not know the content of the testimony there was no prospect of appeal on grounds of an error of law. Though they had not appealed on this point as the trial judge’s approach to the matter had complied with domestic law, there should, in their view, have been an automatic review by the Court of Appeal of the undisclosed material, otherwise errors of law or excesses of jurisdiction would go unchallenged.", "66. The Government, relying on Jasper and Fitt ( Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-58, 16 February 2000, unreported, and Fitt v. the United Kingdom [GC], no. 29777/96, §§ 44-50, ECHR 2000-II), submit that in this case the prosecution did not decide what evidence should or should not be disclosed to the defence but properly submitted the documentary material to the trial judge. The procedure adopted concerning the non-disclosure of part of D.I. Mann’s report complied with the requirements of Article 6 § 1, as the trial judge reviewed the material and was in the best position to balance the interests of the accused and the sensitivity of the material. The material was not disclosed to the jury and was extremely limited. It played no part in the conviction, being relevant only to ancillary questions of compliance with the Home Office Guidelines and having no bearing on guilt or innocence. They also pointed out that defence counsel agreed to the judge’s proposal that he question D.I. Mann with defence counsels’ questions in private and therefore that this part of the procedure took place with the consent of the defence. The need for non-disclosure was kept constantly under review by the judge, and the effectiveness of this safeguard was shown by his revisiting non-disclosure as the trial progressed and ordering disclosure of certain evidence.", "2. The Court’s assessment", "67. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, pp. 27-28, §§ 66-67). In addition, Article 6 § 1 requires, as indeed does English law (see paragraph 30 above), that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, p. 35, § 36).", "68. However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of criminal investigation, which must be weighed against the rights of the accused (see, for example, Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 70). In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, as a general principle, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1 (see Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 712, § 58). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson, cited above, p. 471, § 72, and Van Mechelen and Others, cited above, p. 712, § 54).", "69. In cases where evidence has been withheld from the defence on public interest grounds, however, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them (see Edwards, cited above, pp. 34-35, § 34). Instead, the Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 62, ECHR 2000-II).", "70. In this case, the prosecution did not disclose to the defence part of a report issued by D.I. Mann relating to the surveillance measures and instead submitted it to the judge. When D.I. Mann gave evidence and refused to answer certain questions put in cross-examination by defence counsel which related to the background to the surveillance, the judge put those questions to the witness in chambers and took the decision, weighing the harm to public interests against the slight benefit to the defence, that part of the report and the oral answers should not be disclosed.", "71. The Court is satisfied, as in Jasper and Fitt (both cited above, §§ 55-58 and §§ 48-50 respectively) that the defence were kept informed and were permitted to make submissions and participate in the above decision-making process as far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds. The questions which defence counsel had wished to put to the witness D.I. Mann were asked by the judge in chambers. The Court also notes that the material which was not disclosed in the present case formed no part of the prosecution case whatever, and was never put to the jury. The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. It has not been suggested that the judge was not independent and impartial within the meaning of Article 6 § 1. He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial.", "72. The Court finds that no point of distinction arises, as argued by the applicants, due to the fact that in this case the non-disclosure included oral evidence as well as documentary evidence. While this application does differ from Jasper and Fitt as in the latter there was an additional level of safeguard when the Court of Appeal reviewed the undisclosed material and the decision of the trial judge on non-disclosure, the Court notes that the present applicants did not include any ground of appeal on this issue in the proceedings before the Court of Appeal and that they concede that the judge exercised his balancing role correctly in domestic-law terms. If, however, they had wished the Court of Appeal to review this matter, it would have been open to them to raise it, as was done in Jasper and Fitt. The Court is not persuaded that there is any basis for holding that there should be an automatic appeal review of such matters, where the defendants themselves do not make complaint.", "73. In Jasper and Fitt (§§ 56 and 49 respectively), the Court was satisfied that, according to the jurisprudence of the English Court of Appeal, the assessment which the trial judge was required to make fulfilled the conditions which, according to the Court’s case-law, are essential for ensuring a fair trial in instances of non-disclosure of prosecution material (see paragraphs 67-68 above). The domestic trial court in the present case thus applied standards which were in conformity with the relevant principles of a fair hearing embodied in Article 6 § 1 of the Convention.", "In conclusion, therefore, the Court finds that, as far as possible, the decision-making procedure complied with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. It follows that there has been no violation of Article 6 § 1 in this regard.", "B. Use at trial of taped evidence obtained by covert surveillance devices", "1. The parties’ submissions", "74. The applicants submitted that the fairness of their trial was undermined by the use of the taped materials. Their case could be distinguished from Khan, cited above. They pointed out that in Khan the Court referred to the fact that the evidence had been obtained in accordance with the Guidelines, whereas in their case there had been a clear breach of those Guidelines. It had not been shown that the police had made any significant efforts to obtain the evidence by other means (a precondition of permission to use such methods) and the Chief Constable had not given prior written confirmation of his authorisation, such only being effected retrospectively. While the applicant in Khan had obtained a review of his case on appeal, the applicants had been refused leave to appeal against the judge’s ruling. The Court in Khan had also given weight to the fact that the evidence obtained in breach of Article 8 had been strong and cogent. In their case, the evidence in relation to at least the first applicant was not particularly strong in that the forensic expert was only able to conclude that it was “likely” that his voice featured in the tape recordings. Finally, the applicants referred to the underhand manner in which police officers had obtained samples of their voices for comparison, in a procedure which was unregulated, arbitrary and attended by bad faith. It also violated their right not to incriminate themselves, as they had already expressly refused to give samples and these were in the event taken against their will.", "75. The Government submitted that the use of the taped materials did not infringe the overall fairness of the applicants’ trial, referring to the Court’s judgment in Khan, cited above. The applicants had the opportunity, which they made use of, to challenge the admissibility of the recordings under section 78 of PACE. Their admissibility was judged by the most suitable tribunal, namely, the trial judge, by reference to the test of fairness. They were also able to appeal against the judge’s ruling to the Court of Appeal. The recordings had been obtained in accordance with the applicable code of practice. Furthermore, there was almost no dispute about the authenticity of the written transcript of the tapes, and the expert evidence on voice identification was corroborated by the visual observations of the surveillance team and by their video and photographic evidence. The applicants did not call any expert evidence to challenge the tapes. Accordingly, there was no reasonable doubt that it was their voices on the tapes, or about the reliability of the tapes as evidence. The content of the taped conversations was highly incriminating and those conversations had been entirely voluntary. The tapes were not in any event the only evidence against the applicants. The prosecution called forty-five witnesses, and incriminating evidence was found in B.’s flat and in the car which the applicants were driving.", "2. The Court’s assessment", "76. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and, for a more recent example in a different context, Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found.", "77. In Schenk, cited above, in concluding that the use of the unlawfully obtained recording in evidence did not deprive the applicant of a fair trial, the Court noted, first, that the rights of the defence had not been disregarded: the applicant had been given the opportunity, which he took, of challenging the authenticity of the recording and opposing its use, as well as the opportunity of examining Mr Pauty and summoning the police inspector responsible for instigating the recording. The Court further “ attache [d] weight to the fact that the recording of the telephone conversation was not the only evidence on which the conviction was based” (ibid., pp. 29-30, § 48). More recently, the Court has applied these principles in Khan (cited above, §§ 34-40) and found that the use at trial of recordings of the applicant’s conversations was not contrary to the requirements of Article 6 § 1 notwithstanding that they were obtained in circumstances where the Court had found, under Article 8 of the Convention, that the surveillance measures had not been “in accordance with the law”.", "78. This case presents strong similarities with Khan. As in Khan, the fixing of the listening device and the recording of the applicants’ conversation were not unlawful in the sense of being contrary to domestic criminal law. Under English law there is in general nothing unlawful about a breach of privacy. There is no indication that the admissions made by the applicants during conversations in B.’s flat were made involuntarily, there being no entrapment and the applicants being under no inducement to make such admissions. Though the applicants asserted that in this case, unlike Khan, the police had not operated in conformity with the Home Office Guidelines, the Court notes that it is not argued that this rendered the police actions unlawful. While the Chief Constable gave written confirmation of authorisation retrospectively, there is no suggestion that he had not in fact been informed and given his oral permission. It is not established that any substantive precondition for the police exercising their surveillance powers was not in fact complied with. The “unlawfulness” in the present case therefore relates exclusively to the fact that there was no statutory authority for the interference with the applicants’ right to respect for private life and that, accordingly, such interference was not “in accordance with the law”, as that phrase has been interpreted in Article 8 § 2 of the Convention.", "79. The use of the taped evidence at the trial differs from Khan more significantly in that this material was not the only evidence against the applicants. Furthermore, as in Schenk and Khan, the present applicants had ample opportunity to challenge both the authenticity and the use of the recordings. They did not challenge their authenticity, but challenged their use at the voir dire at which the trial judge assessed the effect of admitting the evidence on the fairness of the trial by reference to section 78 of PACE. Though the applicants were unsuccessful in their arguments and did not obtain leave to appeal, it is clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it. The applicants have argued that the evidence identifying in particular the first applicant’s voice on the tape was weak as it was only shown that it was “likely” to have been his voice. However, the Government have pointed out that there was other evidence corroborating the involvement of the applicants in the events. The Court considers that there was no unfairness in leaving it to the jury, on the basis of a thorough summing-up by the judge, to decide where the weight of the evidence lay.", "80. In so far as the applicants complained of the underhand way in which the voice samples for comparison were obtained and that this infringed their privilege against self-incrimination, the Court considers that the voice samples, which did not include any incriminating statements, may be regarded as akin to blood, hair or other physical or objective specimens used in forensic analysis and to which privilege against self-incrimination does not apply (see Saunders, cited above, pp. 2064-65, § 69).", "81. In these circumstances, the Court finds that the use at the applicants’ trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION", "82. The applicants complained that they had no effective remedy in respect of the violations of their rights, relying on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "83. The applicants submitted that there was no material distinction between their case and the judgment in Khan, and relied on the Court’s observations in that case with regard to the effectiveness of PACE and the Police Complaints Authority and the lack of any sufficient protection against the abuse of authority.", "84. The Government accepted that in the light of the judgment in Khan, the Court would be likely to find that no effective remedy was available to the applicants in respect of any breach of their rights under Article 8 of the Convention, since the Court had already ruled that the operation of section 78 of PACE and the availability of the procedures before the Police Complaints Authority did not provide an adequate remedy in similar circumstances.", "85. The Court has found above that there has been a violation of the applicants’ rights to respect for their private life in that the use of covert recording devices at B.’s flat and in the police station were not “in accordance with the law”. Article 13 guarantees the availability of a remedy at the national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, without, however, requiring incorporation of the Convention (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999-VI).", "86. In the present case, the domestic courts were not capable of providing a remedy because, although they could consider questions of fairness in admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicants’ right to respect for their private lives was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint.", "87. As regards the various other avenues open to the applicants in respect of their Article 8 complaint, grievances only have to be referred to the Police Complaints Authority in circumstances where they contain allegations that the relevant conduct resulted in death or serious injury or where the complaint is of a type specified by the Secretary of State. In other circumstances the Chief Constable of the area will decide whether or not he is the appropriate authority to decide the case. If he concludes that he is the correct authority, then the standard procedure is to appoint a member of his own force to carry out the investigation. Although the Police Complaints Authority can require a complaint to be submitted to it for consideration under section 87 of PACE, the extent to which the Police Complaints Authority oversees the decision-making process undertaken by the Chief Constable in determining if he is the appropriate authority is unclear. The Court has also previously noted the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, under section 105(4) of PACE the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings (see Khan, cited above, §§ 45-46).", "88. Accordingly, the Court finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "89. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "90. The applicants made no claim for pecuniary damage. However, they wished the Court to consider making an award for non-pecuniary damage in respect of injury to their feelings brought about by an abiding sense of injustice due to the methods employed by the police in securing their convictions. They noted that an award of 1,000 pounds sterling (GBP) had been made in the similar case of Govell v. the United Kingdom (no. 27237/95, Commission’s report of 14 January 1998, unreported).", "91. The Government considered that the finding of a violation constituted in itself sufficient just satisfaction for any damage which the applicants might have suffered.", "92. The Court recalls that the applicants’ right to respect for private life was violated in several aspects and that they had no effective remedy under domestic law. It considers that the applicants must thereby have suffered some feelings of frustration and invasion of privacy which is not sufficiently compensated by a finding of violation. It therefore awards each applicant GBP 1,000.", "B. Costs and expenses", "93. The applicants claimed a total of GBP 16,510.51 for costs and expenses, inclusive of value-added tax. This included counsel’s fees of GBP 7,700.", "94. The Government submitted that sums claimed for counsel gave no indication of the numbers of hours worked or the fee rate claimed and that the sum seemed excessive for a junior member of the Bar. The claim made for the work of two solicitors also did not seem reasonable in the circumstances of this case. They considered a sum of GBP 9,000 to be reasonable.", "95. Making an assessment on an equitable basis and having regard to similar cases, the Court makes an award of GBP 12,000.", "C. Default interest", "96. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1969 and 1961 respectively and live in Podgorica.", "A. Video surveillance", "6. On 1 February 2011 the Dean of the School of Mathematics of the University of Montenegro ( Prirodno-matematički fakultet ), at a session of the School ’ s council, informed the professors teaching there, including the applicants, that “ video surveillance has been introduced” ( da je uveden video nadzor ) and that it was in the auditoriums where classes were held.", "7. On 24 February 2011 the Dean issued a decision introducing video surveillance in seven amphitheatres and in front of the Dean ’ s Office ( ispred dekanata ). The decision specified that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching ( praćenje izvršavanja nastavnih aktivnosti ). The decision stated that access to the data that was collected was protected by codes which were known only to the Dean. The data were to be stored for a year.", "8. On 14 March 2011 the applicants complained to the Personal Data Protection Agency ( Agencija za zaštitu ličnih podataka, “the Agency”) about the video surveillance and the collection of data on them without their consent. They relied on the Personal Data Protection Act (see paragraphs 24 ‑ 27 below).The applicants submitted, in particular, that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody ’ s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased.", "9. On 21 March 2011 two Agency inspectors issued a report ( zapisnik ) after visiting the School of Mathematics, stating that the video surveillance was in accordance with the Personal Data Protection Act. According to them, there had been cases of destruction of university property, the bringing in of animals, drink and tobacco, and the presence of people who were not students. They also noted that the cameras provided “a picture from a distance without clear resolution, that is people ’ s features [could not] be easily recognised”, that they could not zoom in and out and did not record any audio ( ne reprodukuju audio zapis ). While the decision on introducing video surveillance had provided that data would be stored for a year, the servers ’ capacity was such that the data was stored for thirty days and then automatically erased by new recordings. The inspectors also noted that information on a “plan to introduce video surveillance” ( planiranje uvođenja video nadzora ) had been given at a session of the School Council on 1 February 2011.", "10. On 22 March 2011 the applicants filed an objection to the report, submitting, inter alia, that they were not aware of any of the alleged incidents and that, in any event, it was unclear how such cameras could ensure the safety of people and property. They agreed that cameras over the entrances and exits from the university building might perhaps be an adequate form of ensuring such security. They also submitted that employees had not been “notified in writing on the introduction of video surveillance before it started” ( nijesu bili obavješteni o uvođenju video nadzora u pisanom obliku prije početka vršenja istog ). Notably, the decision had been issued on 24 February 2011 whereas surveillance had commenced a few weeks before. They did not specify when exactly but referred to the minutes of the session of 1 February 2011 (see paragraph 6 above).", "11. On 28 April 2011, after the applicants ’ objection to the report, the Agency ’ s Council ( Savjet Agencije za zaštitu ličnih podataka ) issued a decision ( rješenje ) ordering the School of Mathematics to remove the cameras from the auditoriums within fifteen days as the video surveillance was not in accordance with the Personal Data Protection Act, notably sections 10, 35 and 36 (see paragraphs 24, and 26-27 below). In particular, the Council held that the reasons for the introduction of video surveillance provided for by section 36 had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. None of the parties initiated an administrative dispute in court against that decision.", "12. On 25 January 2012 the School of Mathematics was served with the Agency Council ’ s decision of 28 April 2011. The cameras were removed by 27 January 2012 at the latest. It appears that the data that had been collected was also erased on an unspecified date.", "B. Civil proceedings", "13. On 19 January 2012 the applicants brought a compensation claim against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them. They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court.", "14. On 27 December 2012 the Court of First Instance ( Osnovni sud ) in Podgorica ruled against the applicants. The court found that the notion of private life certainly included activities in the business and professional spheres. It also held, however, that the university was a public institution performing activities of public interest, teaching being one of them ( poziv redovnog profesora [je] takođe javan ), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants ’ right to respect for their private life. It was a working area, just like a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data. The university ’ s failure to remove the cameras immediately had been unauthorised, but it could not be classed as an interference with the applicants ’ private life and was therefore irrelevant. The court further held that such a conclusion was in accordance with the Court ’ s case-law given that the monitoring of actions taking place in public was not an interference with a person ’ s private life when those means just recorded ( bilježi ) what others could see if they happened to be in the same place at the same time. The court also held that the monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual ’ s private life, which could arise once any footage of such material became publicly available. It concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants ’ right to privacy ( pravo na privatnost ) and had therefore not caused them any mental anguish. During the proceedings one of the witnesses stated that there had been cases of theft and of damage to the interior of the building and that on one occasion five laptops had disappeared from a laboratory. Those events had led to the hiring of a private security agency two or three years earlier. According to the witness, the police had suggested installing video surveillance equipment on the School ’ s premises. The court, for its part, did not deal with those issues.", "15. On 31 December 2012 the applicants appealed. They relied, inter alia, on Article 8 of the Convention. They maintained, in particular, that the interference with their right to respect for their private lives had not been in accordance with any law and had therefore been contrary to Article 8 § 2 of the Convention. It had also not been necessary in a democratic society. Furthermore, the Court of First Instance had not relied on any legal provision in ruling against them and had failed to assess their arguments.", "16. On 17 July 2013 the High Court ( Viši sud ) in Podgorica upheld the first-instance judgment, endorsing its reasons in substance. The High Court held in particular that the applicants had not proved that their right to privacy had been violated and found that the first-instance court had “sufficiently related the Court ’ s case-law to the case at issue ( dao jasan osvrt na odnos prakse Evropskog suda za ljudska prava i konkretnog slučaja ) ... The court considered the [applicants ’ ] other arguments and found that they did not justify ruling otherwise in the present case...”.", "17. The applicants did not file a constitutional appeal." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)", "18. Article 40 provides that everyone has the right to respect for their private and family life.", "19. Article 43 provides that everyone has the right to be informed about the gathering of personal data about them and the right to judicial protection in case of misuse.", "20. Article 28 § 2 guarantees, inter alia, privacy and personal rights.", "21. Article 24 § 1 provides that guaranteed human rights and freedoms can be restricted only by law, to the extent allowed by the Constitution and as far as is necessary in an open and democratic society to serve the purpose for which the restriction was allowed.", "22. Article 149 provides that the Constitutional Court rules on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution after all other effective legal remedies have been exhausted.", "23. The Constitution entered into force on 22 October 2007.", "B. The Personal Data Protection Act ( Zakon o zaštiti podataka o ličnosti; published in the OGM nos. 79/08, 70/09 and 44/12)", "24. Section 10 provides that personal data can be processed only after consent has been obtained from the person whose data are to be processed and the consent can be withdrawn at any time.", "25. Section 21 provides that the person responsible for handling the data that has been gathered must inform the person involved about, inter alia, the legal grounds and purpose of the gathering of the data and about the right of access to the information.", "26. Section 35(1) provides that public institutions ( javni sektor ) can carry out video surveillance of an area of access ( pristup ) to official premises.", "27. Section 36 provides that video surveillance can be carried out in official or business premises to ensure the safety of people or property or for the protection of confidential data if that cannot be achieved in any other way.", "28. Section 48 provides that the person responsible for handling any data that has been collected is also responsible for any damage caused by a violation of the rights provided for by the Act, in accordance with the general rules on compensation for damage.", "29. Sections 49 - 73a provide details about the Agency and its supervisory activities ( nadzor ).", "30. Section 49, 51 and 52 define the Agency as an independent supervisory body ( nadzorni organ ), composed of the Agency Council and the director. The Agency Council has a president and two members, who are all appointed by Parliament and who answer to Parliament.", "31. Section 50 provides that the Agency oversees ( vrši nadzor ) the implementation of personal data protection in accordance with the Act; decides on requests for data protection; gives opinions on the implementation of the Act; gives consent related to creating collections ( uspostavljanje zbirki ) of personal data; gives its opinion on whether a certain amount of personal data can be considered as “collection” within the meaning of the Act; monitors the implementation of organisational and technical measures for personal data protection; makes proposals and recommendations for the improvement of personal data protection; gives its opinion on whether a certain way of processing personal data ( obrada ) endangers rights and freedoms; cooperates with bodies from other countries in charge of personal data protection; cooperates with competent State bodies in preparing regulations relating to personal data protection; gives assessments of the constitutionality and legality of Acts and other regulations relating to personal data processing; as well as other functions in accordance with the Act and the Free Access to Information Act.", "32. Sections 56-72 provide that the Agency performs its supervisory function through inspectors ( kontrolori ), who make reports ( zapisnik ) on their work. Parties can file an objection ( prigovor ) against the inspectors ’ reports and the Agency Council must rule thereon. By means of its decisions the Agency can, inter alia, order that irregularities in personal data processing be removed within a certain time; temporarily prohibit personal data processing when it is contrary to the Act; and order that personal data which have been collected without legal grounds be erased. An administrative dispute can be initiated against the Agency ’ s decisions.", "C. The Obligations Act 2008 ( Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11)", "33. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of damage to his or her reputation or a breach of personal integrity, liberty or other personal rights ( prava ličnosti ) is entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary relief.", "34. Section 166 provides, inter alia, that a legal entity ( pravno lice ), which includes the State, is liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or acts related thereto.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "35. The applicants complained under Article 8 of the Convention that the alleged unlawful installation and use of video surveillance equipment in the university auditoriums where they held classes had violated their right to respect for their private life. The relevant Article reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "36. The Government contested that argument.", "A. Admissibility", "1. The parties ’ submissions", "37. The Government submitted that not all professional and business activities fell within the ambit of private life. The university was a public institution and teaching was an activity of public interest ( djelatnost od javnog interesa ). The area that had been under surveillance was a working area outside the scope of personal autonomy, unlike professors ’ offices, where a certain amount of personal autonomy could exist.", "38. They further maintained that the applicants had failed to exhaust all the effective domestic remedies, notably a constitutional appeal.", "39. The applicants contested the Government ’ s submissions. In particular, they averred that a constitutional appeal was not an effective remedy at the relevant time.", "2. The Court ’ s assessment", "(a) Applicability of Article 8", "40. The relevant principles in this regard are set out, for example, in Niemietz v. Germany (16 December 1992, §§ 29-31, Series A no. 251 ‑ B); Peck v. the United Kingdom (no. 44647/98, §§ 57-58, ECHR 2003 ‑ I); Halford v. the United Kingdom (25 June 1997, §§ 44-46, Reports of Judgments and Decisions 1997 ‑ III); Fernández Martínez v. Spain [GC] (no. 56030/07, §§ 109-110, ECHR 2014 (extracts)); and Bărbulescu v. Romania [GC] (no. 61496/08, §§ 70-73, 5 September 2017).", "41. In particular, the Court reiterates that “private life” is a broad term not susceptible to exhaustive definition and that it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Niemietz, cited above, § 29). Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bărbulescu, cited above, § 70, and the authorities cited therein).", "42. The Court has already held that the notion of “private life” may include professional activities or activities taking place in a public context (see Bărbulescu, cited above, § 71, and the authorities cited therein). It is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world, and it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not (see Niemietz, cited above, § 29). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Peck, cited above, § 57), professional life being part of it (see Fernández Martínez, cited above, § 110 in fine ).", "43. In order to ascertain whether the notion of “private life” is applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected. In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Bărbulescu, cited above, § 73, and the authorities cited therein).", "44. Turning to the present case, the Court notes that university amphitheatres are the workplaces of teachers. It is where they not only teach students, but also interact with them, thus developing mutual relations and constructing their social identity. It has already been held that covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into the employee ’ s private life. It entails the recorded and reproducible documentation of a person ’ s conduct at his or her workplace, which the employee, being obliged under the employment contract to perform the work in that place, cannot evade (see Köpke v. Germany ( dec. ), no. 420/07, 5 October 2010). There is no reason for the Court to depart from that finding even where it concerns cases of non ‑ covert video surveillance of an employee at his or her workplace. Furthermore, the Court has also held that even where the employer ’ s regulations in respect of the employees ’ private social life in the workplace are restrictive they cannot reduce it to zero. Respect for private life continues to exist, even if it might be restricted in so far as necessary (see Bărbulescu, cited above, § 80).", "45. In view of the above, the Court considers that the data collected by the impugned video surveillance related to the applicants ’ “private life”, thus making Article 8 applicable to their complaint.", "( b ) Exhaustion of domestic remedies", "46. The relevant principles in this regard are set out in Vučković and Others v. Serbia (preliminary objection) ( [GC], nos. 17153/11 and 29 others, § § 69-75, 25 March 2014 ).", "47. Turning to the present case, the Court has already held that as of 20 March 2015 a constitutional appeal in Montenegro can in principle be considered an effective domestic remedy (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 123, 24 November 2015). The Court reiterates in this regard that, while it can be subject to exceptions which might be justified by the specific circumstances of each case, the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Given that the applicants lodged their application in October 2013, which was long before the constitutional appeal became an effective domestic remedy in the respondent State, the Court considers that they were not required to avail themselves of that particular remedy (see Siništaj and Others, cited above, §§ 124-125). The Government ’ s objection must therefore be dismissed.", "( c ) The Court ’ s conclusion", "48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The applicants", "49. The applicants submitted that the impugned video surveillance had been unlawful, had not pursued any legitimate aim and had not been necessary in a democratic society. The Dean of the School had collected and processed the data obtained thereby without any restriction and the applicants had had no effective control over that information. The Agency had also failed to live up to its legal obligations, thus in addition making the interference arbitrary.", "( b ) The Government", "50. The Government submitted that surveillance over activities that took place in public or with photographic equipment was not considered to be an interference with a person ’ s private life unless it was disclosed or published, which was not the case here.", "51. They further submitted that the impugned interference, in spite of certain administrative failures ( i pored određenih administrativnih propusta ), had been lawful, had pursued a legitimate aim, and had been necessary in a democratic society.", "52. The aim that had been pursued, which could not have been achieved in a less invasive manner, had been the prevention and investigation of safety-related incidents, such as thefts and burglaries, in which property belonging to both the university and its employees, including professors, had been stolen. It had also aimed at preventing the bringing in of firearms, “the unauthorised bringing in of animals”, begging, as well as incidents in the amphitheatres in which professors had been threatened with physical violence. Even the police had recommended the installation of video surveillance equipment.", "53. They further maintained that all the people involved, including the applicants, had been duly informed of the measure, that the data collected had not been misused in any way and that only the Dean of the School had had access to it. The data had therefore been used exclusively for the purposes provided for by the law and within a limited period, given that the data had been automatically deleted after thirty days. The Government further submitted that the cameras had taken low - resolution pictures, had had no zoom capacity, and that their location and angles of recording had been set up “in accordance with a methodological risk analysis, but also with personal data protection”.", "54. The Government averred that States had a wide margin of appreciation when it came to video surveillance in the public interest, and the respondent State had acted in accordance with both national and European legal standards. In any event, it was not the Court ’ s task to assess the interpretation and application of national law by the domestic courts, nor their findings and conclusions, and the domestic courts had found no violation of the applicants ’ right to respect for their private life.", "2. The Court ’ s assessment", "55. The Court has already held in the present case that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee ’ s private life (see paragraph 44 above), and hence it considers that it constitutes an interference within the meaning of Article 8. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which that provision refers and is necessary in a democratic society in order to achieve any such aim (see Vukota-Bojić v. Switzerland, no. 61838/10, § 60, 18 October 2016).", "56. The Court notes that the domestic courts did not examine the question of the acts being in accordance with the law given that they did not consider the impugned video surveillance to be an interference with the applicants ’ private life in the first place.", "57. However, the Personal Data Protection Agency did and in doing so explicitly held that it was not in accordance with the law, notably sections 10, 35 and 36 of the Personal Data Protection Act (see paragraph 11 above).", "58. The Court observes in that respect that section 35 provides that public institutions – the university, according to the Government ’ s own submission, being one of them – can carry out video surveillance of areas of access to official premises. However, in the present case the video surveillance was carried out in the amphitheatres.", "59. Moreover, section 36 provides that video surveillance equipment can also be installed in official or business premises, but only if the aims provided for by that section, notably the safety of people or property or the protection of confidential data, cannot be achieved in any other way. The Court observes that video surveillance was introduced in the present case to ensure the safety of property and people, including students, and for the surveillance of teaching. It is noted that one of those aims, notably the surveillance of teaching, is not provided for by the law at all as a ground for video surveillance. Furthermore, the Agency explicitly held that there was no evidence that either property or people had been in jeopardy, one of the reasons to justify the introduction of video surveillance (see paragraph 11 above), and the domestic courts did not deal with that issue at all (see paragraph 14 in fine above). The Government, for their part, neither provided any evidence to the contrary in that regard (see paragraph 5 2 above) nor showed that they had even considered any other measure as an alternative beforehand.", "60. Given that the relevant legislation explicitly provides for certain conditions to be met before camera surveillance is resorted to, and that in the present case those conditions have not been met, and taking into account the decision of the Agency in this regard ( in the absence of any examination of the question by the domestic courts ), the Court cannot but conclude that the interference in question was not in accordance with the law, a fact that suffices to constitute a violation of Article 8. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with (see Amann v. Switzerland [GC], no. 27798/95, § 81, ECHR 2000 ‑ II, and Vukota-Bojić, cited above, § 78).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "62. The applicants claimed 1,000 euros (EUR) each in respect of non ‑ pecuniary damage.", "63. The Government contested the applicants ’ claim.", "64. The Court awards the applicants EUR 1,000 each in respect of non ‑ pecuniary damage.", "B. Costs and expenses", "65. The applicants also claimed EUR 1,312.50 for the costs and expenses incurred before the domestic courts and EUR 357 for those incurred before the Court.", "66. The Government contested the applicants ’ claim.", "67. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the entire sum of EUR 1,669.5 covering costs under all heads.", "C. Default interest", "68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASEThe applicants’ dismissal", "The applicants’ dismissal", "The applicants’ dismissal", "10. At the time of the relevant events, the applicants were all working in a supermarket of the M. chain situated in Sant Celoni (Barcelona province). The first three applicants were cashiers, while the fourth and fifth applicants were sales assistants behind a counter.", "11. From March 2009 onwards the supermarket’s manager noticed some inconsistencies between the stock level and the sales figures. In the following months he identified losses of 7,780 euros (EUR) in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June.", "12. In the context of an internal investigation to shed light on the losses, on 15 June 2009 the manager installed CCTV cameras, some visible and others hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. Three tills were covered by the range of each camera, including the areas in front of and behind the counters. The exact number of tills being monitored was not stated by the parties; the documents in the file show that at least four tills were filmed.", "13. During a meeting the supermarket’s staff were informed of the installation of the visible cameras on account of the management’s suspicions about thefts. Neither the staff nor the staff committee were informed of the hidden cameras. Beforehand, in 2007, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked but the parties did not indicate its location or precise content.", "14. On 25 June 2009 the management of the supermarket informed the union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. The representative watched the recordings.", "15. On 25 and 29 June 2009 all the workers suspected of theft were called to individual interviews. Fourteen employees were dismissed, including the five applicants. Prior to each interview, the applicants and other employees concerned had a meeting with the union representative, who told them she had watched the video recordings. During the meeting a number of employees admitted that they had been involved in the thefts with other colleagues.", "16. During the individual interviews, which were attended by the manager, the legal representative of the company M. and the union representative, the employees concerned were notified of their dismissal on disciplinary grounds with immediate effect. The dismissal letters given to the applicants indicated that the hidden CCTV cameras had filmed them, on several occasions between 15 and 18 June 2009, helping customers or other supermarket employees to steal goods and stealing goods themselves. Among the facts, the letters stated that the first three applicants, who worked at the tills, had allowed customers and colleagues to go to the cash till and leave the shop with goods they had not paid for. They added that those applicants had scanned items presented at the checkout by customers or colleagues and had then cancelled the purchases, with the result that the goods had not been paid for. They explained that a comparison between the goods actually taken away by customers and the sales receipts had made it possible to prove this. As to the fourth and fifth applicants, the cameras had reportedly caught them stealing goods with the help of their colleagues at the tills. According to the employer, these acts constituted a serious breach of the obligations of good faith and loyalty required in the employment relationship and justified the termination of the contract with immediate effect.", "17. In addition, the third, fourth and fifth applicants signed an agreement entitled “settlement agreement” ( acuerdo transaccional ) with the company’s legal representative. These agreements were co-signed by the union representative. Under the agreements, the two parties confirmed the termination of the employment contract by the employer and declared that they had reached an agreement in order to avoid uncertainty as to any future legal dispute. The applicants acknowledged the thefts of the goods, as set out in the dismissal letters, and endorsed the employer’s decision to terminate their employment contracts. The company undertook not to bring criminal proceedings against the employees. A final settlement of outstanding accounts was attached to the agreement and the parties declared that they waived any claims against each other under the employment contract.", "18. At no time before their dismissal, either during the meeting with the union representative or during their individual interviews, were the applicants able to view the recordings from the CCTV cameras.", "Judicial proceedings brought by the applicantsThe proceedings before the Employment Tribunal", "The proceedings before the Employment Tribunal", "The proceedings before the Employment Tribunal", "19. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no. 1 (“the Employment Tribunal”). The same day the other four applicants brought similar proceedings before the Employment Tribunal.", "20. The applicants objected in particular to the use of the covert video-surveillance, arguing that it had breached their right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings.", "21. As regards the proceedings brought by the third, fourth and fifth applicants, the employer opposed them, relying on the settlement agreements signed by them. Those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.", "22. A hearing was held in each of the two sets of proceedings, on 3 December 2009 and 23 November 2009 respectively. The CCTV recordings were produced in evidence by the employer.", "23. On 20 January 2010 the Employment Tribunal issued two judgments dismissing the applicants’ actions, declaring their dismissals fair.", "24. As regards the first and second applicants, who had not signed any settlement agreements, the tribunal took the view that it first had to ascertain whether the recordings obtained by the hidden cameras could constitute lawful evidence, given that, pursuant to section 11 of the Law on the Judiciary and Article 287 of the Code of Civil Procedure, any evidence obtained in breach of a fundamental right had to be excluded.", "25. In this connection, the Employment Tribunal found that in accordance with Article 20 § 3 of the Labour Regulations (see paragraph 42 below), any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights. It referred in this connection to the case-law of the Constitutional Court, in particular judgment no. 186/2000 of 10 July 2000, which concerned a similar case of video-surveillance, using hidden cameras, of employees suspected of serious misconduct. In that judgment, the Constitutional Court had found that an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. It had explained that the lower court was supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In the case at issue, it had found that the covert video-surveillance measure had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Constitution given that, first, it was justified by reasonable suspicions of serious misconduct; that, secondly, it was appropriate to the aim pursued, namely to verify whether the employee was actually committing misconduct and to adopt sanctions if necessary; that, thirdly, it was necessary, because the recordings would provide evidence of the misconduct in question; and that, fourthly, it was proportionate, because the monitoring was limited in space and in time to what was sufficient to fulfil its aim. The court had, moreover, considered it not to be constitutionally pertinent to examine the question whether the employees or the staff committee had been informed beforehand of the installation of the video-surveillance. It had further taken the view that the right to effective judicial protection under Article 24 of the Constitution had not been breached by the admission in evidence of the recordings thus obtained, especially as the decision had also been based on other evidence.", "26. Transposing the principles thus developed by the Constitutional Court in a similar case, the Employment Tribunal found that there had been no breach of the applicants’ right to respect for their private life and that the recordings thus constituted valid evidence.", "27. On the merits, the court took the view that the facts set out in the dismissal letters had been established by the evidence in the file and examined as a whole, namely: the video recordings, the witness statements of the supermarket manager, the union representative and other employees dismissed for their involvement in the thefts, and an expert’s report drafted in the context of the criminal proceedings concerning the offences (see paragraph 40 below), which had compared the footage filmed by the cameras with the purchases registered at the tills.", "28. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful.", "29. As regards the third, fourth and fifth applicants, the Employment Tribunal examined their arguments relating to the invalidity of the settlement agreements with their employer. It took the view that there was no evidence of any form of coercion or fraudulent intent on the part of the employer. It concluded from the union representative’s testimony that the applicants had confessed to the facts during a meeting with her, thus rendering it plausible that they had signed the agreements in order to avoid criminal proceedings. It added that the failure of some employees in the same situation as the applicants (for example, the first and second applicants) to sign such an agreement confirmed the absence of any threat or duress. It also noted that the settlement agreements had no unlawful basis and could be seen as a means of settling a dispute by means of reciprocal concessions.", "30. Having accepted the settlement agreements, the tribunal upheld the employer’s objection to the proceedings and, finding that the three applicants in question had no locus standi, dismissed their actions without examining them on the merits.", "The proceedings before the High Court of Justice", "31. The applicants appealed before the High Court of Justice of Catalonia (“the High Court”) on 16 and 22 March 2010 respectively. In her appeal, the first applicant expressly complained of a breach of the obligation of prior notification, as provided for in section 5 of the Personal Data Protection Act. In her view this should have been taken into account in the examination of the proportionality of the video-surveillance measure.", "32. In judgments of 28 January and 24 February 2011 the High Court upheld both first-instance judgments.", "33. Relying on its own case-law, on that of other courts and on that of the Constitutional Court already cited by the Employment Tribunal, the High Court took the view that the video-surveillance measures taken by the employer on the basis of Article 20 § 3 of the Labour Regulations did not require, in the light of section 6(2) of the Personal Data Protection Act, the prior consent of the employees concerned but had to be subjected to a proportionality test according to the criteria laid down by the Constitutional Court. It took the view that the measure at issue in the present case satisfied those criteria because it was justified by the existence of suspicions of misconduct, appropriate to the aim pursued, necessary for the fulfilment of that aim because a more moderate measure would not have been capable of fulfilling it, and proportionate because the recordings were limited, in time and space, to what was necessary for the purpose of verifying the suspicions. Referring to previous judgments, the High Court found as follows in its judgment of 28 January 2011 in the proceedings concerning the first applicant:", "“... the monitoring carried out by the employer by means of CCTV cameras (installed on the site where the [first applicant] was working and directed towards the cashiers’ work-stations after the detection of missing goods ...) ‘may be generally regarded as an appropriate and even a necessary means of monitoring the activity and it must therefore be considered that, despite the fact that it may give rise to sanctions ... because of the failure to inform staff representatives about the installation of the camera ..., the monitoring was not carried out in an excessive manner contrary to the test of appropriateness, necessity or proportionality, which would have resulted in an unjustified breach of the right to the protection of the person’s image or in undermining the person’s dignity, since it was an appropriate means and one that would have been difficult to replace for the purpose of proving possible thefts ...’”", "The High Court further held that the failure to notify employees and staff representatives could probably be explained by the fact that “the company rightly feared that knowledge of the monitoring system would defeat its purpose”.", "34. Without expressly mentioning section 5 of the Personal Data Protection Act, the High Court noted that the question of the employer’s compliance with the obligation of prior notification was one of ordinary legality and that the failure to inform employees exposed the employer to an administrative sanction but had no impact on the admissibility of the evidence where, as in the present case, the video-surveillance measure was justified and proportionate:", "“... The alleged failure to inform the employees could, if appropriate, entail an administrative sanction but will not fall foul of the conditions regarding the lawfulness of evidence laid down by the Constitutional Court, for it is indeed a justified measure (there were reasonable suspicions that the appellant had committed serious misconduct in the workplace), which was appropriate to the aim pursued by the company (to verify whether the employee had actually committed the acts and if so to take relevant disciplinary measures), and was necessary (since the recordings would be used as evidence of the wrongdoing) and proportionate (the cameras were only zoomed in on the checkout counters and solely for a limited period of time, sufficient to verify that it was not a one-off act or a misunderstanding but indeed repeated unlawful conduct).”", "Using a similar line of reasoning, the High Court arrived at the same conclusion in its judgment of 24 February 2011, in the proceedings concerning the second, third, fourth and fifth applicants.", "35. With regard to the third, fourth and fifth applicants, the High Court upheld the Employment Tribunal’s conclusion that the settlement agreements were valid and that no defects in consent could be found, noting in particular that the agreements had been signed in the presence of the union representative and that their wording left no doubt as to the employees’ knowledge of the facts or their willingness to accept the termination of their employment contracts.", "36. The High Court noted, however, that it was not procedurally correct to consider, as the Employment Tribunal had done, that the signing of the agreements had deprived the applicants of their right to take legal action. It took the view that it nevertheless appeared from these agreements that they had expressly acknowledged the facts of which they were accused, that they had accepted the employer’s decision to discontinue their employment and that they had thus given their consent to the termination of their contracts. It therefore reached the conclusion, with reference to case-law of the Supreme Court relating to similar agreements entered into by the same employer with other employees, that the employment contracts had been terminated by mutual agreement. In its view, this was sufficient to consider the facts to be established and the termination of the employment contracts to be lawful, regardless of whether the video recordings were lawful and could be admitted in evidence, a question to which the court had in fact responded in the affirmative.", "37. Moreover, in response to the ground of appeal raised by all the applicants to the effect that the evidence was insufficient to establish the facts, the High Court noted that the facts were proven by the video recordings, by the testimony of the union representative to whom several employees had admitted the thefts, and by the acknowledgment of the facts in the settlement agreements, in the cases of the three applicants who had signed them. As regards more specifically the first applicant, whose face did not appear in the video footage, the court found that an analysis of the recordings of the cameras directed towards the till at which she worked and the sales receipts sufficiently demonstrated her involvement in the acts of which she was accused.", "38. After examining the other grounds of appeal put forward by the applicants in support of their claims, the High Court concluded that the dismissals were lawful and upheld the judgments handed down at first instance.", "The proceedings before the Supreme Court and the Constitutional Court", "39. The applicants brought appeals on points of law, which were declared inadmissible on 5 October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, owing to the “non-existence of a violation of a fundamental right”.", "The criminal proceedings against the applicants", "40. On 31 July 2009, after the applicants and other employees had appealed against their dismissals before the Employment Tribunal, the employer filed a criminal complaint against fourteen employees, including the five applicants. Criminal proceedings were opened against them. On 15 July 2001, finding that the investigation had not established that there had been any concerted action between the defendants in committing the offences, and that the value of the goods stolen by each defendant had not exceeded EUR 400, the investigating judge decided to reclassify the charges as a minor offence ( falta ). In a decision of 27 September 2011 the judge declared that the prosecution was time-barred on account of the statutory limitation of proceedings for that type of offence.", "RELEVANT DOMESTIC LAW AND PRACTICEThe Spanish Constitution", "The Spanish Constitution", "The Spanish Constitution", "41. The relevant provisions of the Spanish Constitution read as follows:", "Article 18", "“1. The right to respect for honour, for private and family life and for one’s own image shall be guaranteed.", "...", "4. The law shall restrict the use of data processing in order to guarantee respect for the honour and private and family life of citizens and the full exercise of their rights.”", "Article 24", "“1. Everyone has the right to effective protection by judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may defence rights be curtailed.", "2. Likewise, everyone has the right to ... a public trial without undue delay and with full guarantees ...”", "Article 33", "“1. The right to private ownership ... shall be recognised.”", "Article 38", "“Free enterprise shall be recognised within the framework of a market economy. ...”", "Relevant provisions of labour law", "42. The Labour Regulations ( Estatuto de los Trabajadores ), approved by Royal Legislative Decree no. 1/1995 of 24 March 1995, as in force at the relevant time, provided in particular as follows:", "Article 5 – Workers’ duties", "“Workers have the following basic duties:", "(a) To fulfil the obligations inherent in their post, in keeping with the principles of good faith and diligence.", "...”", "Article 20", "“2. ... In all cases, the worker and the employer shall be bound by the requirement of good faith in the fulfilment of their reciprocal obligations.", "3. An employer may use monitoring and surveillance measures which it deems most appropriate to verify that an employee is fulfilling his or her employment duties, taking into account, in their adoption and application, of the consideration due to his or her human dignity ...”", "43. The relevant provisions of the Employment Proceedings Act, approved by Royal Legislative Decree no. 2/1995 of 7 April 1995, as in force at the relevant time, read as follows:", "Article 90", "“1. The parties may rely on all the evidence prescribed by law ... save where it has been gathered directly or indirectly in breach of fundamental rights and freedoms.", "...”", "Article 108", "“...", "2. A dismissal based on any of the grounds of discrimination provided for by the Constitution or the law, or implemented in breach of fundamental rights and freedoms, shall be regarded as null and void.”", "Relevant procedural provisions", "44. Section 11 of Organic Law no. 6/85 of 1 July 1985 on the Judiciary provides as follows:", "“1. The principle of good faith must be complied with in all proceedings. Evidence obtained, directly or indirectly in violation of fundamental rights or freedoms will be excluded ...”", "Legislation regarding the protection of personal dataOrganic Law no. 15/1999", "Organic Law no. 15/1999", "Organic Law no. 15/1999", "45. Organic Law no. 15/1999 on the protection of personal data ( Ley Orgánica de protección de datos de carácter personal – the “Personal Data Protection Act”), as in force at the material time, was enacted on 13 December 1999 by transposing Directive 95/46/EC (see paragraph 63 below) and entered into force on 14 January 2000. Its aim was to safeguard the fundamental rights of individuals in connection with the processing of personal data, and more specifically their right to respect for their honour and their personal and family privacy (section 1 of the Act). It applied to the collection of personal data, defined as any information concerning identified or identifiable individuals recorded on a physical medium which may be subject to processing, and also covered the future usage of such data for public or private purposes (sections 2 and 3 of the Act).", "46. The Spanish Data Protection Agency, created by the Act, is the authority responsible for the supervision of its application. In that capacity it is entitled to carry out inspections, examine complaints and impose penalties for contraventions of the Act, namely fines of up to EUR 600,000 (sections 35 et seq.).", "47. The provisions of the Act concerning information and the consent of those concerned by the collection of their personal data, as applicable in the present case, read as follows:", "Section 5 – Right to information on the collection of data", "“1. Data subjects whose personal data are requested must be previously, explicitly, precisely and unambiguously informed of the following:", "(a) the existence of a personal data file or the fact that the data will be processed, the purpose thereof and the recipients of the information;", "(b) the obligatory or optional nature of their response to the questions asked;", "(c) the consequences of providing or refusing to provide the data;", "(d) the existence of rights of access, rectification, erasure and objection;", "(e) the identity and address of the controller or, as appropriate, his representative.", "...", "4. Where personal data have been collected without the data subject being approached, the person must be informed thereof in an express, precise and unequivocal manner by the file manager or his or her representative, within three months from the recording of the data, except where the data subject has already been informed of the content of the processing, the origin of the data, and the information referred to in letters (a), (d) and (e) of subsection 1 of the present section.", "5. The provisions of the preceding subsection shall not apply in cases where the law expressly provides otherwise, where the data-processing has historical, statistical or scientific purposes, or where it is impossible to inform the data subject, or where this would involve a disproportionate effort in the opinion of the Data Protection Agency or the corresponding regional body, in view of the number of data subjects, the age of the data and the possible compensation measures.", "Furthermore, the provisions of the preceding subsection shall also not apply where the data are obtained from sources accessible to the public and are intended for advertising or market research, in which case each communication sent to the data subject shall inform him or her of the origin of the data, the identity of the person/entity responsible for processing the data and the rights of the data subject.”", "Section 6 – Consent of data subjects", "“1. Processing of personal data shall require the unambiguous consent of the data subject, unless laid down otherwise by law.", "2. Consent shall not be required where the personal data are collected for the exercise of the functions proper to public authorities within the scope of their duties; where they relate to the parties to a contract or preliminary contract for a business, employment or administrative relationship, and are necessary for its maintenance or fulfilment; where the purpose of processing the data is to protect a vital interest of the data subject under the terms of section 7(6) of this Act or where the data are contained in sources accessible to the public and their processing is necessary to satisfy the legitimate interest pursued by the controller or that of the third party to whom the data are communicated, unless the fundamental rights and freedoms of the data subject are jeopardised.”", "48. Under sections 13 to 18 of the Act, data subjects had, in particular, a right of access, rectification and deletion in respect of their personal data. Section 19 of the Act provided for a right to compensation as follows:", "Section 19 – Right to compensation", "“1. Persons who, as a result of any failure by the data-processing manager or controller, have sustained any damage to their property or to their rights, shall be entitled to compensation. ...", "3. If the files are held by private-law entities, any proceedings shall be brought in the ordinary courts.”", "49. On that basis a judgment of the Supreme Court ordered an employer to pay compensation to one of its former employees, who had been dismissed two years earlier, for providing potential employers with personal information concerning the employee’s dismissal and thus apparently reducing the employee’s chances of finding a new job (judgment no. 609/2015 of 12 November 2015).", "Instruction no. 1/2006", "50. Instruction no. 1/2006 of 8 November 2006 on the processing of personal data for monitoring purposes using video-surveillance devices, issued by the Spanish Data Protection Agency, contains the following provisions:", "Article 3 - Information", "“Everyone who uses video-surveillance devices must fulfil all the obligations prescribed in section 5 of Organic Law no. 15/1999 of 13 December. For that purpose they must:", "(a) place at least a sufficiently visible information board in the areas monitored ... and", "(b) make available to the data subjects a document containing the information provided for in section 5.1 of Organic Law no. 15/1999 ...”", "Article 4 – Principles of quality, proportionality and purpose of data processing", "“1. In accordance with section 4 of Organic Law no. 15/1999 ..., images may only be processed if they are appropriate, relevant and not excessive in relation to the scope and to the legitimate and explicit aims justifying the installation of video-surveillance.", "2. The installation of cameras ... is permitted only where the aim of the monitoring cannot be fulfilled, without disproportionate effort, by other means that would be less intrusive for the privacy of individuals and their right to the protection of personal data.", "3. ... In all situations, any data processing should be avoided if it is not necessary for the aim pursued. ”", "51. The website of the Data Protection Agency, moreover, provides a factsheet on video-surveillance and a model board indicating the information required by law.", "Law no. 3/2018", "52. Law no. 15/1999 was repealed by a new Organic Law, no. 3/2018, on the protection of personal data and the safeguarding of digital rights, enacted on 5 December 2018, which entered into force on 7 December 2018. Section 22 of the new Law expressly governs the processing of personal data collected by means of video-surveillance. It provides in particular as follows:", "“4. The obligation to provide information under Article 12 of Regulation (EU) 2016/679 is deemed to be fulfilled by the placing of an information board in a sufficiently visible place, indicating at least the existence of the processing, the identity of the person responsible and the possibility of exercising the rights provided for by Articles 15 to 22 of Regulation (EU) 2016/679. ...”", "53. As regards video-surveillance in the workplace, section 89(1) of the Law provides as follows:", "“1. Employers are entitled to process images obtained by means of video-surveillance devices in the exercise of their authority to monitor employees or officials, as laid down in Article 20 § 3 of the Labour Regulations ... provided that this possibility is used in the statutory framework and within its inherent limits. Employers must inform employees or officials of the introduction of such a measure beforehand and in an explicit, clear and concise manner.", "In the event that CCTV cameras film employees or officials clearly committing an illegal act, the obligation to provide information shall be deemed fulfilled when at least the mechanism provided for in section 22(4) hereof has been put in place.”", "Case-law of the Constitutional Court", "54. On 10 July 2000 the Constitutional Court delivered a leading judgment on the lawfulness of video-surveillance in the workplace in the light of the protection provided by Article 18 § 1 of the Spanish Constitution (judgment no. 186/2000). In that case the employer had set up a system of hidden CCTV cameras in the ceiling of the clothing and footwear department of a shop, directed towards three tills and the reception desk. The Constitutional Court held that the measure at stake had to pass a threefold test to be considered acceptable: there had to be a legitimate aim (“appropriateness test”), and the measure had to be necessary (“necessity test”) and proportionate (“strict proportionality test”). In other words, the courts had to ascertain whether a fair balance had been struck between the interference with a fundamental right and the importance of the legitimate aim pursued. On the subject of the video-surveillance at issue in that case, it found as follows:", "“In the present case, the covert video-surveillance ... was a justified measure (since there was a reasonable suspicion that the person investigated had committed some wrongdoing at work); it was suited to the purpose pursued by the company (to verify that the worker was in fact committing the suspected wrongdoing, in which case he would be subjected to an appropriate disciplinary sanction); it was necessary (the recordings were to be used as evidence of the wrongdoing); and it was proportionate (since the cameras were only zoomed in on the checkout counters and solely for a limited period of time) ...; it follows that there has been no interference with the right to [respect for] privacy as enshrined in Article 18.1 of the Spanish Constitution.”", "55. As to the alleged failure to inform the employees and the staff committee, the Constitutional Court found that it was a question of ordinary legality that was not pertinent in terms of the constitutional protection of fundamental rights. The facts of the case nevertheless predated the entry into force of the Personal Data Protection Act in January 2000 and, at that time, the applicable law did not lay down any obligation to provide information that was comparable to the obligation subsequently enshrined in section 5(1) of that Act.", "56. In a previous judgment of 10 April 2000 (no. 98/2000), applying a similar proportionality test, the Constitutional Court had taken the view that video and audio recording devices placed at the checkout and on a gaming table in a casino, complementing the existing security system, had been a disproportionate measure in view of the resulting major interference with the right of employees and customers to respect for their private life. The court noted that the employer had failed to show how the sound recording, which was particularly intrusive for the right to privacy of those concerned, had been necessary for the protection of its legitimate rights and interests.", "57. Subsequently, in judgment no. 29/2013 of 11 February 2013, which concerned events after the Personal Data Protection Act had entered into force, the Constitutional Court held that the permanent installation of a video-surveillance system, initially as a security measure for the purpose of monitoring employees’ activity, required that the workers’ representatives and employees be given prior notification and that a failure to do so would be in breach of Article 18 § 4 of the Constitution. In that case, an employee of Seville University had been suspended from his duties without pay for unjustified late arrivals and absences that had been established by means of video-surveillance installed with the approval of the administration. The Constitutional Court found as follows:", "“7. ... In conclusion, it must not be overlooked that the [Constitutional Court has] established, in an invariable and continuing manner, that an employer’s power is limited by fundamental rights (among many other [authorities], STC no. 98/2000, of 10 April, legal ground no. 7, or STC no. 308/2000, of 18 December, legal ground no. 4). Consequently, in the same way that the ‘public interest’ behind the punishment linked to an administrative offence is not enough to allow the State to deprive the citizen concerned of his or her rights derived from [sections 5(1) and (2) of the Personal Data Protection Act] (STC 292/2000, of 30 November, legal ground no. 18), the ‘private interest’ of an employer cannot justify using the worker’s personal data to his or her detriment without previously informing him or her of the monitoring measures that have been implemented. There is no reason in the employment sphere ... to restrict the right to be informed, a fundamental right that is protected by Article 18.4 of the Constitution. Accordingly, it is not enough that the data processing itself is lawful, being prescribed by law (section 6(2) of the Personal Data Protection Act), or proves, in a given case, to be proportionate to the aim pursued; monitoring by the employer, while certainly possible, must also guarantee the requisite prior information.", "8. In the instant case, the CCTV cameras installed on the campus recorded the appellant’s image and allowed [the employer] to verify the appellant’s compliance with the working time [regulations] ... The owner of the cameras was Seville University and it was this entity that used the recordings, thus becoming the entity responsible for processing the appellant’s data without previously informing him of the use of cameras to monitor his work. This infringed Article 18.4 of the Constitution.", "The fact that signs were put up indicating the existence of a video-surveillance system on the campus, or that the Data Protection Agency had been informed of the installation of the system, does not detract from this conclusion. The employees, moreover, should have been informed, beforehand and in an express, precise and unambiguous manner, that the system could be used to monitor their work. The information should specify the characteristics and scope of the data processing, indicating the situations in which the images could be examined, together with the time-frame and purpose, specifically stating that the images could be used to impose disciplinary sanctions on the workers for non-compliance with the contract of employment.”", "58. In a judgment of 3 March 2016 (no. 39/2016) the Constitutional Court consolidated its case-law concerning the use of hidden surveillance cameras. In this case the manager of a clothing shop had detected some thefts from the till and suspected one of its employees. He had temporarily installed hidden cameras zoomed in on the area where the till was located. The employer had placed a sign indicating in a general manner the presence of CCTV cameras, including the information provided for by section 5 of the Personal Data Protection Act, as required by Article 3 of Instruction no. 1/2006 issued by the Spanish Data Protection Agency. The Constitutional Court explained in the following terms the relevance of the fulfilment of the obligation to provide information under section 5 of that Act:", "“4. ... as has been emphasised, even though the express consent of the employee is not required to implement a monitoring measure which involves the processing of [personal data], the obligation to provide information under section 5 of the Personal Data Protection Act remains. Without prejudice to any legal sanctions which may be entailed by an employer’s failure to comply with the obligation, for it to constitute a violation of Article 18.4 of the Constitution it is necessary to ascertain whether the proportionality principle has been upheld. The right to data protection should be weighed in the balance against any limitations that may be justified by the employee’s work obligations and the corresponding power of monitoring and supervision granted to the employer by Article 20.3 of the Labour Regulations, in relation to Articles 33 and 38 of the Constitution. The assessment of the constitutional relevance of a total or partial lack of information in cases of video-surveillance in the workplace requires the balancing in each case of the competing constitutional rights and values: on the one hand the employees’ right to the protection of personal data and, on the other, the employer’s management power, which, essential as it is to the proper running of a productive organisation, reflects the constitutional rights recognised in Articles 33 and 38 of the Constitution and ... is enshrined in Article 20.3 of the Labour Regulations, which expressly empower the employer to adopt monitoring and supervision measures in order to verify that the workers comply with their employment duties ... This general monitoring power provided for by law legitimises the supervision carried out by the employer of the employees’ performance of their professional tasks (see ... the judgment of the European Court of Human Rights Bărbulescu v. Romania of 6 [ sic ] January 2016), without prejudging the particular circumstances of each case, which will determine whether or not the monitoring implemented by the employer has entailed a violation of the fundamental right at stake.", "It is clear that, in order to ascertain whether the proportionality test is satisfied where the provision of information is insufficient or absent, it will be necessary first to determine, in each case, whether there has actually been a failure in the duty to provide information.”", "59. In that case the Constitutional Court found that there had been no violation of Article 18 § 4 of the Constitution, in particular on the ground that the employer had placed a board indicating that video-surveillance was in place, in accordance with the regulations. It considered that the board contained sufficient information as to the existence of monitoring and the purpose of the data processing. After examining the proportionality of the interference with the employee’s private life, using the criteria laid down in the case-law (see paragraph 54 above), it further found that there had not been any breach of the right to personal privacy protected by Article 18 § 1 of the Constitution.", "RELEVANT EUROPEAN AND INTERNATIONAL LAWCouncil of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "Council of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "Council of EuropeConvention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data", "60. This Convention (ETS No. 108) entered into force on 1 October 1985, having been ratified by Spain on 31 January 1984. Under Article 1, its purpose is to secure in the territory of each State Party, for every individual, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him. It provides, inter alia, as follows:", "Article 5 – Quality of data", "“Personal data undergoing automatic processing shall be:", "a. obtained and processed fairly and lawfully;", "b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c. adequate, relevant and not excessive in relation to the purposes for which they are stored;", "d. accurate and, where necessary, kept up to date;", "e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. ...”", "Article 8 – Additional safeguards for the data subject", "“Any person shall be enabled:", "a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention;", "d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”", "The Venice Commission", "61. In 2007 the Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an Opinion on “video surveillance by private operators in the public and private spheres and by public authorities in the private sphere and human rights protection” at its 71 st plenary session (Venice, 1-2 June 2007, CDL-AD(2007)027). The relevant parts read as follows:", "“18. For the purposes of this study, the private sphere will also include workplaces and the use of video surveillance in workplace premises, which raises legal issues concerning the employees’ privacy rights.", "...", "52. As regards workplaces, the introduction of video monitoring requires respecting the privacy rights of the employees.", "53. Here, video surveillance would, in general, be allowed to prevent or detect fraud or theft by employees in case of a well-founded suspicion. However, except in very specific circumstances, videotaping would not be allowed at places such as toilets, showers, restrooms, changing rooms, or smoking areas and employee lounges where a person may trust to have full privacy.", "54. Moreover, secret surveillance should only be allowed, and then only on a temporary basis, if proven necessary because of lack of adequate alternatives.", "...", "57. As regards shops, camera surveillance may be justified to protect the property, if such a measure has proven to be necessary and proportional. It may also be justified at certain locations in the shop to prevent and prosecute robberies under threat but, again, only if proven necessary, and no longer than necessary.", "58. National legislation will have to clearly define the legal basis of the surveillance and the necessity of the infringement in view of the interests protected.", "... ”", "IV. Conclusions and recommendations", "“ ...", "99. The Venice Commission would hence reiterate the Recommendations made in its previous study:", "- Video surveillance [performed on grounds of security or safety requirements, or for the prevention and control of criminal offences], shall respect the requirements laid down by Article 8 of the ECHR.", "- With regard to the protection of individuals concerning the collection and processing of personal data, the regulations shall at least follow the requirements laid down by Directive 95/46/EC, especially its Articles 6 and 7 which are based on Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data in its Article 5.", "100. Furthermore the Commission recommends, in view of the specificities of video surveillance, that the following measures should also be taken on a systematic basis:", "- People should be notified of their being surveyed, unless the surveillance system is obvious. This means that the situation has to be such that the person observed may be assumed to be aware of the surveillance, or has unambiguously given his /her consent.”", "The Committee of Ministers", "62. On 1 April 2015, at the 1224th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2015)5 on the processing of personal data in the context of employment. The relevant extracts provide as follows:", "10. Transparency of processing", "“10.1. Information concerning personal data held by employers should be made available either to the employee concerned directly or through the intermediary of his or her representatives, or brought to his or her notice through other appropriate means.", "10.2. Employers should provide employees with the following information:", "– the categories of personal data to be processed and a description of the purposes of the processing;", "– the recipients, or categories of recipients of the personal data;", "– the means employees have of exercising the rights set out in principle 11 of the present recommendation, without prejudice to more favourable ones provided by domestic law or in their legal system;", "– any other information necessary to ensure fair and lawful processing. ...”", "15. Information systems and technologies for the monitoring of employees, including video surveillance", "“15.1. The introduction and use of information systems and technologies for the direct and principal purpose of monitoring employees’ activity and behaviour should not be permitted. Where their introduction and use for other legitimate purposes, such as to protect production, health and safety or to ensure the efficient running of an organisation has for indirect consequence the possibility of monitoring employees’ activity, it should be subject to the additional safeguards set out in principle 21, in particular the consultation of employees’ representatives.", "15.2. Information systems and technologies that indirectly monitor employees’ activities and behaviour should be specifically designed and located so as not to undermine their fundamental rights. The use of video surveillance for monitoring locations that are part of the most personal area of life of employees is not permitted in any situation.”", "21. Additional safeguards", "“For all particular forms of processing, set out in Part II of the present recommendation, employers should ensure the respect of the following safeguards in particular:", "a. inform employees before the introduction of information systems and technologies enabling the monitoring of their activities. The information provided should be kept up to date and should take into account principle 10 of the present recommendation. The information should include the purpose of the operation, the preservation or back-up period, as well as the existence or not of the rights of access and rectification and how those rights may be exercised;", "b. take appropriate internal measures relating to the processing of that data and notify employees in advance;", "c. consult employees’ representatives in accordance with domestic law or practice, before any monitoring system can be introduced or in circumstances where such monitoring may change. Where the consultation procedure reveals a possibility of infringement of employees’ right to respect for privacy and human dignity, the agreement of employees’ representatives should be obtained;", "d. consult, in accordance with domestic law, the national supervisory authority on the processing of personal data.”", "European Union materialDirective 95/46/ EC", "Directive 95/46/ EC", "Directive 95/46/ EC", "63. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in its relevant parts, provides:", "Article 6", "“1. Member States shall provide that personal data must be:", "(a) processed fairly and lawfully;", "(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards;", "(c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;", "(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified;", "(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. ...”", "Article 7", "“Member States shall provide that personal data may be processed only if:", "(a) the data subject has unambiguously given his consent; or", "(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or", "(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or", "(d) processing is necessary in order to protect the vital interests of the data subject; or", "(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or", "(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject ...”", "Article 10 – Information in cases of collection of data from the data subject", "“Member States shall provide that the controller or his representative must provide a data subject from whom data relating to himself are collected with at least the following information, except where he already has it:", "(a) the identity of the controller and of his representative, if any;", "(b) the purposes of the processing for which the data are intended;", "(c) any further information such as", "- the recipients or categories of recipients of the data, ...", "- the existence of the right of access to and the right to rectify the data concerning him ...”", "Article 11 – Information where the data have not been obtained from the data subject", "“1. Where the data have not been obtained from the data subject, Member States shall provide that the controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject with at least the following information, except where he already has it:", "(a) the identity of the controller and of his representative, if any;", "(b) the purposes of the processing;", "(c) any further information such as", "- the categories of data concerned,", "- the recipients or categories of recipients,", "- the existence of the right of access to and the right to rectify the data concerning him", "in so far as such further information is necessary, having regard to the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject. ...”", "Article 13 – Exemptions and restrictions", "“1. Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6 (1), 10, 11 (1), 12 and 21 when such a restriction constitutes a necessary measures to safeguard:", "(a) national security;", "(b) defence;", "(c) public security;", "(d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions;", "(e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters;", "(f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e);", "(g) the protection of the data subject or of the rights and freedoms of others.”", "Article 22 – Remedies", "“Without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28, prior to referral to the judicial authority, Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question.”", "Article 23 – Liability", "“1. Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered. ...”", "The Data Protection Working Party", "64. A Data Protection Working Party was established under Article 29 of Directive 95/46/EC in order to contribute to the uniform implementation of its provisions. It is an independent EU advisory body. In September 2001 it issued Opinion 8/2001 on the processing of personal data in an employment context, which summarises the fundamental principles of data protection: purpose, transparency, legitimacy, proportionality, accuracy, security and staff awareness. With regard to the monitoring of employees, it recommended as follows:", "“Any monitoring, especially if it is conducted on the basis of Article 7(f) of Directive 95/46/EC and, in any case, to satisfy Article 6 must be a proportionate response by an employer to the risks it faces taking into account the legitimate privacy and other interests of workers.", "Any personal data held or used in the course of monitoring must be adequate, relevant and not excessive for the purpose for which the monitoring is justified. Any monitoring must be carried out in the least intrusive way possible. It must be targeted on the area of risk, taking into account that data protection rules and, where applicable, the principle of secrecy of correspondence.", "Monitoring, including surveillance by camera, must comply with the transparency requirements of Article 10. Workers must be informed of the existence of the surveillance, the purposes for which personal data are to be processed and other information necessary to guarantee fair processing. The Directive does not treat less strictly monitoring of a worker’s use of an Internet and email system if the monitoring takes place by means of a camera located in the office.”", "65. Another opinion, issued on 11 February 2004, “on the Processing of Personal Data by means of Video Surveillance” (opinion no. 4/2004), pointed out that Directive 95/46/EC applied to such means and that the proportionality principle had to be upheld both in the decision to use it and for the processing of the personal data thus obtained. As regards video-surveillance in the workplace, it explained as follows:", "“In addition to the considerations made in the above documents, to the extent that they are actually applicable to video surveillance, it is appropriate to point out that video surveillance systems aimed directly at controlling, from a remote location, quality and amount of working activities, therefore entailing the processing of personal data in this context, should not be permitted as a rule.", "The case is different as regards video surveillance systems that are deployed, subject to appropriate safeguards, to meet production and/or occupational safety requirements and also entail distance monitoring – albeit indirectly.", "The implementing experience has shown additionally that surveillance should not include premises that either are reserved for employees’ private use or are not intended for the discharge of employment tasks – such as toilets, shower rooms, lockers and recreation areas; that the images collected exclusively to safeguard property and/or detect, prevent and control serious offences should not be used to charge an employee with minor disciplinary breaches; and that employees should always be allowed to lodge their counterclaims by using the contents of the images collected.", "Information must be given to employees and every other person working on the premises. This should include the identity of the controller and the purpose of the surveillance and other information necessary to guarantee fair processing in respect of the data subject, for instance in which cases the recordings would be examined by the management of the company, the recording period and when the recording would be disclosed to the law enforcement authorities. The provision of information for instance through a symbol can not be considered as sufficient in the employment context.”", "The General Data Protection Regulation", "66. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, has been applicable since 25 May 2018. It incorporates most of the provisions of Directive 95/46/EC and reinforces some of the safeguards contained therein.", "COMPARATIVE-LAW MATERIAL", "67. The following information was gleaned from the Court’s research into the legislation of the member States of the Council of Europe, and in particular a study covering forty-two States.", "68. The twenty-eight member States of the European Union have legislation transposing Directive 95/46/EC. Among them, twenty-one States have adopted instruments specifically regulating video-surveillance in the workplace. The majority of States which have such rules prohibit covert video-surveillance. Some of them (Germany, United Kingdom) allow it, however, in the event of suspicion of a criminal offence or serious misconduct.", "69. As regards the States which are not members of the EU, seven of them have specific rules on video-surveillance in the workplace, three States have regulations on video-surveillance in general and five States have only general legislation on the collection and processing of personal data. The States which have specific rules require that such monitoring should have a legitimate purpose and that the employees should be informed. In one State (Switzerland) covert video-surveillance may be used in the case of suspicion of an offence.", "70. Almost all States enable any person who has been the subject of video-surveillance to go before the courts to seek compensation for any damage sustained and/or an order to terminate the monitoring or delete the data obtained by that means. In some countries, criminal liability may also be engaged. In all member States of the European Union and in ten of the other States, it is possible to complain to an independent authority for the protection of personal data, which has powers to investigate and impose sanctions." ]

[ "THE LAW", "PRELIMINARY ISSUESLocus standi", "Locus standi", "Locus standi", "71. The Court observes that the second applicant, Ms A. Gancedo Giménez, died on 25 October 2018, while the case was pending before the Grand Chamber. Her husband and legal heir, Mr J. López Martínez, expressed his wish to continue the proceedings before the Court.", "72. The Court would point out that, in a number of cases where an applicant died during the proceedings, it has taken account of the wish expressed by heirs or close relatives to continue them (see, among other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII; Angelov v. Bulgaria, no. 44076/98, § 28, 22 April 2004; and Nicola v. Turkey, no. 18404/91, § 15, 27 January 2009).", "73. In the present case, the Court finds that the heir of the second applicant may have a sufficient interest in the continued examination of the application and thus recognises his capacity to act in her stead.", "Subject matter of the case before the Grand Chamber", "74. In their oral observations before the Grand Chamber, the Government requested that the Court should only re-examine the complaint under Article 8 of the Convention, in respect of which the Chamber had found a violation in its judgment of 9 January 2018 and which was the subject of the Government’s request for referral, as accepted by the panel of the Grand Chamber. They added that the applicants had not submitted any referral request concerning the complaints under Article 6, in respect of which the Chamber had found no violation.", "75. The applicants did not comment on the Government’s request but nevertheless asked the Court to review the Chamber’s finding of no violation.", "76. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII, and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). The “case” referred to the Grand Chamber thus necessarily encompasses all the aspects of the application that the Chamber found admissible and is not confined to the “serious issue” of general importance or affecting the interpretation or application of the Convention or the Protocols thereto, under Article 43 of the Convention, in respect of which the referral request has been accepted by the panel (see K. and T. v. Finland, cited above, §§ 140-41). Accordingly, in the present case, the Grand Chamber’s examination will concern all the complaints under Articles 6 and 8 of the Convention that were declared admissible by the Chamber.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "77. The applicants argued that their employer’s decision to dismiss them had been based on recordings obtained by means of video-surveillance in their workplace, in breach of their right to respect for their private life, and that, by refusing to declare their dismissal null and void, the domestic courts had failed in their duty to protect that right. They relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Chamber judgment", "78. In its judgment of 9 January 2018 the Chamber found that Article 8 of the Convention was applicable in the present case. As the disputed video-surveillance measure had been implemented by a private party, it examined the complaint in terms of the State’s positive obligations and sought to ascertain whether the national authorities had struck a fair balance between the applicants’ right to respect for their private life, on the one hand, and their employer’s interest in protecting its rights in connection with the organisation and management of its property, on the other.", "79. The Chamber noted that, while the video-surveillance had been set up on account of legitimate suspicions of theft, it had been broad in scope – not being limited in time, affecting all the employees working at the tills and covering all working hours – and had breached the obligation under domestic law to give prior information, to those persons who were concerned by the collection and processing of their personal data, of the existence, purpose and implementation of the measures. Having regard to those factors, the Chamber did not share the opinion of the domestic courts as to the proportionality of the video-surveillance measure taken by the employer. It was of the view, in particular, that the employer’s rights could have been secured by informing the applicants, even in a general manner, of the installation of a video-surveillance system.", "80. Consequently, the Chamber found that the domestic courts had failed to strike a fair balance between the applicants’ right to respect for their private life and the other interests at stake, and that there had thus been a violation of Article 8 of the Convention.", "The Government’s preliminary objection", "81. The Government argued that the applicants could have complained to the Data Protection Agency, alleging an infringement by the employer of the Personal Data Protection Act, or could have brought criminal proceedings to complain of a breach of their right to respect for their private life. In their view, those remedies could have resulted in the imposition of an administrative or criminal sanction on the employer. They concluded that the applicants had failed to exhaust the domestic remedies available under domestic law.", "82. The applicants submitted that the Data Protection Agency was merely an administrative organ whose authority was confined to imposing pecuniary sanctions in the event of a breach of the data-protection legislation. They took the view that such a sanction, if it were to be imposed on their employer, would not bring them redress for the damage caused to them by the breach of their right to respect for their private life and by their dismissal based on that breach. They added that it was not mandatory to complain to the Agency before the ordinary courts, which had full jurisdiction to interpret and apply the Personal Data Protection Act.", "83. The Court notes that the Government only raised the issue of non-exhaustion of domestic remedies for the first time in their written pleadings before the Grand Chamber. It discerns no exceptional circumstances in this case which could have released them from their obligation pursuant to Rule 55 to raise their preliminary objection prior to the adoption of the Chamber’s decision on admissibility. It thus takes the view that the Government are estopped from raising that objection at this stage of the proceedings and that it must be dismissed (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 61, 15 November 2018).", "84. However, in so far as the parties’ arguments on the objection of non-exhaustion raised by the Government have a bearing on the merits of the applicants’ complaint under Article 8 of the Convention, the Court will examine them below.", "Applicability of Article 8 of the ConventionThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "85. The applicants submitted that the fact they had been continuously filmed in their workplace throughout their entire working day, without their knowledge and without being able to evade the monitoring, resulted in Article 8 of the Convention being applicable.", "(b) The Government", "86. The Government argued that the applicants had been working in a public place, in direct contact with the public. They took the view that, in the absence of a consensus among the member States as to whether such a situation was comprised within the notion of “private life”, the Court should not extend that concept accordingly. They added that the protection of Article 8 could not extend to criminal conduct.", "The Court’s assessment", "(a) Principles derived from the Court’s case-law", "87. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity (see, as a recent example, Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018). It extends in particular to aspects relating to personal identity, such as a person’s name or picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012).", "88. The concept of private life is not limited to an “inner circle” in which the individual may live his or her own personal life without outside interference, but also encompasses the right to lead a “private social life”, that is, the possibility of establishing and developing relationships with others and the outside world (see Bărbulescu v. Romania [GC], no. 61496/08, § 70, 5 September 2017). It does not exclude professional activities in that connection (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110, ECHR 2014 (extracts); Köpke v. Germany (dec.), no. 420/07, 5 October 2010; Bărbulescu, cited above, § 71; Antović and Mirković v. Montenegro, no. 70838/13, § 42, 28 November 2017; and Denisov, cited above, § 100) or activities taking place in a public context (see Von Hannover (no. 2), cited above, § 95). There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX (extracts); and Von Hannover (no. 2), cited above, § 95).", "89. There are a number of elements relevant to a consideration of whether a person’s private life is concerned by measures effected outside a person’s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Bărbulescu, cited above, § 73; and Antović and Mirković, cited above, § 43). As to the monitoring of an individual’s actions using photographic or video devices, the Convention institutions have taken the view that the monitoring of the actions and movements of an individual in a public place using a camera which did not record the visual data does not constitute in itself a form of interference with private life (see Herbecq and the Association “Ligue des Droits de l’Homme ” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports 92-B, p. 92, and Perry, cited above, § 41). Private-life considerations may arise, however, once any systematic or permanent record of such personal data comes into existence, particularly pictures of an identified person (see Peck v. the United Kingdom, no. 44647/98, §§ 58-59, ECHR 2003 ‑ I; Perry, cited above, §§ 38 and 41; and Vukota-Bojić v. Switzerland, no. 61838/10, §§ 55 and 59, 18 October 2016). As the Court has stated in this connection, a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009, and De La Flor Cabrera v. Spain, no. 10764/09, § 31, 27 May 2014).", "90. In order to determine whether Article 8 applies, the Court also finds it relevant to address the question whether the individual in question was targeted by the monitoring measure (see Perry, cited above, § 40; Köpke, cited above; and Vukota-Bojić, cited above, §§ 56 and 58) or whether personal data was processed, used or made public in a manner or to a degree surpassing what those concerned could reasonably have foreseen (see Peck, cited above, §§ 62-63; Perry, cited above, §§ 40-41; and Vukota-Bojić, cited above, § 56).", "91. As regards, more specifically, the issue of video-surveillance in the workplace, the Court has found that video-surveillance implemented by an employer without the employee’s knowledge, for about fifty hours over a two-week period, and the use of the recordings thus obtained in the proceedings before the employment courts to justify her dismissal, interfered with her right to respect for her private life (see Köpke, cited above). The non-covert video-surveillance of university lecturers while they were teaching, where the recordings had been kept for one month and could be consulted by the dean of the faculty, was also found to have interfered with the applicants’ right to respect for their private life (see Antović and Mirković, cited above, §§ 44-45).", "(b) Application of those principles to the present case", "92. The Court notes that in the present case the applicants were subjected to a video-surveillance measure implemented by their employer in their workplace for a period of ten days, the cameras being directed towards the supermarket checkout area and its surroundings. Thus, while the applicants were not individually targeted by the video-surveillance, it is not in dispute that the first three of them, who were working behind the tills, could have been filmed throughout their working day, while the fourth and fifth applicants were filmed when they were passing through that area.", "93. As to whether the applicants had a reasonable expectation that their private life would be protected and respected, the Court observes that their workplace, a supermarket, was open to the public and that the activities filmed there, namely the taking of payments for purchases by the customers, were not of an intimate or private nature. Their expectation as to the protection of their private life was thus necessarily limited. However, even in public places, the creation of a systematic or permanent recording of images of identified persons and the subsequent processing of the images thus recorded could raise questions affecting the private life of the individuals concerned (see paragraph 89 above and the case-law cited therein). The Court notes that in the present case domestic law provided a formal and explicit statutory framework which obliged a person responsible for a video-surveillance system, even in a public place, to give prior information to the persons being monitored by such a system (see paragraphs 47 and 50 above). The applicants had, moreover, been informed about the installation by their employer of other CCTV cameras in the supermarket, those cameras being visible and positioned such as to film the shop’s entrances and exits. In those circumstances the applicants had a reasonable expectation that they would not be subjected to video-surveillance in the other areas of the shop without being informed beforehand.", "94. As to the processing and use of the video recordings, the Court notes that they were viewed by a number of people working for the applicants’ employer even before the applicants were informed of their existence. In addition, they constituted the basis of their dismissal and were used in evidence in the Employment Tribunal proceedings.", "95. Having regard to the foregoing, the Court finds that Article 8 is applicable in the present case.", "Compliance with Article 8 of the ConventionThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "96. The applicants began by drawing attention to the fact that the only questions for discussion in the present case were whether their right to respect for their private life had been infringed on account of the introduction of the video-surveillance measure without their knowledge, together with that of the limits imposed by Article 8 of the Convention on the monitoring that an employer was entitled to use against its employees. They took the view that, contrary to what the Government had suggested, the question of their possible criminal liability had already been settled at domestic level and could not be a matter of debate before the Court.", "97. The applicants acknowledged that an employer had to be able to install surveillance systems to protect its property but argued that this right should be limited in order to preserve the employees’ right to respect for their private life. They explained that, in the present case, they and all the supermarket staff had been filmed for weeks, throughout the working day, without having been informed beforehand. The monitoring had been implemented in breach of Spanish law, which provided for an obligation for the employer, if not to obtain the consent of the employees, at least to inform them beforehand of the installation of the cameras and of their rights under the data-protection legislation. If such indications had been given, both their right to respect for their private life and the employer’s interests would have been preserved. The applicants thus concluded that, by refusing to find fault with this omission on the part of the employer, the domestic courts had not granted them sufficient protection under Article 8 of the Convention.", "98. The applicants were of the opinion that the present case had to be distinguished from that of Köpke v. Germany (decision cited above) on a number of points. They argued that in the Köpke case there had been no specific legislation on video-surveillance in the workplace and the employer had complied with the conditions laid down by the domestic case-law, whereas, in the present case, their employer had breached the domestic legislation without being penalised. Furthermore, the monitoring had been more extensive in their case because it had been introduced without a time-limit, had continued throughout the working day and had involved filming not only the employees under suspicion but the whole staff.", "99. The applicants asked the Court to follow the approach adopted in its recent judgment in Bărbulescu v. Romania (cited above), a case about an employer’s monitoring of messaging and internet use by an employee, which in their view laid down the proportionality criteria to be met by any interference by an employer with the right to privacy of its employees. They argued that the measure taken by their employer clearly did not meet these requirements, given the lack of prior information about the introduction of video-surveillance and the rights provided for in the data-protection legislation. They added that this measure was not proportionate since the employer’s interests could have been safeguarded while providing employees with the information required by law.", "100. The applicants concluded that, by refusing to acknowledge that the video-surveillance by means of hidden cameras had infringed their right to respect for their private life and by holding, consequently, that their dismissals were lawful, the domestic courts had deprived them of the protection to which they were entitled against improper interference with their privacy by their employer. Contrary to what the Government had argued, this complaint was distinct from those that they had made under Article 6 of the Convention.", "101. Moreover, as regards the possibility of complaining to the Spanish Data Protection Agency, the applicants repeated the arguments they had made in response to the Government’s objection of non-exhaustion of domestic remedies (see paragraph 81 above) and submitted that, even if that Agency had found an administrative offence, the imposition of an administrative sanction on the employer would not have provided appropriate redress for the alleged breach of their right to respect for their private life. As to the possibility of seeking redress in the ordinary civil courts, they explained that those courts had no jurisdiction in respect of relations under an employment contract and that the case-law cited by the Government by way of example, concerning a situation in which the employment relationship had been severed two years earlier, could not be transposed to the present case (see paragraph 49 above). In their view, the main consequence of the video-surveillance had been their dismissal, in respect of which only the employment courts had jurisdiction.", "(b) The Government", "102. The Government observed that, as the breach of privacy alleged by the applicants was attributable to a private company and not to the authorities, the Grand Chamber should follow the approach adopted in the case of Von Hannover (no. 2) v. Germany (cited above), in which the Court had examined whether the domestic courts had weighed up the various individual interests at stake and had struck a fair balance between them. In their view, the Spanish courts had performed such a balancing exercise and had taken due account of the applicants’ right to respect for their private life.", "103. The Government argued that, even if it would have been desirable for the applicants to have been informed of the installation of the CCTV cameras, the measures taken by the employer had not been disproportionate. They observed that the applicants had been working in an area that was open to the public, that they had been informed of the installation of certain CCTV cameras following the suspicions of theft and that they had knowingly committed criminal acts. The present application was similar to the Köpke case and the distinction made by the Chamber judgment was not justified. They explained in this connection that the monitoring had lasted for only ten days, from 15 to 25 June, on which date the employees under suspicion had been called for individual interview, and that it had been directed not at the whole staff but only at those working in the checkout area, who were in direct contact with the customers. The present case should, by contrast, be distinguished from Bărbulescu as in that case the impugned interference had concerned compliance with the employer’s instructions, which the Court found to have “reduce[d] private social life in the workplace to zero”, whereas the video-surveillance measure at issue had pursued a legitimate aim, namely to shed light on an offence of which the company had been the victim. They added that, as the applicants had worked in an area where they were in direct contact with the public, their expectation of privacy had necessarily been reduced in comparison with a situation involving the confidentiality of communications exchanged via a messaging account.", "104. Moreover, relying on their arguments in support of their objection of non-exhaustion of domestic remedies (see paragraph 81 above), the Government maintained that the applicants could have submitted a complaint to the Spanish Data Protection Agency alleging a failure to comply with the Personal Data Protection Act. This agency was an independent body, empowered to monitor the application of data-protection legislation and to impose fines on offenders, whereas the employment courts to which the applicants had taken their case only had jurisdiction to rule on the lawfulness of dismissals. Any failure to comply with data-protection legislation did not automatically lead to a violation of the right to respect for private life, and these two concepts were not to be confused.", "105. The Government submitted that the applicants could also have brought an action before the ordinary civil courts to claim compensation for any damage caused by the alleged breach of the Personal Data Protection Act. In support of their argument they submitted a judgment of the Supreme Court, which had awarded compensation to an employee for the unlawful transmission of personal data by his former employer (see paragraph 49 above).", "106. The Government concluded that the respondent State had complied with its positive obligations under Article 8 of the Convention and that its responsibility should not be engaged on account of any infringements by a private company or for a failure by the applicants to complain of such infringements to the competent domestic authorities.", "The third-party’s submissions", "107. The European Trade Union Confederation (ETUC), intervening as a third party, expressed its concern that States might not sufficiently protect the privacy of workers in the workplace. It emphasised that the protection of privacy in general and in employment relations in particular was a relatively new aspect of international human rights protection and that the risks for privacy deriving from new technologies were increasing. In its view, this was why international, and in particular European, human rights protection had developed in the sense that, irrespective of the question of permitted processing of personal data as such, those concerned had to be informed.", "108. The ETUC stressed that the right to be informed of the collection of personal data was expressly recognised in domestic law under section 5(1) of the Personal Data Protection Act. Highlighting how several European legal instruments (at Council of Europe as well as European Union level) had addressed the protection of privacy, either in the general form of protection of personal data or more specifically in the case of video-surveillance in the workplace, it concluded that the right of the data subject to be informed prior to the processing of his or her personal data was to be regarded as a right derived from Article 8 of the Convention, constituting a procedural safeguard. Moreover, in situations where it was not required to give prior information to the employees themselves, the notification and consultation of their representatives would be essential.", "The Court’s assessment", "(a) Positive obligations of the respondent State", "109. The Court observes that, in the present case, the video-surveillance measure complained of by the applicants was imposed by their employer, a private company, and cannot therefore be analysed as an “interference”, by a State authority, with the exercise of Convention rights. The applicants nevertheless took the view that, by confirming their dismissals on the basis of that video-surveillance, the domestic courts had not effectively protected their right to respect for their private life.", "110. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may necessitate the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013, and Von Hannover (No. 2), cited above, § 98). The responsibility of the State may thus be engaged if the facts complained of stemmed from a failure on its part to secure to those concerned the enjoyment of a right enshrined in Article 8 of the Convention (see Bărbulescu, cited above, § 110, and Schüth v. Germany, no. 1620/03, §§ 54 and 57, ECHR 2010).", "111. Accordingly, in line with the approach it has followed in similar cases, the Court takes the view that the complaint should be examined from the standpoint of the State’s positive obligations under Article 8 of the Convention (see Bărbulescu, cited above, § 110; Köpke, cited above; and De La Flor Cabrera, cited above, § 32). While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing private and public interests, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011, and Bărbulescu, cited above, § 112). The margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied upon (see Peck, cited above, § 77, and Von Hannover (no. 2), cited above, § 105).", "112. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Von Hannover (no. 2), cited above, § 104; Söderman, cited above, § 79; and Bărbulescu, cited above, § 113).", "113. The Court has already held that, in certain circumstances, the fulfilment of positive obligations imposed by Article 8 requires the State to adopt a legislative framework to protect the right at issue (see X and Y v. the Netherlands, 26 March 1985, §§ 23, 24 and 27, Series A no. 91, and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII, concerning cases of sexual assault on minors; and Codarcea v. Romania, no. 31675/04, §§ 102 ‑ 04, 2 June 2009, as regards medical negligence). Concerning the gravest acts, such as rape, this obligation may go as far as requiring the adoption of criminal-law provisions (see M.C. v. Bulgaria, cited above, § 150). In respect of less serious acts between individuals which may affect the rights protected under Article 8, the Court takes the view that Article 8 leaves it to the discretion of States to decide whether or not to pass specific legislation and it verifies that the existing remedies were capable of providing sufficient protection of the rights at issue (see, concerning the protection of a minor’s personal integrity, Söderman, cited above, §§ 86-91; and on the right to the protection of one’s image, Von Hannover (no. 2), cited above, §§ 95-126, and Reklos and Davourlis, cited above, §§ 34-43).", "114. As regards, more specifically, the monitoring of employees in the workplace, the Court has taken the view that Article 8 leaves it to the discretion of States to decide whether or not to enact specific legislation on video-surveillance (see Köpke, cited above) or the monitoring of the non-professional correspondence and other communications of employees (see Bărbulescu, cited above, § 119). It has nevertheless pointed out that, regardless of the discretion enjoyed by States in choosing the most appropriate means for the protection of the rights in question, the domestic authorities should ensure that the introduction by an employer of monitoring measures affecting the right to respect for private life or correspondence of its employees is proportionate and is accompanied by adequate and sufficient safeguards against abuse (see Bărbulescu, cited above, § 120, and Köpke, cited above).", "115. In the Bărbulescu judgment, the Court set out a certain number of requirements that must be met by any monitoring of the correspondence and communications of employees if it is not to breach Article 8 of the Convention (see Bărbulescu, cited above, § 121). It also found in that judgment that, to ensure effective compliance with those requirements, the employees concerned must have access to a remedy before an independent judicial body with jurisdiction to determine, at least in substance, whether the relevant conditions were satisfied (ibid., § 122).", "116. The Court is of the view that the principles established in the Bărbulescu judgment, a number of which came from the decision in Köpke, which concerned facts that were similar to those in the present case, are transposable, mutatis mutandis, to the circumstances in which an employer may implement video-surveillance measures in the workplace. These criteria must be applied taking into account the specificity of the employment relations and the development of new technologies, which may enable measures to be taken that are increasingly intrusive in the private life of employees. In that context, in order to ensure the proportionality of video-surveillance measures in the workplace, the domestic courts should take account of the following factors when they weigh up the various competing interests:", "(i) Whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures. While in practice employees may be notified in various ways, depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and be given prior to implementation.", "(ii) The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this connection, the level of privacy in the area being monitored should be taken into account, together with any limitations in time and space and the number of people who have access to the results.", "(iii) Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof. The more intrusive the monitoring, the weightier the justification that will be required.", "(iv) Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures. In this connection, there should be an assessment in the light of the particular circumstances of each case as to whether the aim pursued by the employer could have been achieved through a lesser degree of interference with the employee’s privacy.", "(v) The consequences of the monitoring for the employee subjected to it. Account should be taken, in particular, of the use made by the employer of the results of the monitoring and whether such results have been used to achieve the stated aim of the measure.", "(vi) Whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature. Such safeguards may take the form, among others, of the provision of information to the employees concerned or the staff representatives as to the installation and extent of the monitoring, a declaration of such a measure to an independent body or the possibility of making a complaint.", "117. The Court will thus ascertain in the present case whether the domestic law, and in particular its application by the employment courts which examined the applicants’ cases, provided sufficient protection, in weighing up the competing interests, of their right to respect for their private life.", "(b) Application to the present case of the above-mentioned principles", "118. In the present case, the positive obligations imposed on the State by Article 8 of the Convention required the national authorities to strike a fair balance between two competing interests, namely, on the one hand, the applicants’ right to respect for their private life and, on the other, the possibility for their employer to ensure the protection of its property and the smooth operation of its company, particularly by exercising its disciplinary authority.", "119. The Court notes at the outset that, at the material time, Spanish law had laid down a legal framework intended to protect the private life of employees in situations such as that in the present case. Thus, the Personal Data Protection Act and Instruction no. 1/2006 specifically on video-surveillance provided for a certain number of safeguards and conditions to be satisfied by any measure of video-surveillance and the ensuing processing of personal data. Failure to provide these safeguards could give rise to administrative sanctions and could engage the civil liability of the person responsible for the data processing (see paragraphs 46 and 48 above). In addition, Article 20 § 3 of the Employment Regulations limited the employer’s use of monitoring, as regards the fulfilment by employees of their employment duties, by requiring that the measures taken in that regard were compatible with their human dignity. Moreover, the applicable rules of procedure required the domestic courts to exclude any evidence obtained in breach of a fundamental right. Lastly, there was case-law of the ordinary courts and the Constitutional Court requiring that any measures interfering with the privacy of employees had to pursue a legitimate aim (“appropriateness test”), and had to be necessary for the fulfilment of the aim pursued (“necessity test”) and proportionate to the circumstances of each case (“strict proportionality test”) (see paragraphs 54 et seq. above).", "120. In these circumstances the Court observes that the regulatory framework which was in place under domestic law is not at issue in the present case. The applicants have not in fact questioned the pertinence of that framework (see paragraph 97 above), but they argued that it was precisely the refusal of the employment courts to draw the appropriate conclusions from the employer’s failure to fulfil its domestic-law obligation to provide information which had breached the Convention.", "121. Accordingly, the Court will consider the manner in which the domestic courts to which the applicants appealed examined their complaint that their right to respect for their private life in the workplace had been breached and whether, as the Government argued, other domestic-law remedies could have provided them with appropriate protection.", "122. The Court would begin by noting that the employment courts identified the various interests at stake, referring expressly to the applicants’ right to respect for their private life and the balance to be struck between that right and the employer’s interest in ensuring the smooth running of the company by exercising its management powers. It will thus ascertain how those courts took into account the factors listed above when they weighed up these interests.", "123. The domestic courts first found, in accordance with the requirements of the Constitutional Court’s case-law, that the installation of the video-surveillance had been justified by legitimate reasons, namely the suspicion, put forward by the supermarket manager on account of the significant losses recorded over several months, that thefts had been committed. They also took account of the employer’s legitimate interest in taking measures in order to discover and punish those responsible for the losses, with the aim of ensuring the protection of its property and the smooth functioning of the company.", "124. The domestic courts then examined the extent of the monitoring and the degree of intrusion into the applicants’ privacy, finding that the measure was limited as regards the areas and staff being monitored – since the cameras only covered the checkout area, which was likely to be where the losses occurred – and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft. In the Court’s opinion this assessment could not be regarded as unreasonable. It notes that the monitoring did not cover the whole shop but targeted the areas around the tills, where thefts were likely to have been committed. The three applicants who worked as cashiers were indeed monitored by CCTV cameras throughout their working day. As a result of their jobs within the company, they could not evade these recordings, which were aimed at all the staff working in the checkout area, and were operated permanently and without any limitation (contrast Köpke, cited above, concerning an applicant who was both a shop assistant and cashier of the store in question, the video-surveillance measure thus not covering the entirety of her place of work). To some extent, they thus found themselves in limited areas (see, mutatis mutandis, Allan v. the United Kingdom, no. 48539/99, § 35, ECHR 2002 ‑ IX, and Perry, cited above, §§ 39-43). As to the fourth and fifth applicants, the CCTV cameras filmed them whenever they passed through the checkout area.", "125. At the same time it should be pointed out that the applicants’ duties were performed in a place that was open to the public and involved permanent contact with customers. The Court takes the view in this connection that it is necessary to distinguish, in the analysis of the proportionality of a video-surveillance measure, the various places in which the monitoring was carried out, in the light of the protection of privacy that an employee could reasonably expect. That expectation is very high in places which are private by nature, such as toilets or cloakrooms, where heightened protection, or even a complete ban on video-surveillance, is justified (see, to this effect, the relevant international instruments cited in paragraphs 61 and 65 above). It remains high in closed working areas such as offices. It is manifestly lower in places that are visible or accessible to colleagues or, as in the present case, to the general public.", "126. As regards the extent of the measure over time, the Court notes that while, as the applicants argued, the employer had not set the duration of the video-surveillance beforehand, in actual fact it lasted for ten days and ceased as soon as the employees responsible had been identified. The length of the monitoring does not therefore appear excessive in itself (compare Köpke, cited above, where a duration of fourteen days was not found to be disproportionate). Lastly, only the supermarket manager, the company’s legal representative and the union representative viewed the recordings obtained through the impugned video-surveillance before the applicants themselves had been informed. Having regard to these factors, the Court takes the view that the intrusion into the applicants’ privacy did not attain a high degree of seriousness.", "127. As regards the consequences of the impugned monitoring for the applicants, the Court finds that they were significant because the employees concerned were dismissed on the basis of recordings obtained by that means. It nevertheless observes, as the domestic courts also noted, that the video-surveillance and recordings were not used by the employer for any purposes other than to trace those responsible for the recorded losses of goods and to take disciplinary measures against them (compare Peck, cited above, §§ 62-63, where the images recorded by a CCTV camera of public places showing the applicant’s attempted suicide had been distributed to the media).", "128. The domestic courts additionally found that, in the circumstances of the case, there were no other means by which to fulfil the legitimate aim pursued and that the measure should therefore be regarded as “necessary” within the meaning of the Constitutional Court’s case-law (see paragraph 33 above). Even if it would have been desirable for the domestic courts to examine in a more in-depth manner the possibility for the employer to have used other measures entailing less intrusion into the private life of the employees, the Court cannot but note that the extent of the losses identified by the employer suggested that thefts had been committed by a number of individuals and the provision of information to any staff member might well have defeated the purpose of the video-surveillance, which was, as those courts noted, to discover those responsible for the thefts but also to obtain evidence for use in disciplinary proceedings against them.", "129. The Court further observes that domestic law prescribed a certain number of safeguards for the purpose of preventing any improper interference with the rights of individuals whose personal data was subject to collection or processing. The Personal Data Protection Act in particular conferred on those individuals the right to be informed of such safeguards beforehand, as provided for in section 5 of the Act, together with a right of access, rectification and deletion in respect of the data collected. A requirement of proportionality in the collection and use of the images obtained through video-surveillance was expressly laid down by Instruction no. 1/2006 and, according to the Constitutional Court’s case-law, the domestic courts had to review the appropriateness, necessity and proportionality of such measures in the light of the fundamental rights guaranteed by the Constitution (see paragraphs 47, 50 and 54 above).", "130. As to whether, lastly, the applicants had been informed of the installation of the video-surveillance, the Court notes that it was not in dispute that two types of camera had been installed in the supermarket where they worked: on the one hand, visible cameras directed towards the shop’s entrances and exits, of which the employer had informed the staff; and, on the other, hidden cameras directed towards the checkout areas, of which neither the applicants nor the other staff members had been informed. It was stated in the parties’ observations that one or more information boards had been placed in the supermarket to notify the public of the presence of CCTV cameras but the exact content of the information on these boards has not been ascertained.", "131. The Court observes that, while both Spanish law and the relevant international and European standards do not seem to require the prior consent of individuals who are placed under video-surveillance or, more generally, who have their personal data collected, those rules establish that it is, in principle, necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner (see paragraphs 47, 60 and 63 above). It takes the view that the requirement of transparency and the ensuing right to information are fundamental in nature, particularly in the context of employment relationships, where the employer has significant powers with regard to employees and any abuse of those powers should be avoided (see paragraphs 61-62 and 64-65 above). It would point out, however, that the provision of information to the individual being monitored and its extent constitute just one of the criteria to be taken into account in order to assess the proportionality of a measure of this kind in a given case. However, if such information is lacking, the safeguards deriving from the other criteria will be all the more important.", "132. In the present case, the Court observes that the employment courts which examined the applicants’ claims carried out a detailed balancing exercise between, on the one hand, their right to respect for their private life, and on the other the employer’s interest in ensuring the protection of its property and the smooth operation of the company. It notes that the proportionality criteria established by the Constitutional Court’s case-law and followed in the present case are close to those which it has developed in its own case-law. The domestic courts thus verified whether the video-surveillance was justified by a legitimate aim and whether the measures adopted for that purpose were appropriate and proportionate, having observed in particular that the legitimate aim pursued by the employer could not be attained by measures that were less intrusive for the applicants’ rights.", "133. Admittedly, the employment courts did not take account of the employer’s failure, as alleged by the applicants, to provide them with the prior information required by section 5 of the Personal Data Protection Act, having considered the matter irrelevant and not capable of calling into question the proportionality, in the constitutional sense, of the measure, provided that the other criteria laid down by the Constitutional Court were satisfied. Given the importance of the right to information in such cases, the Court finds that only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information.", "134. However, in the specific circumstances of the present case, having regard particularly to the degree of intrusion into the applicants’ privacy (see paragraphs 125-26 above) and to the legitimate reasons justifying the installation of the video-surveillance, the Court finds that the employment courts were able, without overstepping the margin of appreciation afforded to national authorities, to take the view that the interference with the applicants’ privacy was proportionate (see, for a similar situation, Köpke, cited above). Thus, while it cannot accept the proposition that, generally speaking, the slightest suspicion of misappropriation or any other wrongdoing on the part of employees might justify the installation of covert video-surveillance by the employer, the existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification. This is all the more so in a situation where the smooth functioning of a company is endangered not merely by the suspected misbehaviour of one single employee, but rather by the suspicion of concerted action by several employees, as this creates a general atmosphere of mistrust in the workplace.", "135. Moreover, as the Government argued, the applicants had other remedies available to them, as provided for by the Personal Data Protection Act, for the specific purpose of obtaining sanctions for breaches of that legislation. The applicants could thus have complained to the Data Protection Agency of a failure by the employer to fulfil its obligation to provide prior information, as required by section 5 of that Act. The Agency had the power to investigate the alleged breach of the law and impose financial penalties on the person responsible. They could also have referred the matter to the ordinary courts in order to obtain redress for the alleged breach of their rights under the Personal Data Protection Act. The Court notes in this connection that while the case-law cited by the Government (see paragraph 49 above) does indeed concern a situation which is not identical to that of the present case, the right to obtain redress for damage caused by a breach of the Personal Data Protection Act was expressly provided for in section 19 thereof and there is no reason to question the effectiveness of that remedy now.", "136. Domestic law had thus made available to the applicants other remedies by which to secure the specific protection of personal data, but they chose not to use those remedies. The Court reiterates in this connection that the effective protection of the right to respect for private life in the context of video-surveillance in the workplace may be ensured by various means, which may fall within employment law but also civil, administrative or criminal law (see, mutatis mutandis, Bărbulescu, cited above, § 116).", "137. Under those circumstances, having regard to the significant safeguards provided by the Spanish legal framework, including the remedies that the applicants failed to use, and the weight of the considerations justifying the video-surveillance, as taken into account by the domestic courts, the Court concludes that the national authorities did not fail to fulfil their positive obligations under Article 8 of the Convention such as to overstep their margin of appreciation. Accordingly, there has been no violation of that provision.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "138. Under Article 6 of the Convention, the applicants complained that recordings obtained in breach of their right to respect for their private life had been admitted and used in evidence by the employment courts.", "139. The third, fourth and fifth applicants further argued that the acknowledgment of the validity of the settlement agreements that they had signed, allegedly following deceitful manipulation by the employer, had also breached their right to a fair hearing.", "140. The relevant parts of Article 6 provide as follows:", "“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Chamber judgment", "141. In its judgment of 9 January 2018 the Chamber reiterated that, in order to assess compliance with Article 6 of the Convention, it was required to determine whether the proceedings as a whole, including the way in which evidence had been taken, had been fair. Finding that the applicants had been able to challenge both the authenticity and the admission in evidence of the footage obtained by means of video-surveillance and that this was not the only evidence on which the courts had based their decisions, it concluded that there had been no violation of Article 6 on this point.", "142. As regards the settlement agreements, the Chamber found that the three applicants in question had had ample opportunity to challenge their validity in the domestic courts, which had taken the view, without any appearance of arbitrariness, that no duress on the employer’s part had vitiated the applicants’ consent. It thus found that there had been no violation of Article 6 under this head either.", "The parties’ submissionsThe applicants", "The applicants", "The applicants", "143. The applicants submitted that the domestic courts had based their decisions mainly on recordings obtained by their employer in a manner that was unlawful and in breach of their right to privacy. Consequently, in their view, the mere admission of these recordings in evidence entailed a violation of Article 6 of the Convention. The applicants further submitted that both the obtaining of this evidence and its use in the proceedings constituted an abuse by the employer of its dominant position and a breach of the equality of arms. In this connection, they pointed out that they had not been aware of the existence of the video-surveillance and had not had access to the recordings until they had been produced in evidence in the context of the judicial proceedings to which they were parties. As to the other evidence, in particular the witness testimony, on which the domestic courts had relied, it had been “vitiated” by the prior viewing of the footage by those concerned.", "144. The third, fourth and fifth applicants further argued that, when they had signed the settlement agreements, they had been misled as to the significance of the concession made by their employer. They stated that the law obliged any individual to report a criminal offence on becoming aware of it and that the employer could not therefore validly waive the right to file a criminal complaint. In those circumstances, the courts should have declared the settlement agreements null and void and excluded them from the case file. In support of their argument they adduced a judgment of the Catalonia High Court of 19 October 2010 in the case of one of their colleagues, Ms D.", "The Government", "145. The Government agreed with the findings of the Chamber judgment, which they invited the Grand Chamber to confirm. As to the use of footage recorded by means of video-surveillance, they asserted that the recordings had been used merely to complement other evidence in the file and that the applicants had had the opportunity to contest their use and authenticity in the domestic courts.", "146. As regards the settlement agreements, the Government argued that, as found by the domestic courts, they had been signed without any pressure from the employer. They submitted that it was the applicants who had breached these agreements by bringing the matter before the Employment Tribunal in spite of the undertaking given and that, even so, their appeals had been duly examined by the courts. They argued that, while those courts had indeed taken into account the applicants’ acknowledgment of the facts as reflected in the agreements, they had also had other evidence at their disposal. Lastly, with regard to the case of Ms D., cited by the applicants, they explained that, while the High Court had certainly overturned an initial judgment on the ground that, according to that judgment, the settlement agreement in question had deprived the employee of her right to take legal action, the courts examining the case after it was remitted had ultimately considered that the settlement agreement was nevertheless valid and could be used to prove the acknowledgment of the facts by the person concerned.", "The third-party’s submissions", "147. The European Trade Union Confederation was of the view that a judgment mainly based on recordings from covert video-surveillance was in breach of Article 6 of the Convention.", "148. As regards the settlement agreements signed by the third, fourth and fifth applicants, the ETUC pointed out that such agreements were often used when confronting workers with alleged misconduct, creating a situation where the employees felt under specific pressure, were not properly advised and were not in a position to demand the recognition of their procedural and substantive rights. The ETUC concluded that the specificity of employment relations required a cautious approach to the recognition of such agreements.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "149. The Court reiterates that its only duty, in accordance with Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).", "150. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see P.G. and J.H. v. the United Kingdom, cited above, § 76, and Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010).", "151. As regards the nature of the unlawfulness or of the Convention violation, while the use of evidence secured as a result of a measure found to be in breach of Article 3 always raises serious issues as to the fairness of the proceedings (see Gäfgen, cited above, § 165), the question whether the use in evidence of information obtained in violation of Article 8 or of domestic law rendered a trial as a whole unfair, contrary to Article 6, has to be determined with regard to all the circumstances of the case, including respect for the applicant’s defence rights and the quality and importance of the evidence in question. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the question whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Schenk, cited above, §§ 46-48; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; and Gäfgen, cited above, § 164). While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Gäfgen, cited above, § 164).", "152. The Court notes that the principles set out above concerning the admissibility of evidence were developed in a criminal-law context, although it has already had occasion to apply them in a case concerning the fairness of civil proceedings (see Vukota-Bojić, cited above, §§ 92-100). It observes that, while the “fair trial” guarantees are not necessarily the same in criminal-law and civil-law proceedings, the States having greater latitude when dealing with civil cases, it may nevertheless draw inspiration, when examining the fairness of civil-law proceedings, from the principles developed under the criminal limb of Article 6 (see Carmel Saliba v. Malta, no. 24221/13, § 67, 29 November 2016). In the present case, the Court takes the view that the principles in question are applicable to its examination of the fairness of the civil proceedings at issue.", "Application to the present case", "153. The Court will examine the complaint of a violation of Article 6, made by all five applicants on the basis of the admission in evidence of recordings from video-surveillance, and then the complaint of a violation of that provision made by the third, fourth and fifth applicants in respect of the acceptance of the settlement agreements signed by them.", "(a) Consideration of the video-surveillance images as part of the evidence", "154. The Court points out that it has not found a violation of Article 8 of the Convention on account of the video-surveillance to which the applicants were subjected (see paragraph 137 above). It notes, however, that the applicants argued that the video-surveillance had been installed in breach of the statutory obligation under domestic law to provide prior information and that the employment courts did not address that question, having deemed it not to be pertinent (see paragraph 34 above). The Court will thus examine whether the use in evidence of the images obtained by means of the video-surveillance at issue undermined the fairness of the proceedings as a whole.", "155. The Court begins by noting that, in the context of the proceedings before the Employment Tribunal, the applicants had access to the recordings obtained by means of the impugned video-surveillance and were able to contest their authenticity and oppose their use in evidence. The domestic courts examined the applicants’ argument that the recordings had to be excluded from the case file because they had been obtained in breach of a fundamental right and in their decisions they gave extensive reasoning on this point. They thus found that, in line with the Constitutional Court’s case-law, the video-surveillance had not been implemented in breach of the applicants’ right to respect for their private life. They further found that the images obtained from the video-surveillance were not the only items of evidence in the file.", "156. As regards the quality of evidence, the Court notes that the applicants did not at any time dispute the authenticity or accuracy of the footage recorded by means of video-surveillance, their main complaint being based on the lack of prior information about the installation of the cameras. The domestic courts, for their part, found that the recordings presented sufficient guarantees of authenticity. Given the circumstances in which the recordings were obtained, the Court does not see any reason to question their authenticity or reliability. It thus takes the view that they constituted sound evidence which did not necessarily need to be corroborated by other material.", "157. The Court would nevertheless note that the recordings in question were not the only evidence on which the domestic courts based their findings. It can be seen from their decisions that they also took account of the applicants’ statements, the testimony of the supermarket manager, the company’s legal representative and the staff representative – to whom the applicants had admitted the misconduct – and the expert’s report comparing the images recorded by the video-surveillance and the till receipts. The Court observes that the till receipts, which constitute objective evidence that cannot be “vitiated” by the viewing of the recordings, showed that a significant number of purchases had been cancelled without payment. As regards the third, fourth and fifth applicants, the courts also relied on their acknowledgment of the facts in the settlement agreements they had signed. Having examined this evidence as a whole, they found the facts to be comprehensively established.", "158. In the light of the foregoing, the Court takes the view that the use in evidence of the images obtained by video-surveillance did not undermine the fairness of the proceedings in the present case.", "(b) Consideration of the settlement agreements signed by the third, fourth and fifth applicants", "159. The Court would begin by observing that the domestic courts accepted the settlement agreements signed by these three applicants, having taken the view that their consent had not been vitiated. However, unlike the Employment Tribunal, which had found that, by signing those agreements, they had waived their right to take legal action, the High Court, ruling on appeal, found that those agreements did not constitute a waiver by the applicants of their right of access to a court and it examined the case on the merits. It took the view that the agreements gave effect to the unequivocal acceptance by the applicants of the employer’s decision to terminate their employment contracts on the grounds set out in the dismissal letter. In those circumstances, the Court finds that the complaint, as set out by the applicants, relates to the assessment by the domestic courts of the validity and weight of evidence.", "160. It notes in this connection that the three applicants were able to dispute the validity of the settlement agreements and oppose their admission in evidence. The domestic courts analysed all the arguments put forward by those applicants and took the view that the circumstances of the present case did not indicate any intimidation or deceit on the part of the employer. They examined the circumstances in which the agreements had been signed and found that the presence of the union representative at the time of signing, the prior acknowledgment of the acts by the applicants during a meeting with that representative, and the fact that other employees who were dismissed had not signed the employer’s proposed agreement, ruled out any indication of duress. Their findings in this connection appear neither arbitrary nor manifestly unreasonable. Lastly, as noted above, the domestic courts based their decisions on various items of evidence (see paragraph 157 above).", "161. In the light of those observations, there is no reason for the Court to call into question the findings of the domestic courts as to the validity and weight of the settlement agreements signed by the third, fourth and fifth applicants. It thus finds that there has been no violation of Article 6 on this point either." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1964 and is currently detained in HM Prison Brixton.", "8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade.", "9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address.", "10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent.", "11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend.", "12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997.", "13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984.", "14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused.", "15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use.", "16. The applicant's trial commenced in January 1999.", "17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“ voir dire ”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible.", "18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code.", "19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment.", "20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal.", "21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords.", "22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Home Office Guidelines", "23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application.", "24. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.", "B. The Police and Criminal Evidence Act 1984 (“PACE”)", "25. Section 78(1) of PACE provides as follows:", "“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”", "26. In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case.", "C. Code of Practice annexed to PACE", "27. The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant:", "“D:2.6", "The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade.", "D:2.10", "The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action.", "D:2.11", "The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16. However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so.", "D:2.12", "A video identification must be carried out in accordance with Annex B. ...", "D:2.15", "Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect:", "(i) the purposes of the parade or group identification or video identification;", "(ii) that he is entitled to free legal advice (see paragraph 6.5 of Code C);", "(iii) the procedures for holding it (including the right to have a solicitor or friend present); ...", "(vi) that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged;", "(vii) if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ...", "D:2.16", "This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.”", "28. Annex B set out the details for arranging a video identification, including how, the number and appearance of participants etc.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "29. The applicant complained that he was covertly videotaped by the police, invoking Article 8 of the Convention which provides as relevant:", "“1. Everyone has the right to respect for his private ... life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties' submissions", "1. The applicant", "30. The applicant submitted that filming of him in the police station violated his right to respect for private life. He disputed that the custody area could be regarded as a public area or that the camera was running as a matter of routine. It had been run at a different speed to produce a sharper, clearer image of the applicant. He was only in the police station because he had been brought there by the police, and if anything persons in custody required greater protection than the public. He denied that he knew of the camera or that he was aware that he was being filmed. Even if he saw the camera, he could not have known that it was to be used unlawfully for identification purposes. Furthermore, the purpose of the recording was to obtain evidence to prosecute the applicant.", "31. The applicant argued that the videotape was made in circumstances which breached the law deliberately from start to finish and could not be regarded as in accordance with law. The courts could not be regarded as a safeguard where they admitted such evidence in breach of the law and the Convention. The breaches were not procedural but had a substantive effect, for if the Code had been followed it was highly likely that the applicant would have received proper legal advice, agreed to a formal identification parade, would have objected to and asked for the replacement of unsuitable volunteers and may not have been identified. It could never, in his view, be legitimate for agents of the Government to deliberately and extensively breach the law.", "32. The applicant submitted that the prosecution argued at trial and on appeal that the actions of the police were lawful because they had the authority of the Guidelines, not PACE. The Guidelines however, whatever the view of the domestic courts, were administrative and not primary legislation and could not supplant the specific procedures set down in PACE. The applicant accepted that PACE and the code satisfied the requirements of “law” under the second paragraph. Since however the trial court found three specific breaches of the applicable code (though the facts supported breaches of further provisions), the procedure adopted by the police could not be regarded as regular and authorised by PACE. In particular, PACE could not be regarded as authorising the collection of footage without the suspect's knowledge where the rules had not been followed.", "2. The Government", "33. The Government submitted that the filming did not take place in a private place, or even in the police cells, with any intrusion into the “inner circle” of the applicant's private life. It was carried out in the custody suite of the police station which was a communal administrative area through which all suspects had to pass and where the closed circuit video camera, which was easily visible, was running as a matter of security routine. The images related to public, not private, matters. The applicant did not have a reasonable expectation of privacy in such an environment and had been informed that he was there for identification. Further, the applicant was not filmed for surveillance purposes but for identification purposes and only for use in the criminal proceedings in question akin to the cases of Friedl v. Austria (Commission report of 19 May 1994) and Lupker and others v. the Netherlands (Commission report of 7 December 1992). Nor could it be said that the footage was “processed”: the section concerning the applicant was simply extracted and put with footage of the eleven volunteers and there was no public disclosure or broadcast of the images.", "34. Even assuming an interference occurred, the Government submitted that it was in accordance with the law as the legal basis for the filming could be found in the statutory authority of the PACE Code of Practice, which was both legally binding and publicly accessible. The 1984 Guidelines were not the legal basis for the filming. The Code provided for a video identification procedure and the collection of footage without the suspect's knowledge if the suspect does not consent to take part in an identification parade. The fact that the Code was breached in three respects in the applicant's case however did not change its status as the basis for the compilation of the tape in domestic law and the domestic courts regarded the Code as sufficient legal basis for the compilation of the tape. The police obtained permission under the 1984 Guidelines as this dealt with the procedure for securing permission to obtain footage and the permitted mechanisms for obtaining it as distinct from the Code which provided the statutory authority for obtaining the footage.", "35. The fact that there were breaches of the Code in this case was not determinative of whether there was a breach of Article 8 as it was the quality of the law that was important. The quality of the law was such as to provide sufficient safeguard against arbitrariness and abuse, the Code setting out procedures in very precise detail and the criminal courts having the power to exclude the resultant evidence under section 78 where necessary. Further, the breaches were not deliberate, and were breaches of procedure not substance, and the courts found no unfairness resulted. Further, any interference pursued the legitimate aim of protecting public safety, preventing crime and protecting the rights of others and since the applicant had failed or refused to attend four identification parades could reasonably be considered as “necessary in a democratic society”.", "B. The Court's assessment", "1. The existence of an interference with private life", "36. Private life is a broad term not susceptible to exhaustive definition. Aspects such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” ( P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references).", "37. It cannot therefore be excluded that a person's private life may be concerned in measures effected outside a person's home or private premises. A person's reasonable expectations as to privacy is a significant though not necessarily conclusive factor ( P.G. and J.H v. United Kingdom, § 57).", "38. The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life (see, for example, Herbecq and Another v. Belgium, applications nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-A, p. 92). On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations (see, for example, Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II, where the compilation of data by security services on particular individuals even without the use of covert surveillance methods constituted an interference with the applicants' private lives). While the permanent recording of the voices of P.G. and J.H. was made while they answered questions in a public area of a police station as police officers listened to them, the recording of their voices for further analysis was regarded as the processing of personal data about them amounting to an interference with their right to respect for their private lives (the above-cited P.G. and J.H. judgment, at §§ 59-60). Publication of the material in a manner or degree beyond that normally foreseeable may also bring security recordings within the scope of Article 8 § 1. In Peck v. the United Kingdom (no. 44647/98, judgment of 28 January 2003, ECHR 2003-...), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on close circuit television cameras was found to be a serious interference with the applicant's private life, notwithstanding that he was in a public place at the time.", "39. In the present case, the applicant was filmed on video in the custody suite of a police station. The Government argued that this could not be regarded as a private place, and that as the cameras which were running for security purposes were visible to the applicant he must have realised that he was being filmed, with no reasonable expectation of privacy in the circumstances.", "40. As stated above, the normal use of security cameras per se whether in the public street or on premises, such as shopping centres or police stations where they serve a legitimate and foreseeable purpose, do not raise issues under Article 8 § 1 of the Convention. Here, however, the police regulated the security camera so that it could take clear footage of the applicant in the custody suite and inserted it in a montage of film of other persons to show to witnesses for the purposes of seeing whether they identified the applicant as the perpetrator of the robberies under investigation. The video was also shown during the applicant's trial in a public court room. The question is whether this use of the camera and footage constituted a processing or use of personal data of a nature to constitute an interference with respect for private life.", "41. The Court recalls that the applicant had been brought to the police station to attend an identity parade and that he had refused to participate. Whether or not he was aware of the security cameras running in the custody suite, there is no indication that the applicant had any expectation that footage was being taken of him within the police station for use in a video identification procedure and, potentially, as evidence prejudicial to his defence at trial. This ploy adopted by the police went beyond the normal or expected use of this type of camera, as indeed is demonstrated by the fact that the police were required to obtain permission and an engineer had to adjust the camera. The permanent recording of the footage and its inclusion in a montage for further use may therefore be regarded as the processing or collecting of personal data about the applicant.", "42. The Government argued that the use of the footage was analogous to the use of photos in identification albums, in which circumstance the Commission had stated that no issue arose where they were used solely for the purpose of identifying offenders in criminal proceedings ( Lupker v. the Netherlands, no. 18395/91, Commission decision of 7 December 1992, unreported). However, the Commission emphasised in that case that the photographs had not come into the possession of the police through any invasion of privacy, the photographs having been submitted voluntarily to the authorities in passport applications or having been taken by the police on the occasion of a previous arrest. The footage in question in the present case had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be recorded and used for identification purposes.", "43. The Court considers therefore that the recording and use of the video footage of the applicant in this case discloses an interference with his right to respect for private life.", "2. The justification for the interference with private life", "44. The Court will accordingly examine whether the interference in the present case is justified under Article 8 § 2, notably whether it was “in accordance with the law”.", "45. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law; secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and that it is compatible with the rule of law (see, amongst other authorities, Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, p. 540, § 55). It also requires that the measure under examination comply with the requirements laid down by the domestic law providing for the interference.", "46. The Government's observations focus on the existence and quality of the domestic law authorising the taking of video film of suspects for identification purposes, submitting that an adequate basis for the measure existed in the provisions of PACE and its Code which set out detailed procedures and safeguards. While the police were required to obtain authorisation under the Home Office Guidelines (a form of instruction found in previous cases not to satisfy requirements of foreseeability and accessibility), they sought to distinguish the procedure for the police to obtain consent to use the camera as such from the statutory authority for the taking and use of the film.", "47. Noting that the applicant agreed that PACE and its Code furnished a legal basis for the measure in his case, the Court considers that the taking and use of video footage for identification had sufficient basis in domestic law and was of the requisite quality to satisfy the two-prong test set out above. That is not however the end of the matter. As pointed out by the applicant, the trial court, with which the appeal court agreed, found that the police had failed to comply with the procedures set out in the applicable code in at least three respects. The judge found shortcomings as regarded police compliance with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice (see paragraph 17 above), which concerned, significantly, their failure to ask the applicant for his consent to the video, to inform him of its creation and use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). In light of these findings by domestic courts, the Court cannot but conclude that the measure as carried out in the applicant's case did not comply with the requirements of domestic law.", "48. Though the Government have argued that it was the quality of the law that was important and that the trial judge ruled that it was not unfair for the videotape to be used in the trial, the Court would note that the safeguards relied on by the Government as demonstrating the requisite statutory protection were, in the circumstances, flouted by the police. Issues relating to the fairness of the use of the evidence in the trial must also be distinguished from the question of lawfulness of the interference with private life and are relevant rather to Article 6 than to Article 8. It recalls in this context its decision on admissibility of 26 September 2002 in which it rejected the applicant's complaints under Article 6, observing that the obtaining of the film in this case was a matter which called into play the Contracting State's responsibility under Article 8 to secure the right to respect for private life in due form.", "49. The interference was not therefore “in accordance with the law” as required by the second paragraph of Article 8 and there has been a violation of this provision. In these circumstances, an examination of the necessity of the interference is not required.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "51. The applicant argued that an award of non-pecuniary damage should be made to reflect the deliberate flouting of national and Convention law by the way in which the applicant was misled and covertly filmed to obtain evidence for use at trial. Such an award was necessary, in his view, to enforce respect of citizens' rights. It should also be greater than that made in P.G. and J.H. v. the United Kingdom, where no real argument was made regarding the amount of damages. He emphasised that in his case his treatment has contributed greatly to his sense of insecurity and problems of accepting the good faith of public authorities. He also was deprived of his liberty throughout the criminal trial, suffered two trials and an appeal hearing, and as a result lost earnings, job opportunities and humiliation of a trial which should never have taken place due to blatant breaches in the obtaining of evidence. He proposed, by analogy with malicious prosecution and misfeasance in a public office awards in domestic cases, an award of 10,000 pounds sterling (GBP).", "52. The Government pointed out that the applicant's complaints under Article 6 had been rejected as inadmissible and claims relating to his trial and detention could not be made. There was no convincing distinction between his case and P.G. and J.H. and the comparisons made with domestic awards were irrelevant, inter alia, since the torts were very different from the elements in issue under Article 8.", "53. The Court agrees with the Government that domestic scales of damages in relation to torts, not relevant, to the facts of this case are of little assistance. Considering nonetheless that the applicant must be regarded as having suffered some feelings of frustration and invasion of privacy by the police action in this case, it awards, for non-pecuniary damage, the sum of 1,500 euros (EUR).", "B. Costs and expenses", "54. The applicant claimed legal costs and expenses of a total of GBP 8,299.41, inclusive of value-added tax (VAT), consisting of GBP 3,841.29 for his solicitor and GBP 4,458.12 for counsel", "55. The Government considered that the applicant's claims for legal costs and expenses were on the high side for an application that did not go beyond the written stage. They considered a figure of GBP 4,000 would be reasonable.", "56. Taking into account the fact that the applicant's complaints were only declared partly admissible and the amount of legal aid paid by the Council of Europe, the Court makes an award of EUR 9,500, inclusive of VAT.", "C. Default interest", "57. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants were born in 1989 and 1963 respectively and live in Sheffield.", "10. The first applicant, Mr S., was arrested on 19 January 2001 at the age of 11 and charged with attempted robbery. His fingerprints and DNA samples [1] were taken. He was acquitted on 14 June 2001.", "11. The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant ’ s solicitors, and on 14 June 2001 the case was formally discontinued.", "12. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [ [2002] EWHC 478 (Admin)].", "13. On 12 September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) [[2003] EWCA Civ 1275]. As regards the necessity of retaining DNA samples, Lord Justice Waller stated:", "“... [F] ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual ’ s propensity to commit certain crime and be used for that purpose within the language of the present section [ section 82 of the Criminal Justice and Police Act 2001]. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner ... Why cannot the aim be achieved by retention of the profiles without retention of the samples?", "The answer to [these] points is as I see it as follows. First the retention of samples permits ( a) the checking of the integrity and future utility of the DNA database system; (b) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself Convention compliant; second any change in practice would have to be Convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime. ”", "14. Lord Justice Sedley considered that the power of a chief constable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible.", "15. On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of section 64(1A) of the Police and Criminal Evidence Act 1984 (PACE), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the information could not be used. In two cases, compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained : as a result it had not been possible to convict either suspect.", "16. Lord Steyn noted that the value of retained fingerprints and samples taken from suspects was considerable. He gave the example of a case in 1999, in which DNA information from the perpetrator of a crime was matched with that of “I” in a search of the national database. The sample from “ I ” should have been destroyed, but had not been. “ I ” had pleaded guilty to rape and was sentenced. If the sample had not been wrongly detained, the offender might have escaped detection.", "17. Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime- scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime- scene sample would be matched immediately with an individual ’ s profile on the national database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime.", "18. Lord Steyn also noted that PACE dealt separately with the taking of fingerprints and samples, their retention and their use.", "19. As to the Convention analysis, Lord Steyn inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed. Questions of whether, in the future, retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments required it, judicial decisions could be made, when the need occurred, to ensure compatibility with the Convention. The provision limiting the permissible use of retained material to “ purposes related to the prevention or detection of crime ...” did not broaden the permitted use unduly, because it was limited by its context.", "20. If the need to justify the modest interference with private life arose, Lord Steyn agreed with Lord Justice Sedley in the Court of Appeal that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “provided for by law”, as required by Article 8 of the Convention.", "21. As to the justification for any interference, the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted. Counsel for the Home Secretary had contended that the aim of the retention had nothing to do with the past, that is, with the offence of which a person had been acquitted, but was to assist in the investigation of offences in the future. The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime. Lord Steyn saw five factors which led to the conclusion that the interference was proportionate to the aim: (i) the fingerprints and samples were kept only for the limited purpose of the detection, investigation and prosecution of crime; (ii) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints would not be made public; (iv) a person was not identifiable from the retained material to the untutored eye; (v) the resultant expansion of the national database by the retention conferred enormous advantages in the fight against serious crime.", "22. In reply to the contention that the same legislative aim could be obtained by less intrusive means, namely by a case-by-case consideration of whether or not to retain fingerprints and samples, Lord Steyn referred to Lord Justice Waller ’ s comments in the Court of Appeal, which read as follows:", "“ If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible. ”", "23. Lord Steyn did not accept that the difference between samples and DNA profiles affected the position.", "24. The House of Lords further rejected the applicants ’ complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of Article 14 of the Convention when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation. Lord Steyn held that, even assuming that the retention of fingerprints and samples fell within the ambit of Article 8 of the Convention so as to trigger the application of Article 14, the difference of treatment relied on by the applicants was not one based on “status” for the purposes of Article 14: the difference simply reflected the historical fact, unrelated to any personal characteristic, that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken. The applicants and their suggested comparators could not in any event be said to be in an analogous situation. Even if, contrary to his view, it was necessary to consider the justification for any difference in treatment, Lord Steyn held that such objective justification had been established: firstly, the element of legitimate aim was plainly present, as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent; secondly, the requirement of proportionality was satisfied, section 64(1A) of PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime.", "25. Baroness Hale of Richmond disagreed with the majority, considering that the retention of both fingerprint and DNA data constituted an interference by the State in a person ’ s right to respect for his private life and thus required justification under the Convention. In her opinion, this was an aspect of what had been called informational privacy and there could be little, if anything, more private to the individual than the knowledge of his genetic make-up. She further considered that the difference between fingerprint and DNA data became more important when it came to justify their retention as the justifications for each of these might be very different. She agreed with the majority that such justifications had been readily established in the applicants ’ cases.", "IV. THIRD - PARTY SUBMISSIONS", "56. The National Council for Civil Liberties (“Liberty”) submitted case-law and scientific material highlighting, inter alia, the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities.", "57. Privacy International referred to certain core data-protection rules and principles developed by the Council of Europe and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention. It emphasised, in particular, the “strict periods” recommended by Recommendation No. R (92) 1 of the Committee of Ministers for the storage of cellular samples and DNA profiles. It further pointed out a disproportionate representation on the United Kingdom National DNA Database of certain groups of the population, notably youth, and the unfairness that that situation might create. The use of data for familial testing and additional research purposes was also of concern. Privacy International also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which existed in that respect." ]

[ "II. RELEVANT DOMESTIC LAW AND MATERIALS", "A. England and Wales", "1. Police and Criminal Evidence Act 1984 (PACE)", "26. PACE contains powers for the taking of fingerprints (principally section 61) and samples (principally section 63). By section 61, fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorises the taking, or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence. Before fingerprints are taken, the person must be informed that the prints may be the subject of a speculative search, and the fact of the informing must be recorded as soon as possible. The reason for the taking of the fingerprints is recorded in the custody record. Parallel provisions relate to the taking of samples ( section 63).", "27. As to the retention of such fingerprints and samples (and the records thereof), section 64(1A) of PACE was substituted by section 82 of the Criminal Justice and Police Act 2001. It provides as follows:", "“Where (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution. ...", "(3) If (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken.", "(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”", "28. Section 64 in its earlier form had included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence, the fingerprints and samples, subject to certain exceptions, were to be destroyed “as soon as practicable after the conclusion of the proceedings”.", "29. The subsequent use of materials retained under section 64(1A) is not regulated by statute, other than the limitation on use contained in that provision. In Attorney - General ’ s Reference (No. 3 of 1999) [2001] 2 AC 91, the House of Lords had to consider whether it was permissible to use in evidence a sample which should have been destroyed under the then text of section 64 of PACE. The House considered that the prohibition on the use of an unlawfully retained sample “for the purposes of any investigation” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge.", "2. Data Protection Act 1998", "30. The Data Protection Act was adopted on 16 July 1998 to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (see paragraph 50 below). Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1). “ Sensitive personal data” means personal data consisting, inter alia, of information as to the racial or ethnic origin of the data subject, the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings (section 2).", "31. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. Under the first principle personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, and provides, inter alia, that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (§ 5 (a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing of sensitive personal data is necessary for the purpose of, or in connection with, any legal proceedings (§ 6 (a )), or for the administration of justice (§ 7 (a )), and is carried out with appropriate safeguards for the rights and freedoms of data subjects (§ 4 (b)). Section 29 notably provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules 2 and 3. The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.", "32. The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notices ”) in this respect (section 40). The Act makes it a criminal offence not to comply with an enforcement notice (section 47) or to obtain or disclose personal data or information contained therein without the consent of the data controller (section 55). Section 13 affords a right to claim damages in the domestic courts in respect of contraventions of the Act.", "3. Retention Guidelines for Nominal Records on the Police National Computer 2006", "33. A set of guidelines for the retention of fingerprint and DNA information is contained in the Retention Guidelines for Nominal Records on the Police National Computer 2006 drawn up by the Association of Chief Police Officers in England and Wales. The Guidelines are based on a format of restricting access to the Police National Computer (PNC) data, rather than the deletion of that data. They recognise that their introduction may thus have implications for the business of the non - police agencies with which the police currently share PNC data.", "34. The Guidelines set various degrees of access to the information contained on the PNC through a process of “stepping down” access. Access to information concerning persons who have not been convicted of an offence is automatically “stepped down” so that this information is only open to inspection by the police. Access to information about convicted persons is likewise “stepped down” after the expiry of certain periods of time ranging from five to thirty-five years, depending on the gravity of the offence, the age of the suspect and the sentence imposed. For certain convictions the access will never be “stepped down”.", "35. Chief police officers are the data controllers of all PNC records created by their force. They have the discretion in exceptional circumstances to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories “ owned ” by them. An “ exceptional case procedure ” to assist chief police officers in relation to the exercise of this discretion is set out in Appendix 2. It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed. Before deciding whether a case is exceptional, the chief police officer is instructed to seek advice from the DNA and Fingerprint Retention Project.", "B. Scotland", "36. Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted ( section 83 of the 2006 Act, adding section 18A to the 1995 Act. ). Thereafter, samples and information are required to be destroyed unless a chief constable applies to a sheriff for a two-year extension.", "C. Northern Ireland", "37. The Police and Criminal Evidence Order of Northern Ireland 1989 was amended in 2001 in the same way as PACE applicable in England and Wales. The relevant provisions currently governing the retention of fingerprint and DNA data in Northern Ireland are identical to those in force in England and Wales (see paragraph 27 above).", "D. Nuffield Council on Bioethics ’ report [2]", "38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred, in particular, to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 198 9 United Nations Convention on the Rights of the Child.", "39. The report also expressed concerns at the increasing use of the DNA data for familial searching, inferring ethnicity and non - operational research. Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database, and prioritising them in terms of “ closeness ” to a match. This allows possible genetic relatives of an offender to be identified. Familial searching might thus lead to revealing previously unknown or concealed genetic relationships. The report considered the use of the DNA database in searching for relatives as particularly sensitive.", "40. The particular combination of alleles [3] in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor. Ethnic inferring through DNA profiles is possible as the individual “ethnic appearance” is systematically recorded on the database : when taking biological samples, police officers routinely classify suspects into one of seven “ethnic appearance” categories. Ethnicity tests on the database might thus provide inferences for use during a police investigation in order, for example, to help reduce a “ suspect pool ” and to inform police priorities. The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality.", "III. RELEVANT NATIONAL AND INTERNATIONAL MATERIALS", "A. Council of Europe texts", "41. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). The Convention provides, inter alia :", "Article 5 – Quality of data", "“ Personal data undergoing automatic processing shall be", "...", "( b ) stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "( c ) adequate, relevant and not excessive in relation to the purposes for which they are stored;", "...", "( e ) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. ”", "Article 6 – Special categories of data", "“ Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ... ”", "Article 7 – Data security", "“ Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination. ”", "42. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia :", "Principle 2 – Collection of data", "“ 2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.", "... ”", "Principle 3 – Storage of data", "“ 3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.", "... ”", "Principle 7 – Length of storage and updating of data", "“ 7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.", "For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data. ”", "43. Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia :", "“ 3. Use of samples and information derived therefrom", "Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. ...", "...", "Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes.", "4. Taking of samples for DNA analysis", "The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority.", "...", "8. Storage of samples and data", "Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.", "Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.", "Samples and other body tissues, or the information derived from them, may be stored for longer periods", "– when the person so requests; or", "– when the sample cannot be attributed to an individual, for example when it is found at the scene of an offence.", "Where the security of the state is involved, the domestic law of the member State may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law.", "... ”", "44. The Explanatory Memorandum to the Recommendation stated, as regards item 8:", "“ 47. The working party was well aware that the drafting of recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society.", "...", "49. Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt.", "50. The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By ‘ final decision ’ the CAHBI [Ad hoc Committee of Experts on Bioethics] thought that this would normally, under domestic law, refer to a judicial decision. However, the working party recognised that there was a need to set up databases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member States keep a criminal record and that such record may be used for the purposes of the criminal justice system ... It took into account that such an exception would be permissible under certain strict conditions:", "– when there has been a conviction;", "– when the conviction concerns a serious criminal offence against the life, integrity and security of a person;", "– the storage period is limited strictly;", "– the storage is defined and regulated by law;", "– the storage is subject to control by Parliament or an independent supervisory body.”", "B. Law and practice in the Council of Europe member States", "45. According to the information provided by the parties or otherwise available to the Court, a majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. At least twenty member States make provision for the taking of DNA information and storing it on national databases or in other forms (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland [4], Italy [5], Latvia, Luxembourg, the Netherlands, Norway, Poland, Spain, Sweden and Switzerland). This number is steadily increasing.", "46. In most of these countries ( including Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain and Sweden ), the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes, notably those punishable by certain terms of imprisonment.", "47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States ( Belgium, Hungary, Ireland, Italy and Sweden ) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other member States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for one and ten years respectively in the event of an acquittal and Switzerland for one year when proceedings have been discontinued. In France, DNA profiles can be retained for twenty-five years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal.", "48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person ’ s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons.", "49. Complaint mechanisms before data - protection monitoring bodies and/or before courts are available in most of the member States with regard to decisions to take cellular samples or retain samples or DNA profiles.", "C. European Union", "50. Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13).", "51. The Prüm Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, which was signed by several member States of the European Union on 27 May 2005, sets out rules for the supply of fingerprinting and DNA data to other Contracting Parties and their automated checking against their relevant databases. The Convention provides, inter alia :", "Article 35 – Purpose", "“ 2. ... The Contracting Party administering the file may process the data supplied ... solely where this is necessary for the purposes of comparison, providing automated replies to searches or recording ... The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned ... above. ”", "52. Article 34 guarantees a level of protection of personal data at least equal to that resulting from the Data Protection Convention and requires the Contracting Parties to take into account Recommendation No. R (87) 15 of the Committee of Ministers of the Council of Europe.", "53. The Council framework decision of 24 June 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters states, inter alia :", "Article 5", "“ Establishment of time-limits for erasure and review", "Appropriate time-limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time-limits are observed. ”", "D. Case-law in other jurisdictions", "54. In the case of R. v. R. C. [ [2005] 3 SCR 99, 2005 SCC 61 ] the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender ’ s DNA sample on the national database. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion, Fish J observed:", "“ Of more concern, however, is the impact of an order on an individual ’ s informational privacy interests. In R. v. Plant, [1993] 3 S.C.R. 281, at p. 293, the Court found that section 8 of the Charter protected the ‘ biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state ’. An individual ’ s DNA contains the ‘ highest level of personal and private information ’ : S.A.B., at paragraph 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person ’ s biological make - up. ... The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject ’ s right to personal and informational privacy. ”", "E. United Nations Convention on the Rights of the Child of 1989", "55. Article 40 of the United Nations Convention on the Rights of the Child of 20 November 198 9 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the child ’ s reintegration and the child ’ s assuming a constructive role in society.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "58. The applicants complained under Article 8 of the Convention about the retention of their fingerprints, cellular samples and DNA profiles pursuant to section 64(1A) of the Police and Criminal Evidence Act 1984 (PACE). Article 8 provides, in so far as relevant, as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ...”", "A. Existence of an interference with private life", "59. The Court will first consider whether the retention by the authorities of the applicants ’ fingerprints, DNA profiles and cellular samples constitutes an interference with their private life.", "1. The parties ’ submissions", "(a) The applicants", "60. The applicants submitted that the retention of their fingerprints, cellular samples and DNA profiles interfered with their right to respect for private life as they were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control. They pointed out that the initial taking of such bioinformation had consistently been held to engage Article 8 and submitted that their retention was more controversial given the wealth of private information that became permanently available to others and thus came out of the control of the person concerned. They stressed, in particular, the social stigma and psychological implications provoked by such retention in the case of children, which made the interference with the right to private life all the more pressing in respect of the first applicant.", "61. They considered that the Convention organs ’ case-law supported this contention, as did a recent domestic decision of the Information Tribunal ( Chief Constables of West Yorkshire, South Yorkshire and North Wales Police v. the Information Commissioner, [2005] UK IT EA 2005 0010 (12 October 2005), 173). The latter decision relied on the speech of Baroness Hale of Richmond in the House of Lords (see paragraph 25 above) and followed in substance her finding when deciding a similar question about the application of Article 8 to the retention of conviction data.", "62. They further emphasised that the retention of cellular samples involved an even greater degree of interference with Article 8 rights as they contained full genetic information about a person, including genetic information about his or her relatives. It was of no significance whether information was actually extracted from the samples or caused a detriment in a particular case as an individual was entitled to a guarantee that such information, which fundamentally belonged to him, would remain private and not be communicated or accessible without his permission.", "(b) The Government", "63. The Government accepted that fingerprints, DNA profiles and samples were “personal data” within the meaning of the Data Protection Act in the hands of those who can identify the individual. They considered, however, that the mere retention of fingerprints, DNA profiles and samples for the limited use permitted under section 64 of PACE did not fall within the ambit of the right to respect for private life under Article 8 § 1 of the Convention. Unlike the initial taking of this data, their retention did not interfere with the physical and psychological integrity of the persons; nor did it breach their right to personal development, to establish and develop relationships with other human beings or the right to self-determination.", "64. The Government submitted that the applicants ’ real concerns related to fears about the future uses of stored samples, to anticipated methods of analysis of DNA material and to potential intervention with the private life of individuals through active surveillance. It emphasised in this connection that the permitted extent of the use of the material was clearly and expressly limited by the legislation, the technological processes of DNA profiling and the nature of the DNA profile extracted.", "65. The profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue, containing no materially intrusive information about an individual or his personality. The DNA database was a collection of such profiles which could be searched using material from a crime scene and a person would be identified only if and to the extent that a match was obtained against the sample. Familial searching through partial matches only occurred in very rare cases and was subject to very strict controls. Fingerprints, DNA profiles and samples were neither susceptible to any subjective commentary nor provided any information about a person ’ s activities and thus presented no risk to affect the perception of an individual or affect his or her reputation. Even if such retention were capable of falling within the ambit of Article 8 § 1, the extremely limited nature of any adverse effects rendered the retention not sufficiently serious to constitute an interference.", "2. The Court ’ s assessment", "(a) General principles", "66. The Court notes that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003 ‑ IX ). It can therefore embrace multiple aspects of the person ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, among other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I with further references, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 ‑ I ). Beyond a person ’ s name, his or her private and family life may include other means of personal identification and of linking to a family (see, mutatis mutandis, Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280 ‑ B, and Ünal Tekeli v. Turkey, no. 29865/96, § 42, ECHR 2004 ‑ X ). Information about the person ’ s health is an important element of private life (see Z v. Finland, 25 February 1997, § 71, Reports of Judgments and Decisions 1997 ‑ I ). The Court furthermore considers that an individual ’ s ethnic identity must be regarded as another such element (see, in particular, Article 6 of the Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category of data along with other sensitive information about an individual). Article 8 protects, in addition, a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). The concept of private life moreover includes elements relating to a person ’ s right to their image ( see Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 - I ).", "67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding ( see Amann v. Switzerland [GC], no. 277 98/95, § 69, ECHR 2000 - II ). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, § § 49-51, and Peck, cited above, § 59 ).", "(b) Application of the above principles to the present case", "68. The Court notes at the outset that all three categories of the personal information retained by the authorities in the present case, namely fingerprints, DNA profiles and cellular samples, constitute personal data within the meaning of the Data Protection Convention as they relate to identified or identifiable individuals. The Government accepted that all three categories are “personal data” within the meaning of the Data Protection Act 1998 in the hands of those who are able to identify the individual.", "69. The Convention organs have already considered in various circumstances questions relating to the retention of such personal data by the authorities in the context of criminal proceedings. As regards the nature and scope of the information contained in each of these three categories of data, the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter ( see Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 - XV ). The Court considers it appropriate to examine separately the question of interference with the applicants ’ right to respect for their private lives by the retention of their cellular samples and DNA profiles on the one hand, and of their fingerprints on the other.", "( i ) Cellular samples and DNA profiles", "70. In Van der Velden, the Court considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life ( see Van der Velden, cited above ). The Government criticised that conclusion on the ground that it speculated on the theoretical future use of samples and that there was no such interference at present.", "71. The Court maintains its view that an individual ’ s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today. Accordingly, the Court does not find any sufficient reason to depart from its finding in the Van der Velden case.", "72. Legitimate concerns about the conceivable use of cellular material in the future are not, however, the only element to be taken into account in the determination of the present issue. In addition to the highly personal nature of cellular samples, the Court notes that they contain much sensitive information about an individual, including information about his or her health. Moreover, samples contain a unique genetic code of great relevance to both the individual and his relatives. In this respect the Court concurs with the opinion expressed by Baroness Hale in the House of Lords ( see paragraph 25 above).", "73. Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann, cited above, § 69).", "74. As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form. The Government submitted that a DNA profile is nothing more than a sequence of numbers or a barcode containing information of a purely objective and irrefutable character and that the identification of a subject only occurs in case of a match with another profile in the database. They also submitted that, being in coded form, computer technology is required to render the information intelligible and that only a limited number of persons would be able to interpret the data in question.", "75. The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The Court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. They also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. In the Court ’ s view, the DNA profiles ’ capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect (see Amann, cited above, § 69 ). This conclusion is similarly not affected by the fact that, since the information is in coded form, it is intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons.", "76. The Court further notes that it is not disputed by the Government that the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor and that such techniques are in fact used in police investigations (see paragraph 40 above). The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. This conclusion is consistent with the principle laid down in the Data Protection Convention and reflected in the Data Protection Act that both list personal data revealing ethnic origin among the special categories of sensitive data attracting a heightened level of protection (see paragraphs 3 0-31 and 41 above).", "77. In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an interference with the applicants ’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.", "( ii ) Fingerprints", "78. It is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles. The issue of alleged interference with the right to respect for private life caused by their retention by the authorities has already been considered by the Convention organs.", "79. In McVeigh and Others, the Commission first examined the issue of the taking and retention of fingerprints as part of a series of investigative measures. It accepted that at least some of the measures disclosed an interference with the applicants ’ private life, while leaving open the question of whether the retention of fingerprints alone would amount to such interference ( see McVeigh and Others v. the United Kingdom (nos. 8022/77, 8025/77 and 8027/77, Commission ’ s report of 18 March 1981, Decisions and Reports 25, p. 15, § 224).", "80. In Kinnunen, the Commission considered that fingerprints and photographs retained following the applicant ’ s arrest did not constitute an interference with his private life as they did not contain any subjective appreciations which called for refutation. The Commission noted, however, that the data at issue had been destroyed nine years later at the applicant ’ s request ( see Kinnunen v. Finland, no. 2495 0/94, Commission decision of 15 May 1996, unreported ).", "81. Having regard to these findings and the questions raised in the present case, the Court considers it appropriate to review this issue. It notes at the outset that the applicants ’ fingerprint records constitute their personal data (see paragraph 6 8 above) which contain certain external identification features much in the same way as, for example, personal photographs or voice samples.", "82. In Friedl, the Commission considered that the retention of anonymous photographs that have been taken at a public demonstration did not interfere with the right to respect for private life. In so deciding, it attached special weight to the fact that the photographs concerned had not been entered in a data- processing system and that the authorities had taken no steps to identify the persons photographed by means of data processing (see Friedl, cited above, § § 49-51 ).", "83. In P.G. and J.H. v. the United Kingdom, the Court considered that the recording of data and the systematic or permanent nature of the record could give rise to private-life considerations even though the data in question may have been available in the public domain or otherwise. The Court noted that a permanent record of a person ’ s voice for further analysis was of direct relevance to identifying that person when considered in conjunction with other personal data. It accordingly regarded the recording of the applicants ’ voices for such further analysis as amounting to interference with their right to respect for their private lives ( see P.G. and J.H. v. the United Kingdom, no. 44787/98, § § 59-60, ECHR 2001 ‑ IX ).", "84. The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned, allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and the retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.", "85. The Court accordingly considers that the retention of fingerprints on the authorities ’ records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private- life concerns.", "86. In the instant case, the Court notes furthermore that the applicants ’ fingerprints were initially taken in criminal proceedings and subsequently recorded on a national database with the aim of being permanently kept and regularly processed by automated means for criminal- identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, like Baroness Hale (see paragraph 25 above), considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life.", "B. Justification for the interference", "1. The parties ’ submissions", "(a) The applicants", "87. The applicants argued that the retention of fingerprints, cellular samples and DNA profiles was not justified under Article 8 § 2. The Government were given a very wide remit to use samples and DNA profiles notably for “purposes related to the prevention or detection of crime”, “ the investigation of an offence” or “ the conduct of a prosecution”. These purposes were vague and open to abuse as they might, in particular, lead to the collation of detailed personal information outside the immediate context of the investigation of a particular offence. The applicants further submitted that there were insufficient procedural safeguards against misuse or abuse of the information. Records on the Police National Computer ( PNC ) were not only accessible to the police, but also to fifty-six non-police bodies, including government agencies and departments, private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC was linked to the Europe-wide “Schengen Information System”. Consequently, their case involved a very substantial and controversial interference with the right to private life, as notably illustrated by ongoing public debate and disagreement about the subject in the United Kingdom. Contrary to the assertion of the Government, the applicants concluded that the issue of the retention of this material was of great individual concern and the State had a narrow margin of appreciation in this field.", "88. The applicants contended that the indefinite retention of fingerprints, cellular samples and DNA profiles of unconvicted persons could not be regarded as “necessary in a democratic society” for the purpose of preventing crime. In particular, there was no justification at all for the retention of cellular samples following the original generation of the DNA profile; nor had the efficacy of the profiles ’ retention been convincingly demonstrated since the high number of DNA matches relied upon by the Government was not shown to have led to successful prosecutions. Likewise, in most of the specific examples provided by the Government, the successful prosecution had not been contingent on the retention of the records and in certain others the successful outcome could have been achieved through more limited retention in time and scope.", "89. The applicants further submitted that the retention was disproportionate because of its blanket nature irrespective of the offences involved, the unlimited period, the failure to take account of the applicants ’ circumstances and the lack of an independent decision - making process or scrutiny when considering whether or not to order retention. They further considered the retention regime to be inconsistent with the Council of Europe ’ s guidance on the subject. They emphasised, finally, that retention of the records cast suspicion on persons who had been acquitted or discharged of crimes, thus implying that they were not wholly innocent. The retention thus resulted in stigma which was particularly detrimental to children, as in the case of S., and to members of certain ethnic groups over - represented on the database.", "(b) The Government", "90. The Government submitted that any interference resulting from the retention of the applicants ’ fingerprints, cellular samples and DNA profiles was justified under Article 8 § 2. It was in accordance with the law as expressly provided for, and governed by section 64 of PACE, which set out detailed powers and restrictions on the taking of fingerprints and samples and clearly stated that they would be retained by the authorities regardless of the outcome of the proceedings in respect of which they were taken. The exercise of the discretion to retain fingerprints and samples was also, in any event, subject to the normal principles of law regulating discretionary power and to judicial review.", "91. The Government further stated that the interference was necessary and proportionate for the legitimate purpose of the prevention of disorder or crime and/or the protection of the rights and freedoms of others. It was of vital importance that law enforcement agencies took full advantage of available techniques of modern technology and forensic science in the prevention, investigation and detection of crime for the interests of society generally. They submitted that the retained material was of inestimable value in the fight against crime and terrorism and the detection of the guilty, and provided statistics in support of this view. They emphasised that the benefits to the criminal - justice system were enormous, not only permitting the detection of the guilty but also eliminating the innocent from inquiries and correcting and preventing miscarriages of justice.", "92. As at 30 September 2005, the National DNA Database held 181,000 profiles from individuals who would have been entitled to have those profiles destroyed before the 2001 amendments. Of those profiles, 8,251 were subsequently linked with crime - scene stains which involved 13,079 offences, including 109 murders, 55 attempted murders, 116 rapes, 67 sexual offences, 105 aggravated burglaries and 126 offences of the supply of controlled drugs.", "93. The Government also submitted specific examples of the use of DNA material for successful investigation and prosecution in some eighteen specific cases. In ten of these cases the DNA profiles of suspects matched some earlier unrelated crime - scene stains retained on the database, thus allowing successful prosecution for those earlier crimes. In another case, two suspects arrested for rape were eliminated from the investigation as their DNA profiles did not match the crime - scene stain. In two other cases the retention of DNA profiles of the persons found guilty of certain minor offences (disorder and theft) led to establishing their involvement in other crimes committed later. In one case the retention of a suspect ’ s DNA profile following an alleged immigration offence helped his extradition to the United Kingdom a year later when he was identified by one of his victims as having committed rape and murder. Finally, in four cases DNA profiles retained from four persons suspected but not convicted of certain offences (possession of offensive weapons, violent disorder and assault) matched the crime- scene stains collected from victims of rape up to two years later.", "94. The Government contended that the retention of fingerprints, cellular samples and DNA profiles could not be regarded as excessive since they were kept for specific limited statutory purposes and stored securely and subject to the safeguards identified. Their retention was neither warranted by any degree of suspicion of the applicants ’ involvement in a crime or propensity to crime nor directed at retaining records in respect of investigated alleged offences in the past. The records were retained because the police had already been lawfully in possession of them, and their retention would assist in the future prevention and detection of crime in general by increasing the size of the database. Retention resulted in no stigma and produced no practical consequence for the applicants unless the records matched a crime- scene profile. A fair balance was thus struck between individual rights and the general interest of the community and fell within the State ’ s margin of appreciation.", "2. The Court ’ s assessment", "(a) In accordance with the law", "95. The Court notes from its well established case-law that the wording “ in accordance with the law ” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000 - V; and Amann, cited above, § 56 ).", "96. The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed ( see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000- XI, with further references ).", "97. The Court notes that section 64 of PACE provides that the fingerprints or samples taken from a person in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken (see paragraph 2 7 above). The Court agrees with the Government that the retention of the applicants ’ fingerprint and DNA records had a clear basis in the domestic law. There is also clear evidence that these records are retained in practice save in exceptional circumstances. The fact that chief police officers have power to destroy them in such rare cases does not make the law insufficiently certain from the point of view of the Convention.", "98. As regards the conditions attached to and arrangements for the storing and use of this personal information, section 64 is far less precise. It provides that retained samples and fingerprints must not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.", "99. The Court agrees with the applicants that at least the first of these purposes is worded in rather general terms and may give rise to extensive interpretation. It reiterates that it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see, mutatis mutandis, Kruslin v. France, 24 April 1990, § § 33 and 35, Series A no. 176 ‑ A; Rotaru, cited above, § § 57-59; Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 ‑ XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § § 75-77, 28 June 2007; and Liberty and Others v. the United Kingdom, no. 58243/00, § § 62-63, 1 July 2008 ). The Court notes, however, that these questions are in this case closely related to the broader issue of whether the interference was necessary in a democratic society. In view of its analysis in paragraphs 105 ‑ 2 6 below, the Court does not find it necessary to decide whether the wording of section 64 meets the “ quality of law” requirements within the meaning of Article 8 § 2 of the Convention.", "( b ) Legitimate aim", "100. The Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and, therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders.", "(c) Necessary in a democratic society", "(i) General principles", "101. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “ relevant and sufficient ”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references).", "102. A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004, with further references ). Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted ( see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I ). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007- V ).", "103. The protection of personal data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see, mutatis mutandis, Z v. Finland, cited above, § 95). The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored (see Article 5 of the Data Protection Convention and the Preamble thereto and Principle 7 of Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector). The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (see notably Article 7 of the Data Protection Convention). The above considerations are especially valid as regards the protection of special categories of more sensitive data (see Article 6 of the Data Protection Convention) and more particularly of DNA information, which contains the person ’ s genetic make-up of great importance to both the person concerned and his or her family (see Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system).", "104. The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime (see Article 9 of the Data Protection Convention). However, the intrinsically private character of this information calls for the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned (see, mutatis mutandis, Z v. Finland, cited above, § 96 ).", "(ii) Application of these principles to the present case", "105. The Court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today ’ s European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification. The techniques of DNA analysis were acknowledged by the Council of Europe more than fifteen years ago as offering advantages to the criminal- justice system (see Recommendation No. R (92) 1 of the Committee of Ministers, paragraphs 4 3-44 above ). Nor is it disputed that the member States have since that time made rapid and marked progress in using DNA information in the determination of innocence or guilt.", "106. However, while it recognises the importance of such information in the detection of crime, the Court must delimit the scope of its examination. The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8 § 2 of the Convention.", "107. The Court will consider this issue with due regard to the relevant instruments of the Council of Europe and the law and practice of the other Contracting States. The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage (see paragraphs 41 -4 4 above ). These principles appear to have been consistently applied by the Contracting States in the police sector in accordance with the Data Protection Convention and subsequent Recommendations of the Committee of Ministers (see paragraphs 4 5 -4 9 above).", "108. As regards, more particularly, cellular samples, most of the Contracting States allow these materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity. In the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. A restricted number of exceptions to this principle are allowed by some Contracting States (see paragraphs 4 7 -4 8 above).", "109. The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above (see paragraph 36), the Scottish parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.", "110. This position is notably consistent with Recommendation No. R (92) 1 of the Committee of Ministers, which stresses the need for an approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data, even in more serious cases (see paragraphs 4 3 -4 4 above ). Against this background, England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.", "111. The Government lay emphasis on the fact that the United Kingdom is in the vanguard of the development of the use of DNA samples in the detection of crime and that other States have not yet achieved the same maturity in terms of the size and resources of DNA databases. It is argued that the comparative analysis of the law and practice in other States with less advanced systems is accordingly of limited importance.", "112. The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal- justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court ’ s view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.", "113. In the present case, the applicants ’ fingerprints and cellular samples were taken and DNA profiles obtained in the context of criminal proceedings brought on suspicion of attempted robbery in the case of the first applicant and harassment of his partner in the case of the second applicant. The data were retained on the basis of legislation allowing for their indefinite retention, despite the acquittal of the former and the discontinuance of the criminal proceedings against the latter.", "114. The Court must consider whether the permanent retention of fingerprint and DNA data of all suspected but unconvicted people is based on relevant and sufficient reasons.", "115. Although the power to retain fingerprints, cellular samples and DNA profiles of unconvicted persons has only existed in England and Wales since 2001, the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence, which was before the House of Lords and is included in the material supplied by the Government (see paragraph 92 above) appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases.", "116. The applicants, however, assert that the statistics are misleading, a view supported in the Nuffield Council on Bioethics ’ report. It is true, as pointed out by the applicants, that the figures do not reveal the extent to which this “ link ” with crime scenes resulted in convictions of the persons concerned or the number of convictions that were contingent on the retention of the samples of unconvicted persons. Nor do they demonstrate that the high number of successful matches with crime - scene stains was only made possible through indefinite retention of DNA records of all such persons. At the same time, in the majority of the specific cases quoted by the Government (see paragraph 93 above), the DNA records taken from the suspects produced successful matches only with earlier crime-scene stains retained on the database. Yet such matches could have been made even in the absence of the present scheme, which permits the indefinite retention of DNA records of all suspected but unconvicted persons.", "117. While neither the statistics nor the examples provided by the Government in themselves establish that the successful identification and prosecution of offenders could not have been achieved without the permanent and indiscriminate retention of the fingerprint and DNA records of all persons in the applicants ’ position, the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime.", "118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.", "119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the national database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.", "120. The Court acknowledges that the level of interference with the applicants ’ right to private life may be different for each of the three different categories of personal data retained. The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein. However, such an indiscriminate and open-ended retention regime as the one in issue calls for careful scrutiny regardless of these differences.", "121. The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having a direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 6 7 above).", "122. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused ’ s innocence may be voiced after his acquittal (see Rushiti v. Austria, no. 28389/95, § 31, 21 March 2000, with further references ). It is true that the retention of the applicants ’ private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.", "123. The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants ’ private data compared to that of other unconvicted people.", "124. The Court further considers that the retention of the unconvicted persons ’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. The Court has already emphasised, drawing on the provisions of Article 40 of the United Nations Convention on the Rights of the Child of 1989, the special position of minors in the criminal- justice sphere and has noted, in particular, the need for the protection of their privacy at criminal trials (see T. v. the United Kingdom [GC], no. 24724/94, §§ 75 and 85, 16 December 1999 ). In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council on Bioethics as to the impact on young persons of the indefinite retention of their DNA material and notes the Council ’ s concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities who have not been convicted of any crime (see paragraphs 38-40 above).", "125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants ’ right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants ’ criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.", "126. Accordingly, there has been a violation of Article 8 of the Convention in the present case.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 OF THE CONVENTION", "127. The applicants submitted that they had been subjected to discriminatory treatment as compared to others in an analogous situation, namely other unconvicted persons whose samples had still to be destroyed under the legislation. This treatment related to their status and fell within the ambit of Article 14 of the Convention, which had always been liberally interpreted. For the reasons set out in their submissions under Article 8, there was no reasonable or objective justification for the treatment, nor any legitimate aim or reasonable relationship of proportionality to the purported aim of crime prevention, in particular as regards the samples which played no role in crime detection or prevention. It was an entirely improper and prejudicial differentiation to retain materials of persons who should be presumed to be innocent.", "128. The Government submitted that as Article 8 was not engaged, Article 14 of the Convention was not applicable. Even if it were, there was no difference of treatment as all those in an analogous situation to the applicants were treated the same and the applicants could not compare themselves with those who had not had samples taken by the police or those who consented to give samples voluntarily. In any event, any difference in treatment complained of was not based on “status” or a personal characteristic but on historical fact. If there was any difference in treatment, it was objectively justified and within the State ’ s margin of appreciation.", "129. The Court refers to its conclusion above that the retention of the applicants ’ fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the Convention. In the light of the reasoning that has led to this conclusion, the Court considers that it is not necessary to examine separately the applicants ’ complaint under Article 14 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "130. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "131. The applicants requested the Court to award them just satisfaction for non-pecuniary damage and for costs and expenses.", "A. Non-pecuniary damage", "132. The applicants claimed compensation for non-pecuniary damage in the sum of 5,000 pounds sterling (GBP) each for distress and anxiety caused by the knowledge that intimate information about each of them had been unjustifiably retained by the State, and in relation to anxiety and stress caused by the need to pursue this matter through the courts.", "133. The Government, referring to the Court ’ s case- law ( see, in particular, Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-II ), submitted that a finding of a violation would in itself constitute sufficient just satisfaction for both applicants and distinguished the present case from those cases where violations had been found as a result of the use or disclosure of the personal information ( see, in particular, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V ).", "134. The Court notes that it has found that the retention of the applicants ’ fingerprint and DNA data violates their rights under Article 8 of the Convention. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life ( see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002 ‑ VI ). In these circumstances, the Court considers that the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants ’ claim for non-pecuniary damage.", "B. Costs and expenses", "135. The applicants also requested the Court to award GBP 52,066.25 for costs and expenses incurred before the Court and attached detailed documentation in support of their claim. These included the costs of the solicitor ( GBP 15,083.12 ) and the fees of three counsel ( GBP 21,267.50, GBP 2,937.50 and GBP 12,778.13 respectively ). The hourly rates charged by the lawyers were as follows: GBP 140 in respect of the applicants ’ solicitor (increased to GBP 183 as from June 2007) and GBP 150, GBP 250 and GBP 125 respectively in respect of three counsel.", "136. The Government qualified the applicants ’ claim as entirely unreasonable. They submitted in particular that the rates charged by the lawyers were excessive and should be reduced to no more than two-thirds of the level claimed. They also argued that no award should be made in respect of the applicants ’ decision to instruct a fourth lawyer at a late stage of the proceedings as it had led to the duplication of work. The Government concluded that any cost award should be limited to GBP 15,000 and in any event, to no more than GBP 20,000.", "137. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005 ‑ X ).", "138. On the one hand, the present applications were of some complexity as they required examination in a Chamber and in the Grand Chamber, including several rounds of observations and an oral hearing. The application also raised important legal issues and questions of principle requiring a large amount of work. It notably required an in-depth examination of the current debate on the issue of retention of fingerprint and DNA records in the United Kingdom and a comprehensive comparative research of the law and practice of other Contracting States and of the relevant texts and documents of the Council of Europe.", "139. On the other hand, the Court considers that the overall sum of GBP 52,066.25 claimed by the applicants is excessive as to quantum. In particular, the Court agrees with the Government that the appointment of the fourth lawyer in the later stages of the proceedings may have led to a certain amount of duplication of work.", "140. Making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court awards the sum of 4 2 ,000 euros (EUR) in respect of costs and expenses, less the amount of EUR 2,613.07 already paid by the Council of Europe in legal aid.", "C. Default interest", "141. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1951 and lives in County Tyrone, Northern Ireland.", "6. In April 2000 the girlfriend of the applicant’s son wished to leave Northern Ireland with the applicant’s ten-month old grandson and return to live in Australia following her separation from the applicant’s son. In order to try and force her son and his girlfriend to reconcile their differences, and in the hope that her grandson would not return to Australia, the applicant disappeared with her grandson at 6 p.m. on 19 April 2000 without the parents’ permission. The police were called and the child was returned unharmed on the morning of 21 April 2000.", "7. The applicant was subsequently arrested for child abduction. At a police interview on 24 April 2000, in the presence of her solicitor, the applicant confirmed that she had been aware at the time that she took her grandson that her conduct amounted to child abduction.", "8. By letter dated 10 October 2000 the Director of Public Prosecutions recorded his decision that the public interest did not require the initiation of criminal proceedings against the applicant and that no such proceedings should therefore be brought. Instead, he indicated that a caution should be administered.", "9. The applicant received a caution for child abduction which was formally administered on 17 November 2000.", "10. On 6 March 2003, in reply to a query from the applicant, the police advised her that her caution would remain on record for five years, and so would be held on record until 17 November 2005.", "11. On 14 September 2006 the applicant was offered employment as a Health Care Family Support Worker within Foyle Health and Social Services Trust (“the Trust”) through Westcare Business Services (“Westcare”), subject to vetting. She was asked to disclose details of prior convictions and cautions. She accordingly disclosed details of the incident of April 2000 and her subsequent caution on the form provided, and consented to a criminal record check. Westcare contacted the Criminal Records Office of the Police Service of Northern Ireland (“Criminal Records Office”) to verify the details disclosed. The existence of the caution was duly verified.", "12. On 31 October 2006 Westcare withdrew the offer of employment, indicating that it had taken into account the verification by the Criminal Records Office of the caution for child abduction.", "13. The applicant subsequently sought to challenge her acceptance of the caution in November 2000 by letter to the Criminal Records Office. In an undated letter, the Criminal Records Office replied to her in the following terms:", "“... in a case where someone agrees to be cautioned by the police for a particular offence, by doing so they are accepting that they were guilty of the offence in the first place. This information is printed on the caution form, which you signed on 17 th November 2000.", "Regrettably there is no way to change that. The case cannot be brought back to a court because the whole idea of the caution was to keep it out of court in the first instance.", "I should also point out that the information given to Sgt Dunne and which he relayed to you in 2003, about the weeding date for an adult caution, was correct at that time but there has since been a policy change. Normally an adult caution will be weeded after a period of five years, provided the defendant has not been convicted of any further offences. However following the murder of the schoolgirls in Soham England and the subsequent Bichard Report the weeding policy was changed in relation to all cases where the injured party is a child. The current policy is that all convictions and cautions, where the injured party is a child, are kept on the record system for life.”", "14. The letter concluded:", "“I fully appreciate that the offence in your case was not the normal type of offence and that the child did not suffer any harm and that it was never your intention that he should suffer any harm. The offence code under which the offence comes for computing purposes classes the offence as ‘child abduction’ (by other person). Which means a person other than a parent of the child.", "... Perhaps you would be good enough to contact me ... in order that we might discuss the matter and perhaps find some means of ameliorating the consequences of the information given above.”", "15. By letter dated 6 May 2006 to the applicant’s solicitor, the Criminal Records Office confirmed that in signing the caution form the applicant had accepted guilt for the offence in question and that nothing could be done to change the criminal record. The applicant’s solicitor subsequently informed her that there did not appear to be any action which she could take in relation to the removal of the caution.", "16. By letter dated 6 December 2006 Detective Superintendent Thomson of the Northern Ireland Police Service confirmed that he would not delete the caution from police records. However he proposed, with the applicant’s agreement, to add a comment to the effect that the incident was domestically related and that in any vetting context the applicant should be approached for an explanation.", "17. In January 2007 the Northern Ireland Legal Services Commission (“the LSC”) refused an application for legal aid, made by the applicant’s solicitor, to review the Trust’s decision not to employ the applicant. The solicitor informed the applicant that she could appeal the LSC’s decision at a cost of GBP 500 for representation by counsel, but the applicant could not afford to instigate legal proceedings without public funding.", "18. In February 2007 the applicant was interviewed for a position as a Family Support Worker. The interview letter advised that the position was a regulated one under Article 31 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 and she was asked to complete a consent form and bring it to the interview.", "19. On 29 March 2007 the applicant was informed that her application for the position was unsuccessful. No reasons were provided." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The aims and nature of a caution", "20. At the relevant time the purpose of a formal caution was set out in Police Force Order no. 9/96 issued by the Royal Ulster Constabulary, namely:", "“(a) to deal quickly and simply with less serious offenders;", "(b) to divert offenders in the public interest from appearance in the criminal courts; and", "(c) to reduce the likelihood of re-offending.”", "21. The Order further noted:", "“... a formal caution is not a form of sentence ...", "(a) A formal caution is nonetheless a serious matter. It is recorded by police; it may be relevant in relation to future decisions as to prosecution, and it may be cited in any subsequent criminal prosecutions. Properly used, caution is an effective form of disposal.", "...”", "B. Retention of conviction and caution data in police records", "1. The statutory background", "22. Article 29(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (as subsequently amended) provides that:", "“... the Secretary of State may by regulations make provision for recording in police records convictions for such offences as are specified in the regulations.”", "23. The regulations made by the Secretary of State under this provision are the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. These regulations identify the relevant convictions as being those for offences punishable by imprisonment, as well as a number of additional specified offences. The regulations do not make any reference to cautions.", "24. According to the Government, the recording of cautions in Northern Ireland takes place under the police’s common law powers to retain and use information for police purposes. That power is subject to the provisions of the Data Protection Act 1998 (see generally paragraphs 65-71 below).", "2. Policy and practice", "(a) The policy and practice of the Police Service in Northern Ireland", "25. According to the Government, the policy and practice of the Police Service in Northern Ireland (“PSNI”) at the time of the issue of the applicant’s caution in 2000 was to delete cautions from the individual’s criminal record after five years.", "26. However, following publication of the Bichard Report in 2006 (see paragraphs 31-32 below), the PSNI changed its practice so as to retain information on adult cautions for the rest of a person’s life.", "(b) Relevant policy documents", "(i) The ACPO Codes of Practice of 1995, 1999 and 2002", "27. The chief constable of PSNI is a member of the Association of Chief Police Officers of England and Wales and Northern Ireland (“ACPO”).", "28. Pursuant to the ACPO Code of Practice 1995 (“the 1995 ACPO Code”), in cases of conviction for an offence that carried the possibility of imprisonment, a record of the conviction had to be retained for a period of twenty years. Exceptions to this included cases where the conviction was for an offence against a child or young person, where the record was to be retained until the offender was 70 years old, subject to a minimum 20-year retention period; and cases involving rape, where the record was to be retained for the life of the offender.", "29. Records of cautions (assuming there were no other convictions or further cautions) were to be retained for a five-year period.", "30. The 1995 ACPO Code was updated in 1999 and subsequently replaced by another code of practice in 2002. Neither instrument substantially altered the provisions regarding retention of data relating to cautions.", "(ii) The Bichard Inquiry Report 2004", "31. Following the murders of two young girls in August 2002 by a caretaker employed at a local school, a review of the United Kingdom’s police forces was announced by the Home Secretary. An inquiry was set up, to be conducted by Sir Michael Bichard.", "32. The Bichard Inquiry Report (“the Bichard report”) was published in June 2004. It reviewed current practice as regards retention of data on convictions and cautions and concluded (at paragraph 4.41) that “there were a number of problems with the review, retention or deletion of records.” The report recommended that:", "“A Code of Practice should be produced covering record creation, review, retention, deletion and information sharing. This should be made under the Police Reform Act 2002 and needs to be clear, concise and practical. It should supersede existing guidance.”", "(iii) Code of Practice on the Management of Police Information 2005", "33. In July 2005 the Secretary of State adopted a Code of Practice on the Management of Police Information (“the 2005 Code of Practice”). The Code applies directly to police forces in England and Wales and is available for adoption by other police forces. The Government did not clarify whether the Code has been adopted by the PSNI.", "34. Paragraph 1.1.1 of the Code explains that police forces have a duty to obtain and use a wide variety of information, including personal information. The Code clarifies that responsibility for the management and use of information lies with the chief officer of the police force. It recognises the existing legislative framework for the management of information relating to data protection and human rights set out in the Data Protection Act (see paragraph 65-71 below).", "35. The Code sets out a number of key principles including, inter alia, the duty to obtain and manage information; the importance of recording information considered necessary for a police purpose; and the need to review information and consider whether its retention remains justified, in accordance with any guidance issued.", "(iv) Guidance on the Management of Police Information 2006 and 2010", "36. In 2006 ACPO published Guidance on the Management of Police Information. This Guidance was applied by the PSNI. A second edition was published in 2010 (“the MOPI Guidance”), and is also applied by the PSNI.", "37. Chapter 7 of the MOPI Guidance deals with review, retention and disposal of police information not contained on the Police National Computer (“PNC”). The PNC is the system for recording conviction data in England and Wales; the Causeway system is used in Northern Ireland. The MOPI Guidance notes at the outset that:", "“7.2.1 ... Public authorities, including police forces, must act in a way that complies with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.”", "38. The MOPI Guidance also refers to the need to comply with the principles of the Data Protection Act (see paragraph 65-71 below).", "39. The MOPI Guidance sets out the framework for decision-making in respect of retention of police information. It provides that records should be kept for a minimum period of six years, beyond which time there is a requirement to review whether retention of the information remains necessary for a policing purpose. Relevant questions are whether there is evidence of a capacity to inflict serious harm, whether there are concerns relating to children or vulnerable adults, whether the behaviour involved a breach of trust, whether there is evidence of links or associations which might increase the risk of harm, whether there are concerns as to substance misuse and whether there are concerns that an individual’s mental state might increase the risk. In any review, the MOPI Guidance notes that there is a presumption in favour of retention of police information provided that it is not excessive, is necessary for a policing purpose, is adequate for that purpose and is up to date.", "40. The MOPI Guidance also contains a review schedule based on the seriousness of offences. Under the review schedule, information is divided into four categories. Group 1 is called “Certain Public Protection Matters”, which includes information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (or historical offences that would be charged as such if committed today). Such information should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes. The MOPI Guidance continues:", "“Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject’s date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. This must be done every ten years ...", "Due to the seriousness of this group, no distinction is made between the type or classification of information that can be retained for 100 years; information retained under this grouping can include intelligence of any grading.", "There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proven as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid unnecessary damage to the person who is the subject of the record.”", "41. The other categories are “Other Sexual, Violent or Serious Offences (Group 2), in respect of which information should be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm; “All Other Offences” (Group 3), in respect of which police forces may choose to use a system of time-based, automatic disposal if it is considered that the risk of disposal is outweighed by the administrative burden of reviewing the information or the cost of retaining it; and “Miscellaneous” (Group 4), which covers a variety of other cases and entails different guidance on retention in each one.", "(v) Retention Guidelines for Nominal Records on the Police National Computer 2006", "42. The ACPO Retention Guidelines for Nominal Records on the Police National Computer 2006 (“the ACPO Guidelines”) came into effect on 31 March 2006. The ACPO Guidelines form part of the guidance issued under the MOPI Code and are applied by PSNI.", "43. The ACPO Guidelines explain that:", "“1.3 The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data. The restriction of access is achieved by setting strict time periods after which the relevant event histories will ‘step down’ and only be open to inspection by the police. Following the ‘step down’ other users of PNC will be unaware of the existence of such records, save for those occasions where the individual is the subject of an Enhanced Check under the Criminal Records Bureau vetting process ... ”", "44. They continue:", "“2.8 ...the Nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been Convicted (including cautions, reprimands and warnings), dealt with by the issue of a Penalty Notice for Disorder, Acquitted, or dealt with as a ‘CJ Arrestee’ [a person who has been arrested for a recordable offence under the Criminal Justice Act 2003 but in respect of whom no further action was taken].”", "45. The general principle set out in paragraph 3.1 of the ACPO Guidelines is that when a nominal record is created or updated on the PNC by virtue of an individual being convicted, receiving a Penalty Notice for Disorder, being acquitted or being a CJ Arrestee, the record will contain the relevant personal data together with details of the offence which resulted in the creation of the record. The record will be retained on PNC until that person is deemed to have attained 100 years of age.", "46. Paragraph 4.32 of the ACPO Guidelines clarifies that chief officers are the “data controllers” (within the meaning of the Data Protection Act 1998 – see paragraphs 65-71 below) of all PNC records, including DNA and fingerprints associated with the entry, created by their forces and that they have the discretion in exceptional circumstances to authorise the deletion of any such data. Appendix 2 of the ACPO Guidelines outlines the procedure to be followed in deciding whether a particular case will be regarded as “exceptional” and states:", "“Exceptional cases by definition will be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond reasonable doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.”", "C. Disclosure of a caution", "1. The legal framework", "(a) Prior to 1 April 2008", "47. According to the Government, from the date on which the caution was administered to the applicant until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police for police purposes only.", "(b) After 1 April 2008", "48. Part V of the Police Act 1997 (“the 1997 Act”) now sets out the legislative framework for the disclosure of criminal record information in Northern Ireland. The relevant provisions entered into force in Northern Ireland on 1 April 2008.", "49. Section 113A deals with criminal record certificates (“CRCs”). Section 113A(3) defines a CRC as follows:", "“A criminal record certificate is a certificate which –", "(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or", "(b) states that there is no such matter.”", "...”", "50. Section 113A(6) defines “central records” as such records of convictions and cautions held for the use of police forces generally as may be prescribed. In Northern Ireland, the relevant records are prescribed in the Police Act 1997 (Criminal Record) (Disclosure) Regulations (Northern Ireland) 2008 as information in any form relating to: convictions held in the criminal history database of the Causeway System; and convictions and cautions on a names index held by the National Police Improvement Authority for the use of police forces generally. The term “relevant matter” is defined in section 113A(6) of the 1997 Act as including “spent” convictions and cautions (see paragraphs 61-64 below). Pursuant to section 65(9) of the Crime and Disorder Act 1998, the reference to a “caution” in section 113A is to be construed as including warnings and reprimands.", "51. The Secretary of State must issue a CRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question. Section 113A(6) defines “exempted question” as follows: in respect of a conviction, a question which the Secretary of State has by order excluded from the provisions on “spent” convictions under the 1974 Act or the 1978 Order; and in respect of a caution, a question which the Secretary of State has by order excluded from the provisions on “spent” cautions under the 1974 Act; as noted above there is no corresponding provision in Northern Ireland. In respect of Northern Ireland, the Secretary of State subsequently made an order excluding the provisions on “spent” convictions in relation to questions directed, inter alia, at assessing the suitability of persons to work with children and vulnerable adults.", "52. Section 113B deals with enhanced criminal record certificates (“ECRCs”). As with a CRC, the Secretary of State must issue an ECRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a “prescribed purpose”.", "53. The “prescribed purposes” are defined in the Police Act 1997 (Criminal Records) (Disclosure) Regulations (Northern Ireland) 2008 as amended and include the purposes of considering the applicant’s suitability to engage in any activity which is regulated activity relating to children or vulnerable adults, as defined in legislation.", "54. Section 113B(3) provides:", "“An enhanced criminal record certificate is a certificate which–", "(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or", "(b) states that there is no such matter or information.”", "55. Section 113B(4) provides that before issuing an ECRC the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose” and ought to be included in the certificate.", "56. Pursuant to section 113B(5), the Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose”, ought not to be included in the certificate in the interests of the prevention or detection of crime but can, without harming those interests, be disclosed to the registered person.", "57. The Secretary of State must send to the registered person who countersigned the application a copy of the enhanced criminal record certificate, and any information provided in accordance with subsection (5).", "2. Policy and practice", "58. The MOPI Guidance explains the circumstances in which police information will be disclosed:", "“6.3.1. ... The Police Act 1997 creates a statutory scheme for the disclosure of criminal records and police information on potential employees to prospective employers. The CRB is responsible for the scheme and for ensuring that employers have sufficient information to make a judgment on the suitability of a potential employee to work with children or vulnerable adults.”", "59. The Guidance further refers to the possibility of sharing information under common law powers. In such cases, a policing purpose must be established and the decision to disclose data must strike a balance between the risk posed and the need for confidentiality of data under the Human Rights Act and the Data Protection Act.", "60. As noted above, the ACPO Guidelines work on the basis of restricting access to police information rather than deleting data. Recordable offences are split into categories “A”, “B” and “C” depending on the seriousness of the offence, with category A being the most serious offences. These categories mirror Groups 1, 2 and 3 set out in the MOPI Guidance. The Guidelines set strict time periods after which relevant data will “step down” and only be open to inspection by the police. The aim is to ensure that following step down, other users of the PNC will be unaware of the existence of the relevant records, save in cases of requests for criminal record checks. For example, the ACPO Guidelines state, at paragraph 4.19, that:", "“4.19 In the case of an adult who is dealt with by way of a caution in respect of an offence listed in category ‘A’, the conviction history will ‘step down’ after a clear period of 10 years, and thereafter only be open to inspection by the police.”", "D. Rehabilitation of offenders", "61. Pursuant to legislation, those convicted of certain offences may become “rehabilitated” after a certain period of time has elapsed. The relevant legislation in England and Wales is the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The legislation which applies in Northern Ireland is the Rehabilitation of Offenders (Northern Ireland) Order 1978 (“the 1978 Order”).", "62. Pursuant to the 1978 Order, any person who has been convicted of an offence capable of rehabilitation and has not committed any other offence during the rehabilitation period is to be treated as rehabilitated at the end of the rehabilitation period.", "63. The effect of rehabilitation is that the person is treated for all purposes in law as a person who has not committed, or been charged with, prosecuted for or convicted of the offence in question, i.e. the conviction is considered “spent”. If asked about previous convictions, a person is to treat the question as not relating to spent convictions and may frame his answer accordingly; he is not to be liable or prejudiced for his failure to acknowledge or disclose a spent conviction. Spent convictions are not a proper ground for dismissing or excluding a person from employment. However, the Secretary of State is empowered to provide for exclusions, modifications or exemptions from the provisions on the effect of rehabilitation.", "64. The 1978 Order makes no reference to cautions. However, the 1974 Act (which does not apply in Northern Ireland) contains a Schedule introduced in 2008 which provides protection for spent cautions. According to Schedule 2, a caution is to be considered a spent caution at the time that it is given. The effects of rehabilitation in respect of a caution are the same as those described above which apply to a conviction. As with convictions, the Secretary of State may, by order, provide for exclusions or exemptions.", "E. The Data Protection Act 1998", "65. The Data Protection Act (“the DPA 1998”) was adopted on 16 July 1998. The main provisions of the Act entered into force on 1 March 2000.", "66. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1.", "67. Pursuant to section 1 of the DPA 1998, “personal data” includes data which relate to a living individual who can be identified from those data. Section 2 of the Act defines “sensitive personal data” as personal data consisting, inter alia, of information as to the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.", "68. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, including that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (paragraphs 5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing is necessary for the purposes of performing an obligation imposed by law on the data controller in connection with employment (paragraph 1), the processing is necessary for the purpose of, or in connection with, any legal proceedings or is otherwise necessary for the purposes of establishing, exercising or defending legal rights (paragraph 6), or is necessary for the administration of justice or for the exercise of any functions conferred on any person by or under an enactment (paragraph 7). Section 29 provides a qualified exemption from the first data protection principle in the case of personal data processed, inter alia, for the prevention or detection of crime.", "69. The third principle provides that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.", "70. The fifth principle stipulates that personal data processed for any purpose shall not be kept for longer than is necessary for that purpose.", "71. The Information Commissioner created pursuant to the Act has an independent duty to promote the following of good practice by data controllers and has power under section 40 of the Act to make orders (“enforcement notices”) in this respect. Section 47 of the Act makes it a criminal offence not to comply with an enforcement notice. Section 48 of the Act gives data controllers the right to appeal against an enforcement notice to the First Tier Tribunal, if an enforcement notice raises a point of law. Section 13 sets out a right to claim damages in the domestic courts in respect of contraventions of the Act.", "F. The Human Rights Act 1998", "72. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:", "“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”", "73. Section 4 of the Act provides:", "“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.", "(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.", "...”", "74. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:", "“Subsection (1) does not apply to an act if–", "(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or", "(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”", "75. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority.", "76. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful.", "G. Judicial consideration", "1. R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068", "77. In R (X), the Court of Appeal considered the compatibility with Article 8 of the Convention of the disclosure of additional information under the predecessor of section 113B(4) of the 1997 Act in the context of an enhanced criminal records check. The appellant had applied for a job as a social worker and had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The chief constable, as he was required to do, issued an ECRC. It contained details of the allegations of indecent exposure under the heading “other relevant information”.", "78. Lord Woolf CJ noted at the outset that while it was accepted by both parties that the information included in the ECRC might offend against Article 8 § 1, it was not suggested that the legislation itself contravened that Article. He explained:", "“20. ... No doubt this is because disclosure of the information contained in the certificate would be ‘in accordance with the law’ and ‘necessary in a democratic society’, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.”", "79. On the question of the balance between competing interests, Lord Woolf CJ indicated (at paragraph 36) that:", "“Having regard to the language of section 115 [the predecessor of section 113B], the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.”", "80. He continued (at paragraph 37):", "“This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.”", "81. On the application of Article 8, assuming that it was engaged, he noted (at paragraph 41):", "“... [H]ow can the Chief Constable’s decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.”", "2. R (R) v Durham Constabulary and another [2005] UKHL 21", "82. The case of R (R) concerned the issue of a “reprimand or warning” to a young person for alleged offences of indecent assault. Unlike the issue of a caution, the issue of a reprimand or warning did not require the person’s consent. However, like a caution, the issue of a reprimand/warning required the individual to admit to the offence. The issue of the reprimand/warning in the case had given rise to an obligation that the young offender in question be subject to registration pursuant to the Sex Offenders Act 1977. The claimant alleged that the reprimand had violated Article 6 of the Convention because it had been issued without his consent and the consequences of its issue, including the need to register on the Sex Offender Register, had not been properly identified to him.", "83. The House of Lords unanimously rejected the claim. Lord Bingham of Cornhill doubted whether Article 6 had been engaged at all, but even assuming that it was, he concluded that it had ceased to apply once the decision had been made not to prosecute the claimant. He noted that there was little case-law from this Court as to the meaning of “determination” of criminal charges and expressed the view that the determination of a criminal charge, to be properly so regarded, must expose the subject of the charge to the possibility of punishment, whether in the event punishment was imposed or not. He considered therefore that a process which could only culminate in measures of a preventative, curative, rehabilitative or welfare-promoting kind would not ordinarily involve the determination of a criminal charge. He accordingly concluded that neither the warning of the claimant nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, Lord Bingham noted, it was acknowledged by the police force that there had been no valid waiver by him of his fair trial right.", "3. R (S) v Chief Constable of West Mercia and Criminal Records Bureau [2008] EWHC 2811 (Admin)", "84. The claimant challenged the inclusion under section 113B(4) of the 1997 Act of other information provided by the chief constable on an ECRC regarding alleged offences of which he had been found not guilty.", "85. The High Court upheld the challenge and quashed the decision on the basis that the decision-maker had not taken reasonable steps to ascertain whether the allegations that had been made had been true and why the claimant had been acquitted. On the facts of the case it was clear that the Magistrates’ Court had acquitted the claimant because it took the view that he was innocent in the full sense of the word. The High Court observed:", "“I stress, however, that this decision is very specific to the facts of this case. I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted. The circumstances surrounding the acquittal are all important. There will be instances where an alleged offender is acquitted but only because the Magistrates (or Jury) entertain a reasonable doubt about the alleged offender’s guilt. The tribunal of fact may harbour substantial doubts. In such circumstances, however, it might well be perfectly reasonable and rational for a Chief Constable to conclude that the alleged offender might have committed the alleged offence ...”", "4. R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin)", "86. The Divisional Court considered a claim by an individual aggrieved by the disclosure in an ECRC of three allegations of sexual abuse of autistic persons in his care, where he had been interviewed by the police about one of the allegations but no charges were pursued.", "87. The judge conducted a detailed analysis of the allegations and concluded:", "58. It follows that in my judgment the decision to disclose the three allegations was lawful ... I recognise how painful such disclosure must be for the claimant, and how damaging its consequences may be. It seems to me, however, that all this follows inevitably from the terms of the legislation and is fully in line with the legislative policy as explained by Lord Woolf in R (X) v Chief Constable of the West Midlands Police. In relation to employment with children or vulnerable adults, it is information of which an employer should be aware. It is then for the employer to decide whether the employment of the person concerned involves an unacceptable risk.", "59. I am troubled by the fact that the claimant’s new employer in this case apparently operated a blanket policy of insisting on a ‘clean’ certificate, so that the disclosure of the three allegations led inevitably to the claimant’s dismissal on the transfer of his employment to that employer on a reorganisation at work. The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a ‘clean’ certificate leaves no room for taking into account what the employee may have to say. That is a matter of particular concern if it leads to the dismissal of an existing employee or of someone whose employment is transferred to the employer on a reorganisation. On the basis of the limited material available to the court, I confess to some surprise that the claimant was advised in this case that he had no reasonable prospect of success in a claim for unfair dismissal resulting from the application of such a policy ...”", "5. Chief Constable of Humberside & Others v The Information Commissioner & Another [2009] EWCA Civ 1079", "88. The question for examination by the Court of Appeal in its judgment handed down on 19 October 2009 was whether certain principles of the Data Protection Act 1998, namely principle 1 (personal data shall be processed fairly and lawfully), principle 3 (personal data shall be adequate relevant and not excessive) and principle 5 (personal data shall not be kept for longer than necessary), required the police to delete certain old convictions from the PNC. Lord Justice Waller noted at the outset:", "“1. ... The complaint in each case follows the disclosure of the convictions pursuant to a request by the ... CRB ... or, in one case, a request by one of the individuals herself, and it is important to emphasise at the outset that the complaint about retention flows in reality not from the retention itself but from the fact that, if retained, disclosure may follow. In respect of each of those convictions the Information Tribunal (the IT) has upheld the view of the Information Commissioner (the IC) that they should be deleted. However the ramifications are far wider than these five cases since, if these convictions must be deleted and if the police are to treat people consistently, the application of any viable system of weeding would probably lead to the deletion of around a million convictions.”", "89. He clarified the effect of the “stepping down” policy on disclosure in the context of criminal records checks, noting:", "“3. ... [I]t seems that both the Police and the IT understood that the result of stepping down would be that in certain circumstances the CRB would not have access to ‘stepped down’ convictions when preparing ‘standard disclosure certificates’ (as opposed to ‘enhanced disclosure certificates’) under Part V of the Police Act 1997. It is now accepted that that is not accurate. Under Part V of the 1997 Act ‘stepped down’ convictions are required to be revealed even on ‘standard disclosure certificates’, and thus although ‘stepping down’ prevents disclosure in many circumstances to persons other than the police, it does not prevent disclosure by the police in many others including the circumstances under which disclosure was made of four of the convictions the subject of this appeal.”", "90. Waller LJ noted that PNC information was used for employment vetting. He observed that CRCs and ECRCs would contain details of spent convictions which, he indicated, provided an important protection to employers. He noted:", "“... Some emphasis is placed by [counsel for the intervenor] that no statutory obligation is placed on the police to retain data under the Police Act 1997, but on any view Part V of the Act seems to recognise that the data will be there to be provided.”", "91. Taking as an example the case of one of the individuals concerned, Waller LJ considered the purposes for which the data had been recorded:", "“35. ... [I]t seems to me to be clear that one of the purposes for which the police retained the data on the PNC was to be able to supply accurate records of convictions to the CPS, the courts and indeed the CRB. ‘Rendering assistance to the public in accordance with force policies’ clearly covers the roles the police seek to perform in those areas and if there was any doubt about it the recipients include ‘Employers’ ‘the courts’ and ‘law enforcement agencies’.”", "92. He continued:", "“36. If one then poses the question whether the Data being retained is excessive or being retained for longer than necessary for the above purposes there is, it seems to me, only one answer, since for all the above a complete record of convictions spent and otherwise is required. That seems to me to be a complete answer to the appeal ...”", "93. Even if a narrower approach to police purposes were adopted, Waller LJ considered that the retention of the data was lawful under the DPA 1998. He noted:", "“43. ... If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter ... It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.”", "94. He continued:", "“44. I emphasise the word ‘retention’ because if there is any basis for complaint by the data subjects in this case, it seems to me to relate to the fact that in certain circumstances this information will be disclosed, but that is because Parliament has made exceptions to the Rehabilitation of Offenders Act. What is more, the circumstances in which there will be disclosure are circumstances in which the Data Subject would be bound to give the correct answer if he or she were asked. It is not as it seems to me the purpose of the 1998 [Data Protection] Act to overrule the will of Parliament by a side wind.”", "95. As to the complaint of one of the individuals concerned, S.P., that she had been assured in 2001 that the reprimand she had received aged thirteen would be removed from her record when she was eighteen if she did not get into anymore trouble and that the retention of the reprimand on the PNC after her eighteenth birthday was therefore unfair under the first data protection principle, Waller LJ, with whom Lord Justice Hughes agreed, held:", "“48. ... It seems to me that if it is fair to retain convictions under the new policy it does not become unfair to do so simply because the data subject was told of what the policy then was when being convicted or reprimanded. Furthermore, the deletion of this reprimand leading (as it would have to) to deletion of many others would be likely to prejudice the prevention and detection of crime and the apprehension or prosecution of offenders. The court and the CPS need the full information, never mind the fact the police are of the view that for their operational purposes they need the same.”", "96. Finally, on the argument raised by the individuals that retention of the data violated Article 8 of the Convention, Waller LJ indicated that he was not persuaded that Article 8 § 1 was engaged at all in relation to the retention of the record of a conviction. He was of the view that disclosure might be another matter, but reiterated that the appeal before him was not about disclosure. Even if his conclusion were wrong, he considered that the processing was in accordance with the law and necessary in a democratic society.", "97. On the Article 8 question, Lord Justice Carnwath noted as follows:", "“78. ... [W]ith regard to the Human Rights Convention, it is significant that the [Data Protection] Directive is itself specifically linked to the need to respect ‘fundamental rights and freedoms, notably the right to privacy...’, and that it refers in that respect to the European Convention on Human Rights (Preamble (2), (10)). This suggests that the maintenance of such a complete register of convictions, as implicitly endorsed by Article 8(5) of the Directive, should not normally raise any separate issues under the Convention.”", "98. He referred to “considerable doubt” as to whether recording the mere fact of a conviction could ever engage Article 8 in any case, distinguishing S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR, on the basis that it concerned the data of unconvicted persons and was, in his view, accordingly no authority for the proposition that a record of the mere fact of a conviction engaged Article 8.", "99. As regards the specific facts of S.P.’s case, given the assurance that she had received from the police that the reprimand would be removed when she reached the age of 18 and the manner in which the police had sought to justify their subsequent decision not to do so, Carnwath LJ considered that the decision of the first-instance tribunal that the retention of the data was unfair and in breach of the first data protection principle could not be faulted in law.", "100. Permission to appeal was refused by the Supreme Court on 24 February 2010.", "6. R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3", "101. In its judgment in R (L), handed down on 29 October 2009, ten days after the Court of Appeal’s ruling in Chief Constable of Humberside, the Supreme Court considered the Court of Appeal’s ruling in R (X) (see paragraphs 77-81 above) in the context of a case concerning disclosure of police information under the predecessor of section 113B(4) in the context of an ECRC. The appellant had secured a job as a playground assistant and the school required an ECRC to which the appellant consented. The ECRC disclosed that the appellant had been suspected of child neglect and non-cooperation with social services. The appellant had not been charged with, or convicted of, any offence, nor had she received a caution. Her employment was subsequently terminated and she brought judicial review proceedings, arguing that the disclosure of the information had violated her rights under Article 8. At issue was whether the requirement in the 1997 Act that chief officers provide information which “might be relevant” and “ought to be disclosed” when an ECRC was requested, was proportionate.", "102. As to whether Article 8 was engaged by the mere retention of data, after reviewing the case-law of this Court, Lord Hope indicated (at paragraph 27):", "“This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute ... It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant’s ECRC was of that kind.”", "103. He therefore considered that decisions taken by chief constables in the context of ECRCs were likely to fall within the scope of Article 8 in every case as the information in question was stored in files held by the police. He noted that the approach taken by the police to questions of disclosure at the time was modelled on Lord Woolf CJ’s ruling in R (X) (see paragraphs 77-81 above).", "104. Lord Hope indicated that the approach to disclosure under the applicable legislation involved a two-part test. In the first instance, the chief constable was required to consider whether the information might be relevant. Having concluded in the affirmative, he then had to turn his mind to the question whether the information ought to be included in the certificate. This required consideration of whether there was likely to be an interference with the individual’s private life and, if so, whether the interference could be justified. This raised the question whether the Court of Appeal in R (X) had struck the balance between the competing interests in the right place.", "105. Turning to examine the approach of the Court of Appeal in that case, Lord Hope first endorsed the views expressed there as to the compatibility of the legislation itself with Article 8 (see paragraph 77 above). He noted that, as in that case, the appellant in the present case did not argue that the legislation itself contravened Article 8 and accepted that it could be interpreted and applied in a manner that was proportionate. Lord Hope continued:", "“42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place ... [T]he use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) [now section 113B(4) – see paragraphs 55 above] information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ...”", "106. He noted in this regard that it was no answer to these concerns that the ECRC was issued on the application of the persons concerned. While he accepted that they could choose not to apply for a position of the kind that required a certificate, he considered that they had, in reality, no free choice in the matter if an employer in their chosen profession insisted, as he was entitled to, on an ECRC. He observed:", "“43. ... The answer to the question whether there was any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.”", "107. Lord Hope considered that the effect of the approach taken to the issue in R (X) had been to tilt the balance against the applicant too far. The correct approach, he explained, was that neither consideration had precedence over the other. He proposed that the relevant guidance to officers making a decision on disclosure under the provisions should be amended:", "“45. ...so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption was for disclosure unless there was a good reason for not doing so.”", "108. Lord Neuberger, who indicated that his judgment largely echoed that of Lord Hope, was also firmly of the view that Article 8 was engaged in the case, noting:", "“68. ...An enhanced criminal record certificate ... which contains particulars of any convictions (potentially including spent convictions) or cautions ..., or any other information ‘which might be relevant’ and which ‘ought to be included in the certificate’ ...will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those ‘regularly caring for, training, supervising or being in sole charge of’ children), an adverse ECRC ... will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields ...”", "109. He further observed:", "“69. ... Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant ...”", "110. Lord Neuberger also rejected the argument that Article 8 was not engaged because under the relevant legislation the claimant herself had requested the ECRC, noting:", "“73. ... Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person’s Convention right, it cannot avoid the engagement of the right by including in the fetter’s procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by-pass Convention rights.”", "111. He considered the aim of Part V of the 1997 Act, namely to protect vulnerable people, to be unexceptionable and explained how this was achieved by the requirement that relevant information available to the police about an applicant for a post involving responsibility for such vulnerable people be provided to the prospective employer. He continued:", "“75. ... It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC ... will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section ...”", "112. Turning to consider whether there was an infringement of Article 8 in the case, Lord Neuberger was prepared to proceed on the basis that there was “nothing objectionable” in the requirement that an ECRC had to contain details of convictions and cautions, even though, he noted, it might on occasions be “rather harsh” on the person concerned. However, like Lord Hope, he was of the view that where other information provided by the chief constable was concerned, the decision on whether to include it in an ECRC had to incorporate a proportionality assessment and it might well be necessary to seek the prior views of the person concerned.", "113. Lords Saville and Brown agreed with Lord Hope and, in the case of Lord Brown, Lord Neuberger.", "114. Lord Scott, in the minority, considered (at paragraph 57) that if the compilation and retention of the information was unexceptionable, and the information was relevant to the appellant’s suitability for the employment sought, then it was difficult to see on what basis her attack on the inclusion of the information in the ECRC could succeed. He continued:", "“58. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7).”", "115. Lord Scott accordingly endorsed the approach taken in R (X).", "7. R (C) v Chief Constable of Greater Manchester and Secretary of State for the Home Department [2010] EWCA 1601 and [2011] EWCA Civ 175", "116. Following R (L), the High Court quashed a decision by the chief constable to disclose details of a sexual allegation made against the claimant in an ECRC on grounds of procedural impropriety, because the claimant’s views had not been sought and because the decision to disclose was disproportionate to the level of risk disclosed. The court granted an injunction to prevent future disclosure.", "117. On appeal, the Court of Appeal upheld the decision to quash the disclosure on grounds of procedural impropriety but, emphasising that the primary decision-maker was the chief constable who would take a fresh decision on the basis of the material now before him, allowed the appeal against the injunction.", "8. R (F and another) v Secretary of State for the Home Department [2010] UKSC 17", "118. In R (F and another) v Secretary of State for the Home Department, the respondents were convicted sex offenders subject to notification requirements under section 82 of the Sexual Offences Act 2003 (SOA 2003), whereby all those sentenced to 30 months’ imprisonment or more for a sexual offence are registered on the sex offenders register and subject to a lifelong duty to notify police of their living and travelling arrangements, with no right for review. The question in the appeal was whether the absence of any right to review rendered the notification requirements disproportionate to the legitimate aims they sought to pursue and thus incompatible with Article 8 of the Convention. Lord Phillips noted:", "“41. The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with offenders’ article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The issue is whether the notification requirements, as embodied in the 2003 Act, and without any right to a review, are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The respondents’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.”", "119. He found that the notification requirements were capable of causing significant interference with Article 8 rights. However, he continued (at paragraph 51):", "“... This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.”", "120. He concluded:", "“56. No evidence has been placed before this court or the courts below that demonstrates that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can.", "57. ... I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable.", "58. For these reasons I have concluded that ... the notification requirements constitute a disproportionate interference with article 8 rights because they make no provision for individual review of the requirements.”", "121. The Supreme Court issued a declaration that section 82 of the SOA 2003 was incompatible with the Convention.", "III. RELEVANT COUNCIL OF EUROPE TEXTS", "A. Data protection", "122. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides:", "“Personal data undergoing automatic processing shall be:", "a. obtained and processed fairly and lawfully;", "b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c. adequate, relevant and not excessive in relation to the purposes for which they are stored;", "...", "e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”", "123. Article 6 deals with “special categories of data” and stipulates that personal data relating to criminal convictions may not be processed automatically unless domestic law provides appropriate safeguards.", "124. Pursuant to Article 9, derogations are permitted where they are necessary in a democratic society in the interests of, inter alia, public safety, the suppression of criminal offences or protecting the rights and freedoms of others.", "125. The Committee of Ministers adopted Recommendation No. R (87) 15 regulating the use of personal data in the police sector on 17 September 1987, in the context of a sectoral approach to data protection intended to adapt the principles of the Data Protection Convention to the specific requirements of particular sectors. An Explanatory Memorandum (“EM”) sets out the background to the Recommendation’s adoption, and notes at paragraph 4:", "“Given the increased activities of police forces in the lives of individuals necessitated by new threats to society posed by terrorism, drug delinquency, etc as well as a general increase in criminality, it was felt even more necessary to establish clear guidelines for the police sector which indicate the necessary balance needed in our societies between the rights of the individual and legitimate police activities when the latter have recourse to data-processing techniques.”", "126. It further observes that concerns which prompted the elaboration of the Data Protection Convention in regard to the increasing recourse to automation in all sectors are most acutely felt in the police sector, for it is in this domain that the consequences of a violation of the basic principles laid down in the Convention could weigh most heavily on the individual.", "127. As regards the derogations permitted under Article 9 of the Data Protection Convention, the EM reiterates that they are only permitted if provided for by law and necessary in a democratic society in the interests of, inter alia, the “suppression of criminal offences”. It continues:", "“20 ... Bearing in mind that the European Court of Human Rights in its judgment in the Malone Case laid down a number of strict criteria (precision, certainty, foreseeability, etc), it is thought that the principles contained in this non-binding legal instrument can provide helpful guidance to the legislator as to the interpretation of the derogation in Article 9, paragraph 2, of the Data Protection Convention when regulating the collection, use, etc of personal data in the police sector. This point should be borne in mind, for example, in the context of paragraph 2.1.”", "128. Principle 1.1 of the Recommendation provides:", "“Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation.”", "129. The EM emphasises the importance of such supervisory authority enjoying genuine independence from police control.", "130. Principle 2 concerns collection of data and includes the following:", "“2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.”", "131. The EM explains that Principle 2.1 excludes an “open-ended, indiscriminate” collection of data by the police and expresses a “qualitative and quantitative” approach to Article 5(c) of the Data Protection Convention. The Principle attempts to fix the boundaries to the exception in Article 9 of the Data Protection Convention by limiting the collection of personal data to such as are necessary for the prevention of a real danger or the suppression of a specific criminal offence, unless domestic law clearly authorises wider police powers to gather information.", "132. Storage of data is addressed in Principle 3. Principle 3.1 provides that as far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. The EM explains:", "“49. Personal data when collected will subsequently be the subject of a decision concerning their storage in police files. Principle 3.1 addresses the requirements of accuracy and storage limitation. The data stored should be accurate and limited to such data as are necessary to enable the police to perform its lawful tasks ...", "50. This principle is important given the fact that the commitment of personal data to a police file may lead to a permanent record and indiscriminate storage of data may prejudice the rights and freedoms of the individual. It is also in the interests of the police that it has only accurate and reliable data at its disposal.”", "133. Principle 5 deals with communication of data. Principle 5.1 permits communication of data between police bodies, to be used for police purposes, if there exists a legitimate interest for such communication within the framework of the legal powers of these bodies. In respect of communication to other public bodies, Principle 5.2 stipulates:", "“5.2.i. Communication of data to other public bodies should only be permissible if, in a particular case:", "a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if", "b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this.", "5.2.ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case:", "...", "b. the communication is necessary so as to prevent a serious and imminent danger.”", "134. As to the possibility of communicating indispensable data to public bodies under Principle 5.2.i.b, the EM explains that it is recognised that certain public bodies engage in activities which are similar in some ways to police activities and that information held by the police may be of value to those activities. Regarding the possibility of communicating data to prevent a serious and imminent danger, the EM recalls that this will only “exceptionally” allow communication and that the danger must be both serious and imminent, given that Principle 5.2.ii is only concerned with exceptional cases justifying communication.", "135. As regards communication to private parties, Principle 5.3 provides:", "“5.3.ii. The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority.", "5.3.ii. Communication to private parties is exceptionally permissible if, in a particular case:", "...", "b. the communication is necessary so as to prevent a serious and imminent danger.”", "136. The EM acknowledges that it may occasionally be necessary for the police to communicate data to private bodies, although not on the same scale as envisaged in the case of mutual assistance between the police and other public bodies. It continues:", "“Once again, Principle 5.3 treats these as exceptional cases, requiring a clear legal obligation or authorisation (for example the consent of a magistrate), or the consent of the supervisory authority. In the absence of these factors, Principle 5.3 repeats the same conditions set out in Principle 5.2.ii.”", "137. Concerning Principle 5 generally, the EM notes:", "“Outside the framework of communication within the police sector, the conditions governing transfer are stricter, given the fact that the communication may be for non-police purposes stricto sensu. The exceptional nature of the circumstances allowing communication set out in Principles 5.2 and 5.3 is stressed. It will be noted that circumstances a and b in both Principles 5.2.ii and 5.3.ii are specifically referred to as ‘exceptional’.”", "138. Principle 7 deals with length of storage and updating of data. Pursuant to Principle 7.1 measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. It further provides:", "“... For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”", "139. The EM explains that it is essential that periodic reviews of police files are undertaken to ensure that they are purged of superfluous or inaccurate data and kept up to date. It notes that Principle 7.1 lists certain considerations which should be borne in mind when determining whether or not data continue to be necessary for the prevention and suppression of crime or for the maintenance of public order.", "140. Principle 7.2 provides:", "“Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.”", "141. The EM notes that domestic law may authorise the means for laying down such rules or that, alternatively, rules could be formulated by the supervisory authority itself in consultation with police bodies. It explains that where the police themselves elaborate rules, the supervisory authority should be consulted as to their content and application.", "B. Rehabilitation of offenders", "142. Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21 June 1984) notes in its preamble that any use of criminal record data outside the criminal trial context may jeopardise the convicted person’s chances of social reintegration and should therefore be restricted “to the utmost”. It invited member States to review their legislation with a view to introducing a number of measures where necessary, including provisions limiting the communication of criminal record information and provisions on rehabilitation of offenders, which would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law.", "IV. RELEVANT EUROPEAN UNION TEXTS", "A. The Treaty on the Functioning of the European Union (“TFEU”)", "143. The TFEU sets out in Article 16 the right to the protection of personal data concerning them. It requires the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law; and the rules relating to the free movement of such data.", "B. Charter of Fundamental Rights of the European Union (2000)", "144. The EU Charter of Fundamental Rights includes the right to protection of personal data. Article 8 of the Charter reads:", "“1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.", "3. Compliance with these rules shall be subject to control by an independent authority.”", "C. Other instruments", "145. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Data Protection Directive”) provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows Member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13).", "146. Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (“the Data Protection Framework Decision”) was adopted on 27 November 2008. Its purpose is to ensure a high level of protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data in the framework of cross-border police and judicial cooperation in criminal matters while guaranteeing a high level of public safety.", "147. Article 3 of the Data Protection Framework Decision provides that personal data may be collected by the competent authorities only for specified, explicit and legitimate purposes and may be processed only for the same purpose for which data were collected. Processing of the data must be lawful and adequate, relevant and not excessive in relation to the purposes for which they are collected. Article 5 provides that appropriate time-limits must be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures must be in place to ensure that these time-limits are observed.", "148. In January 2012 the European Commission published proposals, based inter alia on Article 16 TFEU, for the comprehensive reform of the EU’s data protection framework. The proposals are currently under negotiation.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "149. The applicant complained under Article 7 about the retention and disclosure of her caution data, referring in particular to the change in policy subsequent to the administration of the caution, which has led to her caution being retained for life, and the impact on her employment prospects.", "150. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44; Tătar and Tătar v. Romania (dec.), no. 67021/01, § 47, 5 July 2007; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). By virtue of the jura novit curia principle, it has, for example, previously considered of its own motion complaints under Articles not relied on by the parties (see, for example, Scoppola (No. 2), cited above, §§ 54-55; B.B. v. France, no. 5335/06, § 56, 17 December 2009 and Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 52-53, 2 November 2010). The Court considers that in the light of its case-law (see, for example, Leander v. Sweden, 26 March 1987, Series A no. 116; S. and Marper, cited above; and B.B., cited above) it is appropriate to examine the applicant’s complaints first from the standpoint of Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "151. The Government contended that no issue under Article 8 arose.", "A. Admissibility", "1. The parties’ submissions", "(a) The Government", "152. The Government invited the Court to declare the application inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies, emphasising the importance of allowing the State the opportunity to prevent or put right the alleged violations.", "153. They noted that the applicant had not attempted to bring any legal proceedings to challenge the police retention of the caution or its inclusion on the criminal record certificate. Her reference to an application for legal aid was in respect of a potential claim against the Trust for failing to employ her, not a challenge to the retention or disclosure of the caution data. The advice from her lawyer in 2006 related to whether the issue of the caution itself could be revisited and not the legality of its retention beyond the five-year period.", "154. The Government emphasised that as a matter of both principle and precedent, judicial review was available for an aggrieved individual to challenge police retention of the data in question. They contended that in light of the Human Rights Act (see paragraphs 72-76 above), the applicant could have pursued any allegation of a violation of a Convention right. She could have made a similar complaint to the Information Commissioner under the Data Protection Act (see paragraph 71 above). Neither of these remedies had been pursued. As a consequence of her failure, the domestic courts had not been able to examine her complaints and to take action if they agreed that a violation had occurred. The Government referred to the judicial review cases listed above concerning ECRCs as well as the Court of Appeal’s consideration in Chief Constable of Humberside of the retention of police information as evidence that the courts in England adopted a careful and considered analysis of the competing rights. In particular, the recent case of R (L) was evidence that the courts were willing to give careful scrutiny to the lawfulness and proportionality of retention and disclosure of information under the 1997 Act by reference to Convention rights. The same general principles would be expected to be applied by the Northern Irish courts.", "155. Then Government further explained that in any judicial review proceedings, the defendant, who would be the relevant chief constable, would be entitled to adduce evidence to explain why a particular retention decision was made, and what ameliorating measures might be operated.", "(b) The applicant", "156. The applicant emphasised that the burden of proof was on a Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time. Further, she noted that the rule of exhaustion was neither absolute nor capable of being applied automatically: it had to be applied with some degree of flexibility and without excessive formalism in the human rights context.", "157. The applicant also disputed the suggestion that a remedy was provided by the Data Protection Act. She noted the possibility for an individual to check the accuracy of data held about them and to seek amendment of inaccurate data, but emphasised that she did not dispute the accuracy of the data in her case.", "158. She explained that she had sought legal advice on the merits of judicial review and had applied for legal aid, which had been refused. In her view this had determined her attempt to exhaust domestic remedies.", "2. The Court’s assessment", "159. The Court observes that the applicant’s complaint to the Court was lodged following the withdrawal of an offer of employment which had been made to her after she had disclosed, and the Criminal Records Office had verified, the existence of a caution. The Court is satisfied that the job offer was withdrawn on account of the disclosure of the caution; the Government have not sought to argue otherwise. The applicant complained about the change in policy regarding retention of caution data, which means that it would now be retained for life, and the impact of this change on her employment prospects. It is clear that for as long as her data are retained and capable of being disclosed, she remains a victim of any potential violation of Article 8 arising from retention or disclosure. As Waller LJ noted in Chief Constable of Humberside, the complaint about retention in reality flows not from the retention itself but from the fact that, if retained, disclosure may follow (see paragraph 94 above). It is clear that if the applicant was able to have her data deleted, then it would no longer be available for disclosure. Alternatively, a remedy which prevented the disclosure of the data might have provided adequate redress. The Court’s examination of whether she has exhausted available remedies must therefore necessarily encompass alleged past, present and potential future violations in respect of the retention and disclosure of the applicant’s data.", "160. In this regard the Court observes that the framework governing retention and disclosure of criminal record data in Northern Ireland has undergone a number of changes, both legislative and policy-based, since the administration of the applicant’s caution in 2000. As the applicant’s complaint is of a continuing nature, the Court must consider the Government’s objection in the context of the different applicable regimes.", "161. It is appropriate to address first the applicant’s contention that she sought legal advice and legal aid with a view to challenging the retention and disclosure of her caution data. In this regard, the Court notes, as the Government pointed out, that the legal advice she received from her solicitors in 2006 concerned the prospects of a challenge to the issue of the caution, and not its retention or disclosure (see paragraph 15 above). Similarly, as the Government explained, the applicant’s attempt to secure legal aid in 2007 was in respect of a potential claim against the Trust for refusing to employ her, and not against the chief constable for retention and disclosure of her caution data (see paragraph 17 above). The Court therefore accepts that she has not sought to pursue legal proceedings against the police in respect of the retention or disclosure of her data.", "162. Article 35 § 1 requires that the applicant exhaust available and effective domestic remedies before seeking redress before this Court. The Court recalls that where the Government claim non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Kennedy v. the United Kingdom, no. 26839/05, § 109, 18 May 2010).", "163. The application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. The Court has accordingly recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007 ‑ IV; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010).", "164. The Government argued that the applicant could have brought legal proceedings to challenge the police retention of the caution or its inclusion in any criminal record certificate. Such an action could have proceeded by way of judicial review or by way of a complaint to the Information Commissioner under the Data Protection Act. In support of their submissions, the Government have referred to a number of cases decided by the domestic courts as illustrative of the courts’ jurisdiction and willingness to assess compliance of retention or disclosure of criminal record data with Article 8 of the Convention (see paragraphs 77-121 above).", "165. The Court observes, first, that the majority of these cases concerned only disclosure, and not retention, of criminal record data. Second, the disclosure in the cases related to other “information” pursuant to section 113B(4) (or its predecessor section) of the 1997 Act (see paragraph 55 above), and not disclosure of caution or conviction information either under common law police powers or pursuant to section 113A(3) or section 113B(3) of the Act (see paragraphs 49 and 54 above). Third, none of the cases to which the Government have referred were brought in respect of the legal framework in place in Northern Ireland. It is with these considerations in mind that the Court now turns to examine, in the circumstances of the applicant’s case and in light of the judgments identified, whether either of the remedies proposed by the Government was an effective one available in theory and in practice, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.", "166. The Court notes that in 2006 retention and disclosure of caution data in Northern Ireland were carried out on the basis of the common law powers of the police (see paragraphs 24 and 47 above), and that the general principles of the Data Protection Act applied to the processing of any data. Guidance was available in the form of the MOPI Guidance (see paragraph 36-41 and 58-59 above) and the ACPO Guidelines (see paragraphs 42-46 and 60 above); it is not clear whether the 2005 Code of Practice was adopted by the PSNI (see paragraphs 33-35 above).", "167. The guidance demonstrates that in deciding whether to retain data, the police enjoy a certain degree of discretion (see paragraphs 37, 39-41 and 46 above). However, the MOPI Guidance refers to a “presumption” in favour of retention where the data are considered necessary and recommends that in cases concerning serious offences, records be retained until the subject has reached one hundred years of age (see paragraphs 39-40 above). The ACPO Guidelines specify in their general principles that records are to be retained until a subject reaches one hundred years of age; it appears that no distinction is drawn between offences for the purpose of the length of the retention period (see paragraph 45 above). Although the Guidelines refer to the discretion enjoyed by chief constables in “exceptional circumstances” to authorise deletion of data, the circumstances envisaged are very limited: Appendix 2 indicates that exceptional cases will be rare and gives the example of where it is established beyond reasonable doubt that no offence existed (see paragraph 46 above).", "168. As regards disclosure of criminal record information for employment purposes, the MOPI Guidance refers to the statutory scheme for disclosure created by the 1997 Act and to the need for a balancing exercise to be conducted in the context of the common law powers of the police to disclose data (see paragraphs 58-59 above). The ACPO Guidelines set out the “stepping down” policy of limiting access to certain data after a certain time period has elapsed; however, it appears that the “stepping down” policy does not apply to cases concerning requests for criminal record checks (see paragraphs 60 and 89 above).", "169. In these circumstances, and having regard in particular to the provisions of the Human Rights Act (see paragraphs 72-76 above) and the Data Protection Act (see paragraphs 65-71 above), the Court is satisfied that the applicant could in theory have sought to commence judicial review proceedings in respect of a decision to retain or disclose her caution data or could have made a complaint to the Information Commissioner, seeking to have the caution data deleted or to prevent its disclosure. In any such proceedings she could have sought to rely on the data protection principles and Article 8 of the Convention. It is therefore necessary to examine whether such proceedings offered reasonable prospects of success.", "170. First, as regards retention of criminal record data, no judgment handed down by late 2006 or early 2007 in which individuals sought to challenge retention of criminal record data, and in particular data relating to a caution, relying on the Convention or on the data protection principles has been brought to the attention of the Court. Given the nature of the guidance on retention to which the Court has referred above (see paragraph 167 above) and the generous approach to the powers of the police to retain data set out therein, this is not surprising. The potential for a successful challenge to the exercise of the chief constable’s discretion to retain data, or indeed to the policy itself, was further diminished by the position of the domestic courts at the time, which tended to consider that Article 8 did not apply to mere retention of data or, if it did, that any interference was minor (see the House of Lords’ judgment regarding retention of DNA data which was challenged in S. and Marper, cited above, summarised at §§ 15-25 of that judgment).", "171. As regards a challenge to the disclosure of the caution data, the Court observes that in its 2004 judgment in R (X) dealing with disclosure under the 1997 Act of other “information” on an ECRC under the 1997 Act, the Court of Appeal took a robust approach to the exercise of discretion by the chief constable in choosing to disclose information in the context of a criminal record check. Lord Woolf CJ indicated that the chief constable was “under a duty” to disclose any information which might be relevant unless there was some good reason for not making the disclosure (see paragraph 79 above). He further found that the chief constable was not required to invite representations from the subject of the criminal record check before deciding what to include in the certificate (see paragraph 80 above). Specifically on the question of Article 8 considerations, the Court of Appeal expressed the view that it was difficult to see how a chief constable’s decision to disclose could ever be challenged (see paragraph 81 above). The Court observes that the case was decided against the backdrop of a clearly-defined legislative framework (i.e., the 1997 Act, which was in force in England and Wales at the time) which the court took to be in compliance with Article 8 (see paragraph 78 above). However, it considers that the court’s approach to the exercise of discretion is nonetheless indicative of a wide discretion afforded to the police to decide on questions of disclosure and a rejection of any need for the participation of the data subject in the decision to disclose criminal record data. It is also relevant to emphasise that the applicant’s case did not concern disclosure of other information under section 113B(4) but of caution data, the mandatory disclosure of which required by the 1997 Act reveals the view of the legislature that such information will always be relevant. It is significant that the Government have not pointed to any case decided at that time in which an individual had successfully challenged a decision to disclose criminal record data, either concerning convictions and caution data or in respect of section 113B(4) information. Further, no details of any specific guidance setting out the factors which had to be taken into account in making any disclosure decision in the employment context in Northern Ireland at the time have been provided to the Court.", "172. Having regard to the continuing nature of the applicant’s complaint about the retention and potential future disclosure of her data (see paragraph 159 above), it is also relevant to examine developments which have occurred since the applicant’s case was lodged.", "173. First, as regards retention of criminal record data, in 2009 the Court of Appeal handed down its judgment in the case of Chief Constable of Humberside, which considered whether the Data Protection Act or Article 8 required deletion of old convictions following a decision by the Information Commissioner that it did. While the case was brought by a number of individuals seeking to have their own data deleted, Waller LJ emphasised that the ramifications of the cases were far wider than the cases themselves, since if the convictions at issue were to be deleted and the police were to treat people consistently, the result would be the deletion of around one million convictions (see paragraph 88 above). It follows that the scope of the appeals went beyond the personal interests of the individuals directly involved in the proceedings so that, in that sense, the decision of the Court of Appeal was of more general application and affected others, such as the applicant, in a similar position.", "174. Waller LJ considered the argument that there was no statutory obligation on the police to retain data under the Police Act, but noted that “on any view” the Act seemed to recognise that the data would be there to be provided (see paragraph 90 above). He was of the opinion that in assessing whether the data retained were excessive or were being retained for longer than necessary, there was “only one answer” since in order to be able to supply accurate records of convictions, a complete record of conviction, spent or otherwise, was required. This was, he said, a “complete answer to the appeal” (see paragraph 92 above). Even if a narrower approach to police purposes were to be adopted, Waller LJ indicated that the retention of the data would remain lawful because if the police said rationally and reasonably that convictions, however old or minor, had a value in the work they did, then that should be the end of the matter (see paragraph 93 above). As to whether the retention of data violated Article 8 of the Convention, Waller LJ doubted whether Article 8 applied but, even if it did, considered that the retention was in accordance with the law and necessary in a democratic society (see paragraph 96 above). Carnwath LJ also expressed some doubt as to whether Article 8 applied to the recording of a conviction (see paragraph 98 above).", "175. It is also of relevance that one of the individuals in that case sought to argue that continued retention of data relating to a reprimand was unfair because she had been assured that it would be removed when she reached the age of eighteen. Waller LJ, with whom Hughes LJ agreed, dismissed this argument, indicating that if it was fair to retain data under the new policy then it did not become unfair simply because the individual had been told what the policy was at the time she was reprimanded. He further referred to the fact that the deletion of her reprimand would lead to the deletion of many others and would therefore be likely to prejudice the prevention and detection of crime and the apprehension and prosecution of offenders (see paragraph 95 above).", "176. Following the Court of Appeal’s findings in Chief Constable of Humberside, and the refusal of leave by the Supreme Court (see paragraph 100 above), it is not clear how any proceedings commenced or complaint lodged by the applicant in order to challenge the retention of her caution data could seek to distinguish that case and thus offer her reasonable prospects of success in obtaining deletion of her data. The Government have not specified how she could have done so, nor have they clarified whether, in their view, in the light of that judgment, the judicial review remedy proposed by them offered to the applicant “reasonable prospects of success” in respect of the continued retention of her data.", "177. Second, as regards the disclosure of the applicant’s data, the position changed significantly with the entry into force in Northern Ireland of the relevant provisions of the Police Act 1997. While the applicant does not allege that her data have been disclosed pursuant to these provisions, as the Court has noted above her complaint clearly encompasses the continuing threat of disclosure arising from the fact that her data have been retained (see paragraph 159 above). Sections 113A(3) and 113B(3) impose a mandatory obligation to disclose data pertaining to cautions held in central records, including cautions which are spent pursuant to legislation covering rehabilitation of offenders, in both CRCs and ECRCs (see paragraphs 49 and 54 above). Unlike the case of other information included in an ECRC pursuant to section 113B(4) (see paragraph 55 above), there is no discretion afforded to chief constables to choose to omit data pertaining to cautions, and any such data retained in central records must accordingly be disclosed.", "178. In these circumstances, the Court is satisfied that a challenge to the disclosure of caution data following the entry into force of the 1997 Act in Northern Ireland would necessarily have to proceed by way of a challenge to sections 113A and 113B themselves. Pursuant to the Human Rights Act, it would be open to the applicant to request that the provisions be interpreted in a manner compatible with the Convention or to seek a declaration of incompatibility pursuant to section 4(2) of Act (see paragraphs 72-73 above). The Government did not comment on whether, in their view, the relevant provisions could be interpreted in a compatible manner. In light of the information before it, and in particular given the clear terms of the legislation, the Court is not persuaded that the possibility of proceedings seeking a compliant interpretation under the Human Rights Act offered reasonable prospects of success. Although a declaration of incompatibility could be sought, there is no obligation following the making of such a declaration for the Government to amend the legislation and no entitlement to damages arises. The Court has therefore previously indicated that a declaration of incompatibility cannot be considered an effective remedy for the purposes of Article 35 § 1 of the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, ECHR 2008; and Kennedy, cited above, § 109) and it sees no reason to reach a different conclusion in the present case.", "179. Having regard to its review of the case-law above, to the failure of the Government to point to any case where a claim for judicial review of a decision to retain data or a complaint under the Data Protection Act regarding retention was successful, and to the provisions of sections 113A and 113B of the Police Act, the Court is not satisfied that the Government have demonstrated the existence of a remedy apt to afford the applicant redress for her complaints or offering reasonable prospects of success either in 2007, when she lodged her case with this Court, or at the present time. The Government’s objection is accordingly dismissed.", "180. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "181. The applicant argued that retention of the caution data engaged her right to respect for her private life because it had affected her ability to secure employment in her chosen field.", "182. Although she accepted that she had disclosed the caution herself, she had done so because she was obliged to and she considered that it was simply not arguable that she could have simply concealed the fact of the caution.", "183. She contended that it was necessary to examine the proportionality of the retention of the caution data on the criminal record for a prolonged period. For this purpose, individual circumstances had to be considered. While the applicant accepted that the change in policy was intended to secure the protection of children, the automatic nature of the rule was problematic. In the applicant’s case, the caution related to action taken in the heat of the moment in a family situation with very specific circumstances. There was no suggestion that the applicant represented a general threat to children and the continued retention of her data therefore did not, she contended, pursue the legitimate aim of protecting children. It was clear from the correspondence with the police that the only relevant factor was the code applied to her caution (see paragraph 14 above). She further argued that there was no review process to assess the necessity of continued retention of the caution data.", "(b) The Government", "184. The Government submitted that there was a distinction between the mere retention of data and their subsequent disclosure. They contended that mere retention had no particular effect on an individual or his rights under Article 8, referring to Waller LJ’s comments in Chief Constable of Humberside (see paragraph 97 above). They distinguished the Court’s judgment in S. and Marper on the grounds that the retention of the caution data in the present case did not concern any latent information about an individual of the type that might exist in cellular samples. In their view, retention of criminal record data by the police was an inevitable and commonplace feature of any effective and proper criminal justice system and did not interfere with Article 8 rights in any meaningful way.", "185. In any event the Government argued that both retention and disclosure of the caution data complied with Article 8 § 2 of the Convention. As regards retention, the Government emphasised that it occurred in accordance with the law in a number of well-established ways, pursuant to common law powers as police officers and their statutory powers of policing and in accordance with the principles set out in the Data Protection Act. It pursued the legitimate aims of public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Finally, retention was also necessary and proportionate. Retention was primarily a matter of judgment for the individual police force or Government in question in accordance with the margin of appreciation. However, retention was usually necessary and proportionate as it was important for the police to retain records of what had happened. They referred in this respect to the MOPI Guidance 2006 (see paragraphs 36-41 above).", "186. In respect of disclosure, the Government emphasised that in the applicant’s case it took place at her request and with her consent. However, and in any case, they argued that an assessment of the need for disclosure was a matter for the policy judgment of the State in question and fell within the margin of appreciation, regard being had to the objectives of the legislation and the relevance of the information to the employment being sought. An individual dissatisfied with disclosure in her case could challenge it by way of judicial review or pursue a complaint to the Information Commissioner. In the applicant’s case, the disclosure was made in accordance with the law and the applicant does not suggest otherwise. It took place for a legitimate purpose, namely the prevention of disorder and crime and the protection of the rights and freedoms of others. Finally it was both necessary and proportionate to the aim pursued. In this regard it was relevant that the applicant herself requested the disclosure; she was applying for a job working with children and vulnerable adults; she recognised the relevance of the incident to her employment; and the disclosure was factually correct.", "2. The Court’s assessment", "(a) Applicability of Article 8", "187. The Court reiterates that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1 (see Leander, cited above, § 48; Amann v. Switzerland [GC], no. 27798/95, §§ 65 and 69-70, ECHR 2000-II; Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000 ‑ V. See also S. and Marper, cited above, § 67; and Khelili v. Switzerland, no. 16188/07, § 55, 18 October 2011, on the applicability of Article 8 to the storage of data). Even public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities (see Rotaru, cited above, § 43; P.G. and J.H., cited above, § 57; Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 72, ECHR 2006 ‑ VII; and Cemalettin Canlı v. Turkey, no. 22427/04, § 33, 18 November 2008). This is all the more true where the information concerns a person’s distant past ( Rotaru, cited above, § 43; and Cemalettin Canlı, cited above, § 33). The question therefore arises in the present case whether the data relating to the applicant’s caution stored in police records constitute data relating to the applicant’s “private life” and, if so, whether there has been an interference with her right to respect for private life.", "188. The Court notes at the outset that the data in question constitute both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 (see paragraph 67 above). They also constitute “personal data” and are identified as a special category of data under the Council of Europe’s Data Protection Convention (see paragraphs 122-123 above). Further, the data form part of the applicant’s criminal record (see Rotaru, cited above, §§ 43-46; and B.B., cited above, § 57). In this regard the Court, like Lord Hope in R (L), emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected (see Rotaru, cited above, §§ 43-44). In the present case, the administration of the caution occurred almost twelve years ago.", "189. The Government referred several times in their written submissions to the fact that the applicant herself disclosed details of the caution to her prospective employer, and that the details she disclosed were merely confirmed by the Criminal Records Office. The Court observes that the posts for which the applicant applied were subject to vetting. In this context she was asked for details of her conviction and caution history and provided them as requested. The Court notes and agrees with the comments of Lords Hope and Neuberger in R (L), to the effect that the fact that disclosure follows upon a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with Article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure: as Lord Hope noted, consent to a request for criminal record data is conditional on the right to respect for private life being respected (see paragraph 106 above). The applicant’s agreement to disclosure does not deprive her of the protection afforded by the Convention (see paragraph 110 above).", "190. The Court therefore finds that Article 8 applies in the present case to the retention and disclosure of the caution, and that the retention and disclosure of the data amount to an interference with that Article.", "(b) Compliance with Article 8", "191. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society.", "192. The applicant did not make any submissions as to whether the interference was lawful. The Government contended that the interference was in accordance with the law.", "193. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru, cited above, §§ 52 and 55; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and S. and Marper, cited above, § 95).", "194. The Court recalls that in a case concerning covert listening devices, it found a violation of Article 8 because there existed no statutory system to regulate their use and the guidelines applicable at the relevant time were neither legally binding nor directly publicly accessible (see Khan v. the United Kingdom, no. 35394/97, § 27, ECHR 2000 ‑ V). In Malone, cited above, §§ 69-80, it found a violation of Article 8 because the law in England and Wales governing interception of communications for police purposes was “somewhat obscure and open to differing interpretations” and on the evidence before the Court, it could not be said with any reasonable certainty what elements of the powers to intercept were incorporated in legal rules and what elements remained within the discretion of the executive. As a result of the attendant obscurity and uncertainty as to the state of the law the Court concluded that it did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities (see also Liberty and Others, cited above, §§ 64-70).", "195. The Court considers it essential, in the context of the recording and communication of criminal record data as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures; as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see S. and Marper, cited above, § 99, and the references therein). There are various crucial stages at which data protection issues under Article 8 of the Convention may arise, including during collection, storage, use and communication of data. At each stage, appropriate and adequate safeguards which reflect the principles elaborated in applicable data protection instruments and prevent arbitrary and disproportionate interference with Article 8 rights must be in place.", "196. The provisions and principles of the Data Protection Act, the Data Protection Convention and Recommendation No. R (87) 15 are of some importance (see paragraphs 65-71 and 122-141 above). The Court emphasises in particular the terms of Principle 2.1 of the Recommendation, which excludes the open-ended and indiscriminate collection of data except where specific legislation is enacted to authorise such collection (see paragraph 130 above). The Court further draws attention to Principle 5 which sets out the need for a clear legal obligation or authorisation to communicate data to bodies outside the police in most cases, and the exceptional nature of any communication, in the absence of any such obligation or authorisation, intended to prevent serious and imminent danger (see paragraphs 133-135 above). Finally, the Court refers to the terms of Principle 7 of the Recommendation, which sets out a list of considerations to be taken into account when assessing the duration of any storage of data including rehabilitation, spent convictions, the age of the subject and the category of data concerned (see paragraph 138 above).", "197. The Court also notes that the Supreme Court in R (F and another) recognised the need for a right to review in respect of the lifelong notification requirements imposed pursuant to sex offenders’ legislation (see paragraph 120 above). In doing so, Lord Phillips noted that no evidence had been placed before the court that demonstrated that it was not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of reoffending. In light of the ensuing uncertainty, he considered that the imposition of notification requirements for life was not proportionate. The Court is of the view that similar considerations apply in the context of a system for retaining and disclosing criminal record information to prospective employers.", "198. The Court observes that the recording system in place in Northern Ireland covers not only convictions but includes non-conviction disposals such as cautions, warnings and reprimands. A significant amount of additional data recorded by police forces is also retained. It is clear from the available guidance that both the recording and, at least, the initial retention of all relevant data are intended to be automatic. It further appears from the policy documents provided that a general presumption in favour of retention applies, and that as regards data held in central records which have not been shown to be inaccurate, retention until the data subject has attained one hundred years of age is standard in all cases. There can therefore be no doubt that the scope and application of the system for retention and disclosure is extensive.", "199. The Court recognises that there may be a need for a comprehensive record of all cautions, conviction, warnings, reprimands, acquittals and even other information of the nature currently disclosed pursuant to section 113B(4) of the 1997 Act. However, the indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed.", "200. Further, the greater the scope of the recording system, and thus the greater the amount and sensitivity of data held and available for disclosure, the more important the content of the safeguards to be applied at the various crucial stages in the subsequent processing of the data. The Court considers that the obligation on the authorities responsible for retaining and disclosing criminal record data to secure respect for private life is particularly important, given the nature of the data held and the potentially devastating consequences of their disclosure. In R (L), Lord Hope noted that in 2008/2009 almost 275,000 requests were made for ECRCs alone (see paragraph 105 above). This number is significant and demonstrates the wide reach of the legislation requiring disclosure. As Lord Neuberger indicated, even where the criminal record certificate records a conviction or caution for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer to reject the applicant (see paragraph 108 above; see also the views expressed in the Divisional Court in R (Pinnington), at paragraph 87 above). The Court agrees with Lord Neuberger that it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to a “killer blow” to the hopes of a person who aspires to any post which falls within the scope of disclosure requirements (see paragraph 111 above).", "201. It is against this backdrop that the lawfulness of the measures for retention and disclosure of criminal record data, and in particular the adequacy of the safeguards in place, must be assessed.", "202. The Court reiterates that there is no statutory law in respect of Northern Ireland which governs the collection and storage of data regarding the administration of cautions. Retention of such data is carried out pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. In the absence of any statutory provisions, a number of policy documents which apply in Northern Ireland have been identified by the Government (see paragraphs 33-46 above). As noted above, it is clear from the MOPI Guidance and the ACPO Guidelines that the recording and initial retention of caution data are intended in practice to be automatic. While reference is made in the MOPI Guidance to a review of retention after a six-year period, the criteria for review appear to be very restrictive. The Guidance notes that there is a presumption in favour of retention and the review schedule requires police to retain data in the category of “Certain Public Protection Matters” until the data subject is deemed to have reached one hundred years of age, regardless of the type or classification of data or grade of the intelligence concerned (see paragraphs 39-40 above). Any review in such cases seems intended to focus on whether the data are adequate and up to date. Pursuant to the ACPO Guidelines, it appears that data held in central police records are now automatically retained, regardless of the seriousness of the offence in question, until the person is deemed to have reached one hundred years of age. The ACPO Guidelines themselves explain that they are based on a format of restricting access to data, rather than deleting them. While deletion requests can be made under the ACPO Guidelines, they should only be granted in exceptional circumstances (see paragraphs 43-46 above). As noted above the examples given as to what constitute exceptional circumstances do not suggest a possibility of deletion being ordered in any case where the data subject admits having committed an offence and the data are accurate.", "203. As for disclosure of caution data, at the relevant time there was no statutory framework in place in Northern Ireland which governed the communication of such data by the police to prospective employers. The disclosure of the applicant’s caution data took place pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. The only policy guidance to which the Government have referred is contained in the ACPO Guidelines and the MOPI Guidance. The MOPI Guidance refers to the comprehensive system for disclosure in the employment vetting context set out in the 1997 Act, which did not apply in Northern Ireland at the time, and to general disclosure for police purposes under common law powers (see paragraph 58-59 above). The Guidance explains that in this context a balancing exercise must be carried out, but specific information regarding the scope of the discretion to disclose and the factors which are relevant to the exercise of such powers in the context of disclosure of criminal record information is not provided. Although the ACPO Guidelines make reference to a stepping down policy to limit access to data after a certain time period has passed, as noted above it appears that stepped down data were still intended to be available for disclosure in the context of requests for criminal record checks (see paragraphs 60 and 89 above).", "204. Regarding any possible future disclosure of the applicant’s caution data, the Court observes that there is now a statutory framework in place for disclosure of criminal record information to prospective employers. Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified. In this regard the Court takes note of the offer made by the police in 2006 to add a comment to the applicant’s record to the effect that the incident was domestically related and that in any vetting context she should be approached for an explanation (see paragraph 16 above). It is unclear whether such addition could have any place in the disclosure system envisaged by the 1997 Act given the automatic nature of the disclosure exercise in respect of caution data held in central records. In any event, the apparent preference of many employers for a clean criminal record certificate (see paragraphs 87, 108 and 111 above) would deprive such addition of any real value.", "205. As regards specifically the fact that the retention policy changed after the administration of the applicant’s caution, the Court notes that the applicant consented to the administration of the caution on the basis that it would be deleted from her record after five years. The Government have confirmed that this was the policy of the PSNI at the relevant time (see paragraph 25 above. See also the 1995 ACPO Code of Practice, paragraph 29 above). The police reply to the applicant’s query in March 2003 is consistent with this understanding and confirmed that the caution would remain on her record until 17 November 2005 (see paragraph 10 above). The Court notes that in accepting the caution, the applicant waived her fair trial rights in respect of the offence in issue. It is not for the Court to assess whether she would, with the benefit of hindsight, have been in a better position now had she refused the caution. It must be recalled that the administration of the caution relieved her of the stress and anxiety of a potential criminal trial, which could have resulted in a custodial sentence had she been found guilty. However, the Court expresses concern about the change in policy, which occurred several years after the applicant had accepted the caution and which was to have significant effects on her employment prospects.", "206. In the present case, the Court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.", "207. The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of Article 8 of the Convention in the present case. This conclusion obviates the need for the Court to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated therein.", "II. ALLEGED VIOLATION OF ARTICLES 6 AND 7 OF THE CONVENTION", "208. The applicant complained under Article 7 of the Convention about the change in policy concerning retention of caution data. The Court of its own motion invited the parties to submit written observations on whether there had been a violation of Article 6 § 1 of the Convention.", "209. The Court is prepared to accept that the complaints under Article 6 § 1 and Article 7 are arguable in the particular circumstances of the case and it therefore declares them admissible. However, it satisfied that the substance of the applicant’s complaint concerning the retention and disclosure of her caution data has been addressed in the context of its examination under Article 8 above. It has found a violation of that Article as regards the system for retention and disclosure of caution data. In these circumstances it considers that it is not necessary to examine the complaint under Article 6 and Article 7 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "210. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "211. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1972 and lives in Paris.", "6. On 10 February 2004 an investigation was launched in respect of the applicant for book theft. The investigating authorities took his fingerprints.", "7. By a judgment handed down on 15 February 2005 following an appeal against a sentence delivered on 28 April 2004 by the Paris Criminal Court, the Paris Court of Appeal acquitted the applicant.", "8. On 28 September 2005 the applicant was taken into police custody under the flagrante delicto procedure, also for book theft. He was again fingerprinted.", "9. On 2 February 2006 the proceedings were discontinued by the Paris public prosecutor.", "10. The fingerprints taken during these proceedings were entered into the national fingerprint database ( fichier automatisé des empreintes digitales - “the FAED”).", "11. In a letter of 21 April 2006 to the Paris public prosecutor, the applicant requested the removal of his fingerprints from the FAED.", "12. On 31 May 2006 the public prosecutor ordered the deletion only of the fingerprints taken during the first set of proceedings. He argued that retaining one specimen of the applicant’s fingerprints was justified in the latter’s interests, as it could rule out his involvement in acts committed by a third person stealing his identity.", "13. On 26 June 2006 the applicant lodged an appeal with the judge of the Paris Tribunal de grande instance with responsibility for civil liberties and detention matters.", "14. By order of 25 August 2006, the judge with responsibility for civil liberties and detention matters dismissed his appeal. He held that retaining the fingerprints was in the interests of the investigating authorities, as it provided them with a database comprising as full a set of references as possible. Furthermore, this measure was not prejudicial to the applicant thanks to the confidentiality of the database, which prevented any impact on the applicant’s private or social life.", "15. On 21 December 2006 the President of the Investigation Division of the Paris Court of Appeal upheld this order.", "16. In a judgment of 1 October 2008 the Court of Cassation dismissed an appeal on points of law by the applicant on the grounds that since the procedure was written he had been in a position to put forward his arguments and take cognisance of the reasons for the public prosecutor’s objection to the complete deletion of the fingerprints. It added that thanks to the evidence produced during the proceedings, it could verify that the request had been addressed in accordance with the legislation and international treaties cited by the applicant, which included Article 8 of the Convention." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. Relevant domestic law", "17. The relevant provisions of Decree No. 87-249 of 8 April 1987 on the national fingerprint database managed by the Ministry of the Interior, in the version in force at the material time, read as follows:", "Article 1", "“Under the conditions set out in the present Decree, computer processing of finger and palm prints is authorised with an eye to facilitating the national police and gendarmerie services’ efforts to find and identify the perpetrators of serious crimes and other major offences and ensuring the prosecution, investigation and trial of cases referred to the judicial authorities.”", "Article 2", "“Such processing shall be effected by the Central Police Directorate with the Ministry of the Interior. The facility shall be known as the ‘automated fingerprint identification system’.”", "Article 3", "“The following items may be recorded:", "1. Prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge, inquiries or investigations seeking to establish the causes of a mysterious or suspicious disappearance as laid down in Articles 74-1 and 80-4 of the Code of Criminal Procedure, or the execution of a search warrant issued by a judicial authority;", "2. Where finger and palm prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge or the execution of a search warrant issued by a judicial authority vis-à-vis persons against whom there is serious or corroborative circumstantial evidence pointing to their likely involvement as perpetrators or accomplices in the commission of a serious crime or other major offence, or persons who have been charged in criminal proceedings and who must be identified;", "3. Finger and palm prints recorded in prisons in pursuance of the Code of Criminal Procedure with a view to ascertaining the identities of detainees who are being prosecuted for serious crimes or other major offences and to detecting cases of reoffending;", "4. Finger and palm prints transmitted by international police cooperation agencies or foreign police services in pursuance of international undertakings.”", "Article 4", "“The recorded finger and palm prints shall be accompanied by the following information:", "1. Family name, forenames, date and place of birth, parents and sex;", "2. The agency or service which initiated the entry;", "3. The date and place of establishment of the identification form;", "4. The nature of the case and reference of the proceedings;", "5. Police photographs;", "6. In the case of prints transmitted as provided for in Article 3-4, the origin of the information and date of its recording in the computer file.", "Recorded fingerprints shall be accompanied by the following information:", "1. The place and date of fingerprinting;", "2. The agency or service carrying out the fingerprinting;", "3. The date and place of establishment of the form containing the copies of the fingerprints;", "4. The nature of the case and reference of the proceedings;", "5. The origin of the information and the date when it was recorded in the computerised file.”", "Article 5", "“The information recorded shall be retained for a maximum period of twenty-five years from the establishment of the identification form, unless it has been previously deleted under the conditions set out in Articles 7 and 7-1 or because the department responsible for processing has been notified of the death of the data subject or, in the case of a missing person, his or her discovery.", "...”", "Article 7", "“The processing in question shall be supervised by the public prosecutor at the Court of Appeal in whose judicial district the department responsible for processing is located.", "The public prosecutor may, of his or her own motion and without prejudice to the supervision conducted by the National Commission on Data Processing and Civil Liberties under the above-mentioned Law of 6 January 1978, order the deletion of information whose retention is manifestly unnecessary in the light of the purpose of the processing in question.", "The body responsible for managing the file shall transmit to the prosecutor and the National Commission on Data Processing and Civil Liberties an annual activity report describing, inter alia, the results of the file updating and clearance operations.”", "Article 7-1", "“Prints collected under the conditions mentioned in Article 3, point (2) may be deleted at the request of the person concerned where their retention has become unnecessary for the purposes of the database. The public prosecutor attached to the court under whose jurisdiction the procedure giving rise to the registration was conducted shall be responsible for ordering such deletion.", "The deletion request must be submitted in a registered letter, with a form for acknowledgment of receipt, or by declaration to the registry, failing which it shall be inadmissible. The request shall be directly addressed to the public prosecutor holding responsibility by virtue of the provisions of the previous paragraph. It may also be sent to the public prosecutor with responsibility for the place of residence of the person concerned, who shall then transmit it to the relevant public prosecutor.", "The prosecutor in question shall notify the person concerned of his or her decision, by registered letter, within three months of the receipt of the request either by himself or by the public prosecutor of the place of residence of the person concerned.", "In the absence of a reply within this time-limit, or where the prosecutor does not order the deletion, the person in question may apply to the judge with responsibility for civil liberties and detention matters within ten days by registered letter with a form for acknowledgment of receipt, or by declaration to the registry.", "Having requested the public prosecutor’s written submissions, the judge with responsibility for civil liberties and detention matters shall issue a reasoned decision within two months. The decision shall be notified to the public prosecutor and, by registered letter, to the person concerned.", "Where the judge responsible for pre-trial detention fails to issue an order within the two-month time-limit or if the order refuses the deletion, the person in question may, within ten days, apply to the president of the Investigation Division, by registered letter with a form for acknowledgment of receipt or by declaration to the registry. The objection must be accompanied by reasons if it is to be admissible.", "In the case of an order prescribing deletion, the public prosecutor may also, within ten days, lodge an objection to the decision with the president of the Investigation Division. This objection shall suspend the execution of the decision.", "The president of the Investigation Division shall adjudicate, after having requested the prosecutor’s written submissions, by means of a reasoned order within three months. Such order shall be served on the public prosecutor and, by registered letter, to the person concerned. An appeal to the Court of Cassation against the order may be lodged only if the order fails to satisfy the formal requirements to be legally valid.”", "Article 8", "“Only duly authorised officials of the criminal identification office of the Ministry of the Interior and of the National Gendarmerie investigation units may access the information recorded and carry out identification operations at the request of the judicial authorities or of police or gendarmerie officers.”", "18. Article 55-1 of the Code of Criminal Procedure provides as follows:", "Article 55-1", "“A senior law-enforcement officer may carry out or supervise the taking of non-intimate samples from any person able to provide information about the offence in question, or from any person against whom there exist one or more plausible reasons to suspect that he has committed or attempted to commit an offence, in order to carry out technical and scientific tests comparing them with traces or evidence obtained for the purposes of the investigation.", "He shall carry out or oversee the identification measures – in particular, the taking of fingerprints, palm prints or photographs - necessary for supplying and consulting information in the police databases, and adding information to them, in accordance with the regulations applicable to the database in question.", "Refusal by a person suspected on one or more reasonable grounds of having committed or attempted to commit an offence to allow the samples ordered by the senior law-enforcement officer to be taken as provided for in the first two paragraphs above shall be punished by a year’s imprisonment and by a fine of 15,000 euros.”", "B. Relevant international law", "19. The relevant international material is outlined in the case of S. and Marper v. the United Kingdom [GC] (nos. 30562/04 and 30566/04, §§ 41-42 and 50-53, ECHR 2008).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "20. The applicant complained that his right to respect for his private life had been infringed by the retention of personal data on him in the national fingerprint database. He relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "21. The Government contested that argument.", "A. Admissibility", "22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions of the parties", "23. The applicant did not contest the lawfulness of the interference with his right to respect for his private life, but considered it unjustified. He first of all complained that the means used to achieve the aim of the measure were disproportionate. In his view, the provisions of Article 1 of the 1987 Decree on the aim of the measure were overly extensive in terms of scope and too vague in terms of definition. The authorities accordingly had excessive latitude, with sweeping, undifferentiated powers vis-à-vis the retention of data. He complained of a genuine risk of abuse on account of misconduct extending to other databases as well.", "24. Furthermore, the applicant argued that the period of retention had been set arbitrarily and was effectively not subject to a time-limit. In his view, the twenty-five-year time-limit in fact corresponded not to a maximum period but to a standard length of time, as attested by the summary rejection of his appeal before the domestic courts. There were no regulations on the reasons to be given for refusing to delete the data, which meant that such refusal could reflect prejudice against the person making the request, as in the applicant’s own case.", "25. The applicant also criticised the lack of effective procedural safeguards, submitting that not only could the judges cast doubt on the res judicata principle in criminal matters in order to refuse deletion, as in his own case, but also, the very existence of the data in the database called into question the presumption of innocence ipso facto.", "26. The Government did not contest the fact that the retention of the data concerning the applicant in the national fingerprint database (“the FAED”) constituted interference with his right to respect for his private life.", "27. However, they submitted, firstly, that it had been in accordance with the law, namely with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended, and secondly, that it pursued the legitimate aim of preventing public disorder, since it was geared to identifying and prosecuting the perpetrators of criminal offences.", "28. The Government also submitted that the interference had been necessary in a democratic society. While reiterating that the Court’s case-law did not prohibit the collection and retention of personal data by States as long as there were appropriate and sufficient guarantees, they stressed three points: States had some discretionary powers in this field, and these powers should be reinforced in the case of straightforward fingerprints; the FAED was a major contribution to the success of investigations into and detection of identity theft; and the management of the FAED was surrounded by extensive safeguards. Where these safeguards were concerned, the Government specified that the data registered were exhaustively listed and that the database could only be consulted on the basis of print comparisons (not with reference to a name or address). Moreover, only authorised police and gendarmerie officers could consult it. Data processing was placed under the supervision of both the public prosecutor attached to the Court of Appeal and the National Commission on Data Processing and Civil Liberties (CNIL), which was an independent administrative authority. While limiting the period of retention of data to twenty-five years, the Decree also provided that the person concerned could request deletion of the data, and a judicial remedy to that end was available should the public prosecutor refuse deletion. In the instant case the Government noted that the applicant had had recourse to this remedy, applying to the judge responsible for civil liberties and detention matters and then to the First President of the Court of Appeal. They also submitted that the Court of Cassation had considered the applicant’s appeal on points of law from the angle of a fair trial, even though it had declared the appeal inadmissible.", "2. The Court’s assessment", "(a) Whether there was interference", "29. The Court reiterates that the retention of fingerprints on the national authorities’ records in connection with an identified or identifiable individual constitutes an interference with the right to respect for private life (see S. and Marper, cited above, § 86).", "(b) Whether the interference was justified", "i. Legal basis", "30. Such interference must therefore be in accordance with the law, which presupposes the existence of a basis in domestic law compatible with the rule of law. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and S. and Marper, cited above, § 95). The level of precision required of domestic legislation – which cannot, however, provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, among other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, and S. and Marper, cited above, § 96).", "31. In the instant case, the Court finds that the interference was in accordance with the law, that is to say with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended. As to whether the legislation at issue was sufficiently clear and precise in terms of the conditions for storing, using and deleting personal data, the Court notes that the applicant mentioned these problems as part of his arguments on the proportionality of the interference. At all events, the Court considers that these aspects are in his case closely related to the broader issue of whether the interference was necessary in a democratic society and that such an examination of the “quality” of the law in the instant case relates to the analysis set out below of the proportionality of the interference at issue (see S. and Marper, cited above, § 99).", "(ii) Legitimate aim", "32. The Court further notes that the interference pursued a legitimate aim, namely the detection and, therefore, prevention of crime (see S. and Marper, cited above, § 100).", "(iii) Necessity of the interference", "(α) General principles", "33. It therefore remains to be seen whether the interference in question can be considered “necessary in a democratic society”, which means that it must answer a “pressing social need” and, in particular, be proportionate to the legitimate aim pursued, and the reasons adduced by the national authorities to justify it must be “relevant and sufficient” (see S. and Marper, cited above, § 101).", "34. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, and S. and Marper, cited above). A margin of appreciation, the extent of which varies depending on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 88, ECHR 1999-VI; Gardel v. France, no. 16428/05, ECHR 2009; B.B. v. France, no. 5335/06; and M.B. v. France, no. 22115/06, 17 December 2009, §§ 60, 59 and 51 respectively), must therefore, in principle, be left to the States in this context (see, among many other authorities, Klass and Others v. Germany, 6 September 1978, § 49, series A no. 28). The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004, and S. and Marper, cited above, § 102). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; S. and Marper, cited above; and Gardel, B.B. v. France and M.B. v. France, cited above, §§ 61, 60 and 52 respectively). Where, however, there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to the best means of protecting it, the margin will be wider (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V).", "35. The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. The domestic law must therefore afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103, and Gardel, B.B. and M.B., cited above, §§ 62, 61 and 53 respectively). In line with its findings in S. and Marper (cited above), the Court is of the opinion that the need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (ibid.).", "36. Lastly, of particular concern to the Court in the present context is the risk of stigmatisation, stemming from the fact that persons in the applicant’s position, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. While, from this angle, the retention of private data cannot be equated with the voicing of suspicions, the conditions of retention of the data must not give the impression that the persons concerned are not being treated as innocent (see S. and Marper, cited above, § 122).", "(β) Application of the above principles in the instant case", "37. In the instant case, the measure at issue, which does not per se impose any obligation on the applicant, entails sufficiently well-defined procedures as regards consultation, concerning both the persons authorised to consult the database and the authorisation system governing identification operations in line with the purpose of the database (contrast Khelili v. Switzerland, no. 16188/07, § 64, 18 October 2011).", "38. The Court notes that the same cannot be said of the system for collecting and retaining data.", "39. The Court notes at the outset that the purpose of the database, notwithstanding the legitimate aim pursued, necessarily involves adding and retaining as many names as possible, as is borne out by the reasoning adopted by the judge with responsibility for civil liberties and detention matters in his order of 25 August 2006 (see paragraph 14 above).", "40. It also notes that the public prosecutor’s refusal to delete the prints taken during the second set of proceeding was motivated by the need to protect the applicant’s interests by ruling out his involvement should someone else attempt to steal his identity (see paragraph 12 above). Besides the fact that such a reason is not explicitly mentioned in the provisions of Article 1 of the impugned decree, barring a particularly extensive interpretation of this Article, the Court considers that accepting the argument based on an alleged guarantee of protection against potential identity theft would in practice be tantamount to justifying the storage of information on the whole population of France, which would most definitely be excessive and irrelevant.", "41. Moreover, in addition to the primary function of the database, which is to facilitate efforts to find and identify the perpetrators of serious crimes and other major offences, the decree mentions another function, namely to facilitate “the prosecution, investigation and trial of cases referred to the judicial authority”, without specifying whether this is confined to serious crimes and other major offences. It also covers “persons who have been charged in criminal proceedings and whose identification is required” (Article 3-2 of the decree), and so can embrace all offences de facto, including mere summary offences, in the hypothesis that this would help identify the perpetrators of crimes and offences as specified in Article 1 of the Decree (see paragraph 17 above). At all events, the circumstances of the case, which concerned book theft and was discontinued, show that the instrument applies to minor offences. The instant case is thus very different from those specifically relating to such serious offences as organised crime (see S. and Marper, cited above) or sexual assault (see Gardel, B.B. v. France and M.B. v. France, cited above).", "42. Furthermore, the Court notes that the decree draws no distinction based on whether or not the person concerned has been convicted by a court, or has even been prosecuted. In S. and Marper, the Court highlighted the risk of stigmatisation, stemming from the fact that persons who had either been acquitted or had their cases discontinued - and were therefore entitled to the presumption of innocence – were treated in the same way as convicted persons (ibid., § 22). The situation in the instant case is similar on this point, as the applicant was acquitted and discharged in an initial set of proceedings, and subsequently had the charges against him dropped.", "43. In the Court’s view, the provisions of the impugned decree on the procedure for the retention of data also fail to provide sufficient protection for the persons in question.", "44. In connection with the possibility of deleting such data, the Court considers that the right at any time to submit a deletion request to the court is liable, in the words of the 25 August 2006 order, to conflict with the interests of the investigating authorities, which require access to a database with as many references as possible (see paragraph 14 above). Accordingly, since the interests at stake are contradictory, if only partially, the deletion, which is not in fact a right, provides a safeguard which is “theoretical and illusory” rather than “practical and effective”.", "45. The Court notes that while the retention of information stored in the file is limited in time, it nevertheless extends to twenty-five years. Having regard to its previous finding that the chances of deletion requests succeeding are at best hypothetical, a twenty-five-year time-limit is in practice tantamount to indefinite retention, or at least, as the applicant contends, a standard period rather than a maximum one.", "46. In conclusion, the Court considers that the respondent State has overstepped its margin of appreciation in this matter, as the regulations on the retention in the impugned database of the fingerprints of persons suspected of having committed offences but not convicted, as applied to the applicant in the instant case, do not strike a fair balance between the competing public and private interests at stake. Consequently, the retention of the data must be seen as a disproportionate interference with the applicant’s right to respect for his private life and cannot be regarded as necessary in a democratic society.", "47. There has accordingly been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "48. The applicant also complained that the procedure for requesting a deletion was unfair. He relied on Article 6 § 1 of the Convention, the relevant provisions of which read as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal ...”.", "49. Besides the fact that this complaint partly overlaps with the one under Article 8 of the Convention, having regard to all the information in its possession and to the extent that it has jurisdiction to rule on the allegations put forward, the Court has found no appearance of a violation of the rights and freedoms secured under the Convention and the Protocols thereto.", "50. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "52. The applicant, having been granted legal assistance during proceedings before the Court, did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1972 and lives in Paris.", "6. On 10 February 2004 an investigation was launched in respect of the applicant for book theft. The investigating authorities took his fingerprints.", "7. By a judgment handed down on 15 February 2005 following an appeal against a sentence delivered on 28 April 2004 by the Paris Criminal Court, the Paris Court of Appeal acquitted the applicant.", "8. On 28 September 2005 the applicant was taken into police custody under the flagrante delicto procedure, also for book theft. He was again fingerprinted.", "9. On 2 February 2006 the proceedings were discontinued by the Paris public prosecutor.", "10. The fingerprints taken during these proceedings were entered into the national fingerprint database ( fichier automatisé des empreintes digitales - “the FAED”).", "11. In a letter of 21 April 2006 to the Paris public prosecutor, the applicant requested the removal of his fingerprints from the FAED.", "12. On 31 May 2006 the public prosecutor ordered the deletion only of the fingerprints taken during the first set of proceedings. He argued that retaining one specimen of the applicant’s fingerprints was justified in the latter’s interests, as it could rule out his involvement in acts committed by a third person stealing his identity.", "13. On 26 June 2006 the applicant lodged an appeal with the judge of the Paris Tribunal de grande instance with responsibility for civil liberties and detention matters.", "14. By order of 25 August 2006, the judge with responsibility for civil liberties and detention matters dismissed his appeal. He held that retaining the fingerprints was in the interests of the investigating authorities, as it provided them with a database comprising as full a set of references as possible. Furthermore, this measure was not prejudicial to the applicant thanks to the confidentiality of the database, which prevented any impact on the applicant’s private or social life.", "15. On 21 December 2006 the President of the Investigation Division of the Paris Court of Appeal upheld this order.", "16. In a judgment of 1 October 2008 the Court of Cassation dismissed an appeal on points of law by the applicant on the grounds that since the procedure was written he had been in a position to put forward his arguments and take cognisance of the reasons for the public prosecutor’s objection to the complete deletion of the fingerprints. It added that thanks to the evidence produced during the proceedings, it could verify that the request had been addressed in accordance with the legislation and international treaties cited by the applicant, which included Article 8 of the Convention." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. Relevant domestic law", "17. The relevant provisions of Decree No. 87-249 of 8 April 1987 on the national fingerprint database managed by the Ministry of the Interior, in the version in force at the material time, read as follows:", "Article 1", "“Under the conditions set out in the present Decree, computer processing of finger and palm prints is authorised with an eye to facilitating the national police and gendarmerie services’ efforts to find and identify the perpetrators of serious crimes and other major offences and ensuring the prosecution, investigation and trial of cases referred to the judicial authorities.”", "Article 2", "“Such processing shall be effected by the Central Police Directorate with the Ministry of the Interior. The facility shall be known as the ‘automated fingerprint identification system’.”", "Article 3", "“The following items may be recorded:", "1. Prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge, inquiries or investigations seeking to establish the causes of a mysterious or suspicious disappearance as laid down in Articles 74-1 and 80-4 of the Code of Criminal Procedure, or the execution of a search warrant issued by a judicial authority;", "2. Where finger and palm prints found during criminal or on-the-spot investigations, preliminary inquiries, measures ordered by a judge or the execution of a search warrant issued by a judicial authority vis-à-vis persons against whom there is serious or corroborative circumstantial evidence pointing to their likely involvement as perpetrators or accomplices in the commission of a serious crime or other major offence, or persons who have been charged in criminal proceedings and who must be identified;", "3. Finger and palm prints recorded in prisons in pursuance of the Code of Criminal Procedure with a view to ascertaining the identities of detainees who are being prosecuted for serious crimes or other major offences and to detecting cases of reoffending;", "4. Finger and palm prints transmitted by international police cooperation agencies or foreign police services in pursuance of international undertakings.”", "Article 4", "“The recorded finger and palm prints shall be accompanied by the following information:", "1. Family name, forenames, date and place of birth, parents and sex;", "2. The agency or service which initiated the entry;", "3. The date and place of establishment of the identification form;", "4. The nature of the case and reference of the proceedings;", "5. Police photographs;", "6. In the case of prints transmitted as provided for in Article 3-4, the origin of the information and date of its recording in the computer file.", "Recorded fingerprints shall be accompanied by the following information:", "1. The place and date of fingerprinting;", "2. The agency or service carrying out the fingerprinting;", "3. The date and place of establishment of the form containing the copies of the fingerprints;", "4. The nature of the case and reference of the proceedings;", "5. The origin of the information and the date when it was recorded in the computerised file.”", "Article 5", "“The information recorded shall be retained for a maximum period of twenty-five years from the establishment of the identification form, unless it has been previously deleted under the conditions set out in Articles 7 and 7-1 or because the department responsible for processing has been notified of the death of the data subject or, in the case of a missing person, his or her discovery.", "...”", "Article 7", "“The processing in question shall be supervised by the public prosecutor at the Court of Appeal in whose judicial district the department responsible for processing is located.", "The public prosecutor may, of his or her own motion and without prejudice to the supervision conducted by the National Commission on Data Processing and Civil Liberties under the above-mentioned Law of 6 January 1978, order the deletion of information whose retention is manifestly unnecessary in the light of the purpose of the processing in question.", "The body responsible for managing the file shall transmit to the prosecutor and the National Commission on Data Processing and Civil Liberties an annual activity report describing, inter alia, the results of the file updating and clearance operations.”", "Article 7-1", "“Prints collected under the conditions mentioned in Article 3, point (2) may be deleted at the request of the person concerned where their retention has become unnecessary for the purposes of the database. The public prosecutor attached to the court under whose jurisdiction the procedure giving rise to the registration was conducted shall be responsible for ordering such deletion.", "The deletion request must be submitted in a registered letter, with a form for acknowledgment of receipt, or by declaration to the registry, failing which it shall be inadmissible. The request shall be directly addressed to the public prosecutor holding responsibility by virtue of the provisions of the previous paragraph. It may also be sent to the public prosecutor with responsibility for the place of residence of the person concerned, who shall then transmit it to the relevant public prosecutor.", "The prosecutor in question shall notify the person concerned of his or her decision, by registered letter, within three months of the receipt of the request either by himself or by the public prosecutor of the place of residence of the person concerned.", "In the absence of a reply within this time-limit, or where the prosecutor does not order the deletion, the person in question may apply to the judge with responsibility for civil liberties and detention matters within ten days by registered letter with a form for acknowledgment of receipt, or by declaration to the registry.", "Having requested the public prosecutor’s written submissions, the judge with responsibility for civil liberties and detention matters shall issue a reasoned decision within two months. The decision shall be notified to the public prosecutor and, by registered letter, to the person concerned.", "Where the judge responsible for pre-trial detention fails to issue an order within the two-month time-limit or if the order refuses the deletion, the person in question may, within ten days, apply to the president of the Investigation Division, by registered letter with a form for acknowledgment of receipt or by declaration to the registry. The objection must be accompanied by reasons if it is to be admissible.", "In the case of an order prescribing deletion, the public prosecutor may also, within ten days, lodge an objection to the decision with the president of the Investigation Division. This objection shall suspend the execution of the decision.", "The president of the Investigation Division shall adjudicate, after having requested the prosecutor’s written submissions, by means of a reasoned order within three months. Such order shall be served on the public prosecutor and, by registered letter, to the person concerned. An appeal to the Court of Cassation against the order may be lodged only if the order fails to satisfy the formal requirements to be legally valid.”", "Article 8", "“Only duly authorised officials of the criminal identification office of the Ministry of the Interior and of the National Gendarmerie investigation units may access the information recorded and carry out identification operations at the request of the judicial authorities or of police or gendarmerie officers.”", "18. Article 55-1 of the Code of Criminal Procedure provides as follows:", "Article 55-1", "“A senior law-enforcement officer may carry out or supervise the taking of non-intimate samples from any person able to provide information about the offence in question, or from any person against whom there exist one or more plausible reasons to suspect that he has committed or attempted to commit an offence, in order to carry out technical and scientific tests comparing them with traces or evidence obtained for the purposes of the investigation.", "He shall carry out or oversee the identification measures – in particular, the taking of fingerprints, palm prints or photographs - necessary for supplying and consulting information in the police databases, and adding information to them, in accordance with the regulations applicable to the database in question.", "Refusal by a person suspected on one or more reasonable grounds of having committed or attempted to commit an offence to allow the samples ordered by the senior law-enforcement officer to be taken as provided for in the first two paragraphs above shall be punished by a year’s imprisonment and by a fine of 15,000 euros.”", "B. Relevant international law", "19. The relevant international material is outlined in the case of S. and Marper v. the United Kingdom [GC] (nos. 30562/04 and 30566/04, §§ 41-42 and 50-53, ECHR 2008).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "20. The applicant complained that his right to respect for his private life had been infringed by the retention of personal data on him in the national fingerprint database. He relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "21. The Government contested that argument.", "A. Admissibility", "22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions of the parties", "23. The applicant did not contest the lawfulness of the interference with his right to respect for his private life, but considered it unjustified. He first of all complained that the means used to achieve the aim of the measure were disproportionate. In his view, the provisions of Article 1 of the 1987 Decree on the aim of the measure were overly extensive in terms of scope and too vague in terms of definition. The authorities accordingly had excessive latitude, with sweeping, undifferentiated powers vis-à-vis the retention of data. He complained of a genuine risk of abuse on account of misconduct extending to other databases as well.", "24. Furthermore, the applicant argued that the period of retention had been set arbitrarily and was effectively not subject to a time-limit. In his view, the twenty-five-year time-limit in fact corresponded not to a maximum period but to a standard length of time, as attested by the summary rejection of his appeal before the domestic courts. There were no regulations on the reasons to be given for refusing to delete the data, which meant that such refusal could reflect prejudice against the person making the request, as in the applicant’s own case.", "25. The applicant also criticised the lack of effective procedural safeguards, submitting that not only could the judges cast doubt on the res judicata principle in criminal matters in order to refuse deletion, as in his own case, but also, the very existence of the data in the database called into question the presumption of innocence ipso facto.", "26. The Government did not contest the fact that the retention of the data concerning the applicant in the national fingerprint database (“the FAED”) constituted interference with his right to respect for his private life.", "27. However, they submitted, firstly, that it had been in accordance with the law, namely with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended, and secondly, that it pursued the legitimate aim of preventing public disorder, since it was geared to identifying and prosecuting the perpetrators of criminal offences.", "28. The Government also submitted that the interference had been necessary in a democratic society. While reiterating that the Court’s case-law did not prohibit the collection and retention of personal data by States as long as there were appropriate and sufficient guarantees, they stressed three points: States had some discretionary powers in this field, and these powers should be reinforced in the case of straightforward fingerprints; the FAED was a major contribution to the success of investigations into and detection of identity theft; and the management of the FAED was surrounded by extensive safeguards. Where these safeguards were concerned, the Government specified that the data registered were exhaustively listed and that the database could only be consulted on the basis of print comparisons (not with reference to a name or address). Moreover, only authorised police and gendarmerie officers could consult it. Data processing was placed under the supervision of both the public prosecutor attached to the Court of Appeal and the National Commission on Data Processing and Civil Liberties (CNIL), which was an independent administrative authority. While limiting the period of retention of data to twenty-five years, the Decree also provided that the person concerned could request deletion of the data, and a judicial remedy to that end was available should the public prosecutor refuse deletion. In the instant case the Government noted that the applicant had had recourse to this remedy, applying to the judge responsible for civil liberties and detention matters and then to the First President of the Court of Appeal. They also submitted that the Court of Cassation had considered the applicant’s appeal on points of law from the angle of a fair trial, even though it had declared the appeal inadmissible.", "2. The Court’s assessment", "(a) Whether there was interference", "29. The Court reiterates that the retention of fingerprints on the national authorities’ records in connection with an identified or identifiable individual constitutes an interference with the right to respect for private life (see S. and Marper, cited above, § 86).", "(b) Whether the interference was justified", "i. Legal basis", "30. Such interference must therefore be in accordance with the law, which presupposes the existence of a basis in domestic law compatible with the rule of law. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; and S. and Marper, cited above, § 95). The level of precision required of domestic legislation – which cannot, however, provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, among other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, and S. and Marper, cited above, § 96).", "31. In the instant case, the Court finds that the interference was in accordance with the law, that is to say with Article 55-1 of the Code of Criminal Procedure and Decree no. 87-249 of 8 April 1987 as amended. As to whether the legislation at issue was sufficiently clear and precise in terms of the conditions for storing, using and deleting personal data, the Court notes that the applicant mentioned these problems as part of his arguments on the proportionality of the interference. At all events, the Court considers that these aspects are in his case closely related to the broader issue of whether the interference was necessary in a democratic society and that such an examination of the “quality” of the law in the instant case relates to the analysis set out below of the proportionality of the interference at issue (see S. and Marper, cited above, § 99).", "(ii) Legitimate aim", "32. The Court further notes that the interference pursued a legitimate aim, namely the detection and, therefore, prevention of crime (see S. and Marper, cited above, § 100).", "(iii) Necessity of the interference", "(α) General principles", "33. It therefore remains to be seen whether the interference in question can be considered “necessary in a democratic society”, which means that it must answer a “pressing social need” and, in particular, be proportionate to the legitimate aim pursued, and the reasons adduced by the national authorities to justify it must be “relevant and sufficient” (see S. and Marper, cited above, § 101).", "34. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, and S. and Marper, cited above). A margin of appreciation, the extent of which varies depending on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 88, ECHR 1999-VI; Gardel v. France, no. 16428/05, ECHR 2009; B.B. v. France, no. 5335/06; and M.B. v. France, no. 22115/06, 17 December 2009, §§ 60, 59 and 51 respectively), must therefore, in principle, be left to the States in this context (see, among many other authorities, Klass and Others v. Germany, 6 September 1978, § 49, series A no. 28). The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004, and S. and Marper, cited above, § 102). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; S. and Marper, cited above; and Gardel, B.B. v. France and M.B. v. France, cited above, §§ 61, 60 and 52 respectively). Where, however, there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to the best means of protecting it, the margin will be wider (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V).", "35. The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. The domestic law must therefore afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103, and Gardel, B.B. and M.B., cited above, §§ 62, 61 and 53 respectively). In line with its findings in S. and Marper (cited above), the Court is of the opinion that the need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data were efficiently protected from misuse and abuse (ibid.).", "36. Lastly, of particular concern to the Court in the present context is the risk of stigmatisation, stemming from the fact that persons in the applicant’s position, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. While, from this angle, the retention of private data cannot be equated with the voicing of suspicions, the conditions of retention of the data must not give the impression that the persons concerned are not being treated as innocent (see S. and Marper, cited above, § 122).", "(β) Application of the above principles in the instant case", "37. In the instant case, the measure at issue, which does not per se impose any obligation on the applicant, entails sufficiently well-defined procedures as regards consultation, concerning both the persons authorised to consult the database and the authorisation system governing identification operations in line with the purpose of the database (contrast Khelili v. Switzerland, no. 16188/07, § 64, 18 October 2011).", "38. The Court notes that the same cannot be said of the system for collecting and retaining data.", "39. The Court notes at the outset that the purpose of the database, notwithstanding the legitimate aim pursued, necessarily involves adding and retaining as many names as possible, as is borne out by the reasoning adopted by the judge with responsibility for civil liberties and detention matters in his order of 25 August 2006 (see paragraph 14 above).", "40. It also notes that the public prosecutor’s refusal to delete the prints taken during the second set of proceeding was motivated by the need to protect the applicant’s interests by ruling out his involvement should someone else attempt to steal his identity (see paragraph 12 above). Besides the fact that such a reason is not explicitly mentioned in the provisions of Article 1 of the impugned decree, barring a particularly extensive interpretation of this Article, the Court considers that accepting the argument based on an alleged guarantee of protection against potential identity theft would in practice be tantamount to justifying the storage of information on the whole population of France, which would most definitely be excessive and irrelevant.", "41. Moreover, in addition to the primary function of the database, which is to facilitate efforts to find and identify the perpetrators of serious crimes and other major offences, the decree mentions another function, namely to facilitate “the prosecution, investigation and trial of cases referred to the judicial authority”, without specifying whether this is confined to serious crimes and other major offences. It also covers “persons who have been charged in criminal proceedings and whose identification is required” (Article 3-2 of the decree), and so can embrace all offences de facto, including mere summary offences, in the hypothesis that this would help identify the perpetrators of crimes and offences as specified in Article 1 of the Decree (see paragraph 17 above). At all events, the circumstances of the case, which concerned book theft and was discontinued, show that the instrument applies to minor offences. The instant case is thus very different from those specifically relating to such serious offences as organised crime (see S. and Marper, cited above) or sexual assault (see Gardel, B.B. v. France and M.B. v. France, cited above).", "42. Furthermore, the Court notes that the decree draws no distinction based on whether or not the person concerned has been convicted by a court, or has even been prosecuted. In S. and Marper, the Court highlighted the risk of stigmatisation, stemming from the fact that persons who had either been acquitted or had their cases discontinued - and were therefore entitled to the presumption of innocence – were treated in the same way as convicted persons (ibid., § 22). The situation in the instant case is similar on this point, as the applicant was acquitted and discharged in an initial set of proceedings, and subsequently had the charges against him dropped.", "43. In the Court’s view, the provisions of the impugned decree on the procedure for the retention of data also fail to provide sufficient protection for the persons in question.", "44. In connection with the possibility of deleting such data, the Court considers that the right at any time to submit a deletion request to the court is liable, in the words of the 25 August 2006 order, to conflict with the interests of the investigating authorities, which require access to a database with as many references as possible (see paragraph 14 above). Accordingly, since the interests at stake are contradictory, if only partially, the deletion, which is not in fact a right, provides a safeguard which is “theoretical and illusory” rather than “practical and effective”.", "45. The Court notes that while the retention of information stored in the file is limited in time, it nevertheless extends to twenty-five years. Having regard to its previous finding that the chances of deletion requests succeeding are at best hypothetical, a twenty-five-year time-limit is in practice tantamount to indefinite retention, or at least, as the applicant contends, a standard period rather than a maximum one.", "46. In conclusion, the Court considers that the respondent State has overstepped its margin of appreciation in this matter, as the regulations on the retention in the impugned database of the fingerprints of persons suspected of having committed offences but not convicted, as applied to the applicant in the instant case, do not strike a fair balance between the competing public and private interests at stake. Consequently, the retention of the data must be seen as a disproportionate interference with the applicant’s right to respect for his private life and cannot be regarded as necessary in a democratic society.", "47. There has accordingly been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "48. The applicant also complained that the procedure for requesting a deletion was unfair. He relied on Article 6 § 1 of the Convention, the relevant provisions of which read as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal ...”.", "49. Besides the fact that this complaint partly overlaps with the one under Article 8 of the Convention, having regard to all the information in its possession and to the extent that it has jurisdiction to rule on the allegations put forward, the Court has found no appearance of a violation of the rights and freedoms secured under the Convention and the Protocols thereto.", "50. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "52. The applicant, having been granted legal assistance during proceedings before the Court, did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1959 and lives in Ossès.", "6. On 17 January 2008 he attended a rally organised by a Basque agricultural trade union and by the GFAM ( a mutual-benefit land alliance ), the “ Lurra ”, on the occasion of a meeting of the Technical Committee of the Land Use and Rural Settlement Corporation (SAFER) in the Pyrénées-Atlantiques Département. That meeting had been aimed at producing an opinion on the use of the land comprising a farm which Mr F.L. had been operating for several years. The rally was held in a political and trade-union situation where tensions had been heightened by the fact that the majority agricultural union in the Département was backing candidates other than Mr F.L. At the end of the meeting scuffles broke out between the demonstrators and the gendarmerie.", "7. The applicant was placed in police custody and brought before the Bayonne Criminal Court under “ immediate summary trial ” procedure, and charged with intentional violence not entailing total unfitness for work, against gendarmes whose identity has not been established, and against a person exercising public authority, using or threatening to use a weapon, in this instance an umbrella.", "8. By judgment of 13 March 2008, the applicant was sentenced to two months ’ imprisonment, suspended, for having struck gendarmes with an umbrella, which incident had not entailed unfitness for work on the latter ’ s part. In its judgment, the court noted that the applicant had refused to answer questions during the investigation or to admit to any wrongdoing, and had denied that he had been carrying an umbrella. The judges noted that witnesses had nevertheless stated that he had attempted to cross the barrier by clambering over demonstrators and trying to hit the gendarmes with his umbrella. The applicant pointed out that he had refrained from appealing in order to calm the situation and in the framework of a friendly settlement of the dispute that had been the cause of the rally.", "9. On 24 December 2008, following a request from the Bayonne Public Prosecutor ’ s Office, the applicant was ordered by the police to give a DNA sample, on the basis of Articles 706-55 and 706-56 of the Code of Criminal Procedure (CPP). He was brought before the Criminal Court on 19 May 2009 for refusing to give the sample.", "10. By judgment of 27 October 2009, the Bayonne Regional Court imposed on the applicant a fine of five hundred euros.", "11. On 3 February 2011 the Pau Court of Appeal upheld that judgment. As regards the legal aspect of the offence, it stated, in particular, that unlike the applicants in the case of S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008), the applicant had been convicted, rather than suspected, of an offence, which precluded him from arguing that the impugned judgment had entailed a disproportionate interference with his private life. Relying, in particular, on the 16 September 2010 decision of the Constitutional Council ( see paragraph 16 below ), it held that “ the provisions of national law applied [ to the applicant] were such as to reconcile respect for private life and the protection of public order in a manner that was neither manifestly unbalanced nor in breach of the requirements of Article 8 of the Convention ”. In connection with the substantive aspect of the offence, the Court of Appeal dismissed the applicant ’ s plea that a sample had already been taken from his headgear during his police custody and that he was entitled to refuse further sampling, given that there had been no DNA profiling the first time.", "12. The applicant lodged an appeal on points of law. His first plea was that the sample geared to identifying his DNA and storing the corresponding data amounted to a disproportionate interference with his private life, having regard to the duration of the data storage and his personal situation ( an easily identifiable person who was socially well- established, with a job, a family and a fixed abode ). In his second plea, he argued that the Court of Appeal had provided no reasons for its decision in connection with the substantive aspect of the offence.", "13. By judgment of 28 September 2011, the Court of Cassation dismissed the applicant ’ s appeal on points of law as follows :", "“... the Court of Appeal responded adequately and cogently to the main points of the pleadings submitted to it, and characterised all the substantive and purposive aspects of the offence of refusing to undergo a biological test, of which it found the defendant guilty, in full compliance with the provisions of Article 8 of the Convention. ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. CPP", "14. The relevant provisions of the CPP concerning the national computerised DNA database read as follows :", "Article 706-54", "“ The purpose of the national computerised DNA database, which is supervised by a member of the national legal service, is to centralise all DNA data obtained by the biological analysis and DNA profiling of persons found guilty of one of the offences listed in Article 706-55, with a view to facilitating efforts to locate and identify the perpetrators of those offences. ...", "DNA profiles of persons concerning whom there is serious or corroborative circumstantial evidence pointing to their likely involvement in the perpetration of any of the offences mentioned in Article 706-55 shall also be stored in the database further to a decision by a police officer acting ex officio or at the request of the State Prosecutor or the investigating judge, which decision must be included mentioned in the case file. Such profiles may be deleted at the request of the State Prosecutor where their retention has become unnecessary for the purposes of the database. Where the data subject requests such deletion, the State Prosecutor must inform him or her of the action taken on his or her request; if the public prosecutor does not order the deletion, the person concerned may apply to the liberties and detention judge to contest that decision. An appeal shall lie with the president of the investigation division against the latter judge ’ s decision.", ".... ”", "Article 706-55", "“ The national DNA database shall centralise DNA samples concerning the following offences :", "...", "2. Crimes against humanity and crimes and offences of deliberate attempts on life, acts of torture and barbarity, deliberate violence, threats against persons, narcotics trafficking, infringement of persons ’ freedom, human trafficking, procuring, exploitation of begging and endangerment of minors ...", "... ”", "Article 706-56", "“ I.- A police officer may conduct or order, under his own supervision, in respect of the persons mentioned in the first, second and third indents of Article 706-54, biological testing with a view to DNA profiling. ...", "...", "II .- Any refusal to undergo the DNA sampling as provided for in the first indent of paragraph I above shall be punishable with one year ’ s imprisonment and a fine of 15, 000 euros.", "... ”", "Article R. 53-10", "“ ...", "II .- Further to a decision by the State Prosecutor or the Principal State Prosecutor, DNA profiles based on biological testing of persons convicted with final effect of one of the offences listed in Article 706-55 shall be registered in the database. ”", "Article R. 53-14", "“Registered information may be retained for a maximum of forty years from :", "... the date on which the conviction became final ... in the case of the profiles mentioned in paragraph II of Article R. 53-10.", "... ”", "15. In reply to a parliamentary question, the Minister of Justice stated that a draft Decree proposed amending Article R. 53-14 CPP to vary the length of data storage according to the nature of the offence committed and whether or not the perpetrator was under age (Question no. 86834, Assemblée Nationale, Official Gazette of 19 April 2016, p. 3447).", "B. Constitutional Council Decision No. 2010-25 QPC", "16. On 16 September 2010 the Constitutional Council, to which the Court of Cassation had submitted a priority request for a preliminary ruling on constitutionality on 17 June 2010, gave a decision declaring Articles 706-54 to 706-56 CPP, as worded prior to Law No. 2010-242 of 10 March 2010, in conformity with the Constitution, subject to paragraphs 18 and 19 of the decision, which read as follows:", "“ 18. Considering ... that the registration in the DNA database on persons convicted of specific offences and persons in respect of whom there is strong or corroborated evidence that they have committed one of those offences is necessary for identifying and apprehending the perpetrators of such crimes or offences; that the last indent of Article 706-54 states that the duration of storage of the information registered should be specified in a separate decree; that, accordingly, it is incumbent on the regulating authority to ensure that the duration of storage of such personal data, in view of the purpose of the database, is proportional to the nature and/or the seriousness of the offences in question ... ”.", "...", "C. Relevant case-law of the Court of Cassation", "17. In a judgment of 11 July 2012 (Cass. crim., no. 12-81.533) declining to refer to the Constitutional Council the priority request for a preliminary ruling on constitutionality formulated by the appellant, the Court of Cassation held that the provisions of Articles 706-54 to 706-56 CPP, as worded prior to Law No. 2010-242 of 10 March 2010, had been declared compatible with the Constitution by Constitutional Council decision of 16 September 2010. In its judgment delivered in the same case on 19 March 2013, the Court of Cassation dismissed the appeal on points of law as follows :", "“ ... given that DNA profiling amounts to an interference with the exercise of the right to respect for private life, it is a measure which is not manifestly disproportionate, which is necessary in a democratic society for the prevention of public disorder and criminal offences and which is applicable, without discrimination, to all persons convicted of the offences listed in Article 706-55 of the Code of Criminal Procedure .... ”", "D. Relevant international materials", "18. See S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 41-55, 4 December 2008.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "19. The applicant alleged that there had been a breach of his right to respect for his private life on account of the order to provide a biological sample for inclusion in the FNAEG and the fact that his refusal to comply with that order has resulted in a criminal conviction. He relied on Article 8 of the Convention, which provides :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "20. The Government contested that argument.", "...", "B. Merits", "a) The applicant", "22. The applicant first of all noted that, whereas the original purpose of the FNAEG had been to store DNA profiles of sex offenders, it now covered a wide range of offences, whatever their degree of seriousness and the extent of the public disorder which they entailed. The impugned information storage could not be considered legitimate in the case of all the offences listed in Article 706-55 CPP, ranging from crimes against humanity to acts committed in the framework of trade union violence. The generalised, undifferentiated nature of the data recording method rendered it contrary to the principles of Article 8 of the Convention, as it was neither justified by the aim pursued nor necessary, given the absence of discretionary powers and of any possibility of adjustment depending on the actual offence committed.", "23. The applicant also submitted that the Government had failed to explain why the storage of his personal data was necessary for forty years or why he might be liable to reoffend. In view of the nature and degree of seriousness of the offence of which he had been convicted, it was disproportionate to store his DNA profile for forty years.", "24. As regards the data storage period, the applicant also considered that although a timeline of forty years was in conformity with the French Constitution, the Constitutional Council had issued no reservations as to interpretation, and the Government were not planning to amend the time-limit by decree. Nevertheless, he noted that the Government had so far taken no action in that regard. He also observed that the duration of storage of fingerprints in some of the most serious cases ( see Gardel v. France, no. 16428/05, § 67, ECHR 2009) was shorter than that stipulated for the FNAEG.", "25. Furthermore, the applicant emphasised that the databank was supervised by a prosecutor, who is not a judicial authority for the purposes of the Convention ( see Moulin v. France, no. 37104/06, § 57, 23 November 2010). This meant that a request for deletion of the data had to be submitted to a member of the legal service devoid of any guarantee on independence. Moreover, the FNAEG was used for policing purposes and could be consulted by a wide range of international law enforcement agencies, without any real safeguards for the data subjects.", "b) The Government", "26. The Government, who did not deny the existence of an interference with the applicant ’ s right to respect for his private life, first of all noted that that interference had been legally based on Article 706-56 CPP, with the legal regulations governing the FNAEG being set forth in Articles 706-54 et seq and R. 53-9 et seq. CPP.", "27. They pointed out that the purpose of the FNAEG was to facilitate the investigation and identification of offenders by means of DNA profiling. In 2001, the importance attached by the legislature to the development and the effectiveness of that database had led it to criminalise any refusal to undergo the requisite biological testing. The whole FNAEG system had been validated by the Constitutional Council ( see paragraph 16 above ). Furthermore, the FNAEG was, in the Government ’ s view, akin to the national sex offenders database (FIJAIS), which the Court had found compatible with the requirements of Article 8 of the Convention ( see B.B. v. France, no. 5335/06, 17 December 2009; M.B. v. France, no. 22115/06, 17 December 2009; and Gardel, cited above). The impugned interference thus pursued the legitimate aim of “the prevention of disorder or crime”.", "28. The Government emphasised that unlike the regulations at issue in the case of S. and Marper (cited above, § 119), only the offences exhaustively listed in Article 706-55 CPP gave rise to registration in the FNAEG. Although the database had originally been intended to include DNA profiles solely in the framework of sex offences, its scope had been extended under several successive reforms. The offences covered were all serious to some extent, and all but one were subject to a prison sentence. Apart from cases of crimes and offences punishable with ten years ’ imprisonment, the biological testing could be conducted without the person ’ s consent, and it was impossible use the DNA profiles stored in order to analyse genetic characteristics.", "29. The Government further noted that the State Prosecutor was not empowered to assess the expediency of registering a person convicted of one of the offences in question in the FNAEG. Indeed, the use of the code set out in Article R. 53-21 CPP afforded no margin of appreciation to prosecutors.", "30. The Government took the view that the conditions for the use, consultation and storage of data in the FNAEG were underpinned by proper procedural safeguards. The database was operated by the Ministry of the Interior ’ s Central Directorate of Police, under the dual supervision of a senior-ranking prosecutor appointed by decree of the Minister of Justice, and of the National Commission on Data Processing and Civil Liberties. The relevant information could only be accessed, and data comparisons carried out, by staff of the police forensic and technical services and duly authorised gendarmerie staff.", "31. The Government also denied that the lack of a data deletion procedure for convicted persons was abusive, since the maximum data storage period was forty years, DNA profile registration in the FNAEG did not impose any positive obligation on the person concerned and the data were only used in the event of recidivism.", "32. Nevertheless, in view of the reservations entered by the Constitutional Council, including one concerning the proportionality of the time for which DNA profiles were kept, and in order to comply with those reservations, the Government stated that they would shortly be tabling before the Conseil d ’ État a draft decree amending accordingly the provisions of Article R. 53-14 CPP.", "2. The Court ’ s assessment", "33. The Court reiterates that the mere fact of storing data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116 ). The subsequent use of the stored information has no bearing on that finding ( see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II). As regards DNA profiles, they do contain substantial amounts of unique personal data ( see S. and Marper, cited above, §75).", "34. Furthermore, the Court observes at the outset that it fully realises that in order to protect their population as required, the national authorities can legitimately set up databases as an effective means of helping to punish and prevent certain offences, including the most serious types of crime, such as the sex offences for which the FNAEG was originally created (cf., in particular, Gardel, B.B. and M.B., cited above, §§ 63, 62 and 54 respectively). However, such facilities cannot be implemented as part of an abusive drive to maximise the information stored in them and the length of time for which they are kept. Indeed, without respect for the requisite proportionality vis-à-vis the legitimate aims assigned to such mechanisms, their advantages would be outweighed by the serious breaches which they would cause to the rights and freedoms which States must guarantee under the Convention to persons under their jurisdiction (see M.K. v. France, no. 19522/09, § 35, 18 April 2013).", "35. In the instant case, the Court notes that the applicant has not so far been included in the FNAEG because he refused to undergo DNA profiling as required by law. He was nonetheless convicted on that basis. It is not contested that that conviction amounted to an interference with the applicant ’ s right to respect for private life within the meaning of Article 8 § 1 of the Convention.", "36. The Court also observes that the parties did not dispute that the interference in question had been in accordance with the law, that is to say Articles 706-54 to 706-56 and R. 53-9 et seq. CPP, and had pursued the legitimate aim of detecting, and therefore preventing, disorder and crime (ibid.). The Court further notes that the interference pursued a legitimate aim, namely detecting and therefore preventing crime.", "37. The Court must therefore examine whether the interference was necessary vis-à-vis the requirements of the Convention. Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded by this Court to those authorities as regards that assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions. Where a particularly important aspect of someone ’ s life or identity is in issue, the State ’ s margin of appreciation is generally narrower.", "38. Personal data protection plays a primordial role in the exercise of a person ’ s right to respect for his private life enshrined in Article 8 of the Convention. Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of that Article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should, in particular, ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law should also comprise safeguards capable of effectively protecting the personal data recorded against inappropriate and wrongful use ( see B.B., cited above, § 61), while providing a practical means of lodging a request for the deletion of the data stored ( see B.B., cited above, § 68, and Brunet, cited above, §§ 41-43).", "39. In the present case, the registration in the database, which the applicant avoided at the cost of a criminal conviction, does not in itself impose any obligation on the person concerned. Furthermore, it is subject to a sufficiently strict consultation procedure.", "40. The Court also notes that Article 706-56 CPP stipulates that such registration cannot be effected on the basis of biological material that has become detached from the person ’ s body by natural means (see paragraph 14 above).", "41. Moreover, it notes that under Article 706-54 CPP only the offences exhaustively listed in Article 706-55 CPP can give rise to registration in the FNAEG.", "42. In that regard, however, it should be noted that pursuant to Article R. 53-14 of the Code of Criminal Procedure, the duration of storage of DNA could not exceed forty years in the case of persons convicted of offences which the Government considered to display “a specific degree of seriousness”. The Court notes that that forty- year period in principle constitutes a maximum which should have been adjusted under a separate decree. Since no such decree has ever been issued, the forty-year period is, in practice, treated as indefinite storage, or at least as a norm rather than a maximum (see M.K., cited above, § 45, and Brunet, cited above, § 43), particularly in the case of persons of mature age.", "43. The Court further observes that on 16 September 2010 the Constitutional Council issued a decision to the effect that the provisions relating to the impugned computer file were in conformity with the Constitution, subject inter alia to “determining the duration of storage of such personal data depending on the purpose of the file stored and the nature and/or seriousness of the offences in question” (see paragraph 15 above). To date, no appropriate action has been taken on that reservation (see paragraphs 14 and 42 above). Thus, the Court notes that no differentiation is currently provided for according to the nature and/or seriousness of the offence committed, notwithstanding the significant disparity in the situations potentially arising under Article 706-55 CPP. The applicant ’ s situation bears witness to this, with events occurring in a political/trade - union context, concerning mere blows with an umbrella directed at gendarmes who have not even been identified ( see paragraphs 7 and 8 above ), contrasting with the seriousness of the acts liable to constitute the very serious offences set out in Article 706-55 CPP, such as sex offences, terrorism, crimes against humanity and trafficking in human beings, to mention but a few. To that extent the instant case is very different from those specifically relating to such serious offences as organised crime (see S. and Marper, cited above) or sexual assault (see Gardel, B.B. and M.B., cited above).", "44. Furthermore, as regards the deletion procedure, it is not disputed that access to such a procedure is only authorised for suspects, and not for convicted persons such as the applicant. The Court considers that convicted persons should also be given a practical means of lodging a request for the deletion of registered data ( B.B. , cited above, § 68, and Brunet, cited above, §§ 41-43). That remedy should be made available, as it has previously pointed out, in order to ensure that the data storage period is proportionate to the nature of the offences and the aims of the restrictions (see paragraph 37 above; cf., mutatis mutandis, Peruzzo and Martens v. Germany (dec.), nos. 7841/08 and 57900/12, § 44, 4 June 2013, as well as B.B. and M.B., cited above, §§ 62 and 54 respectively).", "45. Therefore, the Court considers that, owing to its duration and the lack of a possibility of deletion, the current regulations on the storage of DNA profiles in the FNAEG, to which the applicant objected by refusing to undergo sampling, does not provide the data subject with sufficient protection. It therefore does not strike a fair balance between the competing public and private interests.", "46. These facts are sufficient for the Court to find that the respondent State overstepped its margin of appreciation in this sphere. Therefore, the applicant ’ s conviction for having refused to undergo DNA profiling for inclusion in the FNAEG amounted to a disproportionate infringement of his right to respect for private life, and therefore cannot be deemed necessary in a democratic society.", "47. There has accordingly been a violation of Article 8 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The background facts", "5. The applicant was born in 1925 and lives in Brighton.", "6. The applicant has been active in the peace movement since 1948 and has been a regular attender at public demonstrations since then.", "7. In 2005 the applicant began participating in demonstrations organised by Smash EDO. The object of Smash EDO was to close down the activities in the United Kingdom of EDO MBM Technology Ltd, a United States-owned company which manufactured weapons and weapon components and had a factory in Brighton. Serious disorder and criminality were features of a number of Smash EDO protests. Smash EDO protests therefore attracted a substantial policing presence.", "8. The applicant was twice arrested at Smash EDO demonstrations for obstructing the public highway but has never been convicted of any offence.", "9. In March 2010 the applicant made a subject access request to the police under section 7 of the Data Protection Act 1998 (see “Relevant domestic law and practice”, below) for information relating to him. Sixty ‑ six entries from nominal records for other individuals and information reports which incidentally mentioned him, concerning incidents between March 2005 and October 2009, were disclosed to him. Those records were held on a police database known as the “Extremism database”, which at the relevant time was under the responsibility of the National Public Order Intelligence Unit of the police (NPOIU).", "10. Most of the records related to demonstrations at the office of EDO MBM Technology Ltd but thirteen entries related to other demonstrations. They included, for example, the recording of his attendance at the Trades Union Congress (“TUC”) Conference in Brighton in September 2006; at a demonstration at the Labour Party Conference in Bournemouth in September 2007; at a pro-Gaza demonstration in Brighton in January 2009 and at a demonstration against “New Labour” organised by a number of trade unions in September 2009. In the great majority of cases, the information recorded about Mr Catt was his name, presence, date of birth and address. In some cases his appearance was also described. A photograph of the applicant taken at a demonstration in September 2007 was also disclosed to him in response to his subject access request.", "11. In August 2010 the applicant asked the Association of Chief Police Officers (“ACPO”) to delete entries from nominal records and information reports which mentioned him. In September 2010 ACPO declined to do so. They did not give reasons.", "12. On 17 November 2010 the applicant issued proceedings against ACPO for judicial review of the refusal to delete the data. He contended that the retention of his data was not “necessary” within the meaning of Article 8 § 2 of the Convention. Permission to seek judicial review was granted in March 2011 (see section B, below).", "13. In January 2012, HM Inspectorate of Constabulary published a report on undercover police operations designed to obtain intelligence about protest movements (see paragraphs 50 to 53 below). The report concluded that information was being unnecessarily retained in police records. Although the report was concerned with covertly obtained intelligence, it also led to an extensive review of the database covering overtly obtained intelligence and resulted in the deletion of a large number of nominal records and information reports. After that deletion process, the number of reports which mentioned the applicant was apparently reduced to two.", "14. Following the judicial review proceedings, the applicant wrote to the police to make a further subject access request. The police replied on 12 November 2015 stating:", "“... the records are held to help UK policing manage a future risk of crime – of which [you] could be the victim. The records themselves should not and will not be disclosed [to you] for what are obvious reasons. An intelligence database loses all efficacy if it is not kept confidential.”", "15. In answer to a question asked by the Court when communicating the case the Government indicated that they had discovered four additional records mentioning the applicant in the database. They clarified that as a result, at the time the case was determined by the domestic courts there had in fact been six rather than two records in the database mentioning the applicant.", "16. Of the four additional records, two concerned references to the domestic legal proceedings by third parties. The Government indicated in their submissions that one of those has since been deleted. The other two referred to the applicant. One was dated 15 April 2011 and detailed the applicant’s presence at five separate events, not organised by Smash EDO, where there was a significant police operation and arrests occurred. The other was dated 19 July 2011 and related primarily to a third party but mentions the applicant’s attendance at an event which was not organised by Smash EDO. There is no indication of whether there was any police presence or arrests at that event.", "17. The Government stated that the police could not provide any explanation of why the reports were not disclosed previously. However, they were investigating the matter. They indicated that they had informed the Supreme Court and the applicant of the additional reports.", "B. The domestic proceedings", "1. Proceedings before the High Court", "18. In a witness statement dated 6 June 2011 prepared in the context of the proceedings introduced by the applicant before the High Court, the then National Coordinator explained the functions of the National Public Order Intelligence Unit (NPOIU) and the position as regards retention of data relating to the applicant. In his witness statement, the National Coordinator clarified that the material which had been disclosed to the applicant following his subject access request of March 2010 was not all the material held in respect of the applicant: a considerable amount of further information had not been disclosed on the grounds that disclosure would prejudice the investigation or detection of crime and that the material was thus exempt from disclosure under section 29 of the Data Protection Act (see “Relevant domestic law and practice”, below).", "19. After explaining the nature of his activities and the various units supervised by him, the National Coordinator continued:", "“16. The term ‘domestic extremism’ is not prescribed by law. It is a descriptor generally used by the police service and partners to describe the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaigns, outside the democratic process.”", "20. He then provided examples of how intelligence reports had assisted in policing a Smash EDO protest in 2010 and confirmed that, in his view, the applicant’s data were being processed lawfully and fairly.", "21. A hearing in the judicial review proceedings took place on 9 February 2012. With the agreement of the parties, the Commissioner of Police of the Metropolis was joined as a defendant. The High Court handed down its judgment on 30 May 2012. The court considered that Article 8 was not engaged in the case and that, even if it were, the interference was justified under Article 8 § 2. The applicant was granted permission to appeal by the Court of Appeal on 31 October 2012.", "2. Proceedings before the Court of Appeal", "22. Following a two day hearing during which legal representatives for the applicant, an NGO, the NHRI for England and Wales, ACPO and the Secretary of State presented their arguments, the Court of Appeal unanimously allowed the appeal in a judgment of 14 March 2014. It found that the inclusion of the applicant’s personal data in the database constituted an interference with his Article 8 rights which was not justified. The court said that it did not doubt the importance to modern policing of detailed intelligence gathering and that it accepted the need for caution before overriding the judgment of the police about what information was likely to assist them in their task. It noted that, for present purposes, that task was to obtain a better understanding of how Smash EDO was organised in order to be able to forecast the place and nature of its next protest and to anticipate the number of people likely to attend and the tactics they were likely to adopt.", "23. The court said that it was “not easy to understand how the information currently held on Mr Catt can provide any assistance in relation to any of those matters”. It referred to the comment in the statement of the National Coordinator that it was valuable to have information about the applicant’s attendance at protests because he associated with those who had a propensity to violence and crime. However, it considered that the statement did not explain why that was so, given that the applicant had been attending similar protests for many years without it being suggested that he had indulged in criminal activity or actively encouraged those that did. The court continued:", "“44. ... The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life. It can be justified by showing that it serves the public interest in a sufficiently important way, but in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. It is striking that [the National Coordinator] does not say that the information held on Mr Catt over many years has in fact been of any assistance to the police at all. The Divisional Court considered that it was not practically possible to weed out from time to time information held on particular individuals. There is, however, no evidence to support this conclusion and we are not satisfied that it is correct. It should not be overlooked that the burden of proving that the interference with Mr Catt’s article 8 rights is justified rests on the respondent.", "45. That leaves the question whether the interference with Mr Catt’s rights is in accordance with the law. This is very much a live issue given the relatively vague nature of some aspects of the regime contained in the MoPI Code and Guidance and the criticisms voiced by the Divisional Court in C (paragraph [54]) [see “Relevant domestic law and practice”, below] and by the Strasbourg court in M.M. v. the United Kingdom (2012) (Application no. 24029/07). However, in the light of the conclusion to which we have come on the question of proportionality it is unnecessary for us to reach a final decision on the point.”", "3. Proceedings before the Supreme Court", "24. The Supreme Court granted the Commissioner and ACPO leave to appeal. Following a three day hearing during which legal representatives for the applicant, an NGO, the NHRI for England and Wales, ACPO and the Secretary of State submitted arguments, it upheld the appeal in a judgment of 4 March 2015 by a majority of four justices to one. All five justices agreed that Article 8 was applicable and that retention of the data amounted to an interference with the applicant’s rights under that article.", "25. Lord Sumption delivered the leading opinion for the majority. He set out the applicable legal framework for collection and retention of data. After reviewing the requirements for “lawfulness” under Article 8 of the Convention, by reference to S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 99, ECHR 2008, he concluded that the interference was in accordance with the law. He noted that the Data Protection Act laid down principles that were germane and directly applicable to police information and contained a framework for their enforcement. These principles were supplemented by a statutory Code of Practice and administrative Guidance (see “Relevant domestic law and practice”, below), compliance with which was mandatory. While, inevitably, there were discretionary elements in the scheme, their ambit was limited. Lord Sumption considered the applicant’s argument that the Code of Practice and the Guidance did not enable him to know precisely what data would be obtained and stored or for how long to be unrealistic. He explained that the infinite variety of situations in which issues of compliance might arise and the inevitable element of judgment involved in assessing them made complete codification impossible. However, he noted, any person who thought that the police held personal information about him could seek access to it under section 7 of the Data Protection Act and, if he objected to its retention or use, could bring the matter before the Information Commissioner.", "26. Lord Sumption then turned to consider the proportionality of the interference. He observed that political protest was a basic right recognised by the common law and protected by Articles 10 and 11 of the Convention. He summarised the facts of the applicant’s case, including the nature of Smash EDO’s activities and the applicant’s attendance at public demonstrations, and the framework for police collection and retention of data in this context. He concluded that the retention of information, including some which related to persons such as the applicant against whom no criminality was alleged, was justified. The starting point, in his view, was the nature and extent of the invasion of privacy involved in the retention of information of this kind, which he described as minor. While the information stored was personal information because it related to individuals, it was in no sense intimate or sensitive information. Rather, it was information about the overt activities in public places of individuals whose main object in attending the events in question was to draw public attention to their support for a cause. Although the collation of the information in the form in which it appeared in police records was not publicly available, the primary facts recorded were and always had been in the public domain; no intrusive procedures had been used to discover and record them.", "27. He then addressed the justification for retaining the personal data for someone who has a clean record and for whom violent criminality must be a very remote prospect indeed. Referring back to the National Coordinator’s statement (see paragraphs 18 to 20), he identified three reasons for the need to retain such data: (1) to enable the police to make a more informed assessment of the risks and threats to public order; (2) to investigate criminal offences where there have been any, and to identify potential witnesses and victims; (3) to study the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence. He also underlined some basic facts about intelligence-gathering commenting:", "“31 ... Most intelligence is necessarily acquired in the first instance indiscriminately. Its value can only be judged in hindsight, as subsequent analysis for particular purposes discloses a relevant pattern ... The most that can be done is to assess whether the value of the material is proportionate to the gravity of the threat to the public ...”", "28. Lord Sumption further considered that the retention in a nominal record or information report of information about third persons such as the applicant did not carry any stigma of suspicion or guilt. It did not imply that all those mentioned as participating in events such as Smash EDO protests were being characterised as extremists. It was further noteworthy that the material was not usable or disclosable for any purpose other than police purposes, except as a result of an access request by the subject under the Data Protection Act. It was not used for political purposes or for any kind of victimisation of dissidents and was not available to potential employers. The material was also periodically reviewed for retention or deletion according to rational and proportionate criteria based on an assessment of danger to the public and value for policing purposes.", "29. In conclusion, Lord Sumption was of the view that sufficient safeguards existed to ensure that personal information was not retained for longer than required for the purpose of maintaining public order and preventing or detecting crime, and that disclosure to third parties was properly restricted.", "30. Lady Hale concurred with Lord Sumption but indicated:", "“51. ... it would be more objectionable if the police were to retain a nominal record collecting together all the information that they currently hold about him. Such dossiers require particular justification, not least because of their potentially chilling effect upon the right to engage in peaceful public protest. Mr Catt may be a regular attender at demonstrations, some of which are organised by a group which resorts to extreme tactics, but he himself has not been involved in criminal activity at those or any other demonstrations, nor is he likely to be in the future. Had the police kept a nominal record about him, therefore, I would have been inclined to agree with Lord Toulson that it could not be justified.”", "31. Lord Toulson, dissenting, agreed that the collection and retention of the data by the police was in accordance with the law. However, he considered that retention of the data was disproportionate. He explained that he had no difficulty in accepting in general terms the explanation given in the National Coordinator’s statement, but that there had to be limits, particularly in the case of a person who had never been accused of violence and had been assessed not to be a threat. The statement did not explain why it was thought necessary to maintain for many years after the event information on someone whom the police had concluded, as they had in July 2010, was not known to have acted violently and did not appear to be involved in the coordination of the relevant events. Nor did it explain why it was thought necessary and proportionate to keep details of the applicant’s attendance at other political protest events such as the Labour Party conference and the TUC conference.", "32. He agreed with the Court of Appeal that the Commissioner had not shown that the value of the information relating to the applicant was sufficient to justify its continued retention. As to the suggestion that it would place too great a burden on the police to undertake frequent reviews, Lord Toulson pointed out that there was no evidence from the police that this would be over-burdensome. On the contrary, he said, the thrust of the evidence was that they did carry out regular reviews so there was nothing to indicate that deleting their historic records of the applicant’s attendances at protest events would create any real burden.", "33. Lord Toulson accepted that, when investigating serious organised crime, it was necessary for the police to be able to collate and keep records of the details of their investigations. However, he did not agree that there was any risk of that being hampered by upholding the decision of the Court of Appeal in the applicant’s case. While the court should be slow to disagree with the evaluation of the potential usefulness of evidence by the police if a clear reason for it had been advanced, on the facts of this case Lord Toulson could not see what value they had identified by keeping indefinitely a record of the applicant’s attendances at events where he had done no more than exercise his democratic right of peaceful protest. He concluded:", "“69. One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Power to collect and retain data", "34. At common law the police have the power to obtain and store information for policing purposes including for the maintenance of public order and the prevention and detection of crime.", "35. Under those powers the police have collected information relating to “domestic extremism” and this has resulted in the creation of the National Special Branch Intelligence System, commonly referred to as the “Extremism database”. For the purposes of the domestic proceedings in the present case “domestic extremism” was defined as (see paragraph 18):", "“... the activity of individuals or groups who carry out criminal acts of direct action to further their protest campaigns, outside the democratic process.”", "36. In its June 2013 report reviewing the progress made against the recommendations in its 2012 report on the national police units which provide intelligence on criminality associated with protest, Her Majesty’s Inspectorate of Constabulary identified three different working definitions of “domestic extremism” used by different bodies within the police (see paragraph 52, below).", "B. The processing of personal data", "1. The Data Protection Acts 1998 and 2018", "37. The Data Protection Act 1998 regulated the processing of personal data. It required that the processing of data comply with the “data protection principles” in Schedule 1 to the Act. For a summary of the relevant principles see M.M. v. the United Kingdom, no. 24029/07, §§ 65-71, 13 November 2012. Part 2 of the Act was titled “Sensitive personal data”:", "“In this Act “sensitive personal data” means personal data consisting of information as to—", "(a) the racial or ethnic origin of the data subject,", "(b) his political opinions,", "...", "(d) whether he is a member of a trade union (within the meaning of the [1992 c. 52.] Trade Union and Labour Relations (Consolidation) Act 1992),", "...”", "38. The Data Protection Act 1998 was repealed and replaced by the Data Protection Act 2018 which came into force on 27 May 2018. Chapter 2 of Part 3 of the Data Protection Act 2018 sets out the principles that apply to the processing of data by law enforcement. Section 35 states that “sensitive processing” means the processing of personal data revealing “political opinions” or “trade union membership” inter alia. Section 42 provides for further safeguards in relation to such “sensitive processing”.", "39. Both the Data Protection Acts implement instruments of European Union Law all of which provided for “special categories” of personal data liable to higher protection than other types of personal data (see paragraphs 67-70 below).", "2. Code of Practice on the Management of Police Information", "40. Under section 39A of the Police Act 1996, the Secretary of State is empowered to issue codes of practice for the purpose of promoting the efficiency and effectiveness of police forces. A Code of Practice on the management of police information (“MoPI Code of Practice”), based on the provisions of the Data Protection Act, was issued by the Secretary of State in July 2005. Under the Code, handling of police information is limited to “police purposes”. These are defined at paragraph 2.2 as protecting life and property, preserving order, preventing crime, bringing offenders to justice and performing any legal duty or responsibility of the police.", "41. The MoPI Code of Practice provides for more detailed provision to be made by way of guidance. Such guidance (the “MoPI Guidance”) was originally issued by ACPO in 2006 and updated by a new edition in 2010. It was later superseded by the Authorised Professional Practice: Information Management – Retention, review and disposal, published by the College of Policing in 2013. However, the 2013 Guidance appears substantially the same as the 2010 edition.", "42. Section 2 of the 2010 MoPI Guidance addresses the processes for managing police information. It states at 2.2. that:", "“The management of records is fundamental to effective information management. The integrity of police information relies on the information being trusted, acceptable useable and available. To assist the evaluation, auctioning, sharing and review of information the information should be in a format that is accessible and easy to use, whether is an electronic, photographic or paper record.”", "43. Section 7 deals with the review of information for retention or disposal. It requires police information to be managed in compliance with the Convention, the Human Rights Act and the Data Protection Act. Paragraph 7.1 begins:", "“Reviewing information held by forces to determine its adequacy and continuing necessity for a policing purpose is a reliable means of meeting the requirements of the Data Protection Act. Review procedures should be practical, risk focused and able to identify information which is valuable to the policing purpose and needs to be retained. Review procedures should not be overly complex but should be as straightforward as is operationally possible.”", "44. Paragraph 7.2.1. states that the police force must act in a way that complies with the European Convention on Human Rights and the Human Rights Act 1998:", "“In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.”", "45. Paragraph 7.3.1 provides that the object of the review is to ensure that there is a continuing policing purpose for holding the record, that the record is adequate, up-to-date and not excessive, that the Data Protection Act is complied with, and that the assessment of the level of risk that the person presents is correct.", "46. Paragraph 7.4 provides:", "“All records which are accurate, adequate, up to date and necessary for policing purposes will be held for a minimum of six years from the date of creation. This six ‑ year minimum helps to ensure that forces have sufficient information to identify offending patterns over time, and helps guard against individuals’ efforts to avoid detection for lengthy periods.", "Beyond the six-year period, there is a requirement to review whether it is still necessary to keep the record for a policing purpose. The review process specifies that forces may retain records only for as long as they are necessary.”", "47. A number of detailed criteria for carrying out this exercise are set out. Records are required to be subjected to an initial evaluation and then kept for a minimum of six years. Thereafter, they are subject to “triggered reviews”, when information is added about the person in question; a statutory demand for access or disclosure is received; or a request for information is made by another law enforcement agency.", "48. Appendix 4 to the guidance sets out scheduled reviews, which are fixed for information relating to individuals who have committed serious criminal offences or are considered dangerous to the public. The timing of these reviews varies with the nature of the information and the gravity of the risk. The Appendix specifies that records should be retained until persons reach 100 years old if they have been convicted or are suspected of involvement in offences involving the highest level of danger to the public. Otherwise, where retention limits are mentioned these refer to the minimum limits of 6 years retention or the length of sentence (if longer).", "49. Paragraph 7.7 of the MoPI Guidance explains the need to collect and retain intelligence:", "“The retention of information relating to criminal activity and known and suspected offenders allows the Police Service to develop a more proactive approach to policing. By contributing to the identification of criminal patterns and threats and helping to prioritise the subsequent deployment of policing resources, information retention assists forces to prevent and detect crime and protect the public.”", "3. Oversight", "50. Her Majesty’s Inspectorate of Constabulary (HMIC) is a statutory", "organisation established under s.54 of the Police Act 1996 to inspect, and report to the Home Secretary and to Parliament on the efficiency and effectiveness of the police forces in England and Wales. The HMIC has a remit to report on information management by the police.", "51. Following revelations about the use of undercover policing in unrelated, domestic litigation HMIC announced they would review the systems used by the NPOIU to authorise and control the development of intelligence. HMIC published its “review of national police units which provide intelligence on criminality associated with protest” in 2012.", "52. The report is focussed on reviewing the use of undercover policing. However, it does examine police work in this domain more widely including an analysis of “the NPOIU and its governance” in section 4 of the report, which also reviewed the work of its so-called sister units the National Extremism Tactical Co-ordination Unit and the National Domestic Extremism Team (“NDEU”). In this part of the report, it criticised the definition of “domestic extremism”, stating:", "“This definition includes all forms of criminality, no matter how serious. It could lead to a wide range of protestors and protest groups being considered domestic extremists by the police. HMIC questions whether this is appropriate, and if the police should instead reserve this potentially emotive term for serious criminality.”", "53. The review also examined the intelligence systems used commenting:", "“... the NDEU is the sole national body for the collation and analysis of domestic extremism intelligence ... When intelligence is received by the NDEU it is recorded on a computer database ... During the early part of the 2000s, a weeding policy was developed which meant a record would be removed from the database if there had been no new intelligence for six months. However, this never formed a definitive policy; and in practice, by 2006 weeding was not robust. The current database has an automatic weeding process, although it still requires human confirmation. Since 2008 more than 2,900 expired entries and documents have been removed from the database.", "HMIC has examined the NDEU database and found that in a number of cases the rationale for recording and retaining the intelligence was not strong enough (in terms of the ‘necessity and proportionately’ tests). This makes it difficult for NDEU to provide assurance that these tests are satisfied. In order to meet the Management of Police Information requirements, NDEU must document ‘objective facts’ used to justify retaining intelligence. HMIC will revisit this issue separately.”", "54. In its July 2015 report “Building the Picture: An inspection of police information management” the HMIC stressing the importance of good information management stated in its national inspection findings:", "“It is a matter of serious concern that there is insufficient review taking place of the information that forces hold. Without these reviews – and the means to demonstrate that they have taken place properly or at all- the police service leaves itself vulnerable to challenge. The absence of sound and consistent reviews means that information might be destroyed when it should be kept, thus increasing the risk to public safety.”", "55. In its findings for the Metropolitan Police Service, which is the service that includes Special Branch, responsible for policing “domestic extremism”, it commented:", "“The records management manual records how the force meets the retention, review and disposal elements of the APP [formerly the MOPI] guidance ... The length of time that the force plans to keep information on systems was set out in the manual but the timescales were not consistent with either the previous MOPI or current APP standards. A review of the manual was planned during which the force approach will be matched to developing ICT [information communications technology]. All police information on force system was retained indefinitely. There was no process of review and no consistent process for deleting information once it is no longer useful. This situation increases risk of duplication and compromises investigation and analysis (see national recommendations 1 and 7).”", "56. Recommendation 1 to chief constables was that they should ensure:", "“... that a review is undertaken of the way in which their forces’ information management policies and practice comply with the APP on information management so that they give effect to the national approach and minimise any divergence from that APP.”", "57. Recommendation 7 to the College of Policing was that it:", "“... should amend its APP on information management so as to specify the minimum information management requirements for initial reviews in relation to the retention and disposal of information.”", "III. RELEVANT COUNCIL OF EUROPE INSTRUMENTS", "Council of Europe", "1. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 (Treaty 108)", "58. Article 6 of the Convention titled “Special categories of data” states as follows:", "“Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards ...”", "59. In relation to Article 6 the Explanatory Report to the Convention comments:", "“43. While the risk that data processing is harmful to persons generally depends not on the contents of the data but on the context in which they are used, there are exceptional cases where the processing of certain categories of data is as such likely to lead to encroachments on individual rights and interests. Categories of data which in all member States are considered to be especially sensitive are listed in this article.”", "60. The Convention was modernised, by means of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, opened for signature on 10 October 2018 and Article 6 of the Convention, as amended by the Protocol, reads:", "“1. The processing of:", "- genetic data;", "- personal data relating to offences, criminal proceedings and convictions, and related security measures;", "- biometric data uniquely identifying a person;", "- personal data for the information they reveal relating to racial or ethnic origin, political opinions, trade-union membership, religious or other beliefs, health or sexual life,", "shall only be allowed where appropriate safeguards are enshrined in law, complementing those of this Convention.", "2. Such safeguards shall guard against the risks that the processing of sensitive data may present for the interests, rights and fundamental freedoms of the data subject, notably a risk of discrimination.”", "2. Committee of Ministers’ Resolution (74) 29 on the protection of the privacy of individuals vis-a-vis electronic data banks in the public sector", "61. Principle 3.a. states that the existence of electronic databanks in the public sector (defined as any electronic data processing system which is used to handle information) must have been provided for by law or by special regulation or have been made public in a statement or document, in accordance with the legal system of each member state.", "62. Principle 4 states:", "“Rules should be laid down to specify the time-limits beyond which certain categories of information may not be used or kept or used.", "However, exceptions from this principle are acceptable if the use of the information for statistical, scientific or historical purposes requires its conservation for an indefinite duration. In that case, precautions should be taken to ensure that the privacy of the individuals concerned will not be prejudiced.”", "63. Principle 5 states:", "“Every individual should have the right to know the information stored about him.”", "3. Committee of Ministers’ Recommendation R (87) 15 to member states regulating the use of personal data in the police sector", "64. The appendix to the recommendation sets out the basic principles in this context. Principle 2.1 – Collection of data, states:", "“The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.”", "65. Principle 2.4. states:", "“The collection of data on individuals solely on the basis that they have a particular racial origin, particular religious convictions, sexual behaviour or political opinions or belong to particular movements or organisations which are not proscribed by law should be prohibited. The collection of data concerning these factors may only be carried out if absolutely necessary for the purposes of a particular inquiry.”", "66. Principle 7 – length and storage of updating of data states:", "“Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.", "For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”", "IV. RELEVANT EUROPEAN UNION TEXTS", "67. For a summary of relevant texts see M.M. v. the United Kingdom, cited above, §§ 143-148 and Big Brother Watch and Others v. the United Kingdom nos. 58170/13 and 2 others, §§ 217-220, 13 September 2018).", "68. The Data Protection Directive (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), adopted on 24 October 1995, regulated for many years the protection and processing of personal data within the European Union. It provided that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. Article 8 in the Directive prohibited the processing of special categories of data unless certain conditions were satisfied. The special categories of personal data identified were data “revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership ...”", "69. With effect from April 2016 the 1995 Directive was replaced by the General Data Protection Regulation and Directive (EU) 2016/680 which sets out data protection principles in the context of law enforcement (the LED). Both of those instruments continue to impose special requirements concerning the processing of \"special categories” of personal data. The LED defines ‘processing’ as:", "“... any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”", "70. Article 5 of the LED is titled “Time-limits for storage and review”, it states:", "“Member States shall provide for appropriate time limits to be established for the erasure of personal data or for a periodic review of the need for the storage of personal data. Procedural measures shall ensure that those time limits are observed.”", "71. Article 10 of the LED provides:", "“Processing of special categories of personal data", "Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be allowed only where strictly necessary, subject to appropriate safeguards for the rights and freedoms of the data subject, and only:", "(a) where authorised by Union or Member State law;", "(b) to protect the vital interests of the data subject or of another natural person; or", "(c) where such processing relates to data which are manifestly made public by the data subject.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "72. The applicant complained that the retention of his data by the police was in violation of his right to privacy as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "73. The Government raised two arguments relating to admissibility.", "74. The first was that the applicant was no longer a victim to the extent claimed in his application, because nearly all the entries in the database he complained of were deleted in 2012.", "75. In this connection, the applicant underlined that his complaint was about the refusal of the police in 2010 to delete the sixty six records mentioning him in their database, which were collected and retained from 2004 onwards. The fact that all but six of those records were deleted in 2012 in the context of a weeding procedure triggered by revelations about undercover police work in unrelated domestic proceedings was not relevant.", "76. The Court notes that the applicant’s data was first collected and retained in 2005 (see paragraph 9, above). Since then, the police have continually retained his personal data on the database in one form or another. He has therefore had victim status from a Convention perspective since 2005. This conclusion is not affected by the fact that some of the applicant’s personal data was deleted in 2012.", "77. The second argument made by the Government was that the applicant had at his disposal a range of judicial remedies which he could have used to secure the deletion of his personal data.", "78. The Court recalls that under its established case-law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009 and Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009).", "79. In light of the above, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "80. The applicant complained that the systematic collection and retention of information about him in a searchable database amounted to an interference with his right to privacy under Article 8. He argued that this interference was not justified because the database on which the data were held did not provide sufficient safeguards and so was not in accordance with the law. In particular he argued that the scope of the database may be adjusted arbitrarily by the police; data is retained for excessively long periods on the basis that the database as a whole may be useful; data is subject to automated and manual processing. He did not make arguments based on data protection legislation but submitted that the retention is unjustified given that the data retained related to his involvement in proper and lawful political protest activity and has never been useful for any police functions. The retention of such data is likely to have a chilling effect.", "81. The applicant also argued that as records relating to him were found on the database after the Supreme Court’s decision, the Supreme Court had made its decision on an incomplete factual basis. Recalling his assertion that the database had inadequate safeguards, the applicant argued that the fact records are not properly disclosed even in the context of proceedings before the Supreme Court indicates that the database is not in accordance with the law. He also alleged that there is no real system of oversight or independent review, emphasising that making a “subject access request” under the DPA will only be effective if all relevant data is disclosed by the police when they receive such a request. The applicant also asserted that the margin of appreciation to be afforded in light of the decisions of the domestic courts is reduced, given that those courts did not have all the relevant information before them.", "82. The Government accepted that the collection and retention of information about the applicant constituted an interference with his right to respect for private life. However, relying on the findings of the Supreme Court, they contended that the interference was very limited.", "83. They also relied on the findings of the Supreme Court that the interference was in accordance with the law, being subject to the Data Protection Act 1998, and a statutory Code of Practice and Guidance.", "84. As to the necessity of storing the applicant’s information, the Government underlined that the differences of view between the Court of Appeal and the Supreme Court reflect opinions properly open to both courts on the evidence. With reference to the extensive amount of judicial scrutiny on this point at the domestic level, they contended that the question of whether it was necessary to retain the applicant’s data falls within the state’s margin of appreciation.", "85. In relation to the disclosure of additional reports concerning the applicant after the domestic proceedings, the Government stated that these do not have any particular impact on the standing of the domestic judgments and that the applicant should make use of domestic remedies to bring a challenge concerning those disclosures, for example by way of judicial review.", "2. The submissions of third party interveners", "(a) The Equality and Human Rights Commission", "86. The Equality and Human Rights Commission (EHRC) submitted remarks concerning the Extremism Database, which it characterised as a computerised and searchable police database which stores large quantities of intelligence about lawful public protests and those attending such protests. According to the EHRC, the database is not established under any legislation, has no statutory foundation, nor does any published policy refer to its creation, purposes or function.", "87. The intervention recalls relevant standards and guidance set out in various international instruments including the Article 17 of the International Covenant on Civil and Political Rights and the Council of Europe’s Committee of Ministers’ Recommendation R(87) Regulating the use of personal data in the police sector. Drawing on the case law of this Court and the Court of Justice of the European Union, it goes on to set out what it considers to be the core minimum principles required to satisfy the requirement that a legal regime is “in accordance with the law” in the context of the police database at issue in this case. Those are:", "(i) the creation of police powers must be published and accessible to the public;", "(ii) clear and publicly accessible safeguards are required to ensure that the interference does not occur in an arbitrary, inappropriate or unnecessary manner;", "(iii) there must be clear and accessible criteria enabling individuals, whose personal data is stored, to secure its deletion, including by way of independent review;", "(iv) information relating to those not suspected of criminal activity must be removed.", "88. The EHRC then concluded that the minimum safeguards are not present in relation to the Extremism Database. They also highlighted the danger of a chilling effect on legitimate political protests where the Extremism Database contains information about political activities.", "(b) Privacy International", "89. Privacy International is an NGO based in the United Kingdom and concerned with unlawful use of surveillance.", "90. Privacy International criticised the Supreme Court’s characterisation of the interference with the applicant’s right to privacy as minor because it relates to activities that occurred in public, underlining that the collection of such information should be seen in its context. Privacy International argued that with rapid technological development, this approach would allow the monitoring of large amounts of information which is to some extent public, such as information from social media, facial recognition technology, body worn cameras, CCTV and automatic number plate recognition technology. It criticised the absence of legislation governing the collection and use of data obtained from such sources.", "91. Privacy International concluded that the retention of such data is an infringement of privacy rights and also the right to freedom of expression, again underlining that such an infringement cannot be characterised as minor.", "3. The Court’s assessment", "(a) Interference", "92. In light of the conclusion of the Supreme Court, the Government conceded that the collection and retention of the applicant’s personal data interfered with his Article 8 rights. However, they argued that the infringement in the applicant’s rights was limited.", "93. The Court recalls that it is well established in its case-law that the mere storing of information amounts to an interference with the applicants’ right to respect for private life as secured by Article 8 § 1 of the Convention (see S. and Marper, cited above, § 67 and Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 73, ECHR 2006 ‑ VII with further references). The Court considers that the question of the alleged “limited” nature of the interference in the applicant’s rights is more appropriately addressed in the context of whether the interference was necessary in a democratic society (see paragraphs 109-128, below).", "(b) Justification", "(i) In accordance with the law", "94. As the Court has recalled the expression “in accordance with the law” not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope and discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, M.M. v. the United Kingdom, no. 24029/07, § 193, 13 November 2012 with further references).", "95. The Court has also observed that there are various crucial stages at which data protection issues under Article 8 of the Convention may arise, including during collection, storage, use and communication of data ( M.M., cited above, § 195).", "(α) Collection of data", "96. Turning to the question of the collection of data, the Court notes that in the present case the collection of data was undertaken on the basis of general police powers in the common law, with reference to a working definition of “domestic extremism”. That definition varied between bodies in the police, and its ambiguity has been criticised by HMIC (see paragraph 52 above).", "97. In light of the general nature of the police powers and the variety of definitions of the term “domestic extremism”, the Court considers that there was significant ambiguity over the criteria being used by the police to govern the collection of the data in question. It notes that perhaps as a result, the database in issue appears to have been assembled on a somewhat ad hoc basis. The Court therefore agrees with the applicant that from the information available it is difficult to determine the exact scope and content of the data being collected and compiled to form the database.", "98. However, the Government have argued that the creation of the database does not need to be statutory. The Court considers that this assertion is supported by Principle 3.1. of the Committee of Ministers’ Resolution (74) 29 on the protection of the privacy of individuals vis-a-vis electronic data banks in the public sector (see paragraph 61 above) which states that such databanks must have been provided for by law, or by special regulation or have been made public in a statement or document, in accordance with the legal system of each member state. In this connection the Court notes that the ‘management’ of data was regulated by legislation and a code of practice (see paragraphs 37-40 and paragraph 99) whilst the general police powers which permitted the collection of data were provided for in the common law. The Supreme Court referred to a HMIC report from 2003 (see § 28 of its judgment), and contemporaneous news reporting to support its conclusion that the collection of the applicant’s data was foreseeable. The Court notes that the existence of a specific database was not clearly acknowledged until the domestic proceedings in this case, although it accepts that from the information publicly available it was possible to deduce that the police were likely to be maintaining such a database.", "99. It is of concern that the collection of data for the purposes of the database did not have a clearer and more coherent legal base. However, the framework governing the collection of the applicant’s data cannot be viewed in isolation from the provisions governing retention and use of the applicant’s personal data. Accordingly, before coming to a conclusion under this head the Court turns to examine those provisions, which impose certain legal protections against arbitrariness.", "(β) Retention and use of data", "100. The Court has recently examined the provisions governing the retention of the data in the present case in M.M. ¸ cited above. Those provisions were the Data Protection Act and the 2005 Code of Practice on the Management of Police Information. In the present case, those rules on retention of data stated that there was a presumption in favour of retention where data is not excessive, is necessary for a policing purpose, and is up to date. After the initial decision to retain, data must be retained for a minimum of six years. After that point it should be reviewed, and may be deleted. There is no fixed point in time identified for when reviews must take place, or when the data must be deleted. The police retain a general discretion to retain data if it is necessary to do so.", "101. In M.M. ¸ cited above, the Court found a violation of Article 8 on the basis that the retention and disclosure of personal data was not in accordance with the law. It observed that the indiscriminate and open-ended collection of criminal record data was unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed. It also noted the absence of any mechanism for independent review of a decision to retain or disclose data (see M.M., cited above, §§ 199- 206).", "102. However, whilst the provisions on retention of data in this case bear some similarity to those in M.M., other elements are not the same.", "103. In the first instance, the Court notes that M.M. concerned the retention of criminal record data which the Court identified as not only personal but also sensitive, with “potentially devastating consequences” if disclosed. Moreover, the complaint in M.M. did not relate to police intelligence gathering but focussed on the disclosure regime for criminal records, and the Court criticised the absence of a statutory framework governing the (in some cases obligatory) communication of such data by the police to prospective employers in Northern Ireland at the time (see M.M., cited above, § 203).", "104. Against this background, the Court also notes that in contrast to the applicant in M.M., the applicant in the present case had the possibility to make a request for the review and deletion of his data which he exercised (see a contrario M.M., cited above, § 206 ).", "(γ) Conclusion", "105. The Court has concerns about the ambiguity of the legal basis for the collection of the applicant’s personal data. In particular the Court notes the loosely defined notion of “domestic extremism” and the fact that applicant’s data could potentially be retained indefinitely. However, the data retained would not be disclosed to third parties; and the applicant had the possibility to apply for the deletion of his data.", "106. In this connection, the Court recalls that the question of whether the collection, retention and use of the applicant’s personal data was in accordance with the law is closely related to the broader issue of whether the interference was necessary in a democratic society ( S. and Marper, cited above, § 99, ECHR 2008).", "107. Therefore, in view of its analysis in paragraphs 109-128 below, the Court does not find it necessary to decide whether the interference was “in accordance with the law”, within the meaning of Article 8 § 2 of the Convention.", "(ii) Legitimate aim", "108. There has been no significant dispute about whether the creation and maintenance of the database by the police pursues a legitimate aim. The Court equally considers that it does so, that aim being the prevention of disorder or crime and safeguarding the rights and freedoms of others.", "(iii) Necessary in a democratic society.", "109. The Court has set out on many occasions the elements to be taken into account when considering whether an interference in an applicant’s Article 8 rights was necessary and therefore justified. It will be necessary in a democratic society if it answers to a “pressing social need”, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are relevant and sufficient”. A margin of appreciation must be left to the competent national authorities in this assessment (see S. and Marper, cited above, § 101-102).", "110. Dealing with the latter element first, the Court notes the Government argued that the domestic courts had closely examined the issues in light of Article 8. Those courts differed in their conclusions but this indicated that the point was one upon which a correct application of the principles under Article 8 could nonetheless result in a different result. With reference to the extensive amount of judicial scrutiny at the domestic level, they contended that the question of whether it was necessary to retain the applicant’s data falls within the state’s margin of appreciation and it was therefore not for this Court to decide.", "111. In this respect, the Court recalls that in Article 8 cases it has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities, unless there are shown to be compelling reasons for doing so (see McDonald v. the United Kingdom, no. 4241/12, § 57, 20 May 2014).", "112. However, the Court considers in the present case there are reasons for doing so. In the first place it considers significant that personal data revealing political opinion falls among the special categories of sensitive data attracting a heightened level of protection (see paragraphs 58-60 and 67-70 above and S. and Marper, cited above, § 76). It notes that at the domestic level this element of the complaint was characterised as one of data protection law and was not a particular focus of the litigation. Having concluded that retention of the applicant’s data was not justified under Article 8, the Court of Appeal did not consider that examining the specific principles of data protection would add anything to their analysis (see § 65). The applicant did not pursue specific data protection arguments before the Supreme Court, which therefore only referred to data protection law generally in the context of lawfulness. However, the Court considers that the nature of the applicant’s complaint meant that the sensitive nature of the data in question was a central feature of the case both before the domestic courts as well as before this Court (see paragraph 80 above).", "113. The Court also notes that notwithstanding its well established case-law (see paragraph 93, above) the High Court considered that the collection and retention of the applicant’s data was not an interference under Article 8. This question was resolved by the Court of Appeal and Supreme Court who found that it was an interference and gave detailed and comprehensive judgments referring extensively to Strasbourg jurisprudence. However the Government maintained arguments that the retention was not systematic and the nature of the interference was limited. The applicant argued that a decisive ruling was necessary. The Court agrees that some clarification of these elements appears to be called for.", "114. The Court also recalls the importance of examining compliance with the principles of Article 8 where the powers vested in the state are obscure, creating a risk of arbitrariness especially where the technology available is continually becoming more sophisticated (see Roman Zakharov v. Russia [GC], no. 47143/06, § 229, ECHR 2015, and Szabó and Vissy v. Hungary, no. 37138/14, § 68, 12 January 2016). Unlike the present case, those cases dealt with covert surveillance. However, the Court considers it should be guided by this approach especially where it has already highlighted concerns relating to the ambiguity of the state’s powers in this domain (see paragraph 105 above).", "115. Finally, the Court takes into account the manner and timing of the disclosure and the fact that there was more personal data held on the applicant than revealed at the time of the domestic proceedings (see paragraphs 11, 15-17 above). This has an impact on its evaluation of the available safeguards (see paragraph 122 below).", "116. Therefore, the Court turns to the other elements to be examined, beginning with the question of whether there was a “pressing social need” to collect and retain the applicant’s personal data. In doing so, it recalls that the question for it to examine is not whether there was a “pressing social need” for the police to establish and maintain such a database. To the extent that the Court examines this issue from a more general aspect, it has done so in its conclusion that the creation of the database pursued a legitimate aim (see paragraph 108 above). At this stage, the Court is examining whether the collection and retention of the applicant’s personal data may be regarded as justified under the Convention (see mutatis mutandis, S. and Marper, cited above, § 106).", "117. As to whether there was a pressing need to collect the personal data about the applicant, the Court accepts that there was. It agrees with the Supreme Court that it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value (see paragraph 27, above). In this respect, the Court again recalls that the personal data in question was overtly obtained.", "118. The Court also agrees with the domestic courts that the police had an obvious role to monitor protests of Smash EDO where the activities of that group were known to be violent and potentially criminal. Therefore, even if the applicant himself was not suspected of being directly involved in that group’s criminal activities, it was justifiable for the police to collect his personal data. He had after all decided to repeatedly and publicly align himself with the activities of a violent protest group.", "119. As to whether there was a pressing need to retain the applicant’s data, the Court considers there was not. It shares the domestic courts’ concern that there is a need for caution before overriding the judgment of the police about what information is likely to assist them in their task (see paragraph 22 above). In this respect, the Court underlines that its conclusion does not call into question the fact that there may have been a pressing need for the police to retain the applicant’s personal data for a period of time after it was collected. However, in the absence of any rules setting a definitive maximum time limit on the retention of such data the applicant was entirely reliant on the diligent application of the highly flexible safeguards in the MOPI to ensure the proportionate retention of his data. Where the state chooses to put in place such a system, the necessity of the effective procedural safeguards becomes decisive (see mutatis mutandis S.M.M. v. the United Kingdom, no. 77450/12, § 84, 22 June 2017). Those safeguards must enable the deletion of any such data, once its continued retention becomes disproportionate.", "120. In this connection, the Court observes that as the applicant’s personal data could potentially be retained indefinitely the only time limit that he could be certain of was that the data would held for a minimum of six years, at which point it would be subject to a scheduled review. In the present case, it is not clear that these six year reviews or any later reviews were conducted in any meaningful way. Certainly, they did not directly result in the deletion of any of the applicant’s personal data.", "121. The Court notes that the circumstances of the case contrast with the approach set out in principle 4 of the Committee of Ministers’ Resolution (74) 29 on the protection of the privacy of individuals vis-à-vis the electronic data banks in the public sector, which states that rules should be laid down to specify maximum time-limits beyond which certain categories of information may not be used or kept, other than in some exceptional situations (see paragraph 62 above).", "122. Also, whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data (see paragraphs 11 and 15-17 above). So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database (see paragraph 16, above) despite the fact that the police concluded, and the domestic courts affirmed that the applicant was not considered a danger to anyone (see paragraph 31, above).", "123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004 ‑ I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.", "124. Moreover, principle 2 on the collection of data in Recommendation R (87) 15 (see paragraph 65 above) states that the collection of data on individuals solely on the basis that they belong to particular movements or organisations which are not proscribed by law should be prohibited unless absolutely necessary or for the purposes of a particular inquiry (see mutatis mutandis Segerstedt-Wiberg and Others, cited above, § 79). The Court considers that the retention of the applicant’s data in particular concerning peaceful protest has neither been shown to be absolutely necessary, nor for the purposes of a particular inquiry.", "125. The Court also underlines that it makes these findings about the applicant in light also of his age, which Principle 7 of Recommendation R (87) 15 identifies as a particular consideration in this context (see paragraph 66 above).", "126. The Government have argued that it would be too burdensome to review the database and delete all the entries relating to the applicant, because the database is not fully automated. However, the Court notes that the MoPI guidance provides for the data to be reviewed after six years and deleted. Whilst this does not appear to have happened in the present case it nonetheless shows that review and deletion of records was intended to be a real possibility. In this connection the Court also recalls that in 2012 following the HMIC report, a significant number of personal data records were deleted, clearly indicating that review and deletion of records is possible (see paragraph 13, above). The Court also notes the MoPI guidance stipulates the importance of ensuring that information is easy to access and use (see paragraph 42, above).", "127. Accordingly, the Court is not convinced that deletion of the data would be so burdensome as to render it unreasonable. In general terms the Court would add that it would be entirely contrary to the need to protect private life under Article 8 if the Government could create a database in such a manner that the data in it could not be easily reviewed or edited, and then use this development as a justification to refuse to remove information from that database.", "128. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "129. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "130. The applicant did not submit a claim for just satisfaction, considering that a finding of a violation would be sufficient. Accordingly, the Court considers that there is no call to award him any sum on that account.", "B. Costs and expenses", "131. The applicant also claimed GBP 41,770 for the costs and expenses incurred before the Court and attached detailed documentation in support of their claim.", "132. The Government claimed that this figure was excessive, in particular as the lawyers’ hourly rates were too high and their pleadings repeated arguments made before the domestic courts.", "133. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 27,000 for the proceedings before the Court.", "C. Default interest", "134. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1972 and lives in Newry.", "A. The background facts", "6. On 14 October 2008 at approximately 1.35 a.m. the applicant was stopped at a police checkpoint. He was arrested for the recordable offence (i.e. an offence punishable by imprisonment) of driving with excess alcohol contrary to the Road Traffic (Northern Ireland) Order 1995 and taken to a police station where he provided samples of breath. They were found to contain 65 milligrams of alcohol per 100 millilitres of breath: 30 milligrams in excess of the permitted limit. On the same day the following information or data relating to the applicant was taken from him: fingerprints; a photograph; and a non-intimate DNA sample by buccal swab. A DNA profile (a digital extraction of key data) was subsequently taken from the DNA sample.", "7. On 5 November 2008 the applicant pleaded guilty to the offence of driving with excess alcohol at Newry Magistrates Court. He was thus a convicted person. He was fined 50 pounds sterling (GBP) and disqualified from driving for 12 months but no immediate or suspended custodial sentence was imposed on him. Under the relevant legislation, his conviction was spent after five years, i.e. by 5 November 2013. Other than his conviction for driving with excess alcohol, he had been convicted on 6 June 1990 (when he was seventeen years old) for ‘ disorderly behaviour ’, for which he was fined twenty five pounds.", "8. On 15 January 2009, just over two months after the applicant pleaded guilty, his solicitor wrote to the Police Service of Northern Ireland (the “PSNI”) claiming that the retention of the applicant ’ s photograph, fingerprint and DNA sample was unlawful. He requested that they be destroyed or returned to the applicant. The PSNI replied on 27 February 2009 saying that the legal consequence of the decision of this Court in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008 was a matter for the United Kingdom Government and that any changes to the law of the United Kingdom would be fully complied with by the PSNI.", "9. The applicant ’ s DNA sample was destroyed in 2015. The PSNI continues to retain, and intends to retain indefinitely within its records the DNA profile, fingerprints and photograph relating to the applicant that were taken from him on 14 October 2008.", "B. The domestic proceedings", "1. The High Court of Justice of Northern Ireland", "10. The applicant sought leave to bring an application for judicial review challenging the PSNI ’ s continued retention of his biometric data that is, his fingerprints, photograph and DNA profile. In these proceedings the applicant sought:", "“(a) a declaration that the indefinite retention of the data was unlawful and constituted an unjustifiable interference with his right to respect for private life under Article 8 of the convention; and", "(b) an order of prohibition preventing the respondent from making any use of the relevant data.”", "11. The High Court gave its judgment on 13 November 2012. It found that the retention of the applicant ’ s biometric data was an interference under Article 8 of the Convention but that interference was justified and not disproportionate for the following eleven reasons (see § 44) :", "“( i ) The building up of a database of such data from those convicted of offences provides a very useful and proven resource in the battle against crime by reason of the assistance it provides in identifying individuals. It is clear that the larger the database the greater the assistance it will provide. While a universal database would be of immense help in combatting crime, weighing the private rights of individuals against the good which would be achieved by such a universal system requires the striking of a fair balance. Experience has shown that those who have committed offences may go on to commit other offences. A state decision to draw the line at those convicted of a substantial category of offences is entirely rational and furthers the legitimate aim of countering crime so as to protect the lives and rights of others.", "(ii) The rights and expectations of convicted persons differ significantly from those of unconvicted persons. The striking of a balance between the public interest and the rights of a convicted or an unconvicted individual will inevitably be appreciably different. Strasbourg recognises that even in the case of some unconvicted persons retention for a period may be justifiable in the public interest.", "(iii) A person can only be identified by fingerprints and DNA sample either by an expert or with the use of sophisticated equipment. The material stored says nothing about the physical make up, characteristics or life of the person concerned and it represents objective identifying material which can only be relevant or of use when compared with comparative material taken from a person lawfully subjected to a requirement to provide such material for comparison.", "(iv) The use to which the material can be lawfully put is severely restricted by the legislation.", "(v) As well as being potentially inculpatory the material may be exculpatory and thus in ease of a person such as the applicant. If it is inculpatory its use assists in the detection of someone likely to have been involved in crime which is a matter of deep interest to the public.", "(vi) There is in place an exceptional case procedure which permits of a possibility of an application to have data removed.", "(vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Carswell LCJ pointed out in Re McBride [1997] NI 269 at 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Such a conclusion by the state authorities is legitimate and rational.", "(viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases. The choice of that differentiation is one involving the exercise of judgment by the state authorities which seeks to balance, on the one hand, the very limited impact of retention and use of such material on a person ’ s real private life and its minimal impact on the intimate side of his life and, on the other hand, the benefit to society flowing from the creation of as effective a database as legitimately possible to help in combatting crime. The choice to retain the data of those convicted of recordable offences represents the exercise of a balanced and rational judgment by the authorities.", "(ix) In this case the offence committed by the applicant cannot, as the applicant asserts, be described as minor or trivial. It was an offence of a potentially dangerous anti-social nature. The criminal law has as one of its aims the protection of the lives of others and the consumption of alcohol by a driver endangers human life. Indeed the state under its operative duties under Article 2 must have in place laws which protect the lives of others. The offence was a recordable offence being one in respect of which a period of imprisonment could be ordered.", "(x) Time limitations on the retention of data for particular categories of offences can be imposed as has occurred in some legal systems such as in the Netherlands ( See W. and Van der Velden ). Different countries operate different policies in this field and some other countries follow practices similar to those followed in the United Kingdom. Any time restriction is inevitably somewhat arbitrary and it is difficult to point to any particular reason why one particular period as opposed to another should be chosen. To introduce time limitations for some offences simply to avoid a possible charge of disproportionality smacks of defensive policy making in a field which requires a proper balancing of the interests of the public against the consequences of criminal activity. The introduction of different time periods for different offences or for different sentences would clearly add to the administrative burden and would require changes and deletion of recorded data. This complexity would be aggravated in the case of those found guilty periodically of repeat offending in respect of minor offences. The removal of such data would give the offender no benefit other than the knowledge that his data is no longer recorded. As already noted the retention of the data represents a very minor intrusion into his private life.", "(xi) The retention of the data serves the added purpose of discouraging a convicted offender from reoffending for the offender has the knowledge that the police have available data which could lead to his detection. The permanent retention of that data thus serves a useful long term purpose in that regard.", "These factors point to the conclusion that the policy of indefinite retention is not disproportionate and, accordingly, the applicant ’ s application must be dismissed.”", "2. The Supreme Court", "12. The applicant appealed to the Supreme Court which gave judgment on 13 May 2015. At the outset, the Supreme Court recalled the question certified by the lower court which formed the subject of the appeal as follows:", "\"THE COURT CERTIFIES that the following point of law of general public importance is involved in the decision of the court.", "Is the policy of the Police Service of Northern Ireland to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence in breach of article 8 of the ECHR?\"", "13. The Supreme Court examined the applicant ’ s claim and found that the indefinite retention of his data was proportionate. In arriving at its conclusion it noted that the applicant ’ s photograph was retained on a standalone database which does not have the capability to match photographs, whether by way of facial recognition technology or otherwise.", "14. Lord Clarke gave the leading judgment for the majority. He underlined that the Court ’ s judgment in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008, only concerned “ unconvicted ” persons. That did not mean that system in Northern Ireland (and the United Kingdom) for convicted persons was necessarily proportionate. However, the level of interference in the applicant ’ s Article 8 rights was low, and a fair balance must be struck between competing public and private interests when considering whether that interference is justified. The United Kingdom struck that balance by choosing recordable offences as the touchstone for retention, and this appeared proportionate and justified. He took into account the fact that the applicant was only fined and not imprisoned but highlighted that driving with excess alcohol is a serious offence. He also noted Principle 7 of the Committee of Ministers ’ Recommendation No. R(87)15 as giving some support for the proposition that the fact that a conviction may become spent is potentially relevant, but did not find this was decisive. He also noted that the scheme under scrutiny applied only to adults, whereas in S. and Marper, cited above, the Court was examining a scheme which also applied to minors.", "15. He went on in the course of his analysis to consider the margin of appreciation available to the authorities. In this connection he reviewed the retention regimes in other Council of Europe States and commented as follows:", "“In S. and Marper the ECtHR, when considering the margin of appreciation in the case of those who were acquitted, placed some reliance upon the fact that the United Kingdom was alone or almost alone in retaining biometric data in such cases. There is a much broader range of approaches in the case of those who have been convicted. The Secretary of State produced an annex setting out a summary of inclusions and removal criteria in other jurisdictions. It is attached to this judgment as Annex B. It shows that in such cases many countries retain biometric data for very long periods. In addition to England and Wales and Northern Ireland, Ireland and Scotland are I think the only jurisdictions which provide for indefinite retention. However, there are several states which provide for retention until death. They are Austria: five years after death or 80 years of age; Denmark: two years after death or at 80 years of age; Estonia: ten years after death; Finland: ten years after death; Lithuania: 100 years after inclusion or ten years after death; Luxembourg: ten years after death; The Netherlands: as stated above and 80 years after a conviction against minors; Romania five years after death or 60 years of age; and Slovakia: 100 years after date of birth. It seems to me that in the context of a person ’ s rights under article 8 there is little, if any, difference between retention for an indefinite period and retention until death or effectively until death.", "Annex B shows that there are other formulae. They include Belgium: 30 years after inclusion; France: 40 years after the end of the sentence or after the age of 80; Hungary: 20 years after the sentence has been served; Latvia: 75 years of age; Poland: 35 years after conviction; Germany: DNA profiles are reviewed after ten years and removal depends on a court decision; Italy: 20 years after the incident but no profile can be kept for more than 40 years; and Sweden: ten years after sentence. It can thus be seen that member states have chosen many different approaches but there is, in my opinion, no principled basis upon which the system in operation in Northern Ireland can be held to be disproportionate, especially when compared with the significant number of countries which retain DNA profiles until death or effectively until death. Very few states have a process of review .”", "16. He then recalled the eleven points set out by the High Court of Northern Ireland and concluded:", "“I agree with that analysis and would dismiss the appeal. I would answer the certified question (quoted at para 8 above) in the negative .”", "17. Lord Kerr gave a dissenting judgment. He took a different approach to the question of whether the interference was justified, analysing the rational connection between the measure and its aim; whether the measure was no more than necessary to achieve the aim; and whether the measure was the least restrictive means to arrive at the stated aim. Answering those questions he concluded:", "“One must return, therefore, to the question whether a more tailored approach than that of the current PSNI policy in relation to the retention of biometric materials, sufficient to satisfy the aim of detecting crime and assisting in the identification of future offenders, is possible. To that question only one answer can be given, in my opinion. Clearly, a far more nuanced, more sensibly targeted policy can be devised. At a minimum, the removal of some of the less serious offences from its ambit is warranted. But also, a system of review, whereby those affected by the policy could apply, for instance on grounds of exemplary behaviour since conviction, for removal of their data from the database would be entirely feasible. Similarly, gradation of periods of retention to reflect the seriousness of the offence involved would contribute to the goal of ensuring that the interference was no more intrusive than it required to be.", "In this context, article 5(e) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data should be noted. It provides that \"personal data undergoing automatic processing shall be ... preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which it is required\". There is no evidence that consideration has been given to the question of whether it is necessary for the effective combatting of crime that the materials concerned in this case should be retained indefinitely.", "For the intervener, the Secretary of State for the Home Department, Mr Eadie QC accepted that the decision as to how long and for what offences biometric and other data should be retained called for a nuanced decision. He argued that this had been achieved by the exclusion of non-recordable offences and offences committed by children and by the fact that such material from those not convicted was no longer retained. He was unable to point to evidence, however, that the question of whether it was necessary that there be retention of all data from all convicted of recordable offences for all time had been considered. Absent such consideration and in light of the fact that it is eminently possible to conceive of measures which are less intrusive but which would conduce to the avowed aim of the policy, it is simply impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim. ”", "18. He went on to consider whether a fair balance had been struck, and how the state ’ s margin of appreciation should be viewed in the context of the case. Concerning the latter, he highlighted that.", "“A margin of appreciation is accorded to a contracting state because Strasbourg acknowledges that the issue in question can be answered in a variety of Convention-compatible ways, tailored to local circumstances. But the margin of appreciation that is available to the state does not extend to its being permitted to act in a way which is not Convention compliant. If the state acts in such a way, it cannot insulate itself from challenge by recourse to the margin of appreciation principle. In Wingrove v. UK (1997) 24 EHRR 1, para 58, a ‘ broad margin ’ case, ECtHR emphasised that authorities within the state in question were in a better position than international judges to give an opinion \"on the exact content of these requirements with regard to the rights of others as well as on the ‘ necessity ’ of the ‘ restriction ’ \". Domestic courts therefore have the responsibility to examine closely the proportionality of the measure without being unduly influenced by the consideration that the Strasbourg court, if conducting the same exercise, might feel constrained to give the contracting state ’ s decision a margin of appreciation.", "For the reasons that I have given, I have concluded that the issues which must be considered under the proportionality exercise have not been properly addressed and that, if they had been, a more restricted policy would have been the inevitable product. The margin of appreciation cannot rescue the PSNI policy from its incompatibility with the appellant ’ s article 8 right.”", "19. He concluded that:", "“... the policy of retaining indefinitely DNA profiles, fingerprints and photographs of all those convicted of recordable offences in Northern Ireland is incompatible with article 8 of ECHR.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Retention of biometric data (DNA samples and profiles, fingerprints)", "Retention of DNA samples and profiles, and fingerprints in England and Wales, and Northern Ireland", "(a ) Domestic law prior to S. and Marper v. the United Kingdom", "20. Up until 11 May 2001, Section 64(1) of the Police and Criminal Evidence Act 1984 (referred to domestically as “PACE”) included a requirement that DNA samples be destroyed “as soon as practicable after the conclusion of the proceedings”. It did not require destruction of any DNA profile derived from a DNA sample.", "21. From 11 May 2001, this Act allowed the indefinite retention of fingerprints, DNA material (including samples) and photographs of any person of any age suspected of any recordable offence in England, Wales and Northern Ireland. These provisions applied regardless of whether the person was ultimately convicted or not.", "22. On 4 December 2008 this Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests. It concluded that the retention at issue constituted a disproportionate interference with the applicants ’ right to respect for private life which could not be regarded as necessary in a democratic society ( S. and Marper, cited above, § 125).", "23. The relevant domestic law and practice regarding the collection and retention of biometric data are set out in detail in the Court ’ s judgment (see §§ 26-37).", "(b ) Domestic law after S. and Marper in England and Wales", "24. The Protection of Freedoms Act 2012 (“POFA”) came into force on 31 October 2013. It amended the DNA and fingerprints retention scheme set out in the Police and Criminal Evidence Act, in England and Wales. The amended provisions provided that DNA samples must be destroyed as soon as a DNA profile has been taken, or within six months of the taking of the DNA sample.", "25. DNA profiles for minors and adults arrested for a minor crime are deleted at the time of the decision not to charge; to discontinue proceedings or on acquittal. The Act also introduced a time limit of three years for the retention of fingerprints and DNA profiles for individuals arrested but not convicted for a serious offence, with a possible, single extension of two years upon application of the police to the national courts.", "26. DNA profiles and fingerprints taken from a person convicted of a recordable offence may be retained indefinitely. However, where ( i ) the person convicted is under the age of 18 years at the time of the offence, (ii) the offence is a \"minor\" recordable offence (meaning an offence which neither attracts a custodial sentence of more than five years nor is a \"qualifying offence\"), and (iii) the person has not previously been convicted of a recordable offence, the period of retention of such material may be shorter: the length of the sentence plus five years where the person concerned receives a custodial sentence of less than five years, or, if no custodial sentence was given, five years from the time when the fingerprints or DNA sample were taken, as the case may be. These provisions are subject to the person not re-offending during the relevant period: if the person is convicted of another recordable offence during the relevant period, the material may then be retained indefinitely. Where the custodial sentence is five years or more or where the offence is a \"qualifying offence\" (more serious offence) the material may again be held indefinitely.", "27. A Biometrics Commissioner has been appointed, whose role is, inter alia, to keep the retention and use of biometric material under review.", "( c ) Domestic law after S. and Marper in Northern Ireland", "28. The law in Northern Ireland was not changed following S. and Marper, cited above. At the time of the domestic proceedings, it was intended to enact the Criminal Justice Bill Northern Ireland which would have brought into force in Northern Ireland the changes made under POFA (see paragraphs 44 - 49 below on “the Committee of Ministers of the Council of Europe”).", "29. The current practice of the PSNI is to take photographs, fingerprints, a DNA sample and profile from all persons who are arrested for a recordable offence. That biometric data is retained indefinitely.", "30. The Association of Chief Police Officers (\"ACPO\") issued guidance entitled \"Exceptional Case Procedure for the Removal of DNA fingerprints and PNC records\" on 16 March 2006. The exceptional case procedure states that exceptional cases will be rare. The document states that while it is not recommended that any pro-active exercise be undertaken to determine potentially exceptional cases, the DNA and fingerprint retention project maintains a library of circumstances that have been viewed as giving rise to exceptional cases. Those guidelines no longer apply in England and Wales, in light of the changes in the law which were adopted after S. and Marper, cited above, and the appointment of the Biometrics Commissioner (see paragraph 27 above). However, they still apply in Northern Ireland.", "31. Prior to the adoption of POFA and in the context of claims made by “ unconvicted ” persons challenging the retention of their biometric data, on 18 May 2011 the Supreme Court made a declaration that the ACPO guidelines prohibiting deletion of DNA and fingerprint data in the absence of exceptional circumstances were unlawful (see R (on the application of GC) v. The Commissioner of Police of the Metropolis and R (on the application of C v. The Commissioner of Police of the Metropolis ([2011] UKSC 21) and Goggins and Others v. the United Kingdom (striking out), nos. 30089/04 and 7 others, § 48, and § 74, 19 July 2011).", "B. Retention of photographs in England and Wales, and Northern Ireland", "1. Domestic law prior to RMC and FJ v Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin)", "32. From 11 May 2001, PACE allowed the indefinite retention of photographs of any person of any age suspected of any recordable offence in England, Wales and Northern Ireland. This provision was unaffected by the amendments to execute S. and Marper, cited above, which did not concern retention of photographs.", "33. In 2012, the High Court ruled, in the case of RMC and FJ v. Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin) ( ‘ RMC ’ ), that the retention of images from “ unconvicted ” individuals under the Police and Criminal Evidence Act and the Code of Practice on the Management of Police Information and accompanying guidance, was unlawful.", "34. Lord Justice Richards gave the lead judgment and following an analysis of the relevant jurisprudence including the case law of this Court, concluded that the retention of the claimants ’ photographs by the defendant constituted an interference with the right to respect for their private life under Article 8, and therefore required justification.", "35. He was not convinced that their retention was in accordance with the domestic law but considered it would be deeply unsatisfactory to stop there, since that deficiency is one that can easily be remedied whereas the claimants ’ concern was to prevent the continued retention of their photographs. He therefore went on to examine whether the retention was proportionate concluding:", "“I consider that the Code and guidance suffer from deficiencies of much the same kind as led to the adverse finding under art.8(2) in S. [and Marper ] v. the United Kingdom and that those deficiencies are as significant in relation to the retention of photographs as in relation to the retention of fingerprints and DNA. ”", "2. Law and practice in England and Wales, and Northern Ireland after RMC", "36. After RMC, on 24 February 2017 the Government published a review of the current framework for the acquisition, retention and deletion of custody images of both convicted and “ unconvicted ” persons (the Custody Image Review).", "37. According to the Custody Image Review, the police ’ s ability to make use of custody images is enhanced by their ability to upload them from forces ’ local custody IT systems onto the Police National Database ( ‘ PND ’ ), which has been in place since 2010. All but nine forces upload custody images onto the PND. As of July 2016, there were over 19 million custody images on the PND, over 16 million of which had been enrolled in the facial recognition gallery making them searchable using facial recognition software. Many of these images are multiple images of the same individual. Recent advances in technology mean that it is now possible to search custody images on the PND.", "38. Following publication of the Custody Image Review, police forces must analyse the custody images they hold and update their policy on retention of custody images in accordance with the guidelines set out in the Review.", "39. The guidelines indicate that an individual convicted of a non- serious recordable offence should be able to apply for their photograph to be deleted six years after conviction and in such cases there should be a presumption in favour of deletion. The same applies for those who are under 18 and convicted of recordable offences. Persons over 18 convicted of recordable offences which raise public protection issues, or convicted of violent or sexual offences may also apply for the deletion of their photographs, but no presumption of deletion is applied.", "40. The guidelines also specify time periods within which the retention of a custody photograph should be reviewed by the police of their own motion, and whether a presumption of deletion should be applied.", "41. According to the Custody Image Review, this approach was taken because it is similar to the approach of some other European jurisdictions such as Belgium and the Netherlands.", "C. The domestic law relating to the rehabilitation of offenders", "42. The rehabilitation of offenders in Northern Ireland is governed by the Rehabilitation of Offences (Northern Ireland) Order 1978 (SI 1978 No. 1908 (NI 27). The purpose of the rehabilitation regime is to enable persons with spent convictions to decline to disclose their spent convictions in particular circumstances and enables such persons to treat a question about his criminal record as not relating to spent convictions.", "43. Under article 3(1) of the Rehabilitation Order, where a person has been convicted of an offence and he was not at the time or subsequently subject to a sentence that is excluded from rehabilitation under the Order, after the end of the applicable rehabilitation period for the purposes of the Order he or she shall be treated as rehabilitated and the conviction shall be treated as spent. In general terms, the consequences of a person being treated as rehabilitated and a conviction being treated as spent are that evidence may not be admitted in any proceedings to prove that the person was charged with prosecuted for, convicted of, or sentenced for the relevant offence.", "D. The supervision of the execution of the S. and Marper judgment by the Committee of Ministers of the Council of Europe", "44. In its role under Article 46 of the Convention to supervise the execution of judgments of the Court, the Committee of Ministers has examined the measures proposed and taken by the United Kingdom to execute S. and Marper, cited above, on a number of occasions.", "45. After examining the case at its 1150th ( Human Rights ) meeting in September 2012, the Committee adopted a decision recalling that the Committee of Ministers had welcomed the authorities ’ legislative proposals for England and Wales in response to the European Court ’ s judgment and noted with satisfaction that these proposals were adopted in POFA. The resulting amendments included the requirement to destroy a DNA sample within six months or as soon as a DNA profile had been obtained in all cases whether the individual concerned had been convicted or not (see paragraphs 24 - 27 above).", "46. Concerning Northern Ireland, it noted with interest that legislative proposals which replicate POFA were under consideration in Northern Ireland and strongly encouraged the authorities to progress those proposals as quickly as possible.", "47. According to the Action plan provided by the United Kingdom to the Committee of Ministers on 14 January 2015, the authorities intended to update the Committee on the progress in executing the Court ’ s judgment, but there have been delays in bringing the relevant legislation into force in Northern Ireland for a number of reasons (see DH ‑ DD(2015)49 ).", "48. Initially there were delays before the Northern Ireland Assembly in adopting the piece of legislation designed to allow implementation of POFA in Northern Ireland which meant that additional powers had to be given to implement the POFA provisions. These were set out in a further piece of legislation, the Northern Ireland (Miscellaneous Provisions) Act 2014. However, following adoption of that Act, it came to light that a drafting error in POFA had been copied into the legislation for Northern Ireland. This error had the effect that a very significant volume of biometric data would inadvertently fall to be destroyed under the new legislative regime upon commencement. Therefore, the 2014 Act was not brought into force and an amendment was adopted to address the problem in a further piece of legislation. The United Kingdom informed the Committee of Ministers that this latest legislation would receive Royal Assent by summer 2015. However, on 13 April 2016 the United Kingdom informed the Committee of Ministers that due to unforeseen circumstances the legislative provisions were not commenced on the date expected (see DH-DD(2016)489).", "49. The United Kingdom wrote again to the Committee of Ministers on 5 September 2016 and said that the Secretary of State for Northern Ireland was working intensively with the Northern Ireland executive and that it was hoped to introduce a bill to Parliament shortly after autumn 2016. Since then, the Committee was informed that bilateral consultations are ongoing between the Committee ’ s Secretariat and the United Kingdom authorities, as the relevant sections of the legislation have not yet come into force due to broader outstanding issues relating to the legacy of the Troubles in Northern Ireland and the absence of a devolved government. Further information was expected from the authorities in early 2019. The United Kingdom have informed the Committee that all relevant practical arrangements relating to the destruction of relevant DNA and fingerprint samples and data are underway.", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "50. For a summary of relevant Council of Europe and European Union legal instruments and an overview of relevant national legislation in a selection of Council of Europe member states, reference is made to the Court ’ s judgment in S. and Marper v. the United Kingdom (cited above), §§ 41 ‑ 53, ECHR 2008.", "51. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia :", "“ Principle 2 – Collection of data", "2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.", "...", "Principle 3 – Storage of data", "3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.", "...", "Principle 7 – Length of storage and updating of data", "7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.", "For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data. ”", "52. Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia :", "“...", "8. Storage of samples and data", "Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.", "Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.", "Samples and other body tissues, or the information derived from them, may be stored for longer periods:", "- when the person concerned so requests; or", "- when the sample cannot be attributed to an individual, for example when it is found at the scene of an offence.", ".... ”", "IV. COMPARATIVE LAW", "53. Concerning the retention of DNA profiles following a conviction for a minor criminal offence four out of thirty one Council of Europe member States surveyed (Cyprus, Ireland, North Macedonia and Montenegro) have indefinite retention periods. Twenty States have retention periods limited in time (Albania, Austria, Belgium, Bosnia and Herzegovina, Croatia, Denmark, Estonia, Finland, France, Hungary, Latvia, Lithuania, the Republic of Moldova, the Netherlands, Norway, Poland, Portugal, Spain, Sweden and Switzerland). It may also be noted that some of those states for example Belgium and Latvia do not provide for retention of data for ‘ administrative ’ offences, but only for criminal offences. Of those twenty, seven have a defined retention period (either general, or for more serious offences) linked to the date of death of the convicted person (Bosnia and Herzegovina, Denmark, Finland, the Republic of Moldova, the Netherlands, Norway and Switzerland). Of those seven, the legislation of the Netherlands specifies the longest retention period of twenty years from the date of death for serious offences, with decreasing periods for less serious offences. Three member States (the Czech Republic, Germany and Malta) do not have specific retention periods but have various substantive limitations on the data retention and require periodic assessments to determine whether the substantive requirements for a prolonged retention are met. Four are without relevant regulation (San Marino, Georgia, Lichtenstein and Romania).", "54. With regard to fingerprints, in two member States (Ireland and North Macedonia) fingerprints are kept indefinitely. Twenty-one have retention periods limited in time (Austria, Belgium, Bosnia and Herzegovina, Croatia, Denmark, Estonia, Finland, France, Georgia, Hungary, Latvia, Lichtenstein, Lithuania, the Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Portugal, Sweden and Switzerland). Of those twenty-one, seven have defined retention period linked to the date of death (Bosnia and Herzegovina, Finland, Latvia, the Republic of Moldova, the Netherlands, Poland, and Switzerland). In four States (the Czech Republic, Germany, Malta and Spain) there are no specific retention periods but there are various substantive limitations and the duty of a periodic assessment of the need of further retention. In four (Albania, Cyprus, San Marino and Romania) the issue of retention of fingerprints is not specifically regulated.", "55. As regards the retention of photographs, in two of the member States surveyed (Ireland and North Macedonia) photographs are kept indefinitely. In eighteen States there are periods of retention limited in time (Austria, Belgium, Bosnia and Herzegovina, Croatia, Denmark, Estonia, Finland, France, Georgia, Hungary, Latvia, Lichtenstein, Lithuania, Montenegro, the Netherlands, Norway, Sweden and Switzerland) although it may be noted that Estonia permits indefinite retention of photographs for the most serious offences including crimes of aggression, genocide, crimes against humanity, war crimes and criminal offences for which life imprisonment is prescribed. In five States (the Czech Republic, Germany, Malta, Poland and Spain) there are no specific retention periods but there are various substantive limitations and the duty of a periodic assessment of the need of further retention. In six (Albania, Cyprus, San Marino, the Republic of Moldova, Portugal and Romania) there are no specific regulations for the retention of photographs.", "56. In general, the reasons for retention of the relevant personal data (DNA profiles, fingerprints, photographs) of convicted offenders relate to the necessity of crime prevention and effective investigation and prosecution of crime. The legislation in Austria also refers to the need to protect public security and in Ireland the need to retain data for intelligence purposes. The legislation in Sweden also refers to the fulfilment of obligations which follow from international commitments.", "57. As to the existence of review mechanisms, in six of the member States surveyed (Albania, Bosnia and Herzegovina, the Czech Republic, the Republic of Moldova, Norway and Poland) there is a possibility of an administrative or other similar specialised review of the necessity of the data retention. In nineteen (Austria, Belgium, Croatia, Cyprus, Finland, France, Georgia, Germany, Hungary, Ireland, Lithuania, the North Macedonia, Malta, Montenegro, Portugal, Romania, Spain, Sweden and Switzerland) there is a possibility of a judicial review, often coupled with a prior administrative review. In five States (Denmark, Estonia, Latvia, the Netherlands, Lichtenstein) there is no possibility of a review of the necessity of data retention. In San Marino, it would appear that there is no specific regulation on the matter.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "58. The applicant complained that the indefinite retention of his DNA profile, fingerprints and photograph in accordance with the policy of indefinite retention of personal data of any individual convicted of a recordable offence, amounted to a disproportionate and unjustified interference with the right to respect for his private and family life as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "59. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "60. Relying on S. and Marper, cited above, the applicant submitted that the retention of his DNA profile, fingerprints and photograph interfered with his rights under Article 8 of the Convention. He also argued that the policy providing for indefinite retention of his biometric data and photograph was disproportionate and could not be justified because only in exceptional cases will retention not occur and that restriction is to be applied narrowly. Moreover, the policy had no regard to the issues of rehabilitation or the fact that convictions may become spent as set out in Recommendation R( 87) 15 (see paragraph 51 above). According to S. and Marper, cited above, the principles in that Recommendation are fundamental to the assessment of proportionality.", "61. The Government accepted that the indefinite retention of the applicant ’ s DNA profile, fingerprints and photograph amounted to an interference with his rights under Article 8 but submitted that this interference was “ at a very low level ”. They argued that the retention of his biometric data was in accordance with the law and that the law and relevant policies were accessible and foreseeable as to their effect. They also submitted that the retention of the applicant ’ s biometric data and photograph pursued the legitimate aim of the prevention and detection of crime provided for in Article 8, and underlined that the applicant did not allege the contrary.", "62. The Government contended that the retention of the applicant ’ s biometric data and photograph was proportionate because there is a wide margin of appreciation for three reasons. First, there is no consensus between States as to how to approach the retention of the biometric data of person convicted of an offence. Second, the scheme of retention in Northern Ireland is not unusually intrusive, several other European jurisdictions retain biometric data in some cases including DNA samples of convicted persons, indefinitely or for very long periods of time such as the lifetime of the person concerned. Third, the scheme in Northern Ireland means samples will only be taken from people convicted of recordable offences, namely an offence which is punishable by a term of imprisonment. Accordingly, the retention regime has regard to a minimum degree of seriousness in relation to offending. They also submitted that retaining biometric data and photographs is of value in fighting crime, in particular statistics for Northern Ireland show that a significant percentage of convicted adults are re-convicted of a further offence within one or two years. Also awareness that such data is being retained can deter offenders.", "2. The Court ’ s assessment", "( a ) Existence of an interference", "63. The Court notes that it is not disputed by the Government that DNA material is personal data and that in the present cases there was an interference with the applicant ’ s right to respect for his private life. The Court, having regard to its case-law, according to which DNA profiles clearly constitute data pertaining to one ’ s “private life” and their retention amounts to an interference with the right to respect for one ’ s private life within the meaning of Article 8 § 1 of the Convention (see S. and Marper, cited above, § § 67 -77), finds no reason to hold otherwise. The Court has also previously found that the retention of fingerprints amounts to an interference with the right to respect for private life, within the meaning of Article 8 § 1 of the Convention (see S. and Marper, cited above, § § 77 and 86). The retention of the applicant ’ s DNA Profile and fingerprints therefore amounted to an interference with his private life.", "64. The Government also accepted that retention of the applicant ’ s photograph amounted to an interference with his private life. In so doing, it relied partly on the conclusions of the High Court in RMC (see paragraph 33 above). The Court notes that at no stage in the domestic proceedings was there any real doubt expressed about the conclusion that the retention of the applicant ’ s photograph amounted to an interference.", "65. Whilst that issue appears to have been settled in the domestic case-law and between the parties, it remains somewhat novel from the perspective of the Court ’ s case-law. The Court recalls that the Commission previously found that the retention and use of photographs taken on arrest by law enforcement authorities did not constitute an interference with the right to respect for private life within the meaning of Article 8 § 1 ( see X v. the United Kingdom, no. 5877/72, Commission decision of 12 October 1973, Decisions and Reports (DR) 45, pp. 94-94; Lupker v. the Netherlands, no. 18395/92, Commission decision of 7 December 1992, unreported, Kinnunen v. Finland, no. 24950/94, Commission decision of 15 May 1996, unreported; and Friedl v. Austria, no. 1522 5/89, Commission decision of 16 May 1996, unreported).", "66. The case of S. and Marper, cited above, did not concern the retention of photographs but in its judgment the Grand Chamber reviewed the case-law set out above (see § 66) and observed that the concept of private life included elements relating to a person ’ s right to their image. In the following paragraph it found that in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see S. and Marper, cited above, § 67).", "67. In that connection, the Court notes that the photograph of the applicant was taken on his arrest to be stored indefinitely on the local police database. At the time of its judgment in 2014 the Supreme Court found that the applicant ’ s custody photograph was held on a standalone database, limited to authorised police personnel and which did not have the capability to match photographs whether by way of facial recognition or otherwise (see paragraph 13 above).", "68. However, following the High Court ’ s judgment in RMC, the Home Office produced a report for England and Wales (the Home Office Review of the Use and Retention of Custody Images, (see paragraphs 36 - 37 above) which outlined in some detail the functioning of the relevant databases and the use of facial recognition technology on the content of those databases. This report indicated that the technology had developed since the Supreme Court decision. It explained that the PND is designed to facilitate the sharing of intelligence (see section 5, paragraph 6.11). The PND facial searching facility allows an authorised user (usually a police officer) to search through saved custody images on the PND against an image that they have temporarily uploaded from their local database. According to the Review, police forces in Northern Ireland also run such searches through the PND (see section 5, paragraph 6.15 of the Review ).", "69. In response to the Court ’ s question on communicating the case about the functionality of the database in Northern Ireland the Government confirmed the conclusion in the Home Office report. It indicated that the applicant ’ s photograph was held on a local database which did not have facial recognition or facial mapping software but that photographs on that database may be uploaded to the Police National Database, which does have such software.", "70. The Court recalls that, in considering whether there has been an interference, it will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see paragraph 66 above). In the present case, given that the applicant ’ s custody photograph was taken on his arrest and will be held indefinitely on a local database for use by the police and that the police may also apply facial recognition and facial mapping techniques to the photograph, the Court has no doubt that the taking and retention of the applicant ’ s photograph amounts to an interference with his right to private life within the meaning of Article 8 § 1.", "(b) Whether the interference was justified", "71. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society (see M.M. v. the United Kingdom, no. 24029/07, § 191, 13 November 2012).", "( i ) Whether the interference was “in accordance with the law”", "72. The Government contended that the interference was in accordance with the law.", "73. The legislative basis for the taking and retention of the applicant ’ s biometric data was the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 28 above). The power of retention is set out in Article 64 (1A) and is in the same terms as the former s.64 (1A) in the Police and Criminal Evidence Act which applied in England and Wales until 31 October 2013 (see paragraph 24 above). In respect of s.64 (1A) of the Police and Criminal Evidence Act the Court found in S. and Marper (cited above, § 97) that the retention of the applicants ’ fingerprint and DNA records had a clear basis in the domestic law. However, it went on to observe that section 64 was far less precise in respect of the conditions attached to it and arrangements for the storing and use of this personal information (see S. and Marper, cited above, § 98). Overall, on this point the Court concluded that these questions were closely related to the broader issue of whether the interference was necessary in a democratic society. Accordingly it found it was not necessary to decide whether the wording of Section 64 met the “quality of law” requirements within the meaning of Article 8 § 2 of the Convention (see S. and Marper (cited above § 99). As the legislative provisions are materially the same in the present case as the provisions in England and Wales examined in S. and Marper, cited above, the Court finds no reason to take a different approach in the present case.", "74. In coming to that conclusion, the Court also notes that the High Court in RMC adopted a similar approach when examining section 64A in relation to the retention of photographs. The High Court found that the provisions of section 64A were too broad and imprecise and when read in conjunction with the relevant guidance then in force for England and Wales. However, it too concluded that it would be appropriate to examine the issues in the case from the perspective of proportionality rather than lawfulness (see RMC, §§ 45-46).", "(ii) Legitimate aim", "75. As to whether there was a legitimate aim, the Court also considers it appropriate to adopt the same approach as that taken in S. and Marper (cited above, § 100). Accordingly, it considers that retention of biometric data and photographs pursues the legitimate purpose of the detection and, therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of persons who may offend in the future.", "( iii) Necessary in a democratic society", "76. The relevant Convention principles are summarised in the Court ’ s judgment in the case of S. and Marper (cited above, §§ 101-104). Unlike that case, which concerned the retention of personal data of persons not convicted of criminal offences, the question in the present case is whether the retention of the biometric data and photograph of the applicant, someone convicted of driving with excess alcohol, was justified under Article 8 § 2 of the Convention (see a contrario S. and Marper, cited above, § 122 and see Peruzzo and Martens v. Germany ( dec. ), no. 7841/08, 57900/12, 4 June 2013).", "(α) Margin of appreciation", "77. A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see S. and Marper cited above § 10 2 ).", "Degree of consensus amongst contracting States", "78. The Government have advanced three reasons in relation both to the retention of biometric data and of photographs, as to why the margin of appreciation available to the State is wide in the present case based on the degree of consensus amongst contracting States (see paragraph 62 above). First, that there is no consensus between States as to how to approach the retention of the biometric data of person convicted of an offence. Second, that the scheme of retention in Northern Ireland is not unusually intrusive, as several other European jurisdictions retain biometric data, in some cases including DNA samples of convicted persons, indefinitely or for very long periods of time such as the lifetime of the person concerned. Third, that the scheme in Northern Ireland means samples will only be taken from people convicted of recordable offences, namely offences that are punishable by a term of imprisonment. Accordingly, the retention regime has regard to a minimum degree of seriousness in relation to offending.", "79. The Government ’ s submission that there is no consensus between contracting States as to how to approach the retention of the biometric data of person convicted of an offence, is based on an assumption that a regime which provides for retention for biological life, or biological life plus a certain number of years is comparable to a regime of indefinite retention. However, the Court considers that in concluding whether those two types of regime can be equated, consideration should be given to the nature of the data and the impact of retaining a person ’ s data after their death.", "80. In relation to fingerprints, the Court has previously found that they do not contain as much information as DNA profiles (see S. and Marper, cited above § 78). Moreover, it has not been suggested that it is possible to identify relationships between individuals from fingerprint or photograph data. The Court therefore accepts that in relation to fingerprints and photographs, periods of retention which end on or shortly after death could be considered comparable to indefinite retention; although, it is aware of the possibility of rapid technological advances in this domain in particular concerning technology for facial recognition and facial mapping (see the developments outlined in paragraphs 67 - 70 above). That said, for both fingerprints and photographs the majority of States surveyed have put in place regimes with defined retention periods.", "81. However, the Court considers that the situation is different concerning DNA profiles and that there is a distinction between retaining DNA profiles indefinitely and setting a defined limit on the retention period linked to the biological life of the person concerned, even if the period of retention foreseen is long. That is because retaining genetic data after the death of the data subject continues to impact on individuals biologically related to the data subject. The Court recalls that when considering the nature of the interference with privacy occasioned by the retention of DNA profiles, it has observed that the use of DNA profiles for familial searching with a view to identifying a possible genetic relationship between individuals is of a highly sensitive nature and there is a need for very strict controls in this respect. In the Court ’ s view, the DNA profiles ’ capacity to provide a means of identifying genetic relationships between individuals is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect ( see S. and Marper, cited above, § 75). As familial searching can be carried out on DNA profiles after the death of the data subject, the Court cannot accept the submission that it is possible to equate the retention of biometric data up to a fixed point in time linked to the death of the person from whom it was taken, with its indefinite retention.", "82. It is true that in S. and Marper, cited above, the Court found the United Kingdom was alone in retaining indefinitely the DNA of unconvicted persons and concluded that the strong consensus existing among the Contracting States was of considerable importance and narrowed the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere (see S. and Marper, cited above, § 112). The situation is not exactly the same in the present case where even taking account of the distinction identified between retention linked to the death of the data subject and indefinite retention in relation to DNA profiles, there are a small number of states amongst those surveyed who operate indefinite retention regimes (see paragraph 53 above). Nonetheless, the Court considers that those states are in a distinct minority. The majority of States have regimes in which there is a defined limit on the period for which data can be retained. It also takes account of the fact that the Government in their submissions, referred to schemes permitting indefinite retention of biometric data of convicted persons in Austria and Lithuania. However, those regimes have subsequently been amended to provide for definite periods of detention (see paragraph 53 above).", "83. The Government advanced a separate submission relating to the margin of appreciation, which was that the scheme in Northern Ireland means that DNA samples will only be taken (and so DNA profiles only retained) from people convicted of recordable offences, namely an offence which is punishable by a term of imprisonment. Accordingly, the retention regime has regard to a minimum degree of seriousness in relation to offending. The Court notes that the Grand Chamber previously rejected a similar submission in S. and Marper, cited above, where the fact that data was only taken and so retained in relation to recordable offences under the scheme examined, still left such a wide variety of offences falling within the retention regime that the regime could be characterised as applying whatever the nature or seriousness of the offence ( see S. and Marper, cited above, § § 26, 110 and 119 ). The Court sees no reason to take a different approach from the Grand Chamber.", "84. In light of the above, the Court cannot conclude that the State ’ s margin of appreciation is widened in the present case to the extent claimed by the Government. The United Kingdom is one of the few Council of Europe jurisdictions to permit indefinite retention of DNA profiles, fingerprints and photographs of convicted persons. The degree of consensus existing amongst Contracting States has narrowed the margin of appreciation available to the respondent State in particular in respect of the retention of DNA profiles for the reasons set out above (see paragraphs 81 ‑ 82 above).", "Judicial scrutiny", "85. With reference to the extensive amount of judicial scrutiny at the domestic level, the Government have contended that the question whether it was necessary to retain the applicant ’ s data falls within the state ’ s margin of appreciation and it was therefore not for this Court to decide. In this respect, the Court recalls that in Article 8 cases it has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant ’ s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities, unless there are shown to be compelling reasons for doing so (see McDonald v. the United Kingdom, no. 4241/12, § § 56 - 57, 20 May 2014).", "86. However, the Court considers in the present case there are reasons for doing so. In this connection, it notes that the proportionality of the measure was scrutinised by the domestic courts up to and including the Supreme Court. However, the courts ’ made their assessment in particular relating to the retention of the applicant ’ s photograph on the basis that it was held on a local database and could not be searched against other photographs, a conclusion which appears to have been superseded by technological developments (see paragraph 69 above). In that respect the Court recalls the importance of examining compliance with the principles of Article 8 where the powers vested in the state are obscure, creating a risk of arbitrariness especially where the technology available is continually becoming more sophisticated (see Catt v. the United Kingdom, no. 43514/15, § 114, 24 January 2019). The Supreme Court also proceeded in its analysis on the basis that very few states have a process of review, whereas it would appear that of the States surveyed by the Court most have a form of administrative and / or judicial review available (see paragraphs 15 and 57 above). Finally, concerning DNA profiles, the Supreme Court considered that there was no distinction to be identified between retention linked to the death of the data subject, and indefinite retention (see paragraph 15 above). However, the Court has rejected the Government ’ s submission made on the same basis (see paragraph 81 above).", "(  ) Conclusions", "87. The Court recalls that it found the application of Peruzzo and Martens, cited above, to be inadmissible on the basis that it was manifestly ill-founded. In that case, the applicants had been repeatedly convicted of serious offences and sentenced to prison. The law provided for the indefinite retention of their biometric data. That data was retained for those convicted of serious and/or repeat offences, and the Federal Criminal Office was obliged to review at regular intervals whether the continued storage of the data was still necessary for the performance of its task or otherwise to be deleted at the latest every ten years. However, the Court has also found a regime with a definite retention period of forty years in law but which amounted to an indefinite period in practice, to be in violation of the Convention (see Aycaguer v. France, no. 8806/12, § 42, 22 June 2017). In that case, the applicant was convicted of a minor offence and subject to fine. His biometric data was retained under provisions which did not differentiate according to the nature and/or seriousness of the offence committed, and he had no possibility to request the deletion of the data (see Aycaguer, cited above, §§ 43-47). It also notes that the Court was satisfied in Peruzzo and Martens, cited above, that there was nothing to establish that the domestic courts or authorities in the proceedings at issue had not observed the relevant guarantees (see § 48). Whereas in Aycaguer, cited above, the authorities ’ failure to implement a decree had created a degree of ambiguity in the legal provisions governing the retention of data, and they had not given any follow up to the decision of the Constitutional Council of 16 September 2010 criticising the regime then in force (see § § 42 -43 ).", "88. There is a narrowed margin of appreciation available to States when setting retention limits for the biometric data of convicted persons (see paragraph 84 above). However, in light of the considerations set out above (see paragraph 87 ) the Court considers that in respect of retention regimes for the biometric data of convicted persons, the duration of the retention period is not necessarily conclusive in assessing whether a State has overstepped the acceptable margin of appreciation in establishing the relevant regime. In that connection, it underlines that there is not the same risk of stigmatisation in retaining the data as in S. and Marper ( cited above, § 122). Also of importance is whether the regime takes into account the seriousness of the offending and the need to retain the data, and the safeguards available to the individual. Where a State has put itself at the limit of the margin of appreciation in allocating to itself the most extensive power of indefinite retention, the existence and functioning of certain safeguards becomes decisive (see Catt, cited above, § 119).", "89. As to whether the reasons adduced by the national authorities to justify the measure of indefinite retention were “relevant and sufficient”, the Court notes that the Government submitted that the more data is retained, the more crime is prevented, providing a variety of different case studies to support that general contention. In this connection, the Court considers that accepting such an argument in the context of a scheme of indefinite retention would in practice be tantamount to justifying the storage of information on the whole population and their deceased relatives, which would most definitely be excessive and irrelevant (see M.K. v. France, no. 19522/09, cited above § 40, 18 April 2013 and Aycagauer, cited above, § 34). The Court also observes in that connection that the Government highlighted that those who had been convicted were in fact most likely to be convicted again after a relatively short period of two years (see paragraph 62 above).", "90. The Government has also highlighted a particular need to retain DNA in Northern Ireland, where the investigation of historic cases forms part of the United Kingdom ’ s obligations under Article 46 in the execution of the so-called “ McKerr group of cases” (see paragraph 49 above).", "91. As to the relevance of the United Kingdom ’ s obligations under Article 46 § 2 of the Convention, the Court recalls that the question of compliance by the High Contracting Parties with its judgments falls outside the Court ’ s jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 102, 11 July 2017 ). The Government have explained in their submissions that the management of the Northern Ireland DNA database is a practical consideration selected by them in order to enable them to discharge their obligations under Article 46 § 2. The United Kingdom ’ s choice of means in that context falls outside the Court ’ s jurisdiction and cannot affect the examination of Convention principles that the Court is called upon to undertake in the present case. In the exercise of its competence under Article 46 § 2 of the Convention, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken (see Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, § 207, 7 July 2015 ).", "92. Insofar as the Government ’ s submission could concern the substance of the proportionality test under Article 8, the Court considers that the necessity to preserve parts of the DNA database for the purposes of historic investigations is not significantly different to the general arguments advanced that retaining biometric data is helpful for investigating other types of ‘ cold cases ’, examples of which were included as case studies illustrating the Government ’ s general argument set out above (see paragraph 89 ).", "93. The Court recalls in general terms that it has found in the context of the positive obligation arising under Article 2 that the public interest in investigating and possibly obtaining the prosecution and conviction of perpetrators of unlawful killings many years after the events is firmly recognised (see Jelić v. Croatia, no. 57856/11, § 52, 12 June 2014 ). Investigating ‘ cold cases ’, is also in the public interest, in the general sense of combating crime (see paragraph 75 above). However, also in the context of unlawful killings the Court has underlined that the police must discharge their duties in a manner which is compatible with the rights and freedoms of other individuals (see Osman v. the United Kingdom, 28 October 1998, § 121, Reports of Judgments and Decisions 1998 ‑ VIII ). Indeed, without respect for the requisite proportionality vis ‑ à ‑ vis the legitimate aims assigned to such mechanisms, their advantages would be outweighed by the serious breaches which they would cause to the rights and freedoms which States must guarantee under the Convention to persons under their jurisdiction (see Aycaguer, cited above, § 34).", "94. Having chosen to put in place a regime of indefinite retention, there was a need for the State to ensure that certain safeguards were present and effective for the applicant (see paragraph 88 above), someone convicted of an offence (now spent, see paragraph 7 above). However, the applicant ’ s biometric data and photographs were retained without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely. Moreover, the police are vested with the power to delete biometric data and photographs only in exceptional circumstances (see paragraph 30 above). There is no provision allowing the applicant to apply to have the data concerning him deleted if conserving the data no longer appeared necessary in view of the nature of the offence, the age of the person concerned, the length of time that has elapsed and the person ’ s current personality ( see Gardel v. France, no. 16428/05, § 68, ECHR 2009). Accordingly, the review available to the individual would appear to be so narrow as to be almost hypothetical (see paragraph 31 above, and also M.K. v. France, no. 19522/09, § 25, 18 April 2013).", "95. In that connection, in respect of photographs, the Court considers it of interest that the regime in England and Wales was changed after RMC to permit persons convicted of less serious recordable offences, to request deletion of their photographs after six years, with a presumption of deletion (see paragraph 39 above). It underlines however that the test of proportionality is not that another less restrictive regime could be imposed. The core issue is whether, in adopting the measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 110, ECHR 2013 (extracts).", "96. For the reasons set out above, the Court finds that the indiscriminate nature of the powers of retention of the DNA profile, fingerprints and photograph of the applicant as person convicted of an offence, even if spent, without reference to the seriousness of the offence or the need for indefinite retention and in the absence of any real possibility of review, failed to strike a fair balance between the competing public and private interests. The Court recalls its finding that the State retained a slightly wider margin of appreciation in respect of the retention of fingerprints and photographs (see paragraphs 84 above). However, that widened margin is not sufficient for it to conclude that the retention of such data could be proportionate in the circumstances, which include the lack of any relevant safeguards including the absence of any real review.", "97. Accordingly, the respondent State has overstepped the acceptable margin of appreciation in this regard and the retention at issue constitutes a disproportionate interference with the applicant ’ s right to respect for private life and cannot be regarded as necessary in a democratic society.", "98. There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed non-pecuniary damages without specifying an amount.", "101. The Government contested that claim.", "102. The Court considers that, for the reasons given in the S. and Marper case ( cited above, § 134), the finding of a violation may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants ’ claim for non-pecuniary damage.", "B. Costs and expenses", "103. The applicant made no claim for costs and expenses; accordingly the Court makes no award on this account." ]

[ "I. circumstances of the case", "8. Ms M.S. is a Swedish citizen born in 1951 and resident in Sweden. Prior to the events in question she was employed as a nursery-school teacher.", "9. When she was 14 years old she was diagnosed as having spondylolisthesis, a condition affecting the spine which can cause chronic back pain.", "10. On 9 October 1981 she slipped and fell at work, injuring her back. She was pregnant at the time, and had been seeing a doctor at the women's clinic at the hospital. On the afternoon of the accident she went to the same clinic.", "Following this incident, Ms M.S. was unable to return to work for any sustained period of time because of severe back pain. After she had been on the sick-list for some time, she was granted a temporary disability pension ( sjukbidrag ) and, from October 1994, a disability pension ( förtidspension ).", "11. On 13 March 1991 she made a claim for compensation under the Industrial Injury Insurance Act ( Lagen om arbetsskadeförsäkring, 1976:380 – hereafter “the Insurance Act”) from the Social Insurance Office ( Försäkringskassan; hereafter “the Office”).", "12. Some time thereafter, as a matter of routine, her lawyer requested a copy of the file which had been compiled by the Office for the purposes of her claim. From the documents on the file she learnt that the Office had written to the women's clinic on 25 March 1992 as follows:", "“[The applicant] has reported an industrial injury which occurred on 9 October 1981. She contacted your clinic as she was pregnant at the time. The Office requests copies of medical records from that time. We hope you will assist us as soon as possible as the matter has been pending for some time and we need the records in order to determine it.”", "It was also apparent from the file that, on 30 March 1992, the head of the clinic had submitted copies of her medical records containing information on treatment she had received in October 1981, March 1982 and between October 1985 and February 1986. Ms M.S. had not been consulted prior to the disclosure of these documents.", "13. The medical records from October 1985 stated, inter alia, that Ms M.S. had complained of pain in her hips and back, but there was no indication that she had alleged that she had injured herself at work. The records from this period contained details of an abortion which she had requested because her pregnancy exacerbated her back complaint. The abortion had been performed in October 1985. In this regard, an entry of 22 October 1985 stated:", "“The reason for the termination is above all that she had an incredibly bad back, especially during her last pregnancy.”", "14. On 19 May 1992 the Office rejected Ms M.S.'s claim for compensation under the Insurance Act, finding that her sick-leave had not been caused by an industrial injury. The applicant appealed successively to the Social Insurance Board ( Socialförsäkringsnämnden ), the local County Administrative Court ( Länsrätten ) and the competent Administrative Court of Appeal ( Kammarrätten ), but at each stage her appeal was rejected. On 26 February 1996 the Supreme Administrative Court ( Regeringsrätten ) refused her leave to appeal." ]

[ "II. Relevant domestic law and practice", "A. The general principle of freedom of information", "15. Under sections 1 and 2 of chapter 2 of the Freedom of the Press Act ( Tryckfrihetsförordningen ), which is part of the Swedish Constitution, everyone is entitled to access to public documents, subject to exceptions set out in the Secrecy Act ( Sekretesslagen, 1980:100).", "B. Confidentiality of medical information", "16. One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter 7, section 1, of the Secrecy Act, which provides as follows:", "“Secrecy applies ... in the field of health and medical care to information on the individual's state of health or otherwise concerning his or her private life, unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ...”", "C. Duty to submit information", "17. Notwithstanding the above rule of confidentiality, in certain circumstances health and medical-care authorities are required to submit information to another public authority. Thus, chapter 14, section 1, of the Secrecy Act provides the following:", "“Secrecy does not prevent ... the disclosure of information to another authority, if an obligation to disclose the information is laid down in an act of law or a government ordinance.”", "18. Such an obligation follows from chapter 8, section 7, of the Insurance Act, which reads as follows:", "“A public authority ... [is] obliged to submit, on request, to the courts, the National Social Insurance Service [ Riksförsäkringsverket ] [or] the Social Insurance Office ... information on a named person concerning circumstances of importance to the application of this Act ...”", "In this context, a doctor employed by a public hospital (as in the present case) is regarded as a representative of a public authority. In addition, the person applying for compensation under the Insurance Act is obliged to provide the Social Insurance Office with information of importance to the claim (chapter 8, section 6, of the Insurance Act).", "19. The Social Insurance Office is under a corresponding duty to obtain a physician's opinion in relation to each reported industrial injury (section 13 of the Ordinance on Industrial Injury Insurance and State Injury Compensation Guarantee – Förordning om arbetsskadeförsäkring och statligt personskadeskydd, 1977:284).", "20. Information which is submitted to the Office is protected by the rule of confidentiality provided by chapter 7, section 7, of the Secrecy Act:", "“Secrecy applies at the Social Insurance Office, the National Social Insurance Service and the courts in matters arising under the legislation on ... industrial injury assurance ... in respect of information on an individual's state of health or otherwise concerning his or her private life, if it can be assumed that the individual concerned or persons closely related to him or her will be harmed if the information is disclosed ...”", "D. Remedies", "21. Under the Freedom of the Press Act and the Secrecy Act, there is a right to appeal against a decision not to grant access to public documents. There is, however, no such right in respect of decisions to grant access to information contained in public documents. Furthermore, there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards.", "22. Under chapter 20, section 3, of the Penal Code ( Brottsbalken ), a physician who, intentionally or through negligence, discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought in the ordinary courts by the public prosecutor or, if the public prosecutor decides not to prosecute, the aggrieved individual. Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter 2, section 1, or chapter 3, section 1, of the Damage Compensation Act ( Skadeståndslagen, 1972:207). Action may be taken by the individual against the physician or his or her employer.", "23. Public authorities and their employees are, furthermore, subject to the supervision of the Chancellor of Justice ( Justitiekanslern ) and the Parliamentary Ombudsman ( Justitieombudsmannen ). The Chancellor and the Ombudsman investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority.", "PROCEEDINGS BEFORE THE COMMISSION", "24. Ms M.S. lodged her application (no. 20837/92) with the Commission on 23 September 1992. She complained, under Article 8 of the Convention, that the submission of her medical records to the Social Insurance Office constituted an unjustified interference with her right to respect for private life and, under Articles 6 and 13, that she had no remedy she could use to challenge this measure.", "25. The Commission declared the application admissible on 22 May 1995. In its report of 11 April 1996 (Article 31), the Commission expressed the opinion that there had been no violation of Article 8 of the Convention (twenty-two votes to five), that there had been no violation of Article 6 § 1 of the Convention (twenty-four votes to three) and that no separate issue arose under Article 13 of the Convention (twenty votes to seven).", "The full text of the Commission's opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "26. At the hearing on 18 March 1997 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of the Convention in the present case.", "27. On the same occasion the applicant reiterated her request to the Court stated in her memorial to find that there had been violations of Articles 6, 8 and 13 and to award her just satisfaction under Article 50 of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "28. The applicant maintained that the communication of her medical records by the clinic to the Social Insurance Office constituted a violation of her right to respect for private life under Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "29. The Government disputed that Article 8 § 1 was applicable to the matter complained of by the applicant and maintained that, in any event, there had been no interference with any of her rights guaranteed by that provision. In the alternative, they argued that the measure had been justified under paragraph 2 of the Article.", "30. The Commission was of the opinion that paragraph 1 of Article 8 applied, that there had been an interference with the applicant's right to respect for her private life under that provision but that the interference had been justified under paragraph 2.", "A. Article 8 § 1", "1. Was Article 8 § 1 applicable?", "31. In contesting the applicability of Article 8 § 1 the Government submitted that, by having initiated the compensation proceedings, the applicant had waived her right to confidentiality with regard to the medical data which the clinic had communicated to the Office (see paragraph 11 above). The measure had constituted a foreseeable application of the relevant Swedish law, from which it clearly followed that the Office was under an obligation to request the information in issue, which the clinic had a corresponding duty to impart (see paragraphs 18–19 above). In this connection, they stressed that the data had not been made public but remained confidential in the Office (see paragraph 16 above).", "32. The Court observes that under the relevant Swedish law, the applicant's medical records at the clinic were governed by confidentiality (see paragraph 16 above). Communication of such data by the clinic to the Office would be permissible under the Insurance Act only if the latter authority had made a request and only to the extent that the information was deemed to be material to the application of the Insurance Act (see paragraph 18 above). This assessment was left exclusively to the competent authorities, the applicant having no right to be consulted or informed beforehand (see paragraph 21 above).", "It thus appears that the disclosure depended not only on the fact that the applicant had submitted her compensation claim to the Office but also on a number of factors beyond her control. It cannot therefore be inferred from her request that she had waived in an unequivocal manner her right under Article 8 § 1 of the Convention to respect for private life with regard to the medical records at the clinic. Accordingly, the Court considers that this provision applies to the matters under consideration.", "2. Was there an interference?", "33. With reference to the arguments set out in paragraph 31 above, the Government disputed that the communication of the data in question amounted to an interference with the applicant's right to respect for her private life under Article 8.", "34. The applicant and the Commission, stressing that information of a private and sensitive nature had been disclosed without her consent to a certain number of people at the Office, maintained that the measure constituted an interference.", "35. The Court notes that the medical records in question contained highly personal and sensitive data about the applicant, including information relating to an abortion. Although the records remained confidential, they had been disclosed to another public authority and therefore to a wider circle of public servants (see paragraphs 12–13 above). Moreover, whilst the information had been collected and stored at the clinic in connection with medical treatment, its subsequent communication had served a different purpose, namely to enable the Office to examine her compensation claim. It did not follow from the fact that she had sought treatment at the clinic that she would consent to the data being disclosed to the Office (see paragraph 10 above). Having regard to these considerations, the Court finds that the disclosure of the data by the clinic to the Office entailed an interference with the applicant's right to respect for private life guaranteed by paragraph 1 of Article 8.", "It remains to be determined whether the interference was justified under paragraph 2 of Article 8.", "B. Article 8 § 2", "1. “In accordance with the law”", "36. The applicant submitted that the disclosure of her medical records by the clinic had exceeded the Office's request. Whilst the Office had onlyasked for medical records relating to the time of her back injury allegedly sustained at work on 9 October 1981, the clinic had produced records covering a period up to February 1986 (see paragraph 12 above). The information disclosed did not therefore meet the requirement contained in chapter 8, section 7, of the Insurance Act that only data requested should be produced (see paragraph 18 above), and its communication had consequently not been “in accordance with the law”.", "37. However, in the Court's view the terms of the above provision suggest that the decisive factor in determining the scope of the imparting authority's duty to provide information is the relevance of the information rather than the precise wording of the request (see paragraph 18 above). The Court is satisfied that the interference had a legal basis and was foreseeable; in other words, that it was “in accordance with the law”.", "2. Legitimate aim", "38. The object of the disclosure was to enable the Office to determine whether the conditions for granting the applicant compensation for industrial injury had been met. The communication of the data was potentially decisive for the allocation of public funds to deserving claimants. It could thus be regarded as having pursued the aim of protecting the economic well-being of the country. Indeed this was not disputed before the Court.", "On the other hand, the Court does not consider it necessary to examine the second aim invoked by the Government, namely protection of the “rights ... of others”.", "3. “Necessary in a democratic society”", "39. In the applicant's submission, the disclosure of her medical records could not be regarded as having been necessary in a democratic society. She maintained that, while there was no dispute as to the fact that her disability prevented her from working, there was disagreement as to its cause, whether it was spondylolisthesis or the alleged work injury (see paragraphs 9–10 above). Information about her abortion in 1985 had been irrelevant to the issue to be determined by the Office (see paragraphs 12–13 above). In addition, she argued that the duty of confidentiality to which public servants at the Office were subject provided a weaker protection of the applicant's interests than that applying to medical personnel at the clinic. Thus, whilst it was for the patient to show that he or she had suffered damage as a result of disclosure by an ordinary public servant, a doctor had to show that disclosure had not caused damage.", "In addition, she maintained that an effective protection of her rights under Article 8 required that she should have been notified of the clinic's intention to communicate the data and afforded an opportunity to exercise judicial remedies against that decision before it was implemented (see paragraph 21 above).", "40. The Government and the Commission were of the view that the disclosure was “necessary”. Not only had the medical records been relevant to the Office's decision but the fact that they might be relevant must also have been apparent to her when she made her claim. Even the information concerning the abortion had related to her back problems (see paragraph 13 above). If the Office had been requested to rely exclusively on the applicant's submissions, there would have been a risk of her withholding relevant evidence. Since the data remained confidential while they were in the possession of the Office (see paragraph 16 above), the interference which the disclosure had entailed was of a limited nature.", "41. The Court reiterates that the protection of personal data, particularly medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see the Z v. Finland judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 347, § 95).", "Bearing in mind the above considerations and the margin of appreciation enjoyed by the State in this area, the Court will examine whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued (ibid., § 94).", "42. Turning to the particular circumstances, the Court notes that the applicant's medical data were communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested (see paragraphs 11–14 above). It recognises that, in deciding whether to accept the applicant's compensation claim, the Office had a legitimate need to check information received from her against data in the possession of the clinic. In the absence of objective information from an independent source, it would have been difficult for the Office to determine whether the claim was well-founded.", "That claim concerned a back injury which she had allegedly suffered in 1981, and all the medical records produced by the clinic to the Office, including those concerning her abortion in 1985 and the treatment thereafter, contained information relevant to the applicant's back problems. As appears from the records of 1985, her back pains constituted the main reason for the termination of pregnancy (see paragraphs 12–13 above). Moreover, the data covered the period in respect of which she claimed compensation under the Insurance Act (see paragraphs 10–11 above). In the Court's view, the applicant has not substantiated her allegation that the clinic could not reasonably have considered her post-1981 medical records to be material to the Office's decision.", "43. In addition, under the relevant law it is a condition for imparting the data concerned that the Office has made a request and that the information be of importance for the application of the Insurance Act (see paragraph 18 above). Staff at the clinic could incur civil and/or criminal liability had they failed to observe these conditions (see paragraph 22 above). The Office, as the receiver of the information, was under a similar duty to treat the data as confidential, subject to similar rules and safeguards as the clinic (see paragraphs 20 and 22 above).", "In the circumstances, the contested measure was therefore subject to important limitations and was accompanied by effective and adequate safeguards against abuse (see the above-mentioned Z v. Finland judgment, p. 350,§ 103).", "44. Having regard to the foregoing, the Court considers that there were relevant and sufficient reasons for the communication of the applicant's medical records by the clinic to the Office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no violation of the applicant's right to respect for her private life, as guaranteed by Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "45. The applicant further alleged a breach of Article 6 § 1 of the Convention, which, in so far as is relevant, reads:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] … tribunal ...”", "She complained in particular that, contrary to this provision, she had not been afforded a possibility, prior to the communication of her medical records by the clinic, to challenge the measure before a court (see paragraph 21 above).", "46. The Government disputed that Article 6 § 1 was applicable and maintained that, in any event, it had been complied with in the present case (see paragraphs 22–23 above). The Commission, for its part, considered that the provision was applicable and had been complied with (see paragraph 22 above).", "47. The Court must first examine whether Article 6 § 1 was applicable to the disagreement between the applicant and the Swedish authorities as to the disclosure of her medical records. It reiterates that, according to the principles laid down in its case-law (see the judgments of Zander v. Sweden, 25 November 1993, Series A no. 279-B, p. 38, § 22, and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32), it must ascertain whether there was a dispute (“ contestation ”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive for the right in question. Finally, the right must be civil in character.", "48. Under the rule on confidentiality in chapter 7, section 1, of the Secrecy Act, a duty of confidentiality applied to the data in issue in the present case (see paragraph 16 above). The provision was evidently designed to protect a patient's interest in non-disclosure of medical data.", "49. On the other hand, according to chapter 14, section 1, of the Secrecy Act the rule of confidentiality did not apply where a statutory obligation required the disclosure of information to another authority (see paragraph 17 above). In the case under consideration, the clinic had been under an obligation to supply the Office with “information on [the applicant] concerning circumstances of importance to the application of [the] Act ...” (chapter 8, section 7, of the Insurance Act). Thus, the obligation incumbent on the imparting authority vis-à-vis the requesting authority depended exclusively on the relevance of the data in its possession; it comprised all data which the clinic had in its possession concerning the applicant and which were potentially relevant to the Office's determination of her compensation claim.", "In addition to the scope of this obligation as described above, the Court notes that the clinic enjoyed a very wide discretion in assessing what data would be of importance to the application of the Insurance Act. In this regard, it had no duty to hear the applicant's views before transmitting the information to the Office (see paragraph 21 above).", "Accordingly, it appears from the very terms of the legislation in issue that a “right” to prevent communication of such data could not, on arguable grounds, be said to be recognised under national law (see the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, pp. 19–20, §§ 49–52). No evidence suggesting the contrary has been adduced before the Court.", "50. Having regard to the foregoing, the Court reaches the conclusion that Article 6 § 1 was not applicable to the proceedings under consideration and has therefore not been violated in the present case.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "51. Relying on essentially the same arguments as with regard to Article 6 § 1, the applicant claimed that there had also been a violation of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "She maintained that, since the disclosure of confidential data was a measure that could not be reversed, it was crucial for the effectiveness of a remedy against disclosure that the interested person should be able to exercise it beforehand.", "52. The Government contended that Article 13 was not applicable, as they did with regard to Articles 6 § 1 and 8. However, they accepted that if the Court found Article 8 applicable and Article 6 § 1 inapplicable, a separate issue would arise under Article 13. In their view, the aggregate of remedies (see paragraphs 21–23 above) available to the applicant in order to obtain redress for breach of confidentiality satisfied the requirements of that provision.", "53. The Commission, having found that Article 6 § 1 was applicable and had been complied with in the present case, did not deem it necessary to examine the applicant's complaint also under Article 13. Since the requirements in Article 13 were less strict than, and were absorbed by, those in Article 6 § 1, it concluded that no separate issue arose under the former provision.", "54. In view of its conclusions with respect to the applicant's complaints under Articles 8 and 6 § 1 (see paragraphs 32 and 50 above), the Court considers that a separate issue arises with regard to her complaint under Article 13.", "Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 (see, for instance, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1869–70, § 145).", "However, the Article 13 guarantee applies only in respect of grievances under the Convention which are arguable (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).", "55. The applicant's complaint under Article 8 was essentially that the clinic had communicated to the Office certain data which in her view were irrelevant to the latter's examination of her compensation claim (see paragraphs 36 and 39 above). Having regard to its findings under Article 8 above, the Court is satisfied that she had an arguable claim for the purposes of Article 13. It remains to examine whether she was afforded an effective remedy.", "In this regard, it was open to her to bring criminal and civil proceedings before the ordinary courts against the relevant staff of the clinic and to claim damages for breach of professional secrecy (see paragraph 22 above). Thus the applicant had access to an authority empowered both to deal with the substance of her Article 8 complaint and to grant her relief.", "Having regard to the limited nature of the disclosure and to the different safeguards (see paragraphs 16–18, 20 and 22 above), in particular the Office's obligation to secure and maintain the confidentiality of the information, the Court finds that the various ex post facto remedies referred to above satisfied the requirements of Article 13.", "56. Accordingly, the Court finds no violation of Article 13 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1955 and lives in Essex.", "A. Closed-circuit television (CCTV) and the relevant footage", "9. In February 1994 Brentwood Borough Council (“the Council”) approved guidelines for the operation and management of CCTV. The CCTV tape recordings would be retained initially for ninety days, this period to be reviewed from time to time and reduced to a minimum, and the tapes would be erased on completion of the storage period. In the section headed “privacy to neighbouring properties”, it was noted that the CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance. In the event of it becoming apparent that privacy was being violated, it was foreseen that the Council would take such steps as to ensure that “either an electronic (digital) screening or physical screening is taking place”. In April 1994 the Council installed a CCTV surveillance system in Brentwood. It was fully operational by July 1994. The Council's monitoring operator had a direct visual and audio link to the police so that if it was considered that an incident warranting police intervention was taking place, the images being captured could be switched through to the police.", "10. In August 1995 the applicant was suffering from depression as a result of personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the high street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, filmed his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists, the operator being solely alerted to an individual in possession of a knife at the junction.", "11. The police were notified by the CCTV operator and arrived. They took the knife from the applicant, gave him medical assistance and brought him to the police station. He was detained under the Mental Health Act 1983. His custody record refers to the self-inflicted injuries to his wrists on arrival and notes that he was examined and treated by a doctor, after which he was released without charge and taken home by police officers.", "B. Release and publication of the footage", "12. On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. The Council also decided to cooperate with third parties in the preparation of factual programmes concerning their CCTV system.", "13. The Council's first press feature, the CCTV News, was released on 9 October 1995 and included two photographs taken from the CCTV footage of the applicant to accompany an article entitled “Defused – The partnership between CCTV and the police prevents a potentially dangerous situation”. The applicant's face was not specifically masked. The article noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems. The article included the name of a Council employee in the event that readers wished to obtain copies of the pictures.", "14. On 12 October 1995 the Brentwood Weekly News used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant's face was not specifically masked.", "15. On 13 October 1995 an article entitled “Gotcha” appeared in the Yellow Advertiser, a local newspaper with a circulation of approximately 24,000. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge.", "16. As a result Anglia Television sought, and the Council provided, footage of the incident involving the applicant. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant's face had been masked at the Council's oral request. However, that masking was later considered inadequate by the Independent Television Commission (see below), the applicant's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him.", "17. On 18 October 1995 the Chairman of the Council informed the Council Technical Services Committee that cooperation had been, and would continue to be, given in the preparation of factual documentary programmes concerning the CCTV system. He referred to the feature on CCTV which had been broadcast by Anglia Television on the previous day.", "18. In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still suffering from severe depression.", "19. On 16 February 1996 a second article entitled “Eyes in the sky triumph” was published in the Yellow Advertiser outlining the benefits of CCTV in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper. It appears that a number of people recognised the applicant. A letter of 25 April 1996 from the Yellow Advertiser opined that the applicant was not identifiable. The Press Complaints Commission did not decide whether or not the applicant was identifiable from the photograph (see below).", "20. At or about that time the Council agreed to furnish CCTV footage of, inter alios, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked. The BBC were also to consult with the police to ensure that they had “no objection to recordings being shown because of sub judice issues”.", "21. Around 9 to 11 March 1996 the applicant was told by friends that they had seen him on 9 March 1996 in trailers for an episode of “Crime Beat” which was to be broadcast soon. On 11 March 1996 he complained to the Council about the forthcoming programme, at which stage the Council became aware of his identity. The Council contacted the producers who confirmed that his image had been masked. That evening the CCTV footage was shown on “Crime Beat”. The applicant's image was masked in the main programme itself but the Broadcasting Standards Commission (see below) later found that masking inadequate. Many of the applicant's friends and family who saw the programme recognised the applicant.", "22. In response to the applicant's request for a copy of the Council's licence agreement with the producers of “Crime Beat”, by letter dated 21 February 1997, the Council provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video. By letter dated 31 October 1997 the Council confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers, which related to the footage of the applicant but which did not include any masking requirement.", "23. The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs. On 28 March 1996 he participated in a national radio programme (BBC Radio 4). On 31 March 1996 he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant's name appeared in the media. Other newspaper articles included photographs of the applicant or quotes given by him. He also appeared on national television: on 13 April 1996 on Channel 4's “Right to Reply”, on 25 July 1996 on Channel 5's “Espresso” and on 5 August 1997 on BBC 1's “You Decide”. He also had his photograph published in the Yellow Advertiser on 25 October 1996.", "C. The Broadcasting Standards Commission (BSC)", "24. On 25 April 1996 the applicant lodged a complaint with the BSC in relation to, inter alia, the “Crime Beat” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC upheld both of his complaints.", "25. The BSC noted that the BBC had already accepted that it had meant to mask the applicant's image and that this had not been done in the trailer due to an oversight. The BSC also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer. It was accepted that the BBC had not intended that the applicant would be identifiable. However, the BSC found that the effect was to reveal to the applicant's family, friends and neighbours an episode which he did not wish to reveal, and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy. The BSC added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established. The BBC was directed to broadcast a summary of the adjudication of the BSC with the episode of “Crime Beat” on 12 June 1997 and a summary of the adjudication was also published in The Daily Telegraph on 12 June 1997.", "D. The Independent Television Commission (ITC)", "26. On 1 May 1996 the applicant complained to the ITC in respect of the broadcast by Anglia Television. The latter had already apologised to the applicant and conceded that it had breached the privacy requirements of section 2(2) and (5) of the ITC Code (sections concerning coverage of events in public and scenes of suffering and distress). The ITC noted that the implication was that a man carrying a knife was likely to be intent on a criminal act. It found that the applicant's identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him. It found that section 2(2) and (5) of the Code had been breached and the decision of the ITC was published in its Programme Complaints and Interventions Report of June 1996. Given the admission and apology by Anglia Television, no further action was taken by the ITC.", "E. The Press Complaints Commission (PCC)", "27. On 17 May 1996 the applicant complained to the PCC in respect of the articles published in the Yellow Advertiser. The PCC rejected the applicant's complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time.", "F. The judicial review proceedings", "28. On 23 May 1996 the applicant applied to the High Court for leave to apply for judicial review of the Council's disclosure of the CCTV material arguing, inter alia, that that disclosure had no basis in law. On 26 June 1996 a single judge of the High Court refused leave. On 18 October 1996 the High Court granted leave on a renewed request and leave to amend the application to include a complaint that the disclosure was irrational, even if lawful.", "29. By judgment dated 25 November 1997 the High Court rejected the application for judicial review. It found that the purpose of section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime or the welfare of victims of crime:", "“By publicising information about the successful operation of the CCTV, the Council was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation. The making available to the media of footage from the CCTV film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the Council's function under section 163 [of the 1994 Act] because it thereby increased, or tended to increase, the preventative effect of the equipment which [the Council was] providing for the purposes of the prevention of crime.”", "30. It concluded that the Council had the power to distribute the CCTV footage to the media by virtue of section 111 of the Local Government Act 1972 in the discharge of their functions under section 163 of the 1994 Act.", "31. As to the “rationality” of the Council's decision to disclose, the applicant submitted that the Council acted irrationally in disclosing the footage with the aim of crime prevention when he had not been, in fact, involved in any criminal activity. He argued that by failing to consult the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards disclosure of his identity, the Council had facilitated an unwarranted invasion of his privacy which was contrary to the spirit, if not the letter, of the Council's guidelines.", "32. The High Court judge had some sympathy with that submission but did not consider it correct in law. He went on:", "“I have some sympathy with the applicant who has suffered an invasion of his privacy, as is borne out by the findings of the Independent Television Commission and the Broadcasting Standards Commission. However, if I am right in deciding that the Council does have power to distribute the film footage from its CCTV system, there may on occasion be undesirable invasions of privacy. Unless and until there is a general right of privacy recognised by English law (and the indications are that there may soon be so by incorporation of the European Convention on Human Rights into our law), reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person's privacy.", "The evidence is that the CCTV cameras in public places play an important role in both crime prevention and crime detection. In this case, the film footage showed a man walking in the High Street carrying a large knife in his hand. It did not show him attempting to commit suicide. It was plainly a potentially dangerous situation which the Council's monitoring employee quite properly put to the police, as a result of which the man was arrested. ... It was not unreasonable for the Council to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided. ... In those circumstances, it seems to me that the decision of the Council to distribute the film footage to the media could not be said to be irrational or unreasonable, bearing in mind that the film did not show an attempted suicide and that, at the time, they did not know the applicant's identity. They therefore had no reason to consult the police as to whether an offence had been committed. They did not sell the take-outs from the CCTV footage for commercial gain and, more importantly, they had imposed on the television companies a requirement that an individual's face should be masked. It is true that that was a verbal rather than a written requirement, but I am not persuaded that what happened was likely to have been different if it had been a written requirement. In the event, the fault lay with the television companies. Anglia TV failed to mask the applicant's identity adequately. The BBC failed to mask the applicant's identity at all in the trailers. As soon as the Council were notified about that by the applicant, two days before the programme went out, which was the first time they were aware of the applicant's identity, they immediately contacted the BBC and received assurances that his image had been masked in the programme. In the event, unknown to the Council, it had not been adequately masked in the programme.", "I am sure that lessons can be learnt from this unfortunate incident, and it may be that, with the benefit of hindsight, the Council will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future. I am, however, equally sure that, in the circumstances that I have described, the Council cannot be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted.”", "33. An application to the High Court for leave to appeal to the Court of Appeal was rejected. The subsequent leave application to a single judge of the Court of Appeal was rejected on 21 January 1998 because", "“... the [High Court] Judge was plainly correct in his interpretation of the relevant statutory provisions and the Council was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media. The injury, of which complaint is made, arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public. That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against Brentwood Borough Council”.", "34. Following an oral hearing before the full Court of Appeal, the applicant's leave application was dismissed on 19 February 1998." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The relevant powers of the Council", "35. The Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 3 February 1995. The relevant parts of section 163 provide as follows:", "“1. Without prejudice to any power which they may appear to exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime –", "(a) providing apparatus for recording visual images of events occurring on any land in their area;", "(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;", "(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.", "2. Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.”", "36. The relevant part of section 111(1) of the Local Government Act 1972 provides as follows:", "“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have the power to do anything ... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.”", "37. Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the installation and operation of CCTV systems in their remit. In the section concerning the release to the media of video footage, it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings, that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and, where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects (where identification might jeopardise criminal proceedings) should be masked.", "38. As an extension of the Crime Reduction Programme announced in July 1998, government funding for CCTV systems was introduced in March 1999 and the sum of 153 million pounds sterling (GBP) has been made available over a period of three years, of which over GBP 40 million has already been allocated to more than 200 CCTV schemes. One of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy. In the first year of operation of the CCTV system in Brentwood, there was a 34% reduction in crime.", "B. Judicial review", "39. Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of a judicial review. If a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down. The English courts do not recognise proportionality as a separate head of judicial review. However, in the case of R. ( Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport & the Regions ([2001] 2 Weekly Law Reports 1389), Lord Slynn of the House of Lords stated obiter dictum :", "“I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.”", "C. Private-law remedies", "40. The remedy of breach of confidence is made up of three essential elements: the information itself must have “the necessary quality of confidence about it”; the information “must have been imparted in circumstances importing an obligation of confidence”; and there must have been an “unauthorised use of that information to the detriment of the party communicating it” ( Coco v. A.N. Clark Engineers Ltd [1969] Reports of Patent Cases 41, at p. 47). A fuller description of this cause of action together with more recent domestic case-law are detailed in Earl and Countess Spencer v. the United Kingdom (applications nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, Decisions and Reports (DR) 92 ‑ A, p. 56).", "41. Where a public official abuses his position by performing an administrative act maliciously, or which he knows he has no power to do, and causes foreseeable harm, then the injured person may recover damages on the basis of misfeasance in public office.", "42. The remedy of defamation is well established in English law. Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.", "43. The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false, that they were published maliciously and that special damage has followed as a direct and natural result of their publication ( Kaye v. Robertson [1991] Fleet Street Reports 62).", "44. The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land (see, for example, Thomas v. National Union of Mineworkers [1986] Law Reports: Chancery Division 20). Trespass consists of an unjustifiable intrusion by one person upon the land in the possession of another. The domestic courts have been developing the concept of a tort of harassment causing personal injury (see, for example, Burnett v. George [1992] 1 Family Law Reports 525, and Khorasandjin v. Bush [1993] 3 All England Law Reports 669).", "45. Depending on the circumstances in which any film has been made or published, the unauthorised taking or publication of pictures might be prevented (or damages recovered) on the grounds of copyright, breach of contract or inducing breach of contract.", "D. Statutory protection for privacy", "46. Statute law provides certain protection in the form of the Protection from Harassment Act 1997. Statutory regulation of surveillance is provided by the Interception of Communications Act 1985, by the Intelligence Services Act 1994 and by the Police Act 1997. The purpose of the Regulation of Investigatory Powers Act 2000 is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights. Many users of CCTV will have to comply with the provisions of the Data Protection Act 1998. Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims (Sexual Offences (Amendment) Act 1976) and the prohibition of the publication of the names or photographs of children involved in legal proceedings (Children and Young Persons Act 1933).", "47. The Human Rights Act 1998 came into force in October 2000. It requires that, so far as it is possible to do so, primary and subordinate legislation be read and given effect in a manner compatible with the European Convention on Human Rights and further provides that it is unlawful for a public authority to act in a way incompatible with a Convention right.", "In Douglas v. Hello! Ltd ([2001] 1Weekly Law Reports 992), Sedley LJ indicated that he was prepared to find that there was now a qualified right to privacy under English domestic law, although other members of the Court of Appeal (Brooke LJ and Keene LJ) did not find it necessary to rule on that point.", "E. The media commissions", "48. The Broadcasting Standards Commission (BSC) was established by section 106 of the Broadcasting Act 1996 with effect from April 1997. It is the duty of the BSC to draw up and publish a code giving guidance as to the principles to be observed and practices to be followed in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes (section 107 of the 1996 Act). In this respect, paragraph 16 of the code points out that broadcasters should take care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly and that “any exceptions to the requirement of individual consent would have to be justified by an overriding public interest”. The BSC is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes, or to unwarranted infringement of privacy in programmes (sections 110 and 111 of the 1996 Act).", "49. The BSC has powers, inter alia, to direct broadcasting bodies to publish the findings of the BSC or a summary of them (section 119), but it has no powers to direct a broadcasting body not to broadcast a programme.", "50. The Independent Television Commission (ITC) is a public body set up by the Broadcasting Act 1990 to licence and regulate commercially funded television (excluding television services provided by, inter alia, the BBC). The Act requires the ITC to draw up and enforce a code governing programming standards and practice, which code covers issues of privacy. The ITC adjudicates upon complaints made under the code and, where a breach is confirmed, the ITC may impose sanctions such as requiring on-screen apologies, ordering fines and revoking licences.", "51. The Press Complaints Commission (PCC) is a non-statutory body set up by the newspaper industry for the purposes of self-regulation. The PCC operates a voluntary code of practice, which code includes provisions relating to privacy. If a newspaper is found to be in breach of the code, the newspaper is to publish the adjudication of the PCC. The PCC has no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to a complainant.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "52. The applicant complained that the disclosure by Brentwood Borough Council of the relevant CCTV footage, which resulted in the publication and broadcasting of identifiable images of him, constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the Convention. The relevant parts of Article 8 read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or ... for the prevention of disorder or crime ...”", "A. The existence of an interference with private life", "1. The parties' submissions", "53. The Government contended that the applicant's right to private life had not been engaged. They mainly argued that the incident in question did not form part of his private life given the substance of what was filmed and the location and circumstances of the filming. The applicant's actions were already in the public domain. Disclosure of those actions simply distributed a public event to a wider public and could not change the public quality of the applicant's original conduct and render it more private. The Government also maintained that the applicant waived his rights by choosing to do what he did, where he did, and submitted that the fact that the applicant did not complain about being filmed, as such, amounted to an acknowledgment that the filming did not engage his right to the protection of his private life. They further considered that the question of whether there was an interference with his private life was not clear cut and submitted that certain factors should be borne in mind in this respect, including the nature of the impugned act and the parties' conduct.", "54. The applicant maintained that the disclosure of the footage constituted a serious interference with his private life. The relevant footage related to an attempted suicide, he was unaware that he was being filmed and the footage showed the immediate aftermath of this episode while he still held the knife. The footage was disclosed to the written and audiovisual media with large audiences, without his consent or knowledge and without masking at all or adequately his identity. His image, even in those circumstances, was broadcast to millions and he was recognised by a large number of persons who knew him, including family members, friends and colleagues. While he was not complaining about being filmed by CCTV (as this saved his life), he took issue with the disclosure by the Council of the CCTV material which resulted in the impugned publications and broadcasts.", "55. While the CCTV material disclosed did not show him actually cutting his wrists, the applicant argued that it concerned a period immediately following his suicide attempt and thus related to that personal and private matter. He may have been in the street, but it was late at night, he was not taking part in a public demonstration (the main reason for demonstrating is to be seen) and, given his psychological state, it could not be said that he was there voluntarily at all. He was unaware that he was being filmed and the disclosure took place without his knowledge or consent and the footage was later broadcast, and the stills published, without his permission and in a manner which did not exclude his identification by family, friends, neighbours and colleagues. The BSC, the ITC and the High Court found that his privacy had been invaded and, given those findings, the PCC's view to the contrary was not tenable.", "56. In addition, the applicant maintained that the jurisprudence of the Convention institutions accepted that the occurrence of an event in a public place was only one element in the overall assessment of whether there was an interference with private life, other relevant factors including the use made of the material obtained and the extent to which it was made available to the public. In contrast to that jurisprudence, not only was disclosure of the CCTV material specifically foreseen by the Council, but that disclosure was made to the media. Moreover, the applicant contended that it could not be said that he “unequivocally” waived his rights under the Convention on 20 August 1995.", "2. The Court's assessment", "57. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references).", "58. In P.G. and J.H. (§ 57) the Court further noted as follows:", "“There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.”", "59. The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life (see, for example, Herbecq and the association “ Ligue des droits de l'homme ” v. Belgium, applications nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-B, p. 92). On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations. Accordingly, in both Rotaru and Amann (to which P.G. and J.H. referred) the compilation of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with the applicants' private lives ( Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II). While the permanent recording of the voices of P.G. and J.H. was made while they answered questions in a police cell as police officers listened to them, the recording of their voices for further analysis was regarded as the processing of personal data about them amounting to an interference with their right to respect for their private lives (see P.G. and J.H., cited above, §§ 59-60).", "60. However, the Court notes that the present applicant did not complain that the collection of data through the CCTV-camera monitoring of his movements and the creation of a permanent record of itself amounted to an interference with his private life. Indeed, he admitted that that function of the CCTV system, together with the consequent involvement of the police, may have saved his life. Rather, he argued that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference.", "61. In this connection, the Court recalls both Lupker and Friedl decided by the Commission, which concerned the unforeseen use by the authorities of photographs which had been previously voluntarily submitted to them ( Lupker and Others v. the Netherlands, no. 18395/91, Commission decision of 7 December 1992, unreported) and the use of photographs taken by the authorities during a public demonstration ( Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 21, §§ 49-52). In those cases, the Commission attached importance to whether the photographs amounted to an intrusion into the applicant's privacy (as, for instance, by entering and taking photographs in a person's home), whether the photograph related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. In Friedl the Commission noted that there was no such intrusion into the “inner circle” of the applicant's private life, that the photographs taken of a public demonstration related to a public event and that they had been used solely as an aid to policing the demonstration on the relevant day. In this context, the Commission attached weight to the fact that the photographs taken remained anonymous in that no names were noted down, the personal data recorded and photographs taken were not entered into a data-processing system and no action had been taken to identify the persons photographed on that occasion by means of data processing (ibid.). Similarly, in Lupker, the Commission specifically noted that the police used the photographs to identify offenders in criminal proceedings only and that there was no suggestion that the photographs had been made available to the general public or would be used for any other purpose.", "62. The present applicant was in a public street but he was not there for the purposes of participating in any public event and he was not a public figure. It was late at night, he was deeply perturbed and in a state of distress. While he was walking in public wielding a knife, he was not later charged with any offence. The actual suicide attempt was neither recorded nor therefore disclosed. However, footage of the immediate aftermath was recorded and disclosed by the Council directly to the public in its CCTV News publication. In addition, the footage was disclosed to the media for further broadcasting and publication purposes. Those media included the audiovisual media: Anglia Television broadcast locally to approximately 350,000 people and the BBC broadcast nationally, and it is “commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media” ( Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31). The Yellow Advertiser was distributed in the applicant's locality to approximately 24,000 readers. The applicant's identity was not adequately, or in some cases not at all, masked in the photographs and footage so published and broadcast. He was recognised by certain members of his family and by his friends, neighbours and colleagues.", "As a result, the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation (as in Herbecq and the association “ Ligue des droits de l'homme ”, cited above) and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995.", "63. Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life.", "B. Whether the interference was in accordance with the law and pursued a legitimate aim", "64. The Government submitted that any interference was “in accordance with the law” in that it fell within section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) and section 111 of the Local Government Act 1972 (“the 1972 Act”), both of which provisions complied with the Convention's “quality of law” requirements. They added that any interference pursued a legitimate aim: as accepted during the judicial review proceedings, the Council's intention in installing and operating the CCTV system and in disclosing footage to the media was the detection and prevention of crime, thereby securing public safety and private property.", "65. The applicant considered that the interference in question was not “in accordance with the law” because it was not foreseeable. He argued that the scope and conditions of the exercise of the discretionary power of disclosure in the 1972 and 1994 Acts were not indicated with sufficient clarity and thereby failed to protect him against arbitrary interferences with his rights. He also considered that the disclosure of the CCTV material had no legitimate aim because any connection between the aim of detecting and deterring crime and his conduct was too remote.", "66. The Court has noted the terms of section 163 of the 1994 Act and section 111(1) of the 1972 Act and the judgment of, in particular, the High Court. That court noted that the purpose of section 163 of the 1994 Act was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime and the welfare of victims of crime. It further noted that the publicising of information about the successful operation of the CCTV system reinforced the deterrent effect of its operation. The Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111(1) of the 1972 Act in the discharge of their functions under section 163 of the 1994 Act.", "67. Accordingly, the Court considers that the disclosure did have a basis in law and was, with appropriate legal advice, foreseeable (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49).", "It also regards the disclosure as having pursued the legitimate aim of public safety, the prevention of disorder and crime and the protection of the rights of others.", "C. Whether the interference was justified", "1. The parties' submissions", "68. The Government considered that any interference was proportionate. They pointed out that the domestic courts had already assessed the reasonableness of the disclosure, and that this Court should not substitute its own assessment for that of the domestic institutions.", "69. As to the reasons why any such interference was proportionate, the Government emphasised the obligation to protect the life and property of citizens. Given the margin of appreciation open to States to implement the most suitable measures to combat crime, the Government's view of CCTV as a powerful weapon in that battle should be accepted. Disclosure of CCTV footage complemented this aim: the policy was to give CCTV as prominent a role as possible in order to avoid covert surveillance, to inspire public confidence and support for the system and to deter criminals. This aim of deterrence was expressly accepted by the High Court as one of the bases of the Council's conduct, and crime had decreased since the installation of the CCTV system. An important element of the publicity given to CCTV had been the release of footage to the media and the CCTV footage of the applicant was an entirely suitable illustration of the type of situation constituting good publicity for CCTV. It was not a private tragedy sensationalised by the disclosure of the footage since it did not show the applicant's attempted suicide and it was not apparent from the footage disclosed that he had made such an attempt or tried to injure himself in any way. This was not obvious to the Council operator, who did not know on the relevant evening that the applicant had tried to commit suicide. Rather, the footage evidenced the police defusing a potentially dangerous situation.", "70. In addition, they argued that cooperation with the media to publicise the CCTV system would be undermined if it were necessary to obtain the consent of everyone who appeared on the images; the Government referred to scenes on crowded streets and to footage which might include missing persons whose consent could not be obtained.", "71. Moreover, the Government submitted that the nature of the impugned act and the parties' conduct were relevant considerations in this context also. As to the impugned act, they pointed out that the disclosed footage was obtained neither covertly, intrusively or selectively and the degree of intrusion was limited. The applicant, the Government suggested, courted attention by going to a busy junction at the centre of Brentwood clearly brandishing a knife, and he compounded the publicity thereafter by his voluntary appearances in the media. Indeed, it was during those appearances that his identity was first made known to the public and that the first public reference was made to his attempted suicide. The Council, the Government contended, acted in good faith in the public interest with no commercial motive. Since it had no facilities to mask faces on CCTV footage, it released the footage to the media on the understanding that the relevant television companies would mask the applicant's image. The fact that those companies did not do so, or did so inadequately, was not the responsibility of the Council.", "72. The applicant maintained that the interference was not proportionate given the serious nature of the interference. The Council should have, and could have, taken reasonable steps to identify the applicant and inform themselves of his situation. It should have, since the purpose of disclosing the film was to advertise widely the benefits of CCTV and not to identify a criminal. It could have, because there was only one person visible, whose identification would have been possible through the police, who had been called by the CCTV operator to the scene.", "73. Moreover, he considered that the Council's attempt at ensuring the masking of the relevant image was inadequate. If the Council did not have the facilities themselves, they should have ensured that the media properly carried out the masking. Written agreements would be a step in the right direction, but none were completed prior to the disclosures in his case.", "74. Furthermore, the applicant submitted that there was no sufficiently important countervailing public interest. He was not a public figure and he had no public role. The disclosure was made not to catch a criminal or find a missing person but to satisfy the general aim of publicising the effectiveness of the CCTV system, with which aim properly masked images or other less intrusive footage would have been consistent.", "75. The applicant contested the Government's assertion that the High Court had assessed the proportionality of the interference. He also rejected their contention that he courted attention on 20 August 1995. He further disputed their questioning of his motivation by their reference to his voluntary media appearances in 1996: his image had already been published and broadcast without his consent and he was identified by those who knew him. He then correctly pursued any remedies available, which procedures were public, and he could not be criticised for speaking about his predicament to responsible media. He faced the classic dilemma of one whose privacy has been interfered with: seeking a remedy and defending one's position by speaking out inevitably led to further publicity.", "2. The Court's assessment", "76. In determining whether the disclosure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the disclosure were “relevant and sufficient” and whether the measures were proportionate to the legitimate aims pursued.", "77. In cases concerning the disclosure of personal data, the Court has recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 24, § 55) and the scope of this margin depends on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see Z v. Finland, judgment of 25 February 1997, Reports of judgments and Decisions 1997-I, p. 348, § 99).", "78. Z v. Finland related to the disclosure in court proceedings without the applicant's consent of her health records, including her HIV status. The Court noted that the protection of personal data was of fundamental importance to a person's enjoyment of his or her right to respect for private life and that the domestic law must therefore afford appropriate safeguards to prevent any such disclosure as may be inconsistent with the guarantees in Article 8 of the Convention. In so finding, the Court referred, mutatis mutandis, to Articles 3 § 2 (c), 5, 6 and 9 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (European Treaty Series no. 108, Strasbourg, 1981). It went on to find that the above considerations were “especially valid” as regards the protection of the confidentiality of information about a person's HIV status, noting that the interests in protecting the confidentiality of such information weighed heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference could not be compatible with Article 8 of the Convention unless it was justified by an overriding requirement in the public interest. Any State measures compelling disclosure of such information without the consent of the patient and any safeguards designed to secure an effective protection called for the most careful scrutiny on the part of the Court.", "79. As to the present case, the Court would note at the outset that the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime.", "The Court has also noted, on the one hand, the nature and seriousness of the interference with the applicant's private life (see paragraph 63 above). On the other hand, the Court appreciates the strong interest of the State in detecting and preventing crime. It is not disputed that the CCTV system plays an important role in these respects and that that role is rendered more effective and successful through advertising the CCTV system and its benefits.", "80. However, the Court notes that the Council had other options available to it to allow it to achieve the same objectives. In the first place, it could have identified the applicant through enquiries with the police and thereby obtained his consent prior to disclosure. Alternatively, the Council could have masked the relevant images itself. A further alternative would have been to take the utmost care in ensuring that the media, to which the disclosure was made, masked those images. The Court notes that the Council did not explore the first and second options and considers that the steps taken by the Council in respect of the third were inadequate.", "81. As to the first option, it is true that individuals may not give their consent or that such an exercise may not be feasible where the footage includes images of numerous persons. In such circumstances, it could be argued that a consent-based system of disclosure could in practice undermine any action aimed at promoting the effectiveness of the CCTV system. However, in the present case, such limitations were not particularly relevant. The relevant footage clearly focused on and related to one individual only. It is not disputed that the Council, whose CCTV operator had alerted the police and observed their intervention, could have made enquiries with the police to establish the identity of the applicant and thereby request his consent to disclosure. Indeed, it appears from the Council's own CCTV News article of 9 October 1995 that certain enquiries had been made with the police to establish that the relevant individual had been questioned and assisted, but not to establish his identity.", "82. Alternatively, the Council could have masked such images itself. While the Government confirmed that the Council did not have a masking facility, the Court notes that the Council's own guidelines indicate that it was intended to have such a facility. Indeed, the Court notes that the Council itself directly disclosed in its own publication, the CCTV News, stills taken from the relevant footage and that no attempt was made to mask those images.", "83. As to the third option of ensuring appropriate and sufficient masking by the media to whom footage is disclosed, the Court notes that the High Court found that Anglia Television and the producers of the BBC programme had been orally requested to mask the applicant. The Court considers, contrary to the view of the High Court, that it would have been reasonable for the Council to demand written undertakings of the media to mask images, which requirement would have emphasised the need to maintain confidentiality. Indeed the High Court suggested that lessons could be learnt from this “unfortunate incident” and that, with the benefit of hindsight, the Council might see if it could tighten up its guidelines to avoid similar incidents in the future. The Council itself clearly intended to have a written licence agreement with the producers of “Crime Beat” but this does not appear to have been concluded as no final and signed agreement was disclosed to the applicant or submitted by the Government to this Court. The Essex police guidelines recommend written agreements with clauses on masking. Moreover, there is no evidence that the Yellow Advertiser was requested to mask the applicant's image at all.", "84. Furthermore, the relevant CCTV material was released with the aim of promoting the effectiveness of the CCTV system in the prevention and detection of crime and it was not therefore unlikely that the footage would be used in such contexts. This proved to be the case, most notably in the BBC's “Crime Beat” programme. In such circumstances, and even though the applicant does not directly complain about damage to his reputation, the Court considers that particular care was required of the Council, which would reasonably have included verifying with the police whether the individual had, in fact, been charged or not. It is difficult to accept the Government's explanation that the Council was unaware of his identity. As noted above, the Council's own CCTV News article of 9 October 1995 would seem to imply that the Council had established that the relevant individual had been questioned and given assistance for his problems and could therefore have verified whether the applicant had, in fact, been charged. Indeed, the Yellow Advertiser had established by 13 October 1995 that the applicant had not been charged by the police.", "85. In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant's consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case.", "86. Finally, the Court does not find that the applicant's later voluntary media appearances diminish the serious nature of the interference or reduce the correlative requirement of care concerning disclosures. The applicant was the victim of a serious interference with his right to privacy involving national and local media coverage: it cannot therefore be held against him that he sought thereafter to avail himself of the media to expose and complain about that wrongdoing.", "87. Accordingly, the Court considers that the disclosures by the Council of the CCTV material in the CCTV News and to the Yellow Advertiser, Anglia Television and the BBC were not accompanied by sufficient safeguards to prevent disclosure inconsistent with the guarantees of respect for the applicant' private life contained in Article 8. As such, the disclosure constituted a disproportionate and therefore unjustified interference with his private life and a violation of Article 8 of the Convention.", "D. Other complaints under Article 8 of the Convention", "88. The applicant also appeared to suggest that the BBC, acting under Royal Charter, was a public authority as was Anglia Television which acted under the authority of the ITC constituted under the Broadcasting Act 1990. Even assuming that those media could rely on their rights under Article 10 of the Convention, their broadcasts, he argued, also constituted unjustified interferences with his private life. The Government did not consider that the applicant had, in fact, made that submission and, in any event, denied that either the BBC or Anglia Television could be regarded as State bodies or public authorities within the meaning of Article 8 § 2 of the Convention. They relied, inter alia, on relevant domestic provisions and the conclusions to be drawn from the inclusion in Article 10 of the Convention of the phrase concerning the licensing of broadcasting, television or cinema enterprises.", "The applicant also maintained that, given the significant impact on family members, the disclosure of the footage constituted a serious interference with his right to respect for his family life.", "89. The Court notes that the question of whether the BBC was an “emanation of the State” was left open by the Commission in Huggett v. the United Kingdom (no. 24744/94, Commission decision of 28 June 1995, DR 82-A, p. 98). However, in the light of the Court's finding of a violation in relation to the disclosure by the Council (see paragraph 87 above), it does not consider it necessary to consider these complaints separately.", "90. The applicant further argued that the State had failed to fulfil its positive obligation to protect his rights under Article 8 because he had no effective domestic remedy in respect of the disclosures. The Government maintained that there was no breach of any positive obligation and, more particularly, they argued that the applicant had available to him such remedies. The Court considers that the issue of the availability of a domestic remedy for the impugned disclosure by the Council is more appropriately considered under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "91. The applicant complained under Article 13 of the Convention taken in conjunction with Article 8 that he had no effective domestic remedy in relation to the relevant disclosures by the Council.", "92. The relevant part of Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ... ”", "A. The parties' submissions", "93. The Government explained that the need for a law of privacy had been the subject of much debate for many years, many private members' bills and a number of official reports. The debate continued. However, the absence of a general right to privacy in domestic law did not, of itself, show a lack of respect for the applicant's private life. The question was rather whether the regime of legal protection which existed adequately protected the applicant's rights and the Government considered that it did. They pointed out that the common law and statutory remedies collectively provided a comprehensive regime of legal protection for privacy and therefore performed substantially the same function as a law of privacy.", "94. In particular, the Government pointed out that the applicant had been able to assert and vindicate his claims before the BSC, the ITC and the PCC. They accepted that it was not intended that the media commissions should provide a “legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”. However, they contended that Article 13 did not require in every case a “court” or that a pecuniary award be available. In addition, the Government argued that the remedy of judicial review was also, in principle, capable of providing an adequate remedy and the rejection of the applicant's case did not undermine the effectiveness of that remedy.", "95. The Government also maintained that a number of other remedies were available to the applicant. They considered the breach-of-confidence remedy to be the most relevant, suggesting that the applicant would have been entitled to bring such an action if he had been filmed “in circumstances giving rise to an expectation of privacy on his part”. The Government underlined that this was an area of the law which was heavily dependent on policy considerations and, consequently, it was an area that had been, and would continue to be, developed by the courts. The Convention jurisprudence had had an important impact on such developments and would have an even stronger impact with the coming into force of the Human Rights Act 1998. They also submitted that the applicant could have brought an action for defamation or malicious falsehood if any item had been misreported so as to suggest that he had been involved in a criminal act of violence against some other person.", "96. The applicant maintained that he had no effective domestic remedy. He had pursued the most relevant remedies (the media commissions and judicial review) but those remedies were ineffective: the “irrationality” criteria in judicial review could not be equated with the proportionality test under Article 8 and the media commissions could not award damages.", "97. In addition, he argued that a breach-of-confidence action would have had no realistic prospect of success. He noted that the Government had not quoted a single case where an individual in a relatively similar situation had obtained even partial satisfaction through this remedy. He considered their assertion that an expectation of privacy would be sufficient to give rise to such a remedy to be inaccurate in domestic law, and he found it noteworthy that the Government did not contend that he had failed to exhaust domestic remedies by not taking such an action. Moreover, he considered that the other remedies to which the Government referred were not relevant to his case. Certain of the statutes came into force after the relevant time, other statutes (relating, for example, to secret surveillance) could have no conceivable impact in the present case, and the common-law remedies to which the Government referred (for defamation, malicious falsehood, harassment and breach of confidence) were simply not relevant to the applicant in the particular circumstances of his case.", "B. The Court's assessment", "98. The Court notes that the applicant complained under Article 8 of the Convention taken alone and in conjunction with Article 13, inter alia, that he did not have effective domestic remedies. The Government did not argue that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In the admissibility decision in this case, the Court considered that there was a close connection between any issue raised under Article 35 § 1 and the merits of the applicant's complaints concerning a lack of an effective domestic remedy and it joined any issue of exhaustion of domestic remedies to the merits of the application.", "1. The applicable legal principles", "99. The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999-VI, and Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, pp. 37-38, § 100). That provision does not, however, require the certainty of a favourable outcome (see Amann, cited above, § 88, with further references) or require the incorporation of the Convention or a particular form of remedy, Contracting States being afforded a margin of appreciation in conforming with their obligations under this provision (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 39, § 122).", "100. The Court further notes that in Smith and Grady, cited above, it described the test of “irrationality” applied in judicial review proceedings as follows: a court was not entitled to interfere with the exercise of an administrative discretion on substantive grounds save where the court was satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision-maker. In judging whether the decision-maker had exceeded this margin of appreciation, the human rights' context was important, so that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable.", "It was, however, further emphasised by the Court in that case that, notwithstanding any human rights context, the threshold of irrationality which an applicant was required to surmount was a high one, as confirmed by the domestic judgments in that case. While those courts had commented favourably on those applicants' submissions challenging the justification of the relevant policy (against homosexuals in the armed forces), the domestic courts had, nevertheless, concluded that the policy could not be said to be beyond the range of responses open to a reasonable decision-maker and, accordingly, could not be considered to be “irrational”. In such circumstances, the Court considered it clear that, even assuming that the essential complaints of Ms Smith and Mr Grady before this Court were before and considered by the domestic courts, the threshold at which those domestic courts could find the impugned policy to be irrational had been placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national-security and public-order aims pursued, principles which lay at the heart of the Court's analysis of complaints under Article 8 of the Convention. It therefore concluded that Ms Smith and Mr Grady had no effective remedy in relation to the violation of their right to respect for their private lives in violation of Article 13 of the Convention.", "2. Application of those principles to the present case", "101. The Court observes, in the first place, that the present case is distinguishable from James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98, pp. 47-48, §§ 85-86), Leander v. Sweden (judgment of 26 March 1987, Series A no. 116, pp. 29-30, § 77) and The Sunday Times v. the United Kingdom (no. 2) (judgment of 26 November 1991, Series A no. 217, p. 32, § 61), which establish that Article 13 cannot be seen as guaranteeing a remedy against primary legislation or equivalent domestic norms. The legislation relevant to the present case did not require disclosure of the CCTV material and the complaint is about the Council's exercise of its powers to disclose.", "(a) The regime of legal protection for privacy", "102. As in Winer v. the United Kingdom (no. 10871/84, Commission decision of 10 July 1986, DR 48, p. 154), the Government argued that the Court should analyse the protection of privacy by the “ regime of legal protection for privacy” as a whole, this regime effectively carrying out the role of a law of privacy.", "However, the Court's task is not to review the relevant law or practice in the abstract but rather to confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Amann, cited above, § 88) and, in particular, to considering only those remedies which could have some relevance for the applicant (see N. v. Sweden, no. 11366/85, Commission decision of 16 October 1986, DR 50, p. 173; Winer, cited above; and Stewart-Brady v. the United Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90 ‑ A, p. 45). The Court considers that it is not relevant, therefore, to examine remedies which were not in force at the relevant time or those which had no relevance to the facts of the applicant's case.", "103. The Court notes in this regard that the applicant did not complain about malicious acts on the part of the Council, about untrue reports or, at least directly, about an attack on his reputation. It is not disputed that issues of trespass, harassment, nuisance, copyright, breach of contract or secret surveillance by security services have no relevance to the applicant's complaints. Similarly, the Government did not suggest that the Data Protection Act 1998, the Sexual Offences (Amendment) Act 1976, the Children and Young Persons Act 1933 had any relevance to the facts of the present case. The Human Rights Act 1998 did not come into force until October 2000, that is, after the relevant facts of the applicants' case.", "104. The Court has therefore confined its assessment to the remedies which could be considered to have had some relevance to the applicant's complaints.", "(b) Judicial review", "105. The Court has found that the applicant's right to respect for his private life (see paragraph 87 above) was violated by the disclosure by the Council of the relevant footage. It notes that at the material time the Convention did not form part of domestic law and questions as to whether the disclosure violated the applicant's rights under Article 8 and, in particular, as to whether the disclosure had been shown by the authorities to respond to a pressing social need or to be proportionate to any legitimate aim served, were not questions to which answers could be offered.", "As in Smith and Grady, cited above, the sole relevant issue before the domestic courts was whether the policy could be said to be “irrational”. As in Smith and Grady, the present High Court noted that the applicant had suffered an invasion of privacy but that, unless and until there was a general right of privacy in domestic law, reliance had to be placed on the guidance provided by codes of practice or otherwise to avoid such undesirable invasions of privacy. The High Court went on to examine a number of factors, including the important role of CCTV cameras in public places, the images captured by those cameras, the attempt (albeit unsuccessful) by the Council to ensure that the applicant's identity was masked and the fact that the footage was not sold for commercial gain. The High Court concluded that, while lessons could be learned from the unfortunate incident, including the necessity to tighten up the Council's guidelines to seek to avoid a similar incident in the future, it was satisfied that the Council could not be said to have acted “irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable authority could sensibly have acted”.", "106. In such circumstances, the Court considers that the threshold at which the High Court could find the impugned disclosure irrational was placed so high that it effectively excluded any consideration by it of the question of whether the interference with the applicant's right answered a pressing social need or was proportionate to the aims pursued, principles which as noted above lie at the heart of the Court's analysis of complaints under Article 8 of the Convention.", "As to the Government's reference to Alconbury Developments Ltd, cited above, the Court notes that that case post-dated the entry into force of the Human Rights Act 1998. Moreover, the relevant comment concerning the place of the principle of proportionality in domestic law was accepted by the Government to be obiter dictum. In any event, the Government do not suggest that this comment is demonstrative of the full application by domestic courts of the proportionality principle in considering, in the judicial review context, cases such as the present.", "107. The Court finds therefore that judicial review did not provide the applicant with an effective remedy in relation to the violation of his right to respect for his private life.", "(c) The media commissions", "108. The Court notes that the Government submitted that the proceedings before these commissions provided the applicant with an opportunity to assert and vindicate his rights. However, they accepted that those bodies were not “intended to provide a legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”.", "109. The Court finds that the lack of legal power of the commissions to award damages to the applicant means that those bodies could not provide an effective remedy to him. It notes that the ITC's power to impose a fine on the relevant television company does not amount to an award of damages to the applicant. While the applicant was aware of the Council's disclosures prior to the Yellow Advertiser article of February 1996 and the BBC broadcasts, neither the BSC nor the PCC had the power to prevent such publications or broadcasts.", "(d) An action in breach of confidence", "110. The Court considers the fact that the Government did not claim that the applicant had failed to exhaust this remedy to be particularly noteworthy, given the Commission's finding that Earl and Countess Spencer's application (cited above) was inadmissible on this ground.", "111. The Court considers that the facts of this case are, in any event, sufficiently different from those in Earl and Countess Spencer, cited above, as to allow the Court to conclude that the present applicant did not have an actionable remedy in breach of confidence at the relevant time, even accepting the Government's description of that remedy.", "In the first place, Earl and Countess Spencer had a strong case on the facts that former friends had disclosed in secret indisputably private information previously given to them on a confidential basis by the applicants. The present applicant would have had much greater difficulty in establishing that the footage disclosed had the “necessary quality of confidence” about it or that the information had been “imparted in circumstances importing an obligation of confidence”. The Government argued before the Court under Article 8 that the applicant's right to respect for his private life had not even been engaged. They have cited no domestic case which could be considered similar or analogous to the present case and which would suggest that these two elements of the breach-of-confidence claim were satisfied. Douglas v. Hello! Ltd, cited above, post-dated the relevant facts of the present case and, as importantly, the entry into force of the Human Rights Act 1998. In any event, only one of three judges in that case indicated that he was prepared to find that there was now a qualified right to privacy in domestic law. Moreover, the Court is not persuaded by the Government's argument that a finding by this Court that the applicant had an “expectation of privacy” would mean that the elements of the breach-of-confidence action were established. The Court finds it to be unlikely that the domestic courts would have accepted at the relevant time that the images had the “necessary quality of confidence” about them or that the information was “imparted in circumstances importing an obligation of confidence”.", "Secondly, once the material in question was in the public domain, its re-publication was not actionable as a breach of confidence. Such an action could not have been contemplated before the applicant became aware of the disclosures by the Council of the CCTV material namely, prior to October or November 1995. Accordingly, a claim of breach of confidence would not have been actionable in respect of the Brentwood Weekly News or the Yellow Advertiser articles or in respect of the BBC broadcast.", "112. Given these deficiencies, it not necessary to consider whether an award of damages would have been available in a breach-of-confidence action. The Court would confine itself to noting that, despite this being the second area of dispute between the parties in Earl and Countess Spencer, cited above, no attempt has been made by the Government in the present case to clarify how damages could have been awarded in the absence of a prior injunction. The applicant could only have applied for such an injunction after he became aware of the disclosures in late October or early November 1995 and therefore only against the Yellow Advertiser and the BBC. Although an award of an account of profits is not dependent on the grant of a prior injunction, the Government have referred to no case where this has been ordered in respect of a broadcast. While an account of profits in respect of the national press was a possibility open to Earl and Countess Spencer, the Yellow Advertiser had a local as opposed to a national circulation.", "3. The Court's conclusion", "113. In such circumstances, the Court finds that the applicant had no effective remedy in relation to the violation of his right to respect for his private life guaranteed by Article 8 of the Convention. The Court does not accept as relevant the Government's argument that any acknowledgment of the need to have a remedy will undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention. As noted above, the Council, and therefore the media, could have achieved their objectives by properly masking, or taking appropriate steps to ensure such masking of, the applicant's identity.", "114. Accordingly, there has been a violation of Article 13 of the Convention taken in conjunction with Article 8.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "116. The applicant claimed compensation for the non-pecuniary damage suffered by him and reimbursement of his pecuniary losses and his legal costs and expenses. The Government contested these claims.", "A. Non-pecuniary damage", "117. The applicant claimed 7,500 pounds sterling (GBP) in respect of non-pecuniary damage. He underlined the distress, anxiety, embarrassment and frustration suffered by him as a consequence of the impugned disclosures: he had been the subject of taunts, jokes and abuse from neighbours, the assumption was made that he was part of a crime problem and he had to explain his personal problems to his family after the relevant coverage in the media. He emphasised that the footage related to a distressing time for him, that the dissemination was without his knowledge or consent, that the consequent publications and broadcasts were at local and national level and that he had no remedy in national law.", "The Government argued that the finding of a violation would constitute sufficient just satisfaction in itself or, alternatively, that a sum of approximately GBP 4,000 would be appropriate compensation.", "118. The Court observes that some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof. However, this does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (see Davies v. the United Kingdom, no. 42007/98, § 38, 16 July 2002).", "119. The Court has noted above the reasons why it considered the interference with the applicant's private life to be a serious one and the personal consequences for the applicant of the wide dissemination of the footage, together with the absence of any effective remedy in these respects (on this latter point, see D.P. and J.C. v. the United Kingdom, no. 38719/97, § 142, 10 October 2002). It considers that the applicant must thereby have suffered significant distress, embarrassment and frustration which are not sufficiently compensated by a finding of violation.", "120. The Court therefore awards the applicant on an equitable basis 11,800 euros (EUR) in respect of non-pecuniary damage.", "B. Pecuniary damage", "121. The applicant also claimed reimbursement of pecuniary damage incurred by him as a direct result of the matters constituting a violation in this case. In particular, he claimed compensation in the sum of GBP 2,500 for expenses he incurred in pursuing his applications before the BSC, the ITC, the PCC, the High Court and this Court. This amount included his travel expenses (to attend meetings with his representatives and to attend hearings), loss of salary (due to the nature of his work, the applicant claimed to have lost wages for the periods he was obliged to attend meetings and hearings), together with postage and telephone costs. The Government pointed out that the applicant claimed those expenses without providing any evidence. They added that, in so far as they were incurred in domestic proceedings, they were not necessarily and reasonably incurred in the course of the Convention proceedings and therefore were not recoverable.", "122. The Court observes that these claims of the applicant have not been sufficiently detailed by him, the applicant claiming a global figure for all such expenses, and that, importantly, he has not submitted any documents vouching such pecuniary losses. In such circumstances, the Court does not award the applicant compensation for pecuniary damage.", "C. Legal costs and expenses", "123. The applicant further claimed reimbursement of his legal costs of both the domestic and Convention proceedings.", "124. As to the domestic proceedings, the applicant claimed GBP 5,047.40 (inclusive of value-added tax (VAT)) in respect of proceedings before the PCC, the ITC and the BSC. This was based on a charge-out rate of GBP 140 per hour for a senior solicitor and GBP 100 per hour for a legal officer. In addition to telephone calls and letters, 3 hours 45 minutes were accorded to the PCC proceedings and 1 hour 55 minutes were accorded to the ITC proceedings, the applicant not specifying whether this represented the time of the solicitor or the legal officer. Additionally, the applicant claims for 13 hours 25 minutes of solicitor's time and 5 hours of a legal officer's time for the BSC proceedings. It appears that legal aid was available for the judicial review proceedings, and no claim was made in that respect.", "The Government rejected this claim, arguing that the costs were not necessarily or reasonably incurred in the course of Convention proceedings.", "125. The applicant also claimed GBP 11,563.54 in respect of the costs to date of the Convention proceedings up to and including research on the submissions to be made under Article 41 of the Convention. This represented work done by a solicitor and a legal officer (at the hourly rates set out above) and by a Queen's Counsel. A detailed bill of costs was submitted which noted time spent at each stage and disbursements, including Counsel's fees. Counsel's fee note has also been submitted (in the amount of GBP 1,727.25). The Government submitted that the costs claimed should be reduced if the Court was to find only partially in favour of the applicant and by any legal aid paid to the applicant.", "126. Finally, the applicant claimed GBP 19,000 approximately (inclusive of VAT) in respect of the “anticipated costs” of Convention proceedings after the admissibility stage and prior to this judgment. The Government commented that this aspect of his claim was too speculative and that any future costs should be addressed if and when they were incurred.", "127. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, § 32, 25 July 2000). The Court further notes that the costs of the domestic proceedings can be awarded if they are incurred by applicants in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), judgment of 18 October 1982, Series A no. 54, p. 8, § 17). Costs in respect of the domestic proceedings were in fact awarded at paragraphs 30 to 33 of Lustig-Prean and Beckett (just satisfaction), cited above.", "128. Accordingly, the Court considers that it was reasonable, given the absence of other remedies, for the applicant to have sought some public recognition of the breach of his privacy and some vindication of his position before the media commissions. Indeed, the Government argued, in the context of Article 13, that these commissions formed part of the legal regime of privacy protection in the United Kingdom and allowed the applicant to “assert and vindicate” his rights. The applicant was in fact successful before the BSC and ITC, both bodies recognising that there had been a breach of privacy and their decisions being later published. He may have been unsuccessful before the PCC, but this does not imply that the costs incurred in this connection can be considered to have been unnecessarily incurred (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 284, § 91). Nevertheless, the Court does not consider that all of the fees were reasonable as to quantum given the nature of the proceedings before those bodies and, in particular, it considers excessive the hours billed in respect of the BSC complaint and the level of involvement of both a legal officer and a senior solicitor.", "129. Accordingly, the Court awards, on an equitable basis, EUR 3,000 in relation to the costs of the domestic proceedings.", "130. As to the Convention proceedings, the Court has noted the detailed bill of costs of the applicant's representatives and that both of his complaints (under Article 8 taken alone and in conjunction with Article 13) have been found to disclose violations of the Convention. As to the Government's objections to his claim for anticipated costs, the Court would not make an award as regards costs in respect of post-admissibility observations since none were required to be, or were, submitted on the applicant's behalf. On the other hand, it considers that the costs of researching, drafting and filing the Article 41 submissions were necessarily incurred and are reasonable as to quantum.", "131. The Court, accordingly, awards the applicant a total sum of EUR 15,800 in respect of the costs of the Convention proceedings less EUR 725 paid by the Council of Europe to the applicant in legal aid, the net award in respect of the Convention proceedings amounting to EUR 15,075.", "132. The total award in respect of the legal costs and expenses of the domestic and Convention proceedings amounts therefore to EUR 18,075.", "D. Default interest", "133. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points" ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1955 and lives in Essex.", "A. Closed-circuit television (CCTV) and the relevant footage", "9. In February 1994 Brentwood Borough Council (“the Council”) approved guidelines for the operation and management of CCTV. The CCTV tape recordings would be retained initially for ninety days, this period to be reviewed from time to time and reduced to a minimum, and the tapes would be erased on completion of the storage period. In the section headed “privacy to neighbouring properties”, it was noted that the CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance. In the event of it becoming apparent that privacy was being violated, it was foreseen that the Council would take such steps as to ensure that “either an electronic (digital) screening or physical screening is taking place”. In April 1994 the Council installed a CCTV surveillance system in Brentwood. It was fully operational by July 1994. The Council's monitoring operator had a direct visual and audio link to the police so that if it was considered that an incident warranting police intervention was taking place, the images being captured could be switched through to the police.", "10. In August 1995 the applicant was suffering from depression as a result of personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the high street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, filmed his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists, the operator being solely alerted to an individual in possession of a knife at the junction.", "11. The police were notified by the CCTV operator and arrived. They took the knife from the applicant, gave him medical assistance and brought him to the police station. He was detained under the Mental Health Act 1983. His custody record refers to the self-inflicted injuries to his wrists on arrival and notes that he was examined and treated by a doctor, after which he was released without charge and taken home by police officers.", "B. Release and publication of the footage", "12. On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. The Council also decided to cooperate with third parties in the preparation of factual programmes concerning their CCTV system.", "13. The Council's first press feature, the CCTV News, was released on 9 October 1995 and included two photographs taken from the CCTV footage of the applicant to accompany an article entitled “Defused – The partnership between CCTV and the police prevents a potentially dangerous situation”. The applicant's face was not specifically masked. The article noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems. The article included the name of a Council employee in the event that readers wished to obtain copies of the pictures.", "14. On 12 October 1995 the Brentwood Weekly News used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant's face was not specifically masked.", "15. On 13 October 1995 an article entitled “Gotcha” appeared in the Yellow Advertiser, a local newspaper with a circulation of approximately 24,000. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge.", "16. As a result Anglia Television sought, and the Council provided, footage of the incident involving the applicant. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant's face had been masked at the Council's oral request. However, that masking was later considered inadequate by the Independent Television Commission (see below), the applicant's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him.", "17. On 18 October 1995 the Chairman of the Council informed the Council Technical Services Committee that cooperation had been, and would continue to be, given in the preparation of factual documentary programmes concerning the CCTV system. He referred to the feature on CCTV which had been broadcast by Anglia Television on the previous day.", "18. In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still suffering from severe depression.", "19. On 16 February 1996 a second article entitled “Eyes in the sky triumph” was published in the Yellow Advertiser outlining the benefits of CCTV in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper. It appears that a number of people recognised the applicant. A letter of 25 April 1996 from the Yellow Advertiser opined that the applicant was not identifiable. The Press Complaints Commission did not decide whether or not the applicant was identifiable from the photograph (see below).", "20. At or about that time the Council agreed to furnish CCTV footage of, inter alios, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked. The BBC were also to consult with the police to ensure that they had “no objection to recordings being shown because of sub judice issues”.", "21. Around 9 to 11 March 1996 the applicant was told by friends that they had seen him on 9 March 1996 in trailers for an episode of “Crime Beat” which was to be broadcast soon. On 11 March 1996 he complained to the Council about the forthcoming programme, at which stage the Council became aware of his identity. The Council contacted the producers who confirmed that his image had been masked. That evening the CCTV footage was shown on “Crime Beat”. The applicant's image was masked in the main programme itself but the Broadcasting Standards Commission (see below) later found that masking inadequate. Many of the applicant's friends and family who saw the programme recognised the applicant.", "22. In response to the applicant's request for a copy of the Council's licence agreement with the producers of “Crime Beat”, by letter dated 21 February 1997, the Council provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video. By letter dated 31 October 1997 the Council confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers, which related to the footage of the applicant but which did not include any masking requirement.", "23. The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs. On 28 March 1996 he participated in a national radio programme (BBC Radio 4). On 31 March 1996 he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant's name appeared in the media. Other newspaper articles included photographs of the applicant or quotes given by him. He also appeared on national television: on 13 April 1996 on Channel 4's “Right to Reply”, on 25 July 1996 on Channel 5's “Espresso” and on 5 August 1997 on BBC 1's “You Decide”. He also had his photograph published in the Yellow Advertiser on 25 October 1996.", "C. The Broadcasting Standards Commission (BSC)", "24. On 25 April 1996 the applicant lodged a complaint with the BSC in relation to, inter alia, the “Crime Beat” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC upheld both of his complaints.", "25. The BSC noted that the BBC had already accepted that it had meant to mask the applicant's image and that this had not been done in the trailer due to an oversight. The BSC also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer. It was accepted that the BBC had not intended that the applicant would be identifiable. However, the BSC found that the effect was to reveal to the applicant's family, friends and neighbours an episode which he did not wish to reveal, and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy. The BSC added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established. The BBC was directed to broadcast a summary of the adjudication of the BSC with the episode of “Crime Beat” on 12 June 1997 and a summary of the adjudication was also published in The Daily Telegraph on 12 June 1997.", "D. The Independent Television Commission (ITC)", "26. On 1 May 1996 the applicant complained to the ITC in respect of the broadcast by Anglia Television. The latter had already apologised to the applicant and conceded that it had breached the privacy requirements of section 2(2) and (5) of the ITC Code (sections concerning coverage of events in public and scenes of suffering and distress). The ITC noted that the implication was that a man carrying a knife was likely to be intent on a criminal act. It found that the applicant's identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him. It found that section 2(2) and (5) of the Code had been breached and the decision of the ITC was published in its Programme Complaints and Interventions Report of June 1996. Given the admission and apology by Anglia Television, no further action was taken by the ITC.", "E. The Press Complaints Commission (PCC)", "27. On 17 May 1996 the applicant complained to the PCC in respect of the articles published in the Yellow Advertiser. The PCC rejected the applicant's complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time.", "F. The judicial review proceedings", "28. On 23 May 1996 the applicant applied to the High Court for leave to apply for judicial review of the Council's disclosure of the CCTV material arguing, inter alia, that that disclosure had no basis in law. On 26 June 1996 a single judge of the High Court refused leave. On 18 October 1996 the High Court granted leave on a renewed request and leave to amend the application to include a complaint that the disclosure was irrational, even if lawful.", "29. By judgment dated 25 November 1997 the High Court rejected the application for judicial review. It found that the purpose of section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime or the welfare of victims of crime:", "“By publicising information about the successful operation of the CCTV, the Council was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation. The making available to the media of footage from the CCTV film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the Council's function under section 163 [of the 1994 Act] because it thereby increased, or tended to increase, the preventative effect of the equipment which [the Council was] providing for the purposes of the prevention of crime.”", "30. It concluded that the Council had the power to distribute the CCTV footage to the media by virtue of section 111 of the Local Government Act 1972 in the discharge of their functions under section 163 of the 1994 Act.", "31. As to the “rationality” of the Council's decision to disclose, the applicant submitted that the Council acted irrationally in disclosing the footage with the aim of crime prevention when he had not been, in fact, involved in any criminal activity. He argued that by failing to consult the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards disclosure of his identity, the Council had facilitated an unwarranted invasion of his privacy which was contrary to the spirit, if not the letter, of the Council's guidelines.", "32. The High Court judge had some sympathy with that submission but did not consider it correct in law. He went on:", "“I have some sympathy with the applicant who has suffered an invasion of his privacy, as is borne out by the findings of the Independent Television Commission and the Broadcasting Standards Commission. However, if I am right in deciding that the Council does have power to distribute the film footage from its CCTV system, there may on occasion be undesirable invasions of privacy. Unless and until there is a general right of privacy recognised by English law (and the indications are that there may soon be so by incorporation of the European Convention on Human Rights into our law), reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person's privacy.", "The evidence is that the CCTV cameras in public places play an important role in both crime prevention and crime detection. In this case, the film footage showed a man walking in the High Street carrying a large knife in his hand. It did not show him attempting to commit suicide. It was plainly a potentially dangerous situation which the Council's monitoring employee quite properly put to the police, as a result of which the man was arrested. ... It was not unreasonable for the Council to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided. ... In those circumstances, it seems to me that the decision of the Council to distribute the film footage to the media could not be said to be irrational or unreasonable, bearing in mind that the film did not show an attempted suicide and that, at the time, they did not know the applicant's identity. They therefore had no reason to consult the police as to whether an offence had been committed. They did not sell the take-outs from the CCTV footage for commercial gain and, more importantly, they had imposed on the television companies a requirement that an individual's face should be masked. It is true that that was a verbal rather than a written requirement, but I am not persuaded that what happened was likely to have been different if it had been a written requirement. In the event, the fault lay with the television companies. Anglia TV failed to mask the applicant's identity adequately. The BBC failed to mask the applicant's identity at all in the trailers. As soon as the Council were notified about that by the applicant, two days before the programme went out, which was the first time they were aware of the applicant's identity, they immediately contacted the BBC and received assurances that his image had been masked in the programme. In the event, unknown to the Council, it had not been adequately masked in the programme.", "I am sure that lessons can be learnt from this unfortunate incident, and it may be that, with the benefit of hindsight, the Council will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future. I am, however, equally sure that, in the circumstances that I have described, the Council cannot be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted.”", "33. An application to the High Court for leave to appeal to the Court of Appeal was rejected. The subsequent leave application to a single judge of the Court of Appeal was rejected on 21 January 1998 because", "“... the [High Court] Judge was plainly correct in his interpretation of the relevant statutory provisions and the Council was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media. The injury, of which complaint is made, arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public. That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against Brentwood Borough Council”.", "34. Following an oral hearing before the full Court of Appeal, the applicant's leave application was dismissed on 19 February 1998." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The relevant powers of the Council", "35. The Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 3 February 1995. The relevant parts of section 163 provide as follows:", "“1. Without prejudice to any power which they may appear to exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime –", "(a) providing apparatus for recording visual images of events occurring on any land in their area;", "(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;", "(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.", "2. Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.”", "36. The relevant part of section 111(1) of the Local Government Act 1972 provides as follows:", "“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have the power to do anything ... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.”", "37. Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the installation and operation of CCTV systems in their remit. In the section concerning the release to the media of video footage, it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings, that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and, where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects (where identification might jeopardise criminal proceedings) should be masked.", "38. As an extension of the Crime Reduction Programme announced in July 1998, government funding for CCTV systems was introduced in March 1999 and the sum of 153 million pounds sterling (GBP) has been made available over a period of three years, of which over GBP 40 million has already been allocated to more than 200 CCTV schemes. One of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy. In the first year of operation of the CCTV system in Brentwood, there was a 34% reduction in crime.", "B. Judicial review", "39. Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of a judicial review. If a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down. The English courts do not recognise proportionality as a separate head of judicial review. However, in the case of R. ( Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport & the Regions ([2001] 2 Weekly Law Reports 1389), Lord Slynn of the House of Lords stated obiter dictum :", "“I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.”", "C. Private-law remedies", "40. The remedy of breach of confidence is made up of three essential elements: the information itself must have “the necessary quality of confidence about it”; the information “must have been imparted in circumstances importing an obligation of confidence”; and there must have been an “unauthorised use of that information to the detriment of the party communicating it” ( Coco v. A.N. Clark Engineers Ltd [1969] Reports of Patent Cases 41, at p. 47). A fuller description of this cause of action together with more recent domestic case-law are detailed in Earl and Countess Spencer v. the United Kingdom (applications nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, Decisions and Reports (DR) 92 ‑ A, p. 56).", "41. Where a public official abuses his position by performing an administrative act maliciously, or which he knows he has no power to do, and causes foreseeable harm, then the injured person may recover damages on the basis of misfeasance in public office.", "42. The remedy of defamation is well established in English law. Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.", "43. The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false, that they were published maliciously and that special damage has followed as a direct and natural result of their publication ( Kaye v. Robertson [1991] Fleet Street Reports 62).", "44. The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land (see, for example, Thomas v. National Union of Mineworkers [1986] Law Reports: Chancery Division 20). Trespass consists of an unjustifiable intrusion by one person upon the land in the possession of another. The domestic courts have been developing the concept of a tort of harassment causing personal injury (see, for example, Burnett v. George [1992] 1 Family Law Reports 525, and Khorasandjin v. Bush [1993] 3 All England Law Reports 669).", "45. Depending on the circumstances in which any film has been made or published, the unauthorised taking or publication of pictures might be prevented (or damages recovered) on the grounds of copyright, breach of contract or inducing breach of contract.", "D. Statutory protection for privacy", "46. Statute law provides certain protection in the form of the Protection from Harassment Act 1997. Statutory regulation of surveillance is provided by the Interception of Communications Act 1985, by the Intelligence Services Act 1994 and by the Police Act 1997. The purpose of the Regulation of Investigatory Powers Act 2000 is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights. Many users of CCTV will have to comply with the provisions of the Data Protection Act 1998. Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims (Sexual Offences (Amendment) Act 1976) and the prohibition of the publication of the names or photographs of children involved in legal proceedings (Children and Young Persons Act 1933).", "47. The Human Rights Act 1998 came into force in October 2000. It requires that, so far as it is possible to do so, primary and subordinate legislation be read and given effect in a manner compatible with the European Convention on Human Rights and further provides that it is unlawful for a public authority to act in a way incompatible with a Convention right.", "In Douglas v. Hello! Ltd ([2001] 1Weekly Law Reports 992), Sedley LJ indicated that he was prepared to find that there was now a qualified right to privacy under English domestic law, although other members of the Court of Appeal (Brooke LJ and Keene LJ) did not find it necessary to rule on that point.", "E. The media commissions", "48. The Broadcasting Standards Commission (BSC) was established by section 106 of the Broadcasting Act 1996 with effect from April 1997. It is the duty of the BSC to draw up and publish a code giving guidance as to the principles to be observed and practices to be followed in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes (section 107 of the 1996 Act). In this respect, paragraph 16 of the code points out that broadcasters should take care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly and that “any exceptions to the requirement of individual consent would have to be justified by an overriding public interest”. The BSC is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes, or to unwarranted infringement of privacy in programmes (sections 110 and 111 of the 1996 Act).", "49. The BSC has powers, inter alia, to direct broadcasting bodies to publish the findings of the BSC or a summary of them (section 119), but it has no powers to direct a broadcasting body not to broadcast a programme.", "50. The Independent Television Commission (ITC) is a public body set up by the Broadcasting Act 1990 to licence and regulate commercially funded television (excluding television services provided by, inter alia, the BBC). The Act requires the ITC to draw up and enforce a code governing programming standards and practice, which code covers issues of privacy. The ITC adjudicates upon complaints made under the code and, where a breach is confirmed, the ITC may impose sanctions such as requiring on-screen apologies, ordering fines and revoking licences.", "51. The Press Complaints Commission (PCC) is a non-statutory body set up by the newspaper industry for the purposes of self-regulation. The PCC operates a voluntary code of practice, which code includes provisions relating to privacy. If a newspaper is found to be in breach of the code, the newspaper is to publish the adjudication of the PCC. The PCC has no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to a complainant.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "52. The applicant complained that the disclosure by Brentwood Borough Council of the relevant CCTV footage, which resulted in the publication and broadcasting of identifiable images of him, constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the Convention. The relevant parts of Article 8 read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or ... for the prevention of disorder or crime ...”", "A. The existence of an interference with private life", "1. The parties' submissions", "53. The Government contended that the applicant's right to private life had not been engaged. They mainly argued that the incident in question did not form part of his private life given the substance of what was filmed and the location and circumstances of the filming. The applicant's actions were already in the public domain. Disclosure of those actions simply distributed a public event to a wider public and could not change the public quality of the applicant's original conduct and render it more private. The Government also maintained that the applicant waived his rights by choosing to do what he did, where he did, and submitted that the fact that the applicant did not complain about being filmed, as such, amounted to an acknowledgment that the filming did not engage his right to the protection of his private life. They further considered that the question of whether there was an interference with his private life was not clear cut and submitted that certain factors should be borne in mind in this respect, including the nature of the impugned act and the parties' conduct.", "54. The applicant maintained that the disclosure of the footage constituted a serious interference with his private life. The relevant footage related to an attempted suicide, he was unaware that he was being filmed and the footage showed the immediate aftermath of this episode while he still held the knife. The footage was disclosed to the written and audiovisual media with large audiences, without his consent or knowledge and without masking at all or adequately his identity. His image, even in those circumstances, was broadcast to millions and he was recognised by a large number of persons who knew him, including family members, friends and colleagues. While he was not complaining about being filmed by CCTV (as this saved his life), he took issue with the disclosure by the Council of the CCTV material which resulted in the impugned publications and broadcasts.", "55. While the CCTV material disclosed did not show him actually cutting his wrists, the applicant argued that it concerned a period immediately following his suicide attempt and thus related to that personal and private matter. He may have been in the street, but it was late at night, he was not taking part in a public demonstration (the main reason for demonstrating is to be seen) and, given his psychological state, it could not be said that he was there voluntarily at all. He was unaware that he was being filmed and the disclosure took place without his knowledge or consent and the footage was later broadcast, and the stills published, without his permission and in a manner which did not exclude his identification by family, friends, neighbours and colleagues. The BSC, the ITC and the High Court found that his privacy had been invaded and, given those findings, the PCC's view to the contrary was not tenable.", "56. In addition, the applicant maintained that the jurisprudence of the Convention institutions accepted that the occurrence of an event in a public place was only one element in the overall assessment of whether there was an interference with private life, other relevant factors including the use made of the material obtained and the extent to which it was made available to the public. In contrast to that jurisprudence, not only was disclosure of the CCTV material specifically foreseen by the Council, but that disclosure was made to the media. Moreover, the applicant contended that it could not be said that he “unequivocally” waived his rights under the Convention on 20 August 1995.", "2. The Court's assessment", "57. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references).", "58. In P.G. and J.H. (§ 57) the Court further noted as follows:", "“There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.”", "59. The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual's private life (see, for example, Herbecq and the association “ Ligue des droits de l'homme ” v. Belgium, applications nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-B, p. 92). On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations. Accordingly, in both Rotaru and Amann (to which P.G. and J.H. referred) the compilation of data by security services on particular individuals, even without the use of covert surveillance methods, constituted an interference with the applicants' private lives ( Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and Amann v. Switzerland [GC], no. 27798/95, §§ 65-67, ECHR 2000-II). While the permanent recording of the voices of P.G. and J.H. was made while they answered questions in a police cell as police officers listened to them, the recording of their voices for further analysis was regarded as the processing of personal data about them amounting to an interference with their right to respect for their private lives (see P.G. and J.H., cited above, §§ 59-60).", "60. However, the Court notes that the present applicant did not complain that the collection of data through the CCTV-camera monitoring of his movements and the creation of a permanent record of itself amounted to an interference with his private life. Indeed, he admitted that that function of the CCTV system, together with the consequent involvement of the police, may have saved his life. Rather, he argued that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference.", "61. In this connection, the Court recalls both Lupker and Friedl decided by the Commission, which concerned the unforeseen use by the authorities of photographs which had been previously voluntarily submitted to them ( Lupker and Others v. the Netherlands, no. 18395/91, Commission decision of 7 December 1992, unreported) and the use of photographs taken by the authorities during a public demonstration ( Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 21, §§ 49-52). In those cases, the Commission attached importance to whether the photographs amounted to an intrusion into the applicant's privacy (as, for instance, by entering and taking photographs in a person's home), whether the photograph related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. In Friedl the Commission noted that there was no such intrusion into the “inner circle” of the applicant's private life, that the photographs taken of a public demonstration related to a public event and that they had been used solely as an aid to policing the demonstration on the relevant day. In this context, the Commission attached weight to the fact that the photographs taken remained anonymous in that no names were noted down, the personal data recorded and photographs taken were not entered into a data-processing system and no action had been taken to identify the persons photographed on that occasion by means of data processing (ibid.). Similarly, in Lupker, the Commission specifically noted that the police used the photographs to identify offenders in criminal proceedings only and that there was no suggestion that the photographs had been made available to the general public or would be used for any other purpose.", "62. The present applicant was in a public street but he was not there for the purposes of participating in any public event and he was not a public figure. It was late at night, he was deeply perturbed and in a state of distress. While he was walking in public wielding a knife, he was not later charged with any offence. The actual suicide attempt was neither recorded nor therefore disclosed. However, footage of the immediate aftermath was recorded and disclosed by the Council directly to the public in its CCTV News publication. In addition, the footage was disclosed to the media for further broadcasting and publication purposes. Those media included the audiovisual media: Anglia Television broadcast locally to approximately 350,000 people and the BBC broadcast nationally, and it is “commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media” ( Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31). The Yellow Advertiser was distributed in the applicant's locality to approximately 24,000 readers. The applicant's identity was not adequately, or in some cases not at all, masked in the photographs and footage so published and broadcast. He was recognised by certain members of his family and by his friends, neighbours and colleagues.", "As a result, the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation (as in Herbecq and the association “ Ligue des droits de l'homme ”, cited above) and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995.", "63. Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life.", "B. Whether the interference was in accordance with the law and pursued a legitimate aim", "64. The Government submitted that any interference was “in accordance with the law” in that it fell within section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) and section 111 of the Local Government Act 1972 (“the 1972 Act”), both of which provisions complied with the Convention's “quality of law” requirements. They added that any interference pursued a legitimate aim: as accepted during the judicial review proceedings, the Council's intention in installing and operating the CCTV system and in disclosing footage to the media was the detection and prevention of crime, thereby securing public safety and private property.", "65. The applicant considered that the interference in question was not “in accordance with the law” because it was not foreseeable. He argued that the scope and conditions of the exercise of the discretionary power of disclosure in the 1972 and 1994 Acts were not indicated with sufficient clarity and thereby failed to protect him against arbitrary interferences with his rights. He also considered that the disclosure of the CCTV material had no legitimate aim because any connection between the aim of detecting and deterring crime and his conduct was too remote.", "66. The Court has noted the terms of section 163 of the 1994 Act and section 111(1) of the 1972 Act and the judgment of, in particular, the High Court. That court noted that the purpose of section 163 of the 1994 Act was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime and the welfare of victims of crime. It further noted that the publicising of information about the successful operation of the CCTV system reinforced the deterrent effect of its operation. The Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111(1) of the 1972 Act in the discharge of their functions under section 163 of the 1994 Act.", "67. Accordingly, the Court considers that the disclosure did have a basis in law and was, with appropriate legal advice, foreseeable (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49).", "It also regards the disclosure as having pursued the legitimate aim of public safety, the prevention of disorder and crime and the protection of the rights of others.", "C. Whether the interference was justified", "1. The parties' submissions", "68. The Government considered that any interference was proportionate. They pointed out that the domestic courts had already assessed the reasonableness of the disclosure, and that this Court should not substitute its own assessment for that of the domestic institutions.", "69. As to the reasons why any such interference was proportionate, the Government emphasised the obligation to protect the life and property of citizens. Given the margin of appreciation open to States to implement the most suitable measures to combat crime, the Government's view of CCTV as a powerful weapon in that battle should be accepted. Disclosure of CCTV footage complemented this aim: the policy was to give CCTV as prominent a role as possible in order to avoid covert surveillance, to inspire public confidence and support for the system and to deter criminals. This aim of deterrence was expressly accepted by the High Court as one of the bases of the Council's conduct, and crime had decreased since the installation of the CCTV system. An important element of the publicity given to CCTV had been the release of footage to the media and the CCTV footage of the applicant was an entirely suitable illustration of the type of situation constituting good publicity for CCTV. It was not a private tragedy sensationalised by the disclosure of the footage since it did not show the applicant's attempted suicide and it was not apparent from the footage disclosed that he had made such an attempt or tried to injure himself in any way. This was not obvious to the Council operator, who did not know on the relevant evening that the applicant had tried to commit suicide. Rather, the footage evidenced the police defusing a potentially dangerous situation.", "70. In addition, they argued that cooperation with the media to publicise the CCTV system would be undermined if it were necessary to obtain the consent of everyone who appeared on the images; the Government referred to scenes on crowded streets and to footage which might include missing persons whose consent could not be obtained.", "71. Moreover, the Government submitted that the nature of the impugned act and the parties' conduct were relevant considerations in this context also. As to the impugned act, they pointed out that the disclosed footage was obtained neither covertly, intrusively or selectively and the degree of intrusion was limited. The applicant, the Government suggested, courted attention by going to a busy junction at the centre of Brentwood clearly brandishing a knife, and he compounded the publicity thereafter by his voluntary appearances in the media. Indeed, it was during those appearances that his identity was first made known to the public and that the first public reference was made to his attempted suicide. The Council, the Government contended, acted in good faith in the public interest with no commercial motive. Since it had no facilities to mask faces on CCTV footage, it released the footage to the media on the understanding that the relevant television companies would mask the applicant's image. The fact that those companies did not do so, or did so inadequately, was not the responsibility of the Council.", "72. The applicant maintained that the interference was not proportionate given the serious nature of the interference. The Council should have, and could have, taken reasonable steps to identify the applicant and inform themselves of his situation. It should have, since the purpose of disclosing the film was to advertise widely the benefits of CCTV and not to identify a criminal. It could have, because there was only one person visible, whose identification would have been possible through the police, who had been called by the CCTV operator to the scene.", "73. Moreover, he considered that the Council's attempt at ensuring the masking of the relevant image was inadequate. If the Council did not have the facilities themselves, they should have ensured that the media properly carried out the masking. Written agreements would be a step in the right direction, but none were completed prior to the disclosures in his case.", "74. Furthermore, the applicant submitted that there was no sufficiently important countervailing public interest. He was not a public figure and he had no public role. The disclosure was made not to catch a criminal or find a missing person but to satisfy the general aim of publicising the effectiveness of the CCTV system, with which aim properly masked images or other less intrusive footage would have been consistent.", "75. The applicant contested the Government's assertion that the High Court had assessed the proportionality of the interference. He also rejected their contention that he courted attention on 20 August 1995. He further disputed their questioning of his motivation by their reference to his voluntary media appearances in 1996: his image had already been published and broadcast without his consent and he was identified by those who knew him. He then correctly pursued any remedies available, which procedures were public, and he could not be criticised for speaking about his predicament to responsible media. He faced the classic dilemma of one whose privacy has been interfered with: seeking a remedy and defending one's position by speaking out inevitably led to further publicity.", "2. The Court's assessment", "76. In determining whether the disclosure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the disclosure were “relevant and sufficient” and whether the measures were proportionate to the legitimate aims pursued.", "77. In cases concerning the disclosure of personal data, the Court has recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 24, § 55) and the scope of this margin depends on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see Z v. Finland, judgment of 25 February 1997, Reports of judgments and Decisions 1997-I, p. 348, § 99).", "78. Z v. Finland related to the disclosure in court proceedings without the applicant's consent of her health records, including her HIV status. The Court noted that the protection of personal data was of fundamental importance to a person's enjoyment of his or her right to respect for private life and that the domestic law must therefore afford appropriate safeguards to prevent any such disclosure as may be inconsistent with the guarantees in Article 8 of the Convention. In so finding, the Court referred, mutatis mutandis, to Articles 3 § 2 (c), 5, 6 and 9 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (European Treaty Series no. 108, Strasbourg, 1981). It went on to find that the above considerations were “especially valid” as regards the protection of the confidentiality of information about a person's HIV status, noting that the interests in protecting the confidentiality of such information weighed heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference could not be compatible with Article 8 of the Convention unless it was justified by an overriding requirement in the public interest. Any State measures compelling disclosure of such information without the consent of the patient and any safeguards designed to secure an effective protection called for the most careful scrutiny on the part of the Court.", "79. As to the present case, the Court would note at the outset that the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime.", "The Court has also noted, on the one hand, the nature and seriousness of the interference with the applicant's private life (see paragraph 63 above). On the other hand, the Court appreciates the strong interest of the State in detecting and preventing crime. It is not disputed that the CCTV system plays an important role in these respects and that that role is rendered more effective and successful through advertising the CCTV system and its benefits.", "80. However, the Court notes that the Council had other options available to it to allow it to achieve the same objectives. In the first place, it could have identified the applicant through enquiries with the police and thereby obtained his consent prior to disclosure. Alternatively, the Council could have masked the relevant images itself. A further alternative would have been to take the utmost care in ensuring that the media, to which the disclosure was made, masked those images. The Court notes that the Council did not explore the first and second options and considers that the steps taken by the Council in respect of the third were inadequate.", "81. As to the first option, it is true that individuals may not give their consent or that such an exercise may not be feasible where the footage includes images of numerous persons. In such circumstances, it could be argued that a consent-based system of disclosure could in practice undermine any action aimed at promoting the effectiveness of the CCTV system. However, in the present case, such limitations were not particularly relevant. The relevant footage clearly focused on and related to one individual only. It is not disputed that the Council, whose CCTV operator had alerted the police and observed their intervention, could have made enquiries with the police to establish the identity of the applicant and thereby request his consent to disclosure. Indeed, it appears from the Council's own CCTV News article of 9 October 1995 that certain enquiries had been made with the police to establish that the relevant individual had been questioned and assisted, but not to establish his identity.", "82. Alternatively, the Council could have masked such images itself. While the Government confirmed that the Council did not have a masking facility, the Court notes that the Council's own guidelines indicate that it was intended to have such a facility. Indeed, the Court notes that the Council itself directly disclosed in its own publication, the CCTV News, stills taken from the relevant footage and that no attempt was made to mask those images.", "83. As to the third option of ensuring appropriate and sufficient masking by the media to whom footage is disclosed, the Court notes that the High Court found that Anglia Television and the producers of the BBC programme had been orally requested to mask the applicant. The Court considers, contrary to the view of the High Court, that it would have been reasonable for the Council to demand written undertakings of the media to mask images, which requirement would have emphasised the need to maintain confidentiality. Indeed the High Court suggested that lessons could be learnt from this “unfortunate incident” and that, with the benefit of hindsight, the Council might see if it could tighten up its guidelines to avoid similar incidents in the future. The Council itself clearly intended to have a written licence agreement with the producers of “Crime Beat” but this does not appear to have been concluded as no final and signed agreement was disclosed to the applicant or submitted by the Government to this Court. The Essex police guidelines recommend written agreements with clauses on masking. Moreover, there is no evidence that the Yellow Advertiser was requested to mask the applicant's image at all.", "84. Furthermore, the relevant CCTV material was released with the aim of promoting the effectiveness of the CCTV system in the prevention and detection of crime and it was not therefore unlikely that the footage would be used in such contexts. This proved to be the case, most notably in the BBC's “Crime Beat” programme. In such circumstances, and even though the applicant does not directly complain about damage to his reputation, the Court considers that particular care was required of the Council, which would reasonably have included verifying with the police whether the individual had, in fact, been charged or not. It is difficult to accept the Government's explanation that the Council was unaware of his identity. As noted above, the Council's own CCTV News article of 9 October 1995 would seem to imply that the Council had established that the relevant individual had been questioned and given assistance for his problems and could therefore have verified whether the applicant had, in fact, been charged. Indeed, the Yellow Advertiser had established by 13 October 1995 that the applicant had not been charged by the police.", "85. In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant's consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case.", "86. Finally, the Court does not find that the applicant's later voluntary media appearances diminish the serious nature of the interference or reduce the correlative requirement of care concerning disclosures. The applicant was the victim of a serious interference with his right to privacy involving national and local media coverage: it cannot therefore be held against him that he sought thereafter to avail himself of the media to expose and complain about that wrongdoing.", "87. Accordingly, the Court considers that the disclosures by the Council of the CCTV material in the CCTV News and to the Yellow Advertiser, Anglia Television and the BBC were not accompanied by sufficient safeguards to prevent disclosure inconsistent with the guarantees of respect for the applicant' private life contained in Article 8. As such, the disclosure constituted a disproportionate and therefore unjustified interference with his private life and a violation of Article 8 of the Convention.", "D. Other complaints under Article 8 of the Convention", "88. The applicant also appeared to suggest that the BBC, acting under Royal Charter, was a public authority as was Anglia Television which acted under the authority of the ITC constituted under the Broadcasting Act 1990. Even assuming that those media could rely on their rights under Article 10 of the Convention, their broadcasts, he argued, also constituted unjustified interferences with his private life. The Government did not consider that the applicant had, in fact, made that submission and, in any event, denied that either the BBC or Anglia Television could be regarded as State bodies or public authorities within the meaning of Article 8 § 2 of the Convention. They relied, inter alia, on relevant domestic provisions and the conclusions to be drawn from the inclusion in Article 10 of the Convention of the phrase concerning the licensing of broadcasting, television or cinema enterprises.", "The applicant also maintained that, given the significant impact on family members, the disclosure of the footage constituted a serious interference with his right to respect for his family life.", "89. The Court notes that the question of whether the BBC was an “emanation of the State” was left open by the Commission in Huggett v. the United Kingdom (no. 24744/94, Commission decision of 28 June 1995, DR 82-A, p. 98). However, in the light of the Court's finding of a violation in relation to the disclosure by the Council (see paragraph 87 above), it does not consider it necessary to consider these complaints separately.", "90. The applicant further argued that the State had failed to fulfil its positive obligation to protect his rights under Article 8 because he had no effective domestic remedy in respect of the disclosures. The Government maintained that there was no breach of any positive obligation and, more particularly, they argued that the applicant had available to him such remedies. The Court considers that the issue of the availability of a domestic remedy for the impugned disclosure by the Council is more appropriately considered under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "91. The applicant complained under Article 13 of the Convention taken in conjunction with Article 8 that he had no effective domestic remedy in relation to the relevant disclosures by the Council.", "92. The relevant part of Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ... ”", "A. The parties' submissions", "93. The Government explained that the need for a law of privacy had been the subject of much debate for many years, many private members' bills and a number of official reports. The debate continued. However, the absence of a general right to privacy in domestic law did not, of itself, show a lack of respect for the applicant's private life. The question was rather whether the regime of legal protection which existed adequately protected the applicant's rights and the Government considered that it did. They pointed out that the common law and statutory remedies collectively provided a comprehensive regime of legal protection for privacy and therefore performed substantially the same function as a law of privacy.", "94. In particular, the Government pointed out that the applicant had been able to assert and vindicate his claims before the BSC, the ITC and the PCC. They accepted that it was not intended that the media commissions should provide a “legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”. However, they contended that Article 13 did not require in every case a “court” or that a pecuniary award be available. In addition, the Government argued that the remedy of judicial review was also, in principle, capable of providing an adequate remedy and the rejection of the applicant's case did not undermine the effectiveness of that remedy.", "95. The Government also maintained that a number of other remedies were available to the applicant. They considered the breach-of-confidence remedy to be the most relevant, suggesting that the applicant would have been entitled to bring such an action if he had been filmed “in circumstances giving rise to an expectation of privacy on his part”. The Government underlined that this was an area of the law which was heavily dependent on policy considerations and, consequently, it was an area that had been, and would continue to be, developed by the courts. The Convention jurisprudence had had an important impact on such developments and would have an even stronger impact with the coming into force of the Human Rights Act 1998. They also submitted that the applicant could have brought an action for defamation or malicious falsehood if any item had been misreported so as to suggest that he had been involved in a criminal act of violence against some other person.", "96. The applicant maintained that he had no effective domestic remedy. He had pursued the most relevant remedies (the media commissions and judicial review) but those remedies were ineffective: the “irrationality” criteria in judicial review could not be equated with the proportionality test under Article 8 and the media commissions could not award damages.", "97. In addition, he argued that a breach-of-confidence action would have had no realistic prospect of success. He noted that the Government had not quoted a single case where an individual in a relatively similar situation had obtained even partial satisfaction through this remedy. He considered their assertion that an expectation of privacy would be sufficient to give rise to such a remedy to be inaccurate in domestic law, and he found it noteworthy that the Government did not contend that he had failed to exhaust domestic remedies by not taking such an action. Moreover, he considered that the other remedies to which the Government referred were not relevant to his case. Certain of the statutes came into force after the relevant time, other statutes (relating, for example, to secret surveillance) could have no conceivable impact in the present case, and the common-law remedies to which the Government referred (for defamation, malicious falsehood, harassment and breach of confidence) were simply not relevant to the applicant in the particular circumstances of his case.", "B. The Court's assessment", "98. The Court notes that the applicant complained under Article 8 of the Convention taken alone and in conjunction with Article 13, inter alia, that he did not have effective domestic remedies. The Government did not argue that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In the admissibility decision in this case, the Court considered that there was a close connection between any issue raised under Article 35 § 1 and the merits of the applicant's complaints concerning a lack of an effective domestic remedy and it joined any issue of exhaustion of domestic remedies to the merits of the application.", "1. The applicable legal principles", "99. The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999-VI, and Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, pp. 37-38, § 100). That provision does not, however, require the certainty of a favourable outcome (see Amann, cited above, § 88, with further references) or require the incorporation of the Convention or a particular form of remedy, Contracting States being afforded a margin of appreciation in conforming with their obligations under this provision (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 39, § 122).", "100. The Court further notes that in Smith and Grady, cited above, it described the test of “irrationality” applied in judicial review proceedings as follows: a court was not entitled to interfere with the exercise of an administrative discretion on substantive grounds save where the court was satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision-maker. In judging whether the decision-maker had exceeded this margin of appreciation, the human rights' context was important, so that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable.", "It was, however, further emphasised by the Court in that case that, notwithstanding any human rights context, the threshold of irrationality which an applicant was required to surmount was a high one, as confirmed by the domestic judgments in that case. While those courts had commented favourably on those applicants' submissions challenging the justification of the relevant policy (against homosexuals in the armed forces), the domestic courts had, nevertheless, concluded that the policy could not be said to be beyond the range of responses open to a reasonable decision-maker and, accordingly, could not be considered to be “irrational”. In such circumstances, the Court considered it clear that, even assuming that the essential complaints of Ms Smith and Mr Grady before this Court were before and considered by the domestic courts, the threshold at which those domestic courts could find the impugned policy to be irrational had been placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national-security and public-order aims pursued, principles which lay at the heart of the Court's analysis of complaints under Article 8 of the Convention. It therefore concluded that Ms Smith and Mr Grady had no effective remedy in relation to the violation of their right to respect for their private lives in violation of Article 13 of the Convention.", "2. Application of those principles to the present case", "101. The Court observes, in the first place, that the present case is distinguishable from James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98, pp. 47-48, §§ 85-86), Leander v. Sweden (judgment of 26 March 1987, Series A no. 116, pp. 29-30, § 77) and The Sunday Times v. the United Kingdom (no. 2) (judgment of 26 November 1991, Series A no. 217, p. 32, § 61), which establish that Article 13 cannot be seen as guaranteeing a remedy against primary legislation or equivalent domestic norms. The legislation relevant to the present case did not require disclosure of the CCTV material and the complaint is about the Council's exercise of its powers to disclose.", "(a) The regime of legal protection for privacy", "102. As in Winer v. the United Kingdom (no. 10871/84, Commission decision of 10 July 1986, DR 48, p. 154), the Government argued that the Court should analyse the protection of privacy by the “ regime of legal protection for privacy” as a whole, this regime effectively carrying out the role of a law of privacy.", "However, the Court's task is not to review the relevant law or practice in the abstract but rather to confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Amann, cited above, § 88) and, in particular, to considering only those remedies which could have some relevance for the applicant (see N. v. Sweden, no. 11366/85, Commission decision of 16 October 1986, DR 50, p. 173; Winer, cited above; and Stewart-Brady v. the United Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90 ‑ A, p. 45). The Court considers that it is not relevant, therefore, to examine remedies which were not in force at the relevant time or those which had no relevance to the facts of the applicant's case.", "103. The Court notes in this regard that the applicant did not complain about malicious acts on the part of the Council, about untrue reports or, at least directly, about an attack on his reputation. It is not disputed that issues of trespass, harassment, nuisance, copyright, breach of contract or secret surveillance by security services have no relevance to the applicant's complaints. Similarly, the Government did not suggest that the Data Protection Act 1998, the Sexual Offences (Amendment) Act 1976, the Children and Young Persons Act 1933 had any relevance to the facts of the present case. The Human Rights Act 1998 did not come into force until October 2000, that is, after the relevant facts of the applicants' case.", "104. The Court has therefore confined its assessment to the remedies which could be considered to have had some relevance to the applicant's complaints.", "(b) Judicial review", "105. The Court has found that the applicant's right to respect for his private life (see paragraph 87 above) was violated by the disclosure by the Council of the relevant footage. It notes that at the material time the Convention did not form part of domestic law and questions as to whether the disclosure violated the applicant's rights under Article 8 and, in particular, as to whether the disclosure had been shown by the authorities to respond to a pressing social need or to be proportionate to any legitimate aim served, were not questions to which answers could be offered.", "As in Smith and Grady, cited above, the sole relevant issue before the domestic courts was whether the policy could be said to be “irrational”. As in Smith and Grady, the present High Court noted that the applicant had suffered an invasion of privacy but that, unless and until there was a general right of privacy in domestic law, reliance had to be placed on the guidance provided by codes of practice or otherwise to avoid such undesirable invasions of privacy. The High Court went on to examine a number of factors, including the important role of CCTV cameras in public places, the images captured by those cameras, the attempt (albeit unsuccessful) by the Council to ensure that the applicant's identity was masked and the fact that the footage was not sold for commercial gain. The High Court concluded that, while lessons could be learned from the unfortunate incident, including the necessity to tighten up the Council's guidelines to seek to avoid a similar incident in the future, it was satisfied that the Council could not be said to have acted “irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable authority could sensibly have acted”.", "106. In such circumstances, the Court considers that the threshold at which the High Court could find the impugned disclosure irrational was placed so high that it effectively excluded any consideration by it of the question of whether the interference with the applicant's right answered a pressing social need or was proportionate to the aims pursued, principles which as noted above lie at the heart of the Court's analysis of complaints under Article 8 of the Convention.", "As to the Government's reference to Alconbury Developments Ltd, cited above, the Court notes that that case post-dated the entry into force of the Human Rights Act 1998. Moreover, the relevant comment concerning the place of the principle of proportionality in domestic law was accepted by the Government to be obiter dictum. In any event, the Government do not suggest that this comment is demonstrative of the full application by domestic courts of the proportionality principle in considering, in the judicial review context, cases such as the present.", "107. The Court finds therefore that judicial review did not provide the applicant with an effective remedy in relation to the violation of his right to respect for his private life.", "(c) The media commissions", "108. The Court notes that the Government submitted that the proceedings before these commissions provided the applicant with an opportunity to assert and vindicate his rights. However, they accepted that those bodies were not “intended to provide a legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”.", "109. The Court finds that the lack of legal power of the commissions to award damages to the applicant means that those bodies could not provide an effective remedy to him. It notes that the ITC's power to impose a fine on the relevant television company does not amount to an award of damages to the applicant. While the applicant was aware of the Council's disclosures prior to the Yellow Advertiser article of February 1996 and the BBC broadcasts, neither the BSC nor the PCC had the power to prevent such publications or broadcasts.", "(d) An action in breach of confidence", "110. The Court considers the fact that the Government did not claim that the applicant had failed to exhaust this remedy to be particularly noteworthy, given the Commission's finding that Earl and Countess Spencer's application (cited above) was inadmissible on this ground.", "111. The Court considers that the facts of this case are, in any event, sufficiently different from those in Earl and Countess Spencer, cited above, as to allow the Court to conclude that the present applicant did not have an actionable remedy in breach of confidence at the relevant time, even accepting the Government's description of that remedy.", "In the first place, Earl and Countess Spencer had a strong case on the facts that former friends had disclosed in secret indisputably private information previously given to them on a confidential basis by the applicants. The present applicant would have had much greater difficulty in establishing that the footage disclosed had the “necessary quality of confidence” about it or that the information had been “imparted in circumstances importing an obligation of confidence”. The Government argued before the Court under Article 8 that the applicant's right to respect for his private life had not even been engaged. They have cited no domestic case which could be considered similar or analogous to the present case and which would suggest that these two elements of the breach-of-confidence claim were satisfied. Douglas v. Hello! Ltd, cited above, post-dated the relevant facts of the present case and, as importantly, the entry into force of the Human Rights Act 1998. In any event, only one of three judges in that case indicated that he was prepared to find that there was now a qualified right to privacy in domestic law. Moreover, the Court is not persuaded by the Government's argument that a finding by this Court that the applicant had an “expectation of privacy” would mean that the elements of the breach-of-confidence action were established. The Court finds it to be unlikely that the domestic courts would have accepted at the relevant time that the images had the “necessary quality of confidence” about them or that the information was “imparted in circumstances importing an obligation of confidence”.", "Secondly, once the material in question was in the public domain, its re-publication was not actionable as a breach of confidence. Such an action could not have been contemplated before the applicant became aware of the disclosures by the Council of the CCTV material namely, prior to October or November 1995. Accordingly, a claim of breach of confidence would not have been actionable in respect of the Brentwood Weekly News or the Yellow Advertiser articles or in respect of the BBC broadcast.", "112. Given these deficiencies, it not necessary to consider whether an award of damages would have been available in a breach-of-confidence action. The Court would confine itself to noting that, despite this being the second area of dispute between the parties in Earl and Countess Spencer, cited above, no attempt has been made by the Government in the present case to clarify how damages could have been awarded in the absence of a prior injunction. The applicant could only have applied for such an injunction after he became aware of the disclosures in late October or early November 1995 and therefore only against the Yellow Advertiser and the BBC. Although an award of an account of profits is not dependent on the grant of a prior injunction, the Government have referred to no case where this has been ordered in respect of a broadcast. While an account of profits in respect of the national press was a possibility open to Earl and Countess Spencer, the Yellow Advertiser had a local as opposed to a national circulation.", "3. The Court's conclusion", "113. In such circumstances, the Court finds that the applicant had no effective remedy in relation to the violation of his right to respect for his private life guaranteed by Article 8 of the Convention. The Court does not accept as relevant the Government's argument that any acknowledgment of the need to have a remedy will undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention. As noted above, the Council, and therefore the media, could have achieved their objectives by properly masking, or taking appropriate steps to ensure such masking of, the applicant's identity.", "114. Accordingly, there has been a violation of Article 13 of the Convention taken in conjunction with Article 8.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "116. The applicant claimed compensation for the non-pecuniary damage suffered by him and reimbursement of his pecuniary losses and his legal costs and expenses. The Government contested these claims.", "A. Non-pecuniary damage", "117. The applicant claimed 7,500 pounds sterling (GBP) in respect of non-pecuniary damage. He underlined the distress, anxiety, embarrassment and frustration suffered by him as a consequence of the impugned disclosures: he had been the subject of taunts, jokes and abuse from neighbours, the assumption was made that he was part of a crime problem and he had to explain his personal problems to his family after the relevant coverage in the media. He emphasised that the footage related to a distressing time for him, that the dissemination was without his knowledge or consent, that the consequent publications and broadcasts were at local and national level and that he had no remedy in national law.", "The Government argued that the finding of a violation would constitute sufficient just satisfaction in itself or, alternatively, that a sum of approximately GBP 4,000 would be appropriate compensation.", "118. The Court observes that some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof. However, this does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (see Davies v. the United Kingdom, no. 42007/98, § 38, 16 July 2002).", "119. The Court has noted above the reasons why it considered the interference with the applicant's private life to be a serious one and the personal consequences for the applicant of the wide dissemination of the footage, together with the absence of any effective remedy in these respects (on this latter point, see D.P. and J.C. v. the United Kingdom, no. 38719/97, § 142, 10 October 2002). It considers that the applicant must thereby have suffered significant distress, embarrassment and frustration which are not sufficiently compensated by a finding of violation.", "120. The Court therefore awards the applicant on an equitable basis 11,800 euros (EUR) in respect of non-pecuniary damage.", "B. Pecuniary damage", "121. The applicant also claimed reimbursement of pecuniary damage incurred by him as a direct result of the matters constituting a violation in this case. In particular, he claimed compensation in the sum of GBP 2,500 for expenses he incurred in pursuing his applications before the BSC, the ITC, the PCC, the High Court and this Court. This amount included his travel expenses (to attend meetings with his representatives and to attend hearings), loss of salary (due to the nature of his work, the applicant claimed to have lost wages for the periods he was obliged to attend meetings and hearings), together with postage and telephone costs. The Government pointed out that the applicant claimed those expenses without providing any evidence. They added that, in so far as they were incurred in domestic proceedings, they were not necessarily and reasonably incurred in the course of the Convention proceedings and therefore were not recoverable.", "122. The Court observes that these claims of the applicant have not been sufficiently detailed by him, the applicant claiming a global figure for all such expenses, and that, importantly, he has not submitted any documents vouching such pecuniary losses. In such circumstances, the Court does not award the applicant compensation for pecuniary damage.", "C. Legal costs and expenses", "123. The applicant further claimed reimbursement of his legal costs of both the domestic and Convention proceedings.", "124. As to the domestic proceedings, the applicant claimed GBP 5,047.40 (inclusive of value-added tax (VAT)) in respect of proceedings before the PCC, the ITC and the BSC. This was based on a charge-out rate of GBP 140 per hour for a senior solicitor and GBP 100 per hour for a legal officer. In addition to telephone calls and letters, 3 hours 45 minutes were accorded to the PCC proceedings and 1 hour 55 minutes were accorded to the ITC proceedings, the applicant not specifying whether this represented the time of the solicitor or the legal officer. Additionally, the applicant claims for 13 hours 25 minutes of solicitor's time and 5 hours of a legal officer's time for the BSC proceedings. It appears that legal aid was available for the judicial review proceedings, and no claim was made in that respect.", "The Government rejected this claim, arguing that the costs were not necessarily or reasonably incurred in the course of Convention proceedings.", "125. The applicant also claimed GBP 11,563.54 in respect of the costs to date of the Convention proceedings up to and including research on the submissions to be made under Article 41 of the Convention. This represented work done by a solicitor and a legal officer (at the hourly rates set out above) and by a Queen's Counsel. A detailed bill of costs was submitted which noted time spent at each stage and disbursements, including Counsel's fees. Counsel's fee note has also been submitted (in the amount of GBP 1,727.25). The Government submitted that the costs claimed should be reduced if the Court was to find only partially in favour of the applicant and by any legal aid paid to the applicant.", "126. Finally, the applicant claimed GBP 19,000 approximately (inclusive of VAT) in respect of the “anticipated costs” of Convention proceedings after the admissibility stage and prior to this judgment. The Government commented that this aspect of his claim was too speculative and that any future costs should be addressed if and when they were incurred.", "127. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, § 32, 25 July 2000). The Court further notes that the costs of the domestic proceedings can be awarded if they are incurred by applicants in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), judgment of 18 October 1982, Series A no. 54, p. 8, § 17). Costs in respect of the domestic proceedings were in fact awarded at paragraphs 30 to 33 of Lustig-Prean and Beckett (just satisfaction), cited above.", "128. Accordingly, the Court considers that it was reasonable, given the absence of other remedies, for the applicant to have sought some public recognition of the breach of his privacy and some vindication of his position before the media commissions. Indeed, the Government argued, in the context of Article 13, that these commissions formed part of the legal regime of privacy protection in the United Kingdom and allowed the applicant to “assert and vindicate” his rights. The applicant was in fact successful before the BSC and ITC, both bodies recognising that there had been a breach of privacy and their decisions being later published. He may have been unsuccessful before the PCC, but this does not imply that the costs incurred in this connection can be considered to have been unnecessarily incurred (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 284, § 91). Nevertheless, the Court does not consider that all of the fees were reasonable as to quantum given the nature of the proceedings before those bodies and, in particular, it considers excessive the hours billed in respect of the BSC complaint and the level of involvement of both a legal officer and a senior solicitor.", "129. Accordingly, the Court awards, on an equitable basis, EUR 3,000 in relation to the costs of the domestic proceedings.", "130. As to the Convention proceedings, the Court has noted the detailed bill of costs of the applicant's representatives and that both of his complaints (under Article 8 taken alone and in conjunction with Article 13) have been found to disclose violations of the Convention. As to the Government's objections to his claim for anticipated costs, the Court would not make an award as regards costs in respect of post-admissibility observations since none were required to be, or were, submitted on the applicant's behalf. On the other hand, it considers that the costs of researching, drafting and filing the Article 41 submissions were necessarily incurred and are reasonable as to quantum.", "131. The Court, accordingly, awards the applicant a total sum of EUR 15,800 in respect of the costs of the Convention proceedings less EUR 725 paid by the Council of Europe to the applicant in legal aid, the net award in respect of the Convention proceedings amounting to EUR 15,075.", "132. The total award in respect of the legal costs and expenses of the domestic and Convention proceedings amounts therefore to EUR 18,075.", "D. Default interest", "133. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points" ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Chişinău. At the time of the events she was thirty-four years old and married. She was a lecturer at the Police Academy.", "6. It appears from the case-file materials that at the time of the events the relationship between the applicant and her superiors at the Police Academy were tense and that there had been a set of employment- related civil proceedings between them.", "7. On an unspecified date in 2003 the applicant underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 she was seen by a doctor from the No. 7 Centre for Family Doctors (“ the CFD)”, an institution belonging to the Ministry of Health, who ordered her hospitalisation on account of an increased risk of miscarriage. The applicant was hospitalised between 4 and 20 August 2003 and was later closely supervised by a doctor from the CFD. It would appear that the applicant ’ s absence from work during her hospitalisation was certified by a sick note referring to her pregnancy and an increased risk of miscarriage as the reasons for her absence.", "8. On 5 November 2003 the President of the Police Academy requested information from the CFD in connection with the applicant ’ s medical leave in August 2003. In particular, he asked who had ordered her hospitalisation, when she had been hospitalised, what had been the initial and final diagnoses, and what treatment she had received.", "9. In a letter dated 7 November 2003 the CFD informed the applicant ’ s employer that the applicant had been hospitalised between 4 and 20 August 2003 on account of an increased risk of miscarriage. The letter also stated that this was the applicant ’ s first pregnancy and that she was carrying twins; that the pregnancy had resulted from artificial insemination and that the applicant had hepatitis B. The letter further mentioned that the applicant had obstetrical complications and that she had a negative blood type. A copy of the applicant ’ s medical file from the hospital where she had been hospitalised, containing a detailed description of all the medical procedures she had undergone and of all the medical analyses, was annexed to the letter.", "10. On an unspecified date the applicant suffered a miscarriage. According to the medical report, one of the factors which had led to the miscarriage was the stress to which she had been subjected.", "11. In January 2004 the applicant initiated civil proceedings against the CFD and the Police Academy and claimed compensation for a breach of her right to private life. She argued, inter alia, that her employer had had sufficient information as to the reasons for her medical leave and had not been entitled to seek further details of such a private nature. Moreover, after the information had been obtained it had not been kept confidential but had been disclosed to everybody at the Police Academy. According to the applicant, the disclosure had caused her serious stress and anxiety. Everyone at her workplace, including her students, had learned details about her private life, and different rumours had begun to circulate. Only two days after the disclosure, she had suffered a miscarriage due to the stress to which she had been subjected. Her husband, who had also been an employee of the Police Academy, had had to resign from his post and accept a less well- paid job.", "12. On 6 July 2004 the Centru District Court dismissed the applicant ’ s action on the grounds, inter alia, that the disclosure of information by the fertility clinic had been lawful in view of the ongoing investigation being conducted by the applicant ’ s employer. As to the contention that the employer had disclosed the information to other employees, the court found it to be ill-founded. The applicant appealed.", "13. On 2 November 2006 the Chişinău Court of Appeal upheld the applicant ’ s appeal and quashed the above judgment. The court found the applicant ’ s action well-founded and ordered the CFD to pay her 20,000 Moldovan lei (MDL) (EUR 1,124) and the Police Academy to pay her MDL 15,000 (EUR 843). The Court of Appeal found that the CFD had disclosed to the applicant ’ s employer more information than had actually been requested.", "14. On 10 May 2007 the Supreme Court of Justice upheld the appeal on points of law lodged by the CFD and dismissed the applicant ’ s claims against it. The Supreme Court held that the CFD had acted in accordance with the law when providing the applicant ’ s employer with medical information about her. The CFD had been under an obligation to provide the Police Academy with such information in the context of the latter ’ s legal relationship with its employee. According to the Supreme Court, at the time of the events there were relations of an employment- law and of a criminal - law nature between the Police Academy and the applicant. The Supreme Court considered that the provisions of the laws on reproductive health and on the rights and obligations of the patient were not pertinent to the case." ]

[ "II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL", "15. The Council of Europe ’ s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which entered into force in respect of the Republic of Moldova on 1 March 2003, provides, in so far as relevant:", "“ Article 10 – Private life and right to information", "1. Everyone has the right to respect for private life in relation to information about his or her health.”", "16. The relevant provision of Law No. 185 on reproductive health and family planning provides as follows:", "“ Section 12. The right to confidentiality in realizing one ’ s rights to reproduction", "(1) Every person is entitled to respect for the confidentiality of information concerning his or her application to fertility institutions, the treatment received therein and the state of his or her reproductive health. ”", "17. The relevant provisions of Law No. 263 on the rights and obligations of patients stipulate as follows:", "“ Section 12. The patient ’ s right to respect for the privacy of confidential medical information", "(1) All data concerning the identity and the condition of the patient, results of investigations, diagnoses, prognoses or treatment and data of a personal nature shall be confidential and shall be protected even after the patient ’ s death.", "(2) The confidentiality of information concerning the soliciting of medical care, examinations and treatment, as well as any other information which is medically confidential, shall be ensured by the treating doctor and the professionals involved in the providing of the medical care or biomedical research ... as well as by any other persons having learned such information by virtue of their professional duties.", "(3) Information which is considered to be confidential can be disclosed only with the patient ’ s or his legal representative ’ s explicit consent and under conditions approved by the patient ...", "(4) Disclosure of confidential information without the patient ’ s ... consent shall be possible in the following situations:", "a) in order to involve in the process of treatment other professionals in the field, including in the case of the urgent examination or treatment of a person incapable of expressing his or her consent because of his or her state of health, but only to the extent necessary for the taking an informed decision;", "b) in order to inform the State epidemiology authorities in the case of a real risk of the spreading of contagious diseases, poisoning or mass contamination;", "c) at the request (with reasons) of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law;", "c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment;", "d) for the purpose of informing the parents or the legal representative of persons under eighteen years of age when providing such persons with medical care;", "e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities, and information must be provided to the competent law bodies.", "(5) Any kind of involvement in the private or family life of a patient without his or her consent shall be forbidden.", "(6) Persons having obtained confidential information in the exercise of their functions, together with paramedical staff and pharmacists, are responsible under the law for any disclosure of medically confidential information ...", "(7) Biological products, including organs and tissue, from which identifiable data can be extracted shall also be protected. ”", "18. The relevant provisions of Law No. 264 on the medical profession stipulate as follows:", "“ Section 13. Professional confidentiality", "(1) Every doctor shall be under an obligation to preserve professional confidentiality.", "(2) Information concerning the soliciting of medical care or the state of health, diagnosis or other information obtained by a doctor as a result of examining or treating a patient is of a private nature, constitutes medically confidential information and cannot be disclosed.", "(3) With the patient ’ s consent ... it shall be possible to disclose confidential information to other persons in the interests of examining and treating the patient, of carrying on scientific research, for academic purposes and for other purposes.", "(4) Disclosure of information which is professionally confidential to other persons without the patient ’ s ... consent shall be possible in the following circumstances:", "a) for the purpose of examining or treating a patient who on account of his/her health condition, is unable to express his or her wish;", "b) in case of a real risk of the spreading of contagious diseases, poisoning or mass contamination;", "c) at the request of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law;", "c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment;", "d) in the case of providing medical care to a person who is not responsible under the law and is incapable of informing his or her parents or legal representatives;", "e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities and information must be provided to the competent law bodies.", "(5) Persons having obtained information which amounts to professionally confidential information are responsible under the law for disclosure of such information.", "(6) Professional confidentiality cannot be breached even after the termination of the treatment or the death of the patient. ”", "19. The relevant provision of Law No. 411 on health care stipulates as follows:", "“ Section 14. Professional duties and responsibiltiy for their breach", "1. Doctors, other medical personnel and pharmacists are under a duty to maintain the confidentiality of information concerning diseases, or the private and family life of patients, which they come to learn in the exercise of their duties, except for cases where there is a risk of the propagation of contagious diseases and at the reasoned request of the criminal investigation authorities or courts of law.”", "20. The relevant provisions of Law No. 982 on access to information, as in force at the material time, provided as follows:", "“ Section 8. Access to information of a personal nature", "(1) Information of a personal nature is considered to be information with restricted access and consists of data concerning an identified or identifiable person the disclosure of which would constitute a breach of his or her [right to respect for] private and family life.", "...", "(7) Providers of information may disclose information of a personal nature solicited in accordance with the present law only in the following circumstances:", "a) the person whom the information concerns agrees to its disclosure;", "b) the whole of the solicited information has previously been in the public domain ...", "(8) If the person whom the information of a personal nature concerns does not consent to its disclosure, access to such information can be authorised by a court after it has found that the disclosure at issue is in the public interest, that is, that disclosure would pursue the aim of protecting public health, security or the environment. ”", "21. The relevant provision of the Criminal Code reads as follows:", "“ Article 177. Breach of a person ’ s right to respect for private life", "(1) Unlawful gathering or disclosure of confidential information protected by law concerning a person ’ s private life, without that person ’ s consent, shall be punished by a fine of up to MDL 6,000 or by community service work of 180 to 240 hours. ”", "22. The relevant provision of the Employment Code reads as follows:", "“ Article 91. General rules concerning the treatment by the employers of employees ’ personal data and guarantees concerning its protection", "With a view to ensuring the protection of human rights and freedoms, when processing the personal data of their employees, employers and their representatives are obliged to observe the following conditions:", "...", "d) the employer has no right to obtain or store data concerning the employer ’ s political and religious views or his private life. In the cases provided for by law, the employer can request and store data concerning an employee ’ s private life only after obtaining that employee ’ s consent;", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION", "23. The applicant complained that the disclosure of information of a medical nature by the CFD to her employer constituted a violation of her right to respect for private life as provided in Article 8 of the Convention. She also alleged that the proceedings in which her action against the CFD had been examined had been unfair because the courts had adopted arbitrary decisions and failed to give reasons for them. Articles 6 and 8 of the Convention, on which the applicant relied, read as follows:", "Article 6", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "25. The applicant asserted that there had been an interference with her rights guaranteed by Article 8 and that the interference had no legal basis in domestic law. Moreover, the interference had not been “ necessary in a democratic society ” because the applicant ’ s employer had not been conducting even an internal investigation, let alone a criminal one. The information disclosed by the CFD to the applicant ’ s employer was of a very personal nature and the employer already had sufficient knowledge concerning the applicant ’ s state of health from the sick leave certificates she had submitted.", "26. The Government agreed that there had been an interference with the applicant ’ s right to respect for her private life. However, they argued that the interference was provided for by law, namely by Article 8 of Law No. 982 on access to information (see paragraph 20 above), had pursued a legitimate aim, and had been necessary in a democratic society. The Government stressed that, in their view, the present case very much resembled the case of M.S. v. Sweden ( 27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV ) and asked the Court to adopt a similar approach to it.", "2. The Court ’ s assessment", "27. It is undisputed between the parties, and the Court agrees, that the disclosure by the CFD to the applicant ’ s employer of such sensitive details about the applicant ’ s pregnancy, her state of health and the treatment received constituted an interference with her right to private life. An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article, and furthermore is “necessary in a democratic society” in order to achieve the aim (see the following judgments: Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Calogero Diana v. Italy, 15 November 1996, § 28, Reports 1996-V; and Petra v. Romania, 23 September 1998, § 36, Reports 1998-VII).", "28. The expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports 1997-III). The Court reiterates that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see Domenichini v. Italy, 15 November 1996, § 33, Reports 1996-V; Avilkina and Others v. Russia, no. 1585/09, § 35, 6 June 2013 ).", "29. In their submissions, the Government referred to section 8 of Law 982 on access to information (see paragraph 20 above) as being, in their view, the legal basis for the interference. The Court notes, firstly, that it was only the Government and not the Supreme Court of Justice that referred to such legal basis for the interference. In fact, the Supreme Court merely stated that the CFD was entitled to disclose the information to the applicant ’ s employer, without citing any legal basis for such disclosure.", "30. Secondly, even assuming that the Supreme Court had intended to rely on that provision, the Court notes that under section 8 of that Law a doctor would not be entitled to disclose information of a personal nature even to the applicant ’ s employer without her consent.", "31. In fact, the Court notes that all the relevant domestic and international law cited above expressly prohibits disclosure of such information to the point that it even constitutes a criminal offence. There are exceptions to the rule of nondisclosure; however, none of them seems to be applicable to the applicant ’ s situation. Indeed, the Government did not show that any such exception was applicable. It follows that the interference complained of was not “in accordance with the law” within the meaning of Article 8. Accordingly, there is no need to examine whether the interference pursued a legitimate aim or was “necessary in a democratic society”.", "32. The Court therefore finds that there has been a violation of Article 8 of the Convention in respect of the applicant ’ s right to respect for her private life. In view of this conclusion it also holds that no separate issue arises under Article 6 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "33. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "34. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "35. The Government disputed the amount claimed by the applicant and reiterated their position that there had been no violation in the present case. Alternatively, they considered that a finding of a violation would in itself constitute sufficient just satisfaction.", "36. Having regard to the violation found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500.", "B. Costs and expenses", "37. The applicant also claimed EUR 1,440 for the costs and expenses incurred before the Court. The applicant submitted relevant documents in support of her claims.", "38. The Government objected and argued that the amount was excessive.", "39. The Court awards the entire amount claimed for costs and expenses.", "C. Default interest", "40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Chişinău. At the time of the events she was thirty-four years old and married. She was a lecturer at the Police Academy.", "6. It appears from the case-file materials that at the time of the events the relationship between the applicant and her superiors at the Police Academy were tense and that there had been a set of employment- related civil proceedings between them.", "7. On an unspecified date in 2003 the applicant underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 she was seen by a doctor from the No. 7 Centre for Family Doctors (“ the CFD)”, an institution belonging to the Ministry of Health, who ordered her hospitalisation on account of an increased risk of miscarriage. The applicant was hospitalised between 4 and 20 August 2003 and was later closely supervised by a doctor from the CFD. It would appear that the applicant ’ s absence from work during her hospitalisation was certified by a sick note referring to her pregnancy and an increased risk of miscarriage as the reasons for her absence.", "8. On 5 November 2003 the President of the Police Academy requested information from the CFD in connection with the applicant ’ s medical leave in August 2003. In particular, he asked who had ordered her hospitalisation, when she had been hospitalised, what had been the initial and final diagnoses, and what treatment she had received.", "9. In a letter dated 7 November 2003 the CFD informed the applicant ’ s employer that the applicant had been hospitalised between 4 and 20 August 2003 on account of an increased risk of miscarriage. The letter also stated that this was the applicant ’ s first pregnancy and that she was carrying twins; that the pregnancy had resulted from artificial insemination and that the applicant had hepatitis B. The letter further mentioned that the applicant had obstetrical complications and that she had a negative blood type. A copy of the applicant ’ s medical file from the hospital where she had been hospitalised, containing a detailed description of all the medical procedures she had undergone and of all the medical analyses, was annexed to the letter.", "10. On an unspecified date the applicant suffered a miscarriage. According to the medical report, one of the factors which had led to the miscarriage was the stress to which she had been subjected.", "11. In January 2004 the applicant initiated civil proceedings against the CFD and the Police Academy and claimed compensation for a breach of her right to private life. She argued, inter alia, that her employer had had sufficient information as to the reasons for her medical leave and had not been entitled to seek further details of such a private nature. Moreover, after the information had been obtained it had not been kept confidential but had been disclosed to everybody at the Police Academy. According to the applicant, the disclosure had caused her serious stress and anxiety. Everyone at her workplace, including her students, had learned details about her private life, and different rumours had begun to circulate. Only two days after the disclosure, she had suffered a miscarriage due to the stress to which she had been subjected. Her husband, who had also been an employee of the Police Academy, had had to resign from his post and accept a less well- paid job.", "12. On 6 July 2004 the Centru District Court dismissed the applicant ’ s action on the grounds, inter alia, that the disclosure of information by the fertility clinic had been lawful in view of the ongoing investigation being conducted by the applicant ’ s employer. As to the contention that the employer had disclosed the information to other employees, the court found it to be ill-founded. The applicant appealed.", "13. On 2 November 2006 the Chişinău Court of Appeal upheld the applicant ’ s appeal and quashed the above judgment. The court found the applicant ’ s action well-founded and ordered the CFD to pay her 20,000 Moldovan lei (MDL) (EUR 1,124) and the Police Academy to pay her MDL 15,000 (EUR 843). The Court of Appeal found that the CFD had disclosed to the applicant ’ s employer more information than had actually been requested.", "14. On 10 May 2007 the Supreme Court of Justice upheld the appeal on points of law lodged by the CFD and dismissed the applicant ’ s claims against it. The Supreme Court held that the CFD had acted in accordance with the law when providing the applicant ’ s employer with medical information about her. The CFD had been under an obligation to provide the Police Academy with such information in the context of the latter ’ s legal relationship with its employee. According to the Supreme Court, at the time of the events there were relations of an employment- law and of a criminal - law nature between the Police Academy and the applicant. The Supreme Court considered that the provisions of the laws on reproductive health and on the rights and obligations of the patient were not pertinent to the case." ]

[ "II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL", "15. The Council of Europe ’ s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which entered into force in respect of the Republic of Moldova on 1 March 2003, provides, in so far as relevant:", "“ Article 10 – Private life and right to information", "1. Everyone has the right to respect for private life in relation to information about his or her health.”", "16. The relevant provision of Law No. 185 on reproductive health and family planning provides as follows:", "“ Section 12. The right to confidentiality in realizing one ’ s rights to reproduction", "(1) Every person is entitled to respect for the confidentiality of information concerning his or her application to fertility institutions, the treatment received therein and the state of his or her reproductive health. ”", "17. The relevant provisions of Law No. 263 on the rights and obligations of patients stipulate as follows:", "“ Section 12. The patient ’ s right to respect for the privacy of confidential medical information", "(1) All data concerning the identity and the condition of the patient, results of investigations, diagnoses, prognoses or treatment and data of a personal nature shall be confidential and shall be protected even after the patient ’ s death.", "(2) The confidentiality of information concerning the soliciting of medical care, examinations and treatment, as well as any other information which is medically confidential, shall be ensured by the treating doctor and the professionals involved in the providing of the medical care or biomedical research ... as well as by any other persons having learned such information by virtue of their professional duties.", "(3) Information which is considered to be confidential can be disclosed only with the patient ’ s or his legal representative ’ s explicit consent and under conditions approved by the patient ...", "(4) Disclosure of confidential information without the patient ’ s ... consent shall be possible in the following situations:", "a) in order to involve in the process of treatment other professionals in the field, including in the case of the urgent examination or treatment of a person incapable of expressing his or her consent because of his or her state of health, but only to the extent necessary for the taking an informed decision;", "b) in order to inform the State epidemiology authorities in the case of a real risk of the spreading of contagious diseases, poisoning or mass contamination;", "c) at the request (with reasons) of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law;", "c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment;", "d) for the purpose of informing the parents or the legal representative of persons under eighteen years of age when providing such persons with medical care;", "e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities, and information must be provided to the competent law bodies.", "(5) Any kind of involvement in the private or family life of a patient without his or her consent shall be forbidden.", "(6) Persons having obtained confidential information in the exercise of their functions, together with paramedical staff and pharmacists, are responsible under the law for any disclosure of medically confidential information ...", "(7) Biological products, including organs and tissue, from which identifiable data can be extracted shall also be protected. ”", "18. The relevant provisions of Law No. 264 on the medical profession stipulate as follows:", "“ Section 13. Professional confidentiality", "(1) Every doctor shall be under an obligation to preserve professional confidentiality.", "(2) Information concerning the soliciting of medical care or the state of health, diagnosis or other information obtained by a doctor as a result of examining or treating a patient is of a private nature, constitutes medically confidential information and cannot be disclosed.", "(3) With the patient ’ s consent ... it shall be possible to disclose confidential information to other persons in the interests of examining and treating the patient, of carrying on scientific research, for academic purposes and for other purposes.", "(4) Disclosure of information which is professionally confidential to other persons without the patient ’ s ... consent shall be possible in the following circumstances:", "a) for the purpose of examining or treating a patient who on account of his/her health condition, is unable to express his or her wish;", "b) in case of a real risk of the spreading of contagious diseases, poisoning or mass contamination;", "c) at the request of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law;", "c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment;", "d) in the case of providing medical care to a person who is not responsible under the law and is incapable of informing his or her parents or legal representatives;", "e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities and information must be provided to the competent law bodies.", "(5) Persons having obtained information which amounts to professionally confidential information are responsible under the law for disclosure of such information.", "(6) Professional confidentiality cannot be breached even after the termination of the treatment or the death of the patient. ”", "19. The relevant provision of Law No. 411 on health care stipulates as follows:", "“ Section 14. Professional duties and responsibiltiy for their breach", "1. Doctors, other medical personnel and pharmacists are under a duty to maintain the confidentiality of information concerning diseases, or the private and family life of patients, which they come to learn in the exercise of their duties, except for cases where there is a risk of the propagation of contagious diseases and at the reasoned request of the criminal investigation authorities or courts of law.”", "20. The relevant provisions of Law No. 982 on access to information, as in force at the material time, provided as follows:", "“ Section 8. Access to information of a personal nature", "(1) Information of a personal nature is considered to be information with restricted access and consists of data concerning an identified or identifiable person the disclosure of which would constitute a breach of his or her [right to respect for] private and family life.", "...", "(7) Providers of information may disclose information of a personal nature solicited in accordance with the present law only in the following circumstances:", "a) the person whom the information concerns agrees to its disclosure;", "b) the whole of the solicited information has previously been in the public domain ...", "(8) If the person whom the information of a personal nature concerns does not consent to its disclosure, access to such information can be authorised by a court after it has found that the disclosure at issue is in the public interest, that is, that disclosure would pursue the aim of protecting public health, security or the environment. ”", "21. The relevant provision of the Criminal Code reads as follows:", "“ Article 177. Breach of a person ’ s right to respect for private life", "(1) Unlawful gathering or disclosure of confidential information protected by law concerning a person ’ s private life, without that person ’ s consent, shall be punished by a fine of up to MDL 6,000 or by community service work of 180 to 240 hours. ”", "22. The relevant provision of the Employment Code reads as follows:", "“ Article 91. General rules concerning the treatment by the employers of employees ’ personal data and guarantees concerning its protection", "With a view to ensuring the protection of human rights and freedoms, when processing the personal data of their employees, employers and their representatives are obliged to observe the following conditions:", "...", "d) the employer has no right to obtain or store data concerning the employer ’ s political and religious views or his private life. In the cases provided for by law, the employer can request and store data concerning an employee ’ s private life only after obtaining that employee ’ s consent;", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION", "23. The applicant complained that the disclosure of information of a medical nature by the CFD to her employer constituted a violation of her right to respect for private life as provided in Article 8 of the Convention. She also alleged that the proceedings in which her action against the CFD had been examined had been unfair because the courts had adopted arbitrary decisions and failed to give reasons for them. Articles 6 and 8 of the Convention, on which the applicant relied, read as follows:", "Article 6", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "25. The applicant asserted that there had been an interference with her rights guaranteed by Article 8 and that the interference had no legal basis in domestic law. Moreover, the interference had not been “ necessary in a democratic society ” because the applicant ’ s employer had not been conducting even an internal investigation, let alone a criminal one. The information disclosed by the CFD to the applicant ’ s employer was of a very personal nature and the employer already had sufficient knowledge concerning the applicant ’ s state of health from the sick leave certificates she had submitted.", "26. The Government agreed that there had been an interference with the applicant ’ s right to respect for her private life. However, they argued that the interference was provided for by law, namely by Article 8 of Law No. 982 on access to information (see paragraph 20 above), had pursued a legitimate aim, and had been necessary in a democratic society. The Government stressed that, in their view, the present case very much resembled the case of M.S. v. Sweden ( 27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV ) and asked the Court to adopt a similar approach to it.", "2. The Court ’ s assessment", "27. It is undisputed between the parties, and the Court agrees, that the disclosure by the CFD to the applicant ’ s employer of such sensitive details about the applicant ’ s pregnancy, her state of health and the treatment received constituted an interference with her right to private life. An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article, and furthermore is “necessary in a democratic society” in order to achieve the aim (see the following judgments: Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Calogero Diana v. Italy, 15 November 1996, § 28, Reports 1996-V; and Petra v. Romania, 23 September 1998, § 36, Reports 1998-VII).", "28. The expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports 1997-III). The Court reiterates that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see Domenichini v. Italy, 15 November 1996, § 33, Reports 1996-V; Avilkina and Others v. Russia, no. 1585/09, § 35, 6 June 2013 ).", "29. In their submissions, the Government referred to section 8 of Law 982 on access to information (see paragraph 20 above) as being, in their view, the legal basis for the interference. The Court notes, firstly, that it was only the Government and not the Supreme Court of Justice that referred to such legal basis for the interference. In fact, the Supreme Court merely stated that the CFD was entitled to disclose the information to the applicant ’ s employer, without citing any legal basis for such disclosure.", "30. Secondly, even assuming that the Supreme Court had intended to rely on that provision, the Court notes that under section 8 of that Law a doctor would not be entitled to disclose information of a personal nature even to the applicant ’ s employer without her consent.", "31. In fact, the Court notes that all the relevant domestic and international law cited above expressly prohibits disclosure of such information to the point that it even constitutes a criminal offence. There are exceptions to the rule of nondisclosure; however, none of them seems to be applicable to the applicant ’ s situation. Indeed, the Government did not show that any such exception was applicable. It follows that the interference complained of was not “in accordance with the law” within the meaning of Article 8. Accordingly, there is no need to examine whether the interference pursued a legitimate aim or was “necessary in a democratic society”.", "32. The Court therefore finds that there has been a violation of Article 8 of the Convention in respect of the applicant ’ s right to respect for her private life. In view of this conclusion it also holds that no separate issue arises under Article 6 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "33. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "34. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.", "35. The Government disputed the amount claimed by the applicant and reiterated their position that there had been no violation in the present case. Alternatively, they considered that a finding of a violation would in itself constitute sufficient just satisfaction.", "36. Having regard to the violation found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500.", "B. Costs and expenses", "37. The applicant also claimed EUR 1,440 for the costs and expenses incurred before the Court. The applicant submitted relevant documents in support of her claims.", "38. The Government objected and argued that the amount was excessive.", "39. The Court awards the entire amount claimed for costs and expenses.", "C. Default interest", "40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "8. Since 1994 the first applicant company, Satakunnan Markkinapörssi Oy collected data from the Finnish tax authorities for the purpose of publishing information about natural persons ’ taxable income and assets in the Veropörssi newspaper. Several other publishing and media companies also publish such data which, pursuant to Finnish law, are accessible to the public (see paragraph 39 below for an explanation of the Finnish access to information regime).", "9. In 2002 Veropörssi appeared 17 times, with each issue concentrating on a certain geographical area of the country. The data published comprised the surnames and forenames of approximately 1.2 million natural persons whose annual taxable income exceeded certain thresholds, mainly from 60,000 to 80,000 Finnish marks (approximately 10,000 to 13,500 euros (EUR)), as well as the amount, to the nearest EUR 100, of their earned and unearned income and taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and organised according to municipality and income bracket.", "10. The first applicant company worked in cooperation with the second applicant company, Satamedia Oy, and both were owned by the same shareholders. In 2003 the first applicant company started to transfer personal data published in Veropörssi, in the form of CD-ROM discs, to the second applicant company which, together with a mobile telephone operator, started a text-messaging service (SMS service). By sending a person ’ s name to a service number, taxation information could be obtained concerning that person, on the requesting person ’ s mobile telephone, if information was available in the database or register created by the second applicant company. This database was created using personal data already published in the newspaper and transferred in the form of CD-ROM discs to the second applicant company. From 2006 the second applicant company also published Veropörssi.", "11. It transpires from the case file that in 1997 the Minister of Justice requested that the police instigate a criminal investigation into the publishing activities of the applicant companies. No information is contained in the file as to the outcome of this request or of any subsequent investigation.", "12. In September 2000 and November 2001, the applicant companies ordered taxation data from the Finnish National Board of Taxation ( verohallitus, skattestyrelsen ). Following the first order, the Board requested an opinion from the Data Protection Ombudsman, on the basis of which the Board invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if Veropörssi continued to be published in its usual form. The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices.", "B. First set of proceedings (2004 – 2009)", "1. Decisions of the Data Protection Ombudsman and the Data Protection Board", "13. On an unspecified date, probably in 2003, the Data Protection Ombudsman ( tietosuojavaltuutettu, dataombudsmannen ) contacted the applicant companies and advised them that, although accessing and publishing taxation data were not prohibited as such, they had to cease publishing such data in the manner and to the extent that had been the case in 2002, when they had published data concerning the 2001 tax year. The applicant companies refused to abide by this request, which they considered violated their right to freedom of expression.", "14. By a letter of 10 April 2003 the Data Protection Ombudsman asked the Data Protection Board ( tietosuojalautakunta, datasekretessnämnden ) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. He claimed that under the Personal Data Act the companies had no right to collect, store or pass on personal data and that the derogation provided by that Act concerning journalism did not, in his view, apply to the present case. The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in the Personal Data Act, but rather constituted the processing of personal data in which the applicant companies had no right to engage.", "15. On 7 January 2004 the Data Protection Board dismissed the Data Protection Ombudsman ’ s request. It found that the derogation laid down in the Personal Data Act concerning journalism applied to the present case. As regards the SMS service, the data used in the service had already been published in Veropörssi and therefore the Act did not apply to it.", "2. Decision of the Helsinki Administrative Court (2005)", "16. By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from passing such data to the SMS service.", "17. On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation laid down in the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted (OJ 1995 L 281, p. 31, hereafter “the Data Protection Directive”), should not be interpreted too strictly, as an overly strict interpretation would favour protection of privacy over freedom of expression. That court considered that Veropörssi had a journalistic purpose and that it was also in the public interest to publish such data. It emphasised, in particular, that the published data were already accessible to the general public. The journalism derogation thus applied in the circumstances of the present case. As regards the SMS service, the Administrative Court agreed with the Data Protection Board that, as the information had already been published in the newspaper, the Act did not apply to it.", "3. Appeal to the Supreme Administrative Court (2005)", "18. By letter dated 26 October 2005 the Data Protection Ombudsman lodged an appeal with the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), reiterating the grounds of appeal already presented before the Helsinki Administrative Court.", "19. On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Communities (which became the Court of Justice of the European Union on 1 December 2009, hereafter the “CJEU”) on the interpretation of Directive 95/46 /EC.", "4. Preliminary ruling of the CJEU (2008)", "20. On 16 December 2008 the Grand Chamber of the CJEU handed down its judgment (see Case C-73/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, EU :C:2008:727 ). It found, first of all, that the activities in question constituted “processing of personal data” within the meaning of Article 3(1) of Directive 95/46. According to the CJEU, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive (see paragraphs 37 and 49 of the judgment). The object of the derogation in Article 9 of the Directive for the processing of personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression. In order to take account of the importance of the latter in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary (see paragraphs 54 and 56 of the judgment). Journalistic activities were not limited to media undertakings and could be undertaken for profit-making purposes (see paragraph 61). Furthermore, when interpreting the journalistic purposes derogation, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. Activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under domestic legislation, could be classified as “journalistic activities” if their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them. Whether or not that was the case, was for the national court to determine (see paragraphs 60-62 of the judgment).", "5. Decision of the Supreme Administrative Court (2009)", "21. On 23 September 2009 the Supreme Administrative Court, applying the ruling of the CJEU and with reference to the case-law on Article 10 of the Convention, quashed the impugned decisions of the Data Protection Board and the Helsinki Administrative Court and referred the case back to the Data Protection Board for a fresh examination with a view to issuing an order pursuant to section 44(1) of the Personal Data Act. The Supreme Administrative Court requested the Board to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in 2002.", "22. In its legal assessment, the Supreme Administrative Court gave the following reasoning:", "“Scope of the matter", "The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under the Act on the Public Disclosure and Confidentiality of Tax Information.", "Nor does it concern the right to publish taxation data as such but only the processing of personal data. Therefore, there is no issue of possible prior interference with the content of the publications, but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled.", "The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter.", "...", "Reconciliation of the protection of privacy and freedom of expression", "Interpretation of the exception concerning journalistic purposes in the Data Protection Directive. The Court of Justice of the European Communities emphasised that the purpose of the Data Protection Directive is to ensure that when processing their personal data, the Member States guarantee individuals ’ fundamental rights and freedoms, and in particular their right to privacy, while allowing the free movement of such information. The Court further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression, and that this task belongs to the Member States.", "...", "It therefore appears from the aforementioned ruling of the Court of Justice of the European Communities that the concept of journalism must, as such, be interpreted broadly within the meaning of Article 9 of the Directive, that, on the other hand, the protection of privacy can be derogated from only in so far as it is strictly necessary, and that this task of reconciliation of the two fundamental rights is the task of the Member States. Ensuring proper balance between the rights and interests at stake, including the fundamental rights guaranteed in the Communities ’ legal order, is the task of the domestic authorities and courts (see also case C-101/01 Lindqvist ).", "Interpretation of the exception in the Personal Data Act concerning journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp ) that the purpose of the adoption of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, provided it remained within the limits imposed by the Data Protection Directive. Therefore, in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of the Personal Data Act, inter alia, that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities.", "When interpreting section 2(5) of the Personal Data Act, particular regard must be had to the fact that it concerns the reconciliation of two fundamental rights, namely the freedom of expression and the protection of privacy.", "...", "The case-law of the European Court of Human Rights has also adopted a position on reconciling freedom of expression with the protection of privacy. The Court has held, inter alia in its von Hannover judgment of 24 June 2004, that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest.", "On the other hand, the Court also held in the above-mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data.", "According to the Court, when balancing the protection of private life against freedom of expression, the decisive criterion had to be the contribution made by publishing the data to a debate of public interest. If a publication is only meant to satisfy the curiosity of a certain audience, freedom of expression must be interpreted more narrowly.", "In the present case, it must be assessed to what extent the impugned processing of personal data as carried out in the course of the companies ’ activities falls within the scope of the exception concerning journalistic purposes that is provided for in section 2(5) of the Personal Data Act. The starting point is whether the aim of their activities was to disclose information, opinions or ideas to the public. In this assessment, account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a democratic society rather than solely satisfying the curiosity of certain individuals.", "Processing of personal taxation data in the background file of Satakunnan Markkinapörssi Oy and in the Veropörssi newspaper", "Satakunnan Markkinapörssi Oy collected for the Veropörssi newspaper taxation data from different tax offices in which individuals ’ names appear together with information on their taxable income.", "As mentioned above, the case concerns the processing of personal data to which the general requirements in Chapter 2 of the Personal Data Act are applicable, unless the Act allows for an exception from the application of these provisions. It must first of all be assessed whether the processing of personal data in the company ’ s background file before the publication of such data in the Veropörssi newspaper falls within the scope of the exception concerning journalistic purposes.", "From the preparatory work on the amendment of the Personal Data File Act (HE 311/1993 vp ), which was the Act in force before the Personal Data Act, it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able, in advance, to freely collect and store information. Restricting the processing of personal data at this stage, that is to say before publication, could in practice mean that a prior decision is taken on what can be published. Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression.", "The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities. The collection and processing of such data in the company ’ s internal files for the purpose of the company ’ s publishing activities can, on the basis of above-mentioned grounds, be regarded as processing of personal data for journalistic purposes. The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate. At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured, provided that the data collected and stored in the file are protected against unlawful processing as required by section 32 of the Personal Data Act.", "Satakunnan Markkinapörssi Oy has published the personal data collected from the tax offices as wide-ranging municipality-based catalogues in the Veropörssi newspaper. As already stated above, in this regard too it is a question of processing personal data within the meaning of section 3(2) of the Personal Data Act. As part of the case file, the Supreme Administrative Court had at its disposal Veropörssi newspaper no. 14/2004, published by Satakunnan Markkinapörssi Oy and covering the Helsinki metropolitan area.", "In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section 2(5) of the Act, that is to say whether the impugned processing of personal data by publishing those data in the Veropörssi newspaper came within the scope of the exception provided for journalistic purposes.", "...", "It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp ) that the processing of data in the background file referred to in the Personal Data File Act must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities. The purpose of section 2(5) of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, within the limits allowed by the Data Protection Directive. Therefore, the purpose of the Personal Data Act in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information.", "The term “processing of personal data for journalistic purposes” cannot be regarded as covering the large–scale publication of the journalistic background file, almost verbatim, as catalogues, albeit split into different parts and sorted by municipality.", "Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company, such disclosure does not represent solely an expression of information, opinions or ideas. As stated above, with a view to reconciling the requirements of freedom of expression with the protection of privacy, the collection of data before publication has been made permissible under section 2(5) of the Personal Data Act without any requirement of compliance with general conditions set out in section 8 of the Act. By contrast, the processing of personal data collected in the company ’ s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case, and beyond the scope of the minimum requirements set out in section 2(5) of the Act, cannot be regarded as compatible with the purpose of the Personal Data Act.", "Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above. When regard is also had to the foregoing comments on the narrow interpretation of section 2(4) of the Personal Data Act and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the Act as regards protection of personal data, the processing of personal data with a view to publishing them in the Veropörssi newspaper, and as far as the contents of this publication itself are concerned, was not conducted for journalistic purposes within the meaning of the Personal Data Act.", "...", "Having regard to sections 2(5) and 32 of the Personal Data Act and Article 9 of the Data Protection Directive, as interpreted by the Court of Justice of the European Communities in its preliminary ruling, the collection of personal data prior to its publication in the Veropörssi newspaper and its processing in the background file of Satakunnan Markkinapörssi Oy cannot as such be regarded as contrary to the regulations concerning the protection of personal data, provided that, inter alia, the data have been protected properly. However, with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the Veropörssi newspaper, Satakunnan Markkinapörssi Oy did in fact process personal data concerning natural persons in violation of the Personal Data Act.", "Handover of data in a CD-ROM", "Satakunnan Markkinapörssi Oy handed over a CD-ROM containing the published data to Satamedia Oy so that the latter could start up an SMS service using that data. As mentioned above, that action amounts to the processing of personal data within the meaning of section 3(2) of the Personal Data Act.", "Having regard to the preliminary ruling of the Court of Justice of the European Communities and its effect on the interpretation of section 2(4) of the Personal Data Act, as well as all that has been said above about the processing of personal data in the Veropörssi newspaper, the handover to Satamedia Oy of personal data collected in the background file of Satakunnan Markkinapörssi Oy, even though they were published in the Veropörssi newspaper, cannot be regarded as processing of personal data for journalistic purposes within the meaning of Personal Data Act. Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of Article 9 of the Data Protection Directive. Therefore, in that regard too, Satakunnan Markkinapörssi Oy processed personal data in violation of the Personal Data Act.", "Processing of personal data for the realisation of a SMS service by Satamedia Oy", "As stated above in the “Facts” section, Satamedia Oy handed over the above-mentioned personal data to a third company in order to start up a SMS service, which company operated the SMS service on behalf of Satamedia Oy.", "It was pointed out above that Satakunnan Markkinapörssi Oy had no right under the Personal Data Act to process the personal data at issue by handing it over to Satamedia Oy. Consequently, Satamedia Oy also had no right under the Personal Data Act to process personal data received in this manner.", "In addition, it follows from the preliminary ruling of the Court of Justice of the European Communities that the exception provided for in the Data Protection Directive, which concerns the processing of personal data for journalistic purposes, requires the disclosure of data to the public. According to section 2(1) of the Act on the Exercise of Freedom of Expression in Mass Media, the term “the public” in that Act refers to a group of freely determined message recipients. Satamedia Oy ’ s SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual. It therefore does not concern disclosure of data to the general public, as explained above, but replying to a request by an individual concerning the personal data of another individual.", "Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the possibility of processing the personal data of specific individuals as has been done in this case. Freedom of expression does not require any derogation from the protection of privacy in such a situation.", "The Court of Justice of the European Communities further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes. As regards the SMS service operated by Satamedia Oy, it is irrelevant that the data were transferred via mobile phones and text messages. Therefore, this is not a case of treating this mode of transmission of data differently from other modes of transmission. The assessment would be the same if the company processed, on the basis of a request by an individual, the personal data of another individual by using some other mode of transmission.”", "C. Second set of proceedings (2009 – 2012)", "23. Pursuant to the above-mentioned judgment of the Supreme Administrative Court, on 26 November 2009 the Data Protection Board prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. It found that the collection of personal data prior to its publication in Veropörssi and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had been published in Veropörssi, the first applicant company had processed personal data concerning natural persons in violation of the Personal Data Act. The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company ’ s database and published in Veropörssi.", "24. By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what action they were envisaging in response to the Board ’ s decision. In their reply, the applicant companies asked for the Data Protection Ombudsman ’ s views on the conditions under which they could continue to publish public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated, with reference to the decision of the Data Protection Board of 26 November 2009, that “when data on taxable income were collected in a database and published in large catalogues almost as it stood, the Personal Data Act was applicable... ”. He reminded them of his duty to report any breach of the Personal Data Act to the police.", "25. By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court, which transferred the case to the Turku Administrative Court. They complained that the decision violated the Constitutional prohibition of censorship as well as their right to freedom of expression. According to the applicants, under domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to rely on the “public interest” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest.", "26. On 28 October 2010 the Turku Administrative Court rejected the applicant companies ’ appeal. It found that the Supreme Administrative Court had stated in its decision of 2009 that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se. As the court was now examining only the 2009 decision rendered by the Data Protection Board, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its 2009 decision. As the Board ’ s decision corresponded to the content of the latter decision, there was no reason to change it.", "27. By letter dated 29 November 2010 the applicant companies further appealed to the Supreme Administrative Court.", "28. On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Turku Administrative Court, reiterating that the case concerned neither the right to publish taxation information as such, nor preventive censorship.", "D. Subsequent developments", "29. According to the information submitted by the applicants, the SMS service was shut down after the 2009 decision of the Supreme Administrative Court was served on the applicant companies. The newspaper continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the newspaper has not appeared. The Government, on the other hand, submitted that, according to the applicant companies ’ website, Veropörssi was still being published on a regional basis in 2010 and 2011. Moreover, an Internet service continued to operate allowing anyone to request a natural person ’ s tax data concerning the year 2014 by filling in a form on the website in question. The requested tax information would then be delivered to the customer by phone call, text message or e-mail.", "30. The editor-in-chief of Veropörssi lodged an application with the Court in 2010, complaining that the impugned decision of the Supreme Administrative Court violated his right to freedom of expression. On 19 November 2013 the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention (see Anttila v. Finland ( dec. ), no. 16248/10, 19 November 2013).", "31. The first applicant company was declared bankrupt on 15 March 2016. The bankruptcy administration did not oppose the continuation of the present proceedings before the Court (see paragraph 94 below)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitutional provisions", "32. Article 10 of the Constitution of Finland ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999), which protects the right to private life, states:", "“Everyone ’ s private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act...”", "33. Article 12 of the Constitution, which guarantees the freedom of expression, provides:", "“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.”", "B. Personal Data Act", "1. Provisions of the Personal Data Act", "34. The relevant provisions of the Personal Data Act ( henkilötietolaki, personsuppgiftslagen, Act no. 523/1999, as in force at the relevant time) provided:", "“Chapter 1 – General provisions", "Section 1 – Objectives", "The objectives of this Act are to implement, in the processing of personal data, the protection of private life and the other basic rights which safeguard the right to privacy...", "Section 2 – Scope", "(1) The provisions of this Act apply to the processing of personal data, unless otherwise provided elsewhere in the law.", "(2) This Act applies to the automatic processing of personal data. It applies also to other processing of personal data where the data constitute or are intended to constitute a personal data file or a part thereof.", "...", "(4) This Act does not apply to personal data files containing, solely and in unaltered form, data that have been published by the media.", "(5) Unless otherwise provided in section 17, only sections 1-4, 32, 39(3), 40(1) and (3), 42, 44(2), 45-47, 48(2), 50, and 51 of this Act apply, where appropriate, to the processing of personal data for purposes of journalism or artistic or literary expression.", "Section 3 – Definitions", "In this Act,", "(1) personal data means any information on a private individual and any information on his or her personal characteristics or personal circumstances, where these are identifiable as concerning him or her or the members of his or her family or household;", "(2) processing of personal data means the collection, recording, organisation, use, transfer, disclosure, storage, manipulation, combination, protection, deletion and erasure of personal data, as well as other measures directed at personal data;", "(3) personal data file means a set of personal data, connected by a common use and processed fully or partially automatically or sorted into a card index, directory or other manually accessible form so that the data pertaining to a given person can be retrieved easily and at reasonable cost;", "(4) controller means a person, corporation, institution or foundation, or a number of them, for the use of whom a personal data file is set up and who is entitled to determine the use of the file, or who has been designated as a controller by an Act;", "(5) data subject means the person to whom the personal data pertain;", "...", "Section 32 – Data security", "(1) The controller shall carry out the technical and organisational measures necessary for securing personal data against unauthorised access, against accidental or unlawful destruction, manipulation, disclosure and transfer and against other unlawful processing...", "...", "Section 44 – Orders of the Data Protection Board", "At the request of the Data Protection Ombudsman, the Data Protection Board may:", "(1) prohibit processing of personal data which is contrary to the provisions of this Act or the rules and regulations issued on the basis of this Act...", "...", "(3) order that the operations pertaining to the file be ceased, if the unlawful conduct or neglect seriously compromise the protection of the privacy of the data subject or his or her interests or rights, provided that the file is not set up under a statutory scheme;", "...”", "35. Following the judgment of the CJEU of 2008 in the present case (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above), section 2(4) of the Personal Data Act was repealed by an Act enacted on 3 December 2010.", "36. Government Bill to Parliament HE 96/1998 vp provides background information regarding the journalistic purposes derogation in section 2(5) of the Personal Data Act. The definition of a database for journalistic purposes was derived from the previous Act but was modified in order to transpose the Data Protection Directive. According to the preparatory work, “a database for journalistic purposes means such databases as are intended to be used only in the context of the journalistic activity of the media and which are not accessible to others”. “Media” is taken to mean any kind of mass media, including news and photo agencies when they keep databases containing personal data used in media ’ s publishing activities or a news agency ’ s own publishing activities. Information collected for storage in a database for journalistic purposes can be used only in the context of a journalistic activity, and not, for example, for administrative or marketing purposes. It is also required that the circle of users of the database is limited such as to be accessible only to those persons involved in the journalistic activity. A database for journalistic purposes can be kept, for example, by a newspaper publisher, an individual journalist or a free-lance journalist.", "2. Examples of application of the Personal Data Act", "37. In a decision of 23 January 2015, the Helsinki Administrative Court held that public taxation data could be provided to media in mass deliveries in electronic format. However, neither freedom of expression as a fundamental right nor the preparatory work relating to legislation on the publicity of and access to taxation data supported an interpretation of the law to the effect that the applicant in that case – a representative of a media organisation which had requested data relating to 5.2 million persons (all natural persons earning more than 1 euro in Finland) – had the right to receive such data in electronic format for journalistic purposes.", "38. In contrast, in his opinion of 5 July 2013, addressed to a complainant on another matter, the Data Protection Ombudsman held that the media organisation in question ( Helsingin Sanomat ) had processed data for journalistic purposes within the meaning and scope of the section 2(5) derogation. The latter had not published all of the personal data files collected by it for journalistic purposes, but had published data on a limited group of 10,000 persons considered to be the wealthiest people in Finland. The data published were accompanied by articles and presentations on some of those featured.", "C. Act on the Public Disclosure and Confidentiality of Tax Information", "39. Sections 1-3 of the Act on the Public Disclosure and Confidentiality of Tax Information ( laki verotustietojen julkisuudesta ja salassapidosta, lagen om offentlighet och sekretess i fråga om beskattningsuppgifter, Act no. 1346/1999) provide the following:", "“Section 1 – Scope of the Act", "This Act applies to documents concerning individual taxpayers which are submitted to or prepared by the tax administration ( taxation documents ) and the information contained therein ( taxation information ). The provisions concerning the taxpayer in this Act apply to other persons required to report information, and also to joint tax corporations.", "...", "Section 2 – Relation to other provisions", "The provisions of the Act on the Openness of Government Activities (621/1999) and the Personal Data Act (523/1999) apply to taxation documents and information unless otherwise provided by this or some other Act.", "Section 3 – Public disclosure of and right of access to taxation information", "Taxation information is public to the extent provided in this Act.", "Everyone has the right to obtain information on a public taxation document in the possession of the tax administration as provided by the Act on the Openness of Government Activities, unless otherwise provided by this Act.”", "40. According to section 5 of the Act, information on a taxpayer ’ s name, year of birth and municipality of domicile is public, as is the following information:", "“(1) earned income taxable in State taxation;", "(2) capital income and property taxable in State taxation;", "(3) income taxable in municipal taxation;", "(4) income and taxable net assets, municipal tax and the total amount of taxes and charges imposed;", "(5) the total amount of withholding tax;", "(6) the amount to be debited or the amount to be refunded in the final assessment for the tax year.", "...", "The information referred to above in this section may be disclosed at the beginning of the November following the tax year, as valid on completion of the taxation.”", "41. The preparatory work relating to section 5 of the Act indicates that the special regulation in section 16(3) of the Act on the Openness of Government Activities is applicable to data referred to in this section. It also indicates that the Personal Data Act does not restrict the collection of data for journalistic purposes and that the media can be given data referred to in section 5 for journalistic purposes, provided that there are no restrictions imposed by the rules on confidentiality.", "D. Act on the Openness of Government Activities", "42. Section 1 (1) of the Act on the Openness of Government Activities ( laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet, Act no. 621/1999) provides that:", "“Official documents shall be in the public domain, unless specifically provided otherwise in this Act or another Act.”", "43. According to section 3 of the Act,", "“[t] he objectives of the right of access and the duties of the authorities provided in this Act are to promote openness and good practice on information management in government, and to provide private individuals and corporations with an opportunity to monitor the exercise of public authority and the use of public resources, to freely form an opinion, to influence the exercise of public authority, and to protect their rights and interests.”", "44. Section 9 of the same Act provides that every person has a right of access to an official document in the public domain.", "45. According to section 13(2) of the Act:", "“When requesting access to a secret document, a personal data filing system controlled by an authority or any other document, access to which can be granted only subject to certain conditions, the person requesting access shall, unless specifically provided otherwise, declare the use to which the information is to be put, as well as give the other details necessary for determining whether the conditions have been met and, where necessary, explain what arrangements have been made for the protection of the information. ”", "46. According to section 16(1)-(3) of the same Act,", "“[ a] ccess to an official document shall be by explaining its contents orally to the requester, by giving the document to be studied, copied or listened to in the offices of the authority, or by issuing a copy or a printout of the document. Access to the public contents of the document shall be granted in the manner requested, unless this would unreasonably inconvenience the activity of the authority owing to the volume of the documents, the inherent difficulty of copying or any other comparable reason.", "Access to the public information in a computerised register of the decisions of an authority shall be provided by issuing a copy in magnetic media or in some other electronic form, unless there is a special reason to the contrary. Similar access to information in any other official document shall be at the discretion of the authority, unless otherwise provided in an Act. ...", "Access may be granted to a personal data filing system controlled by an authority in the form of a copy or a printout, or an electronic-format copy of the contents of the system, unless specifically otherwise provided in an Act, if the person requesting access has the right to record and use such data according to the legislation on the protection of personal data. However, access to personal data for purposes of direct marketing, polls or market research shall not be granted unless specifically provided otherwise or unless the data subject has consented to the same.”", "47. Section 21(1) of the Act provides the following:", "“When requested to do so, an authority may compile and deliver a set of data formed from signs contained in one or more computerised information management systems and maintained for various purposes, if such delivery is not contrary to the provisions on document secrecy and the protection of personal data owing to the search criteria used, the volume or quality of the data or the intended use of the set of data.”", "48. In the travaux préparatoires relating to the Act ( Government Bill to Parliament HE 30/1998 vp ., p. 48), it is expressly stated that access and dissemination are subject to separate legal regimes, although it is clear that the two are linked in that access to official documents facilitates and supports the activity and the function of the media in society. The fact that a document is in the public domain, in the sense that it is publicly accessible, does not automatically mean that it would be lawful to publish information contained in such a document where such information relates to a person ’ s private life (see Government Bill to Parliament HE 184/1999 vp ., p. 32). Thus, for example, public access to court records does not in itself make it lawful for a person accessing such information to publish or disseminate it further, if such publication or dissemination would interfere with the privacy rights of the persons concerned (see Government Bill to Parliament HE 13/2006 vp ., p. 15).", "E. Instructions issued by the Tax Administration", "49. According to instructions issued by the Tax Administration ( verohallinto, skatteförvaltningen ), anyone can view information on natural persons ’ taxable income and assets at local tax offices. Prior to 2010 this information was in paper format but it is now accessible digitally on terminals made available for those who request it. Access to this information in digital format was, at the time of the relevant facts, restricted to journalists. The information is made available to the public for viewing, making notes and taking photos only. Printing or copying the information on memory sticks or other media, or copying it digitally and sending it by e-mail is technically blocked and not possible. Extracts from the lists are available for a fee of 10 euros each, and data may also be delivered by telephone. The information is not made available on the Internet.", "50. Previously, the lists of natural persons were compiled for each municipality separately but now they are compiled on a regional basis. As a result, information on a taxpayer ’ s municipality no longer features in the publicly accessible data.", "51. Since 2000 the National Board of Taxation can disclose, for a fee, data in digital format for journalistic purposes. Any person requesting data in digital format for journalistic purposes must specify the purpose for which the data is to be used. Such persons must declare that “the information is requested for journalistic purposes” and that “the information will not be published as such in the form of a list”, by ticking a box next to the text of the declaration. The order form has contained these boxes since 2001.", "52. Since 2013 ordering such data has been free of charge but, at the same time, the tax authorities introduced additional retrieval conditions explicitly stating that the ordering of the whole database was not possible. The amount of data accessible free of charge and in digital format is now limited to a maximum of 10,000 persons for the whole country or 5,000 persons for a specific region. If data are selected on the basis of income, the limit for earned income for the whole country or a specific region is at least 70,000 euros and the limit for capital income is 50,000 euros. The order is effected by filling in a digital form available at the Tax Administration ’ s website ( www.vero.fi ).", "F. Self-regulation by journalists and publishers", "53. Guidelines for Journalists ( Journalistin ohjeet, Journalistreglerna ) have been established for the purposes of self-regulation.", "54. The 1992 Guidelines were in force at the material time and provided the following (point 29):", "“The principles concerning the right to privacy also apply when publishing information from public documents or other public sources. The public availability of information does not always necessarily imply that it can be freely published.”", "The same principles are reiterated in the 2005, 2011 and the current 2014 version of the Guidelines (point 30).", "III. RELEVANT EUROPEAN UNION, INTERNATIONAL AND COMPARATIVE LAW MATERIAL", "A. European Union law", "1. Charter of Fundamental Rights of the European Union", "55. Article 8, paragraphs 1 and 2, of the Charter provides:", "“Protection of personal data", "1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified.”", "56. Article 11 of the Charter reads as follows:", "“Freedom of expression and information", "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "2. The freedom and pluralism of the media shall be respected.”", "57. Article 52, paragraph 3, of the Charter provides that, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention, the meaning and scope of those rights shall be the same as those laid down by the Convention. This provision of the Charter does not prevent EU law from providing more extensive protection.", "58. According to the explanations relating to the Charter, Article 8 is based, inter alia, on Article 8 of the Convention and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (hereafter the “Data Protection Convention”), which has been ratified by all EU Member States. Similarly, Article 11 of the Charter is said to correspond to Article 10 of the Convention.", "2. Data Protection Directive", "59. According to Article 1(1) of the Directive, its objective is to protect the fundamental rights and freedoms of natural persons, and, in particular, their right to privacy with respect to the processing of personal data. In accordance with recital 11 of the Directive, the principles of the protection of the rights and freedoms of individuals, notably the right to privacy, which are contained in the Directive, give substance to and amplify those contained in the aforementioned Data Protection Convention.", "60. Personal data are defined in Article 2 (a) as any information relating to an identified or identifiable person. The processing of personal data is defined as “any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction” (see Article 2(b)). A “controller” for the purposes of the Directive is a natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data (see Article 2(d)), whereas a “processor” is a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller (see Article 2(e)).", "61. According to Article 3(1), the Directive applies to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.", "62. It is for the member States, within the limits of Chapter II of the Directive, to determine more precisely the conditions under which the processing of personal data is lawful (see Article 5). In this regard, the Directive provides, inter alia, that the data subject must have unambiguously given his consent or that the processing must be necessary for the performance of a task carried out in the public interest or that the processing must be necessary for the purposes of the legitimate interests pursued by the controller. Derogations from these provisions are provided in well-defined circumstances (see Article 7).", "63. Article 9 of the Directive, entitled ‘ Processing of personal data and freedom of expression ’, provides:", "“Member States shall provide for exemptions or derogations from the provisions of this Chapter [II], Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”", "64. In that connection, recital 37 of the Directive is worded as follows:", "“Whereas the processing of personal data for purposes of journalism or for purposes of literary or artistic expression, in particular in the audio-visual field, should qualify for exemption from the requirements of certain provisions of this Directive in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of [expression] and notably the right to receive and impart information, as guaranteed in particular in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas member States should therefore lay down exemptions and derogations necessary for the purpose of balance between fundamental rights as regards general measures on the legitimacy of data processing, measures on the transfer of data to third countries and the power of the supervisory authority; whereas this should not, however, lead member States to lay down exemptions from the measures to ensure security of processing; whereas at least the supervisory authority responsible for this sector should also be provided with certain ex-post powers, e.g. to publish a regular report or to refer matters to the judicial authorities.”", "65. Pursuant to Article 28(1) and (3) of the Directive, each member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the member States pursuant to the Directive. Each authority so established shall be endowed with the power to engage in legal proceedings where the national provisions adopted pursuant to the Directive have been violated or to bring these violations to the attention of judicial authorities. Decisions by the supervisory authority which give rise to complaints may be appealed against through the Courts.", "66. Articles 22 and 23 of the Data Protection Directive provide, respectively, for the right to a judicial remedy for persons whose rights under national law on processing have been breached and the right to compensation for any person who has suffered damage as a result of an unlawful processing operation or act incompatible with national provisions adopted pursuant to the Directive.", "3. Regulation (EU) 2016/ 6 79", "67. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119/1) entered into force on 24 May 2016. It will repeal Directive 95/46 /EC as of 25 May 2018 (see Article 99).", "68. Recitals 4, 6, 9 and 153 of the new Regulation provide as follows:", "“- The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. ... ( recital 4);", "...", "- Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities (recital 6);", "...", "- The objectives and principles of Directive 95/46/EC remain sound, but it has not prevented fragmentation in the implementation of data protection across the Union, legal uncertainty or a widespread public perception that there are significant risks to the protection of natural persons, in particular with regard to online activity... ( recital 9);", "...", "- Member States law should reconcile the rules governing freedom of expression and information, including journalistic, academic, artistic and or literary expression with the right to the protection of personal data pursuant to this Regulation. The processing of personal data solely for journalistic purposes... should be subject to derogations or exemptions from certain provisions of this Regulation if necessary to reconcile the right to the protection of personal data with the right to freedom of expression and information, as enshrined in Article 11 of the Charter... In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly (recital 153).”", "69. Article 85 of the Regulation, which will replace the journalistic purposes derogation in Article 9 of the Directive, provides as follows:", "“1. Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.", "2. For processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, member States shall provide for exemptions or derogations from Chapter II (principles), Chapter III (rights of the data subject), Chapter IV (controller and processor), Chapter V (transfer of personal data to third countries or international organisations ), Chapter VI (independent supervisory authorities), Chapter VII (cooperation and consistency) and Chapter IX (specific data processing situations) if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.”", "4. CJEU case-law on data protection and freedom of expression", "70. The CJEU has repeatedly held that the provisions of the Data Protection Directive, inasmuch as they govern the processing of personal data liable to infringe fundamental freedoms, in particular the right to respect for private life, must necessarily be interpreted in the light of the fundamental rights guaranteed by the Convention and the Charter (see variously Österreichischer Rundfunk and Others, C ‑ 465/00, C ‑ 138/01 and C ‑ 139/01, EU:C:2003:294, judgment of 20 May 2003, paragraph 68; Google Spain and Google, C ‑ 131/12, EU:C:2014:317, judgment of 13 May 2014, paragraph 68; and Ryneš, C ‑ 212/13, EU:C:2014:2428, judgment of 11 December 2014, paragraph 29).", "71. Given the relevance of Directive 95/46 to the balancing of the fundamental rights to privacy and freedom of expression at issue before the Finnish competent authorities and domestic courts in the instant case, the data protection case-law of the CJEU is set out in some detail.", "72. At issue in Österreichischer Rundfunk, cited above, was national legislation which required a State control body, the Court of Audit, to collect and communicate, for purposes of publication, data on the income of persons employed by the bodies subject to its control, where that income exceeds a certain threshold. The purpose of the collection and publication of the information was to exert pressure on public bodies to keep salaries within reasonable limits. The CJEU held that, while the mere recording by an employer of data by name relating to the remuneration paid to his employees cannot as such constitute an interference with private life, the communication of that data to third parties, in the present case a public authority, infringes the right of the persons concerned to respect for private life, whatever the subsequent use of the information thus communicated, and constitutes an interference within the meaning of Article 8 of the Convention. Citing Amann v. Switzerland [GC], no. 27798/95, § 70, ECHR 2000 ‑ II, it also held that to establish the existence of such an interference, it did not matter whether the information communicated was of a sensitive character or whether the persons concerned had been inconvenienced in any way (paragraphs 74-75). Finally, the CJEU held that the interference resulting from the application of the Austrian legislation may be justified under Article 8(2) of the Convention only in so far as the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Court of Audit but also of the names of the recipients of that income was both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being a matter for the national courts to examine (paragraph 90). It emphasised, as regards the proportionality of the interference and the seriousness of the latter, that it was not impossible that the persons affected might suffer harm as a result of the negative effects of the publicity attached to their income from employment (paragraph 89).", "73. In Lindqvist (judgment of 6 November 2003, C-101/01, EU :C:2003:596 ) the CJEU held that the act of referring, on an Internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constituted the processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of the Data Protection Directive. Noting that the directive seeks to ensure not only the free flow of such data between Member States but also the safeguarding of the fundamental rights of individuals and that those objectives may be inconsistent with one another, the CJEU held that the mechanisms allowing those different rights and interests to be balanced are contained, first, in the Directive itself, and, second, result from the adoption, by the Member States, of national provisions implementing that directive and their application by the national authorities (paragraphs 79-82). The provisions of the Directive do not, in themselves, bring about a restriction which conflicts with the general principles of freedom of expression or other freedoms and rights which are applicable within the EU and are enshrined inter alia in Article 10 of the Convention. It is, according to the CJEU, for the national authorities and courts responsible for applying the national legislation implementing the Directive to ensure a fair balance between the rights and interests in question, including the fundamental rights protected by the EU legal order (paragraphs 83-90).", "74. In Volker und Markus Schecke GbR (judgment of 9 November 2010, C-92/09 and C-93/09, EU :C:2010:662 ), the CJEU held that the obligation imposed by EU regulations to publish on a website data relating to the beneficiaries of aid from EU agricultural and rural development funds, including their names and the income received, constituted an unjustified interference with the fundamental right to the protection of personal data. Referring to Amann, cited above, and Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 ‑ V, it pointed out that the professional nature of the activities to which the data referred did not imply the absence of a right to privacy. The fact that the beneficiaries of aid had been informed that the data might be made public was not sufficient to establish that they had given their consent to its publication. As regards the proportionality of the interference with privacy rights, the CJEU held that it did not appear that the EU institutions had properly balanced the public interest objective in the transparent use of public funds against the rights which natural persons are recognised as having under Articles 7 and 8 of the Charter. Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary, and that it was possible to envisage measures which would have affected less adversely that fundamental right of natural persons and which would still have contributed effectively to the objectives of the European Union rules in question, the CJEU held that the EU regulations in question exceeded the limits which compliance with the principle of proportionality imposes and struck them down.", "75. In Google Spain, cited above, the CJEU held that the operations carried out by the operator of an internet search engine must be classified as ‘ processing ’ within the meaning of the Data Protection Directive regardless of the fact that the data have already been published on the internet and are not altered by the search engine. Inasmuch as the activity of a search engine is liable to affect significantly fundamental rights to privacy and to the protection of personal data, the operator of the search engine must ensure that the activity meets the requirements of the Directive in order that the guarantees laid down by the Directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. As regards the derogation in Article 9 of the Directive, while the CJEU did not exclude that processing by the publisher of a web page may, in some circumstances, be carried out ‘ solely for journalistic purposes ’ and thus benefit from that derogation, the same did not appear to be the case as regards processing carried out by the operator of a search engine. The CJEU also held that the processing of personal data may be incompatible with the Directive not only because the data are inaccurate but, in particular, also because “they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes” (paragraph 92).", "76. In Schrems (judgment of 6 October 2015 (Grand Chamber), C ‑ 362/14, EU:C:2015:650, paragraphs 41-42), the CJEU held that national supervisory authorities must, in particular, ensure a fair balance between, on the one hand, observance of the fundamental right to privacy and, on the other hand, the interests requiring free movement of personal data. According to the CJEU, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter (paragraph 95).", "77. More recently, in Tele2 Sverige ( judgment of 21 December 2016, C ‑ 203/15, EU:C:2016:970), where it had to interpret an EU regulation concerning the processing of personal data and the protection of privacy in the electronic communications sector, whose provisions particularise and complement Directive 95/46 (paragraph 8 2), the CJEU held, at paragraph 93:", "“Accordingly, the importance both of the right to privacy, guaranteed in Article 7 of the Charter, and of the right to protection of personal data, guaranteed in Article 8 of the Charter, as derived from the Court ’ s case-law [...], must be taken into consideration in interpreting Article 15(1) of Directive 2002/58. The same is true of the right to freedom of expression in the light of the particular importance accorded to that freedom in any democratic society. That fundamental right, guaranteed in Article 11 of the Charter, constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded [...].”", "78. In Connolly v. Commission (judgment of 6 March 2001, C-274/99 P, EU :C:2001:127 ), a case involving the right to freedom of expression of an EU official and the limitations placed thereon, the CJEU held, at paragraphs 37-42:", "“ [F] undamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect [ ... ].", "As the Court of Human Rights has held, ‘ Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to ” information ” or ” ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no ” democratic society (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v. Germany judgment of 26 September 1995, Series A no. 323, § 52).", "[...]", "Those limitations [set out in Article 10(2) of the Convention] must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective ‘ necessary ’ involves, for the purposes of Article 10(2), a ‘ pressing social need ’ and, although ‘ [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be ‘ proportionate to the legitimate aim pursued and ‘ the reasons adduced by the national authorities to justify it must be ‘ relevant and sufficient (see, in particular, Vogt v. Germany, § 52; and Wille v. Liechtenstein judgment of 28 October 1999, no. 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v. United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60).", "Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v. United Kingdom judgment of 26 April 1979, Series A no. 30, § 49).”", "79. In Philip Morris (judgment of 4 May 2016, C-547/14, EU :C:2016:325, paragraph 147), the CJEU confirmed the correlation between Article 10 of the Convention and Article 11 of the Charter:", "“Article 11 of the Charter affirms the freedom of expression and information. That freedom is also protected under Article 10 [ECHR], which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising. Given that the freedom of expression and information laid down in Article 11 of the Charter has — as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11 — the same meaning and scope as the freedom guaranteed by the Convention, it must be held that that freedom covers the use by a business, on the packaging and labelling of tobacco products, of indications such as those covered by Article 13(1) of Directive 2014/40.”", "B. Relevant international instruments and comparative law material", "1. Council of Europe documents", "80. Within the framework of the Council of Europe, the Data Protection Convention formulates a number of core principles for the collection and processing of personal data. The purpose of the Convention is, according to Article 1, to secure respect for every individual ’ s rights and fundamental freedoms, and in particular his right to privacy, with regard to the automatic processing of personal data relating to him. The Convention includes the following basic principles:", "[...]", "“Article 5 – Quality of data", "Personal data undergoing automatic processing shall be:", "a) obtained and processed fairly and lawfully;", "b ) stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c) adequate, relevant and not excessive in relation to the purposes for which they are stored;", "d) accurate and, where necessary, kept up to date;", "e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.", "Article 7 – Data security", "Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.", "Article 8 – Additional safeguards for the data subject", "Any person shall be enabled:", "a) to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b) to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c) to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention;", "d) to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this Article is not complied with.", "Article 9 – Exceptions and restrictions", "No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this Article.", "Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a) protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b) protecting the data subject or the rights and freedoms of others.", "Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.”", "The Data Protection Convention is currently being updated.", "2. Comparative law material", "81. From the information available to the Court, it would appear that, apart from Finland, only Iceland, Italy, France, Monaco, Sweden and Switzerland provide for some form of public accessibility of individual taxation information.", "82. In contrast, of the 40 Council of Europe States surveyed, 34 provide, in principle, for the secrecy of personal taxation information. Such data can only be disclosed either with the consent of the person concerned or where disclosure is provided for by law. Exceptions to the secrecy rule exist also for certain types of taxation data (tax debts and exemptions, public registers for business activity) and for data concerning the tax affairs of public officials.", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "83. The Government raised two preliminary objections relating to the applicant companies ’ alleged failure to lodge their complaints within the six-month time-limit and to their lack of victim status.", "A. Six-month time-limit", "84. Before the Grand Chamber, the Government reiterated the preliminary objection raised before the Chamber to the effect that the complaints under Articles 6 § 1 and 10 of the Convention had not been lodged within the six-month time-limit regarding the first set of proceedings as required by Article 35 § 1 of the Convention (see paragraphs 13-22 above). Since the subject-matter of the two sets of proceedings was not the same, the present case had in effect involved two separate sets: the first concerning the question whether the applicant companies had processed personal taxation data unlawfully and the second the issuance of orders regarding the processing of personal data. Consequently, in the view of the Government, as regards the first set of proceedings, the application should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.", "85. The applicant companies argued that the initial aim of the Data Protection Ombudsman had been to obtain an order preventing the applicant companies from publishing Veropörssi. Since this was not accomplished until the second round, the proceedings could not be divided into two separate sets each one with independent and separable domestic remedies. Whereas the Supreme Administrative Court had referred the case back to the Data Protection Board in September 2009, it could instead have issued an order directly without such a referral. The applicant companies thus argued that their complaints under Articles 6 § 1 and 10 of the Convention had been lodged within the six-month time-limit.", "86. As noted by the Chamber, the first round of proceedings ended on 23 September 2009 when the Supreme Administrative Court quashed the lower court decisions and referred the case back to the Data Protection Board. As the case had been referred back to the Data Protection Board, there was no final decision, but the proceedings continued into a second round. The domestic proceedings became final only on 18 June 2012 when the Supreme Administrative Court delivered its second and final decision in the case (see paragraph 28 above).", "87. Like the Chamber, the Grand Chamber considers that, as there was only one final decision, there was only one set of proceedings for the purposes of the six-month time limit for the lodging of applications in Article 35 § 1, although the case was examined twice before the different levels of jurisdiction.", "88. In the circumstances, the Government ’ s first preliminary objection must be dismissed and the complaints under Articles 6 § 1 and 10 of the Convention must be considered as having been introduced within the time-limit.", "B. Lack of victim status", "89. In the course of the public hearing before the Grand Chamber, the Government raised, for the first time, an additional preliminary objection based on the fact that the first applicant company had been declared bankrupt on 15 March 2016, after the case had been referred to the Grand Chamber, with the result that it lacked victim status for the purposes of Article 34 of the Convention.", "90. The Court observes that the Government ’ s objection is based on the premise that the first applicant company and its assets had, since that date, been managed by the bankruptcy estate and that this change in its legal status had deprived that company of its victim status.", "91. It should be noted that it was only in September 2016 that the Government brought this matter to the Court ’ s attention. The applicant companies, for their part, informed the Court only a day before the hearing of the bankruptcy proceedings and of their representative ’ s capacity to represent them at the public hearing held on 14 September 2016.", "92. The Court would point out that, according to Rule 55 of the Rules of Court, “[a] ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application ... ”. However, the decision on the admissibility of the application was adopted on 21 July 2015, at which time the fact on which the Government ’ s objection relies had not yet occurred. Therefore, the Government were not in a position to comply with the time-limit established in Rule 55.", "93. The Court sees no need to determine whether the Government are now estopped from making the above objection on account of their delay in raising it (see paragraphs 89-91 above) since it finds in any event that it concerns a matter which goes to the Court ’ s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts) ).", "94. The administrator of the bankruptcy estate did not object to the company continuing to pursue their complaints before the Court, as indicated in a letter sent to the Court on the eve of the public hearing. Bearing in mind that the first applicant company still exists, pursuant to Finnish law, as a separate legal person, although governed by the bankruptcy administration, the Court considers that it can still claim to be a victim of the alleged violations of Articles 6 § 1 and 10 of the Convention.", "95. Consequently, the Government ’ s second preliminary objection is also dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "96. The applicant companies complained that their right to freedom of expression protected by paragraph 1 of Article 10 of the Convention had been interfered with in a manner which was not justified under its second paragraph. The collection of taxation information was not illegal as such and the information collected and published was in the public domain. Individual privacy rights were not violated.", "97. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "98. The Chamber considered that there had been an interference with the applicant companies ’ right to impart information, but that that interference had been “prescribed by law” and had pursued the legitimate aim of protecting the reputation or rights of others. As to the necessity of said interference in a democratic society, the Chamber noted that the taxation data in question were already a matter of public record in Finland and, as such, was a matter of public interest. This information had been received directly from the tax authorities and there was no evidence, according to the Chamber, or indeed any allegation, of factual errors, misrepresentation or bad faith on the part of the applicant companies. The only problematic issue for the national authorities and courts had been the manner and the extent to which the information could be published.", "99. The Chamber noted that, after having received the preliminary ruling from the CJEU, the Supreme Administrative Court had found that the publication of the whole database containing personal data collected for journalistic purposes could not be regarded as a journalistic activity. It had considered that the public interest did not require publication of personal data to the extent seen in the present case. The same applied also to the SMS service. The Chamber observed that, in its analysis, the Supreme Administrative Court had attached importance both to the applicant companies ’ right to freedom of expression and to the right to respect for the private life of those tax payers whose taxation information had been published. It had balanced these interests in its reasoning, interpreting the applicant companies ’ freedom of expression strictly, in line with the CJEU ruling on the need for a strict interpretation of the journalistic purposes derogation, in order to protect the right to privacy. The Chamber found this reasoning acceptable. According to the Chamber, the Court would, under such circumstances, require strong reasons to substitute its own view for that of the domestic courts.", "100. As regards the sanctions imposed by the domestic authorities, the Chamber noted that the applicant companies had not been prohibited generally from publishing the information in question but only to a certain extent. Their decision to shut down the business was thus not a direct consequence of the actions taken by the domestic courts and authorities but an economic decision made by the applicant companies themselves.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant companies", "101. The applicant companies maintained that the domestic decisions had prevented them from imparting information and had as a consequence impeded them “entirely” from carrying out their publishing activities. The said interference had taken the form of a prior ban. On 1 November every year, when the tax records of the previous year became public, numerous newspapers and other media published personal tax data in paper and electronic formats. This was no different from what the applicant companies had engaged in, apart from the quantity of the published data. The majority of the persons whose data were accessible in this way were not known to the public and were of varying backgrounds and professions. No particular judicial attention had ever been paid to the identity of the persons whose names and amounts of taxable income had been published. Nor had the activities of other media ever been subject to the Data Protection Ombudsman ’ s scrutiny.", "102. The applicant companies argued that this interference with their right to freedom of expression had not been “prescribed by law”. The publishing of taxation data had, in particular, been accepted by the Finnish legislator. The preparatory work relating to the Act on the Public Disclosure and Confidentiality of Tax Information noted that such publishing had taken place for years and also served certain societal purposes. A thorough discussion had taken place during the preparation of the said Act, assessing the pros and cons of publishing taxation data, and the legislator had finally decided to maintain public access to such data. The Personal Data Act was not intended to restrict publishing activities. The relevant preparatory work stated that the legal status of the data in question was to remain unchanged. The journalistic purposes derogation was to apply to databases that were designed to support publishing so as to prevent even indirect prior restrictions on freedom of expression. Possible violations of privacy were to be examined and dealt with ex post facto. On this basis the applicant companies argued that the interference had not been “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "103. The applicant companies also claimed that the interference had not been “necessary in a democratic society”. There had never been any issue as regards the accuracy of the information, only its quantity. The balancing criteria applied by the Court functioned best where the privacy of one or two persons was concerned. In such situations the data relating to a particular individual took prominence. When hundreds of thousands of names were published, all in the same manner, the information concerning a specific person “blended in”. The publication of such data could hardly violate anyone ’ s privacy. For such situations, a different type of balancing criteria ought to be applied in order to better take into account the nature of the mass data published, namely a criterion for protecting the privacy of a large population. Moreover, when other media had published taxation data on, for example, 150,000 individuals, it had never been requested that this information be viewed in the light of the Court ’ s balancing criteria. It was only when the applicant companies had published 1.2 million names that such criteria became applicable.", "104. The issue of public interest had been examined when the Act on the Public Disclosure and Confidentiality of Tax Information was enacted. According to the applicant companies, public access to tax data enabled the public to observe the results of tax policies and how differences in income and wealth developed, for example, between different regions, occupations and sexes. It also enabled supervision by the Finnish tax administration as people reported their suspicions of tax evasion directly to the tax administration. In 2015 alone, the tax administration had received 15,000 such reports. The applicant companies thus argued that a balance between the public and publishable tax records, on the one hand, and the protection of privacy, on the other hand, had already been struck by the Finnish legislator. Therefore, no margin of appreciation, or at least a very narrow one, was left to the domestic authorities. There was thus no need for any re-balancing. Contrary to Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I, the taxation information in the present case had been obtained lawfully by the applicant companies from public tax records, in the same manner as any other member of the public. The effect on a person ’ s privacy could not in any significant way be different depending on whether the information had been received from the applicant companies, other media or through a phone-in service operated by the tax administration itself. Since the information had been so readily available, its publication could not violate anyone ’ s privacy.", "105. Referring to the definition of journalistic activities set out in the draft EU General Data Protection Regulation, the applicant companies argued that their publishing activities should be considered as journalism. The reasoning of the Supreme Administrative Court was in contradiction with this definition, which fact was bound to endanger the very idea of freedom of expression. Given the terms of the Supreme Administrative Court ’ s judgment, one had to ask how much information needed to be published to transgress the limit between publishable and non-publishable information. The quantity and the manner in which taxation information could be lawfully published had, according to the applicant companies, never been defined. The national court had failed to take into account the balancing criteria in the Court ’ s case-law, and had only had regard to the public interest criterion. There should in any event be no upper limit on the quantity of information publishable.", "2. The Government", "106. The Government agreed, in essence, with the Chamber ’ s finding of no violation, but contended that there had been no interference with the applicant companies ’ right to impart information. The applicant companies could still collect and publish public taxation data in so far as they complied with the requirements of data protection legislation.", "107. In the event that the Court were to find that an interference had occurred, the Government agreed with the Chamber ’ s finding that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others. As to the further question whether any interference had been necessary in a democratic society, the Government shared the Chamber ’ s view that the general subject-matter, namely taxation data relating to natural persons ’ taxable income, was a matter of public interest. Taxation data were publicly available in Finland but had to be accessed and used in conformity with the Personal Data Act and the Act on the Openness of Government Activities. Public access to such information did not imply that that information could always be published. Respect for personal data and privacy under Article 8 of the Convention required the disclosure of such information to be subject to certain controls.", "108. The Government emphasised that the applicant companies had requested the data in question from the National Board of Taxation in 2000 and 2001. On the basis of an opinion received by the Board from the Data Protection Ombudsman, the Board had requested the applicant companies to provide further information regarding their request, and indicated that the data could not be disclosed if the publishing methods of Veropörssi continued unchanged. The applicant companies had then cancelled their request while explaining that they would provide information to the Data Protection Ombudsman and the National Board of Taxation the following year, which they never did. Instead, they employed people to collect taxation data manually at the local tax offices.", "109. The Government pointed out that, according to the Guidelines for Journalists which were in force at the material time, the right to privacy also applied when publishing public documents or other information originating from public sources. The Guidelines made clear that the public availability of information did not necessarily imply that it could be freely published.", "110. The Government noted that, as the domestic courts had made clear, the manner and extent of the publication were of importance. The data published in Veropörssi had encompassed data relating to 1.2 million persons, almost one third of all taxpayers in Finland. Other Finnish media published taxation data concerning 50,000 to 100,000 individuals annually, which was considerably less than the applicant companies. The latter published, without any analysis, data on persons with low or medium income who were not public figures and held no important positions in society. Their publishing activities could not therefore be viewed as data journalism aimed at drawing conclusions from such data and drawing attention to issues of public interest for public debate. Such publishing did not contribute to public debate in a manner that outweighed the public interest in protecting the processing of personal data to the described extent; it mainly satisfied readers ’ curiosity. The applicant companies had not been prevented from publishing taxation data as such or participating in any public debate on an issue of general importance.", "111. Should the public interest in ensuring the transparency of the taxation data require the possibility of their disclosure by, for instance, publishing the data by the media, the Government took the view that that aim could have been accomplished without processing personal data to the extent prohibited by the Personal Data Act and the Data Protection Directive. The present case differed from Fressoz and Roire v. France, cited above, in which the publishing of data concerned a single person having a key role in a public debate on a socially important issue. Contrary to the applicant companies ’ allegations, the present case was not abstract and hypothetical. Private persons had been affected by their activities: between 2000 and 2010 the Data Protection Ombudsman had received a number of complaints requesting his intervention. There was thus a pressing social need to protect private life under Article 8 of the Convention.", "112. Concerning the interpretation of the Data Protection Directive, the CJEU had noted in its preliminary ruling in the present case that it was necessary to interpret the notion of journalism broadly and that derogations and limitations in relation to data protection had to apply only insofar as was strictly necessary. The applicant companies were never prevented from publishing taxation information in general. They could have, had they so wished, adjusted their activities so as to comply with the Personal Data Act.", "113. Referring to the margin of appreciation, the Government emphasised, as did the Chamber, that the Court would need strong reasons to substitute its own view for that of the domestic courts. The domestic courts had been acting within the margin of appreciation afforded to them and had struck a fair balance between the competing interests at stake. The interference complained of was “necessary in a democratic society” and there had been no violation of Article 10 of the Convention.", "C. Third-party observations", "1. The European Information Society Institute", "114. The European Information Society Institute noted that data journalism involved the making of already existing information more useful to the public. Processing and analysing of available data on a particular topic was also an important journalistic activity in and of itself. To remove the protection of Article 10 when journalists published databases would jeopardise the protection that ought to be afforded to a wide range of activities in which journalists engaged to impart information to the public. If the use of new technologies could not find protection under Article 10, the right to impart information as well as the right to receive it would be seriously impaired.", "115. The traditional criteria for defining the limits on the quantity of information that could be published and processed by private actors were not well suited to balancing the tensions created by data journalism. The balancing factors previously used by the Court were not useful in cases like the present one. When data journalists made available information that was in the public interest, their actions should be supported in a democratic society – not silenced. The European Information Society Institute therefore suggested that the Court might revisit its method of applying the existing case-law in cases where journalists processed information in order to impart information to the public. It should extend the Article 10 protection to innovative forms of journalism and recognise that the standard for determining how Article 10 protected journalists engaged in the processing of data could have important consequences.", "2. NORDPLUS Law and Media Network", "116. NORDPLUS Law and Media Network noted that it was important for the Court to develop principles related to freedom of expression in the light of present day conditions and to consider how the established principles applied in the digital media context. Many UN, EU and OECD guidelines referred to media neutrality and technological neutrality when addressing the digital media environment. The present case provided a key opportunity to review the existing definition of “journalist”. The EU guidelines pointed out that there was a need to go beyond the notion of traditional journalists and widen its scope for the benefit of those whose freedom of expression should be protected. An extended scope could also have an impact on the balancing test and its possible reassessment. The Court should further elaborate on whether the concept of “chilling effect” should be viewed differently in the new media environment.", "117. Access to information was one of the cornerstones of participation in democratic debate and a precondition for the media in the performance of their role of public watchdog. Many countries had different traditions when it came to making information public. In Finland, transparency was a highly important societal value. NORDPLUS Law and Media Network concluded that the Court ’ s case-law needed further clarification in order to reduce the uncertainty that existed in the field of freedom of expression and the right to privacy in the digital media environment.", "3. ARTICLE 19, the Access to Information Programme and Társaság a Szabadságjogokért", "118. ARTICLE 19, the Access to Information Programme and Társaság a Szabadságjogokért noted that the CJEU had in 2008 adopted a wide definition of journalism in its case Satakunnan Markkinapörssi. The Committee of Ministers of the Council of Europe had also defined a journalist broadly as “any natural or legal person who [was] regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”. In Ireland, the High Court had extended the journalistic privilege to bloggers, and the UN Special Rapporteur on Freedom of Expression had noted in his 2015 report that persons other than professional journalists carried out a “vital public watchdog role”. The Court should therefore not set the standard of protection under Article 10 any lower than mentioned above.", "119. Disclosure of public personal data could contribute to the good of society by creating transparency and accountability around the actions of those who wielded power within society or, conversely, were engaged in unlawful conduct. Publication of such information did not merely satisfy the curiosity of readers but contributed substantially to the pursuit of public interest journalism. These arguments became even stronger if the personal data had previously been published by the State or had otherwise been deemed public under national legislation. The fact that such information was made public implied that there was a public interest regarding access to such information. The public interest in publishing such information outweighed privacy considerations and, once publication had taken place, the information could no longer be regarded as inherently private.", "D. The Court ’ s assessment", "1. Preliminary remarks on the scope and context of the Court ’ s assessment", "120. The Court notes at the outset that the present case is unusual to the extent that the taxation data at issue were publicly accessible in Finland. Furthermore, as emphasised by the applicant companies, they were not alone amongst media outlets in Finland in collecting, processing and publishing taxation data such as the data which appeared in Veropörssi. Their publication differed from that of those other media outlets by virtue of the manner and the extent of the data published.", "121. In addition, as also indicated in paragraph 81 above, only a very small number of Council of Europe member States provide for public access to taxation data, a fact which raises issues regarding the margin of appreciation which Finland enjoys when providing and regulating public access to such data and reconciling that access with the requirements of data protection rules and the right to freedom of expression of the press.", "122. Given this context and the fact that at the heart of the present case lies the question whether the correct balance was struck between that right and the right to privacy as embodied in domestic data protection and access to information legislation, it is necessary, at the outset, to outline some of the general principles deriving from the Court ’ s case-law on Article 10 and press freedom, on the one hand, and the right to privacy under Article 8 of the Convention in the particular context of data protection on the other.", "123. Bearing in mind the need to protect the values underlying the Convention and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, it is important to remember that the balance to be struck by national authorities between those two rights must seek to retain the essence of both (see also Delfi AS v. Estonia [GC], no. 64569/09, § 110, ECHR 2015).", "(a) Article 10 and press freedom", "124. The Court has consistently held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 101, ECHR 201 2; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts); and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016 ).", "125. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. The task of imparting information necessarily includes, however, “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Couderc and Hachette Filipacchi Associés, cited above, § 89; and Von Hannover (no. 2), cited above, § 102).", "126. The vital role of the media in facilitating and fostering the public ’ s right to receive and impart information and ideas has been repeatedly recognised by the Court. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role as “public watchdog” (see, recently, Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 165, 8 November 2016, ECHR 2016; and further authorities).", "127. Furthermore, the Court has consistently held that it is not for it, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V).", "128. Finally, it is well-established that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see, most recently, Magyar Helsinki Bizottság, cited above, § 130, with further references).", "( b) Article 8, the right to privacy and data protection", "129. As regards whether, in the circumstances of the present case, the right to privacy under Article 8 of the Convention is engaged given the publicly accessible nature of the taxation data processed and published by the applicant companies, the Court has constantly reiterated that the concept of “private life” is a broad term not susceptible to exhaustive definition (see S. and Marper v. the United Kingdom [GC], nos. 30562/0 4 and 30566/04, § 66, ECHR 2008; and Vukota-Bojić v. Switzerland, no. 61838/10, § 52, 18 October 2016 ).", "130. Leaving aside the numerous cases in which the Court has held that the right to privacy in Article 8 covers the physical and psychological integrity of a person, private life has also been held to include activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 B) or the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 IX (extracts)).", "131. Indeed, the Court has also held that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” for the purposes of Article 8 of the Convention (see Couderc and Hachette Filipacchi Associés, cited above, § 83; and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX).", "132. The vast majority of cases in which the Court has had to examine the balancing by domestic authorities of press freedom under Article 10 and the right to privacy under Article 8 of the Convention have related to alleged infringements of the right to privacy of a named individual or individuals as a result of the publication of particular material (see, for example, Flinkkilä and Others v. Finland, no. 25576/04, 6 April 2010; and Ristamäki and Korvola v. Finland, no. 66456/09, 29 October 2013 ).", "133. In the particular context of data protection, the Court has, on a number of occasions, referred to the Data Protection Convention (see paragraph 80 above), which itself underpins the Data Protection Directive applied by the domestic courts in the present case. That Convention defines personal data in Article 2 as “any information relating to an identified or identifiable individual”. In Amann, cited above, § 65, the Court provided an interpretation of the notion of “private life” in the context of storage of personal data when discussing the applicability of Article 8:", "“The Court reiterates that the storing of data relating to the ‘ private life ’ of an individual falls within the application of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48).", "It points out in this connection that the term ‘ private life ’ must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of ‘ private life ’ (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29; and the Halford judgment cited above, pp. 1015-16, § 42).", "That broad interpretation corresponds with that of the Council of Europe ’ s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is ‘ to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him ’ (Article 1), such personal data being defined as ‘ any information relating to an identified or identifiable individual ’ (Article 2).”", "134. The fact that information is already in the public domain will not necessarily remove the protection of Article 8 of the Convention. Thus, in Von Hannover v. Germany (no. 59320/00, §§ 74-75 and 77, ECHR 2004 VI), concerning the publication of photographs which had been taken in public places of a known person who did not have any official function, the Court found that the interest in publication of that information had to be weighed against privacy considerations, even though the person ’ s public appearance could be assimilated to “public information”.", "135. Similarly, in Magyar Helsinki Bizottság, cited above, §§ 176-178, central to the Court ’ s dismissal of privacy concerns was not the public nature of the information to which the applicant sought access, which is a factor to be considered in any balancing exercise, but rather the fact that the domestic authorities made no assessment whatsoever of the potential public-interest character of the information sought by the applicant in that case. Those authorities were rather concerned with the status of public defenders in relation to which the information was sought from the perspective of the Hungarian Data Act, which itself allowed for only very limited exceptions to the general rule of non-disclosure of personal data. Moreover, the respondent government in that case failed to demonstrate that the disclosure of the requested information could have affected the right to privacy of those concerned ( ibid ., § 194).", "136. It follows from well-established case - law that where there has been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise (see Uzun v. Germany, no. 35623/05, §§ 44-46, ECHR 2010 (extracts); see also Rotaru v. Romania, cited above, §§ 43-44; P.G. and J.H. v. the United Kingdom, cited above, § 57; Amann, cited above, §§ 65-67; and M.N. and Others v. San Marino, no. 28005/12, §§ 52-53, 7 July 2015 ).", "137. The protection of personal data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103). Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged.", "138. In the light of the foregoing considerations and the Court ’ s existing case-law on Article 8 of the Convention, it appears that the data collected, processed and published by the applicant companies in Veropörssi, providing details of the taxable earned and unearned income as well as taxable net assets, clearly concerned the private life of those individuals, notwithstanding the fact that, pursuant to Finnish law, that data could be accessed, in accordance with certain rules, by the public.", "2. Existence of an interference", "139. The Court notes that, by virtue of the decisions of the domestic data protection authorities and courts, the first applicant company was prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. Those courts found that the collection of personal data and their processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had subsequently been published in Veropörssi, the first applicant company, which was found not to be able to rely on the journalistic purposes derogation, had processed personal data concerning natural persons in violation of the Personal Data Act. The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company ’ s database and published in Veropörssi (see paragraph 23 above).", "140. The Court finds that the Data Protection Board ’ s decision, as upheld by the national courts, entailed an interference with the applicant companies ’ right to impart information as guaranteed by Article 10 of the Convention.", "141. In the light of paragraph 2 of Article 10, such an interference with the applicant companies ’ right to freedom of expression must be “prescribed by law”, have one or more legitimate aims and be “necessary in a democratic society”.", "3. Lawfulness", "142. The expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, amongst many authorities, Delfi AS, cited above, § 120, with further references).", "143. As regards the requirement of foreseeability, the Court has repeatedly held that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable a person to regulate his or her conduct. That person must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see further Delfi AS, cited above, § 121; and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012 ).", "144. The role of adjudication vested in the national courts is precisely to dissipate such interpretational doubts as may remain. The Court ’ s power to review compliance with domestic law is thus limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, amongst other authorities, Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 110, ECHR 2015, with further references ). Moreover, the level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Delfi AS, cited above, § 122; and Kudrevičius, cited above, § 110).", "145. The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Delfi AS, cited above, § 122, with further references; and, in the context of banking data, G.S.B. v. Switzerland, no. 28601/11, § 69, 22 December 2015).", "146. In the present case, the applicant companies and the Government (see paragraphs 102 and 107 above respectively) differed as to whether the interference with the applicant company ’ s freedom of expression was “prescribed by law”.", "147. As regards the existence of a clear legal basis for the impugned interference, the Court finds no reason to call into question the view taken by the Supreme Administrative Court in the instant case that the impugned interference had a legal basis in sections 2(5), 32 and 44(1) of the Personal Data Act (see paragraph 22 above).", "148. As regards the foreseeability of the domestic legislation and its interpretation and application by the domestic courts, in the absence of a provision in the domestic legislation explicitly regulating the quantity of data which could be published and in view of the fact that several media outlets in Finland were also engaged in publication of similar taxation data to some extent, the question arises whether the applicant companies could be considered to have foreseen that their specific publishing activities would fall foul of the existing legislation, bearing in mind in this connection the existence of the journalistic purposes derogation.", "149. For the Court, the terms of the relevant data protection legislation and the nature and scope of the journalistic derogation on which the applicant companies sought to rely were sufficiently foreseeable and those provisions were applied in a sufficiently foreseeable manner following the interpretative guidance provided to the Finnish court by the CJEU. The Personal Data Act transposed the Data Protection Directive into Finnish law. According to the Act, the processing of personal data meant the collection, recording, organisation, use, transfer, disclosure, storage, manipulation, combination, protection, deletion and erasure of personal data, as well as other measures directed at personal data (see paragraph 34 above). It seems reasonably clear from this wording and from the relevant preparatory work (see paragraph 36 above) that there was a possibility that the national competent authorities would one day arrive at the conclusion, as they did in this case, that a database established for journalistic purposes could not be disseminated as such. The quantity and form of the data published could not exceed the scope of the derogation and the derogation, by its nature, had to be restrictively interpreted, as the CJEU clearly indicated.", "150. Even if the applicant companies ’ case was the first of its kind under the Personal Data Act, that would not render the domestic courts ’ interpretation and application of the journalistic derogation arbitrary or unpredictable (see Kudrevičius, cited above, § 115; and, mutatis mutandis, in relation to Article 7 of the Convention, Huhtamäki v. Finland, no. 54468/09, § 51, 6 March 2012, with further references), nor would the fact that the Supreme Administrative Court sought guidance from the CJEU on the interpretation of the derogation in Article 9 of the Data Protection Directive. Indeed, as regards the latter, the Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU Member States and the CJEU in the form of references from the former for preliminary rulings by the latter (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 164, ECHR 2005 ‑ VI; and Avotiņš v. Latvia [GC], no. 17502/07, §§ 105 and 109, ECHR 2016 ).", "151. Moreover, the applicant companies were media professionals and, as such, they should have been aware of the possibility that the mass collection of data and its wholesale dissemination – pertaining to about one third of Finnish taxpayers or 1.2 million people, a number 10 to 20 times greater than that covered by any other media organisation at the time – might not be considered as processing “solely” for journalistic purposes under the relevant provisions of Finnish and EU law.", "152. In the instant case, following their requests for data from the National Board of Taxation in 2000 and 2001, the applicant companies were requested by the Data Protection Ombudsman to provide further information regarding those requests and were told that the data could not be disclosed if Veropörssi continued to be published in its usual form. Instead of complying with the request for more information of the Ombudsman, the applicant companies circumvented the usual route for journalists to access the taxation data sought and organised for the latter to be collected manually at the local tax offices (see paragraph 12 above). It is not for the Court to speculate on the reasons why they acted in this way but the fact that they did suggests some anticipation, on their part, of difficulties in relying on the journalistic purposes derogation and the relevant national legislation on access to taxation data.", "153. Furthermore, the 1992 version of the Guidelines for Journalists – reproduced in 2005, 2011 and 2014 – indicated clearly that the principles concerning the protection of an individual also applied to the use of information contained in public documents or other public sources and that the mere fact that information was accessible to the public did not always mean that it was freely publishable. These guidelines, which were intended to ensure self-regulation by Finnish journalists and publishers, must have been familiar to the applicant companies.", "154. In light of the above considerations, the Court concludes that the impugned interference with the applicant companies ’ right to freedom of expression was “prescribed by law”.", "4. Legitimate aim", "155. The parties did not in substance dispute that the interference with the applicant companies ’ freedom of expression could be regarded as pursuing the legitimate aim of protecting “the reputation and rights of others”.", "156. However, the applicant companies argued that while the need to protect against violations of privacy might be a relevant consideration, it was one which the Finnish legislator had already taken into account, assessed and accepted when adopting the Personal Data Act. In their view, the alleged need to protect privacy in the instant case was abstract and hypothetical. Any threat to privacy had been practically non-existent and, in any event, the case was not at all about the privacy of isolated individuals.", "157. The Court notes that, contrary to the suggestions of the applicant companies, it emerges clearly from the case file that the Data Protection Ombudsman acted on the basis of concrete complaints from individuals claiming that the publication of taxation data in Veropörssi infringed their right to privacy. As is clear from the figures indicated in paragraph 9 above, a very large group of natural persons who were taxpayers in Finland had been directly targeted by the applicant companies ’ publishing practice. It is arguable that all Finnish taxpayers were affected, directly or indirectly, by the applicant companies ’ publication since their taxable income could be estimated by readers by virtue of their inclusion in or exclusion from the lists published in Veropörssi.", "158. Leaving aside the question whether it would have been necessary to identify individual complainants at national level, the applicant companies ’ argument fails to appreciate the nature and scope of the duties of the domestic data protection authorities pursuant to, inter alia, section 44 of the Personal Data Act and the corresponding provisions of the Data Protection Directive. As regards the latter, it is noteworthy that the CJEU has held that the guarantee of the independence of national supervisory authorities was established in order to strengthen the protection of individuals and bodies affected by the decisions of those authorities. In order to guarantee that protection, the national supervisory authorities must, in particular, ensure a fair balance between, on the one hand, observance of the fundamental right to privacy and, on the other hand, the interests requiring free movement of personal data (see the CJEU judgment in the Schrems case, cited in paragraph 76 above). The protection of privacy was thus at the heart of the data protection legislation for which these authorities were mandated to ensure respect.", "159. In the light of the above considerations and taking into account the aims of the Data Protection Convention, reflected in Directive 95/46 and, more recently, in Regulation 2016/79 (see paragraphs 59 and 67 above), it is clear that the interference with the applicant companies ’ right to freedom of expression pursued the legitimate aim of protecting “the reputation or rights of others”, within the meaning of Article 10 § 2 of the Convention.", "5. Necessary in a democratic society", "160. The core question in the instant case, as indicated previously, is whether the interference with the applicant companies ’ right to freedom of expression was “necessary in a democratic society” and whether, in answering this question, the domestic courts struck a fair balance between that right and the right to respect for private life.", "161. Having outlined above – see paragraphs 120-138 ‒ some general principles relating to the rights to freedom of expression and respect for private life, as well as why Article 8 of the Convention is clearly engaged in circumstances such as these, the Court considers it useful to reiterate the criteria for balancing these two rights in the circumstances of a case such as the present one.", "(a) General principles concerning the margin of appreciation and balancing of rights", "162. The choice of the means calculated to secure compliance with Article 8 of the Convention is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative (see Couderc and Hachette Filipacchi Associés, cited above, § 90; and Von Hannover (no. 2), cited above, § 104, with further references). Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary ( ibid. ).", "163. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court reiterates that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as indicated previously, these rights deserve equal respect (see paragraph 123 above). Accordingly, the margin of appreciation should in principle be the same in both situations.", "164. According to the Court ’ s established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). The margin of appreciation left to the national authorities in assessing whether such a need exists and what measures should be adopted to deal with it is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. As indicated above, when exercising its supervisory function, the Court ’ s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, in particular, the summary of the relevant principles in Perinçek v. Switzerland [GC], no. 27510/08, § 198, ECHR 2015 (extracts); and, in particular, Von Hannover (no. 2), cited above, § 105). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Couderc and Hachette Filipacchi Associés, cited above, § 92; and Von Hannover (no. 2), cited above, § 107).", "165. The Court has already had occasion to lay down the relevant principles which must guide its assessment – and, more importantly, that of domestic courts – of necessity. It has thus identified a number of criteria in the context of balancing the competing rights. The relevant criteria have thus far been defined as: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where it arises, the circumstances in which photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés, cited above, § 93; Von Hannover (no. 2), cited above, §§ 109-13; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90-95, 7 February 2012).", "166. The Court considers that the criteria thus defined may be transposed to the present case, albeit certain criteria may have more or less relevance given the particular circumstances of the present case which, as explained previously (see paragraphs 8-9 above), concerned the mass collection, processing and publication of data which were publicly accessible in accordance with certain rules and which related to a large number of natural persons in the respondent State.", "(b) Application of the relevant general principles to the present case", "( i ) Contribution of the impugned publication to a debate of public interest", "167. There is, as the Court has consistently held, little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V). The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned (see Couderc and Hachette Filipacchi Associés, cited above, § 96, with further references).", "168. In ascertaining whether a publication disclosing elements of private life also concerned a question of public interest, the Court has taken into account the importance of the question for the public and the nature of the information disclosed (see Couderc and Hachette Filipacchi Associés, cited above, § 98; and Von Hannover no. 2, cited above, § 109).", "169. The public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures. However, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person ’ s private life, however well-known that person might be, cannot be deemed to contribute to a debate of public interest (see Von Hannover, cited above, § 65; MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011; and Alkaya v. Turkey, no. 42811/06, § 35, 9 October 2012).", "170. In order to ascertain whether a publication concerning an individual ’ s private life is not intended purely to satisfy the curiosity of a certain readership, but also relates to a subject of general importance, it is necessary to assess the publication as a whole and have regard to the context in which it appears (see Couderc and Hachette Filipacchi Associés, cited above, § 102; Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007; Björk Eiðsdóttir v. Iceland, no. 46443/09, § 67, 10 July 2012; and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 64, 10 July 2012).", "171. Public interest ordinarily relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. The public interest cannot be reduced to the public ’ s thirst for information about the private life of others, or to an audience ’ s wish for sensationalism or even voyeurism (see Couderc and Hachette Filipacchi Associés, cited above, §§ 101 and 103, and the further references cited therein).", "172. It is unquestionable that permitting public access to official documents, including taxation data, is designed to secure the availability of information for the purpose of enabling a debate on matters of public interest. Such access, albeit subject to clear statutory rules and restrictions, has a constitutional basis in Finnish law and has been widely guaranteed for many decades (see paragraphs 37-39 above).", "173. Underpinning the Finnish legislative policy of rendering taxation data publicly accessible was the need to ensure that the public could monitor the activities of government authorities. While the applicant companies referred to the fact that access to taxation data also enabled supervision by citizens of one another and the reporting of tax evasion, the Court has not, on the basis of the relevant preparatory works and the material available to it, been able to confirm that this was the objective of the Finnish access regime (see paragraph 43 above) or that, over time, this supervisory purpose developed.", "174. Nevertheless, public access to taxation data, subject to clear rules and procedures, and the general transparency of the Finnish taxation system does not mean that the impugned publication itself contributed to a debate of public interest. Taking the publication as a whole and in context and analysing it in the light of the above-mentioned case-law (see paragraphs 162-166 above), the Court, like the Supreme Administrative Court, is not persuaded that publication of taxation data in the manner and to the extent done by the applicant companies contributed to such a debate or indeed that its principal purpose was to do so.", "175. The journalistic purposes derogation in section 2(5) of the Personal Data Act is intended to allow journalists to access, collect and process data in order to ensure that they are able to perform their journalistic activities, themselves recognised as essential in a democratic society. This point was clearly made by the Supreme Administrative Court in its decision of 2009 (see paragraph 22 above), where it stated that restricting the processing of taxation data by journalists at the pre-publication or disclosure stage would have been impermissible as in practice it could have meant that a decision was being taken on what material could be published. However, the existence of a public interest in providing access to, and allowing the collection of, large amounts of taxation data did not necessarily or automatically mean that there was also a public interest in disseminating en masse such raw data in unaltered form without any analytical input. It had been made clear in the preparatory work on the domestic legislation (see paragraph 36 above) that databases established for journalistic purposes were not intended to be made available to persons not engaged in journalistic activities, thus underlining that the journalistic privilege in question related to the processing of data for internal purposes. This distinction between the processing of data for journalistic purposes and the dissemination of the raw data to which the journalists were given privileged access is clearly made by the Supreme Administrative Court in its first decision of 2009.", "176. Furthermore, reliance on the derogation depended on the processing of the data being carried out “solely” for journalistic purposes. Yet, as the Supreme Administrative Court found, the publication of the taxation data in Veropörssi almost verbatim, as catalogues, albeit split into different parts and sorted by municipality, amounted to the disclosure of the entire background file kept for journalistic purposes and there could be no question, in such circumstances, of an attempt solely to express information, opinions or ideas. While the applicant companies argued that the public disclosure of tax records enabled the public to observe results of tax policy – how differences between income and wealth develop, for example, between regions, professions and on the basis of gender – they did not explain how their readers would be able to engage in this type of analysis on the basis of the raw data, published en masse, in Veropörssi.", "177. Finally, while the information might have enabled curious members of the public to categorise named individuals, who are not public figures, according to their economic status, this could be regarded as a manifestation of the public ’ s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism (see Couderc and Hachette Filipacchi Associés, cited above, § 101).", "178. In the light of these considerations, the Court cannot but agree with the Supreme Administrative Court that the sole object of the impugned publication was not, as required by domestic and EU law, the disclosure to the public of information, opinions and ideas, a conclusion borne out by the layout of the publication, its form, content and the extent of the data disclosed. Furthermore, it does not find that the impugned publication could be regarded as contributing to a debate of public interest or assimilated to the kind of speech, namely political speech, which traditionally enjoys a privileged position in its case-law, thus calling for strict Convention scrutiny and allowing little scope under Article 10 § 2 of the Convention for restrictions (see, in this regard, Sürek v. Turkey (no. 1), cited above, § 61; and Wingrove, cited above, § 58).", "(ii) Subject of the impugned publication and how well-known were the persons concerned", "179. The data published in Veropörssi comprised the surnames and names of natural persons whose annual taxable income exceeded certain thresholds (see paragraph 9 above). The data also comprised the amount, to the nearest EUR 100, of their earned and unearned income as well as details relating to their taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and were organised according to municipality and income bracket.", "180. In the present case, 1.2 million natural persons were the subject of the Veropörssi publication. They were all taxpayers but only some, indeed very few, were individuals with a high net income, public figures or well-known personalities within the meaning of the Court ’ s case-law. The majority of the persons whose data were listed in the newspaper belonged to low income groups. It was estimated that the data covered one third of the Finnish population and the majority of all full-time workers. Unlike other Finnish publications, the information published by the applicant companies did not pertain specifically to any particular category of persons such as politicians, public officials, public figures or others who belonged to the public sphere by dint of their activities or high earnings (see, in that regard, Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000 ‑ I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006). As the Court has previously stated, such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large (see, inter alia, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103 and Couderc and Hachette Filipacchi Associés, cited above, §§ 120-121).", "181. The applicant companies rely on the relative anonymity of the natural persons whose names and data featured in the newspaper and were accessible via the SMS service, as well as the sheer amount of data published, to downplay any interference with their privacy rights, suggesting that the more they published the less they interfered with privacy given what they described as a “blending in” factor (see paragraph 103 above). However, even assuming that such a factor could operate to attenuate or diminish the degree of interference resulting from the impugned publication, it fails to take into account the personal nature of the data and the fact that it was provided to the competent tax authorities for one purpose but accessed by the applicant companies for another. It also ignores the fact that the manner and extent of the publication meant that, in one way or another, the resulting publication extended to the entire adult population, uncovered as beneficiaries of a certain income if included in the list but also of not being in receipt of such an income if excluded because of the threshold salaries involved (see also paragraph 157 above). It is the mass collection, processing and dissemination of data which data protection legislation such as that at issue before the domestic courts is intended to address.", "(iii) Manner of obtaining the information and its veracity", "182. The accuracy of the information published was never in dispute in the present case. The published information was collected in the local tax offices and was accurate.", "183. As to the manner in which the information was obtained, it is important to remember that, in the area of press freedom the Court has held that, by reason of the duties and responsibilities inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of public interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Magyar Helsinki Bizottság, cited above, § 159, with further references).", "184. The Court reiterates that, in the present case, the applicant companies cancelled their request for data from the National Board of Taxation and instead hired people to collect taxation data manually at the local tax offices (see paragraph 12 above). They thereby circumvented both the legal limitations (the obligation to substantiate that the data would be collected for a journalistic purpose and not be published as a list) and the practical limitations (by employing people to collect the information manually in order to gain unlimited access to the personal taxation data with a view to its subsequent dissemination) imposed by the relevant domestic legislation. The data were then published in raw form, as catalogues or lists.", "185. While the Court cannot but agree with the Chamber judgment that the data were not obtained by illicit means, it is clear that the applicant companies had a policy of circumventing the normal channels open to journalists to access taxation data and, accordingly, the checks and balances established by the domestic authorities to regulate access and dissemination.", "(iv) Content, form and consequences of the publication and related considerations", "186. The Court has held, as indicated previously (see paragraph 127 above), that the approach to covering a given subject is a matter of journalistic freedom. It is for neither the Court nor the domestic courts, to substitute their own views for those of the press in this area (see Jersild, cited above, § 31; and Couderc and Hachette Filipacchi Associés, cited above, § 139). Article 10 of the Convention also leaves it to journalists to decide what details ought to be published in order to ensure an article ’ s credibility (see Fressoz and Roire, cited above, § 54; and ibid .). In addition, journalists enjoy the freedom to choose, from the news items that come to their attention, which they will deal with and how. This freedom, however, is not devoid of responsibilities ( ibid. ). The choices that they make in this regard must be based on their profession ’ s ethical rules and codes of conduct (see Couderc and Hachette Filipacchi Associés, cited above, § 138).", "187. Where the impugned information was already publicly available, the Court has had regard to this factor in its assessment of whether the impugned restriction on freedom of speech was “necessary” for the purposes of Article 10 § 2. In some cases it has been a decisive consideration leading the Court to find a violation of the Article 10 guarantee (see Weber v. Switzerland, 22 May 1990, §§ 48-52, Series A no. 177; Observer and Guardian v. the United Kingdom, 26 November 1991, §§ 66-71, Series A no. 216; The Sunday Times v. the United Kingdom (no. 2), 26 November 1 991, §§ 52-56, Series A no. 217; and Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, §§ 41-46, Series A no. 306-A) while in others, notably regarding the freedom of the press to report on public court proceedings, the fact that the information was in the public domain was found to be outweighed by the need to protect the right to respect for private life under Article 8 of the Convention (see Egeland and Hanseid v. Norway, no. 34438/04, §§ 62-63, 16 April 2009; and Shabanov and Tren v. Russia, no. 5433/02, §§ 4 4 -50, 14 December 2006).", "188. It is noteworthy that the CJEU has made clear – not least in Satakunnan Markkinapörssi Oy, cited above, § 48; and Google Spain, cited above, § 30 – that the public character of data processed does not exclude such data from the scope of the Data Protection Directive and the guarantees the latter lays down for the protection of privacy (see paragraphs 20 and 75 above).", "189. Whilst the taxation data in question were publicly accessible in Finland, they could only be consulted at the local tax offices and consultation was subject to clear conditions. The copying of that information on memory sticks was prohibited. Journalists could receive taxation data in digital format, but retrieval conditions also existed and only a certain amount of data could be retrieved. Journalists had to specify that the information was requested for journalistic purposes and that it would not be published in the form of a list (see paragraphs 49-51 above). Therefore, while the information relating to individuals was publicly accessible, specific rules and safeguards governed its accessibility.", "190. The fact that the data in question were accessible to the public under the domestic law did not necessarily mean that they could be published to an unlimited extent (see paragraphs 48 and 54 above). Publishing the data in a newspaper, and further disseminating that data via an SMS service, rendered it accessible in a manner and to an extent not intended by the legislator.", "191. As indicated previously, the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see paragraph 128 above). It is noteworthy that, in the instant case, the Supreme Administrative Court did not seek to interfere with the collection by the applicant companies of raw data, an activity which goes to the heart of press freedom, but rather with the dissemination of data in the manner and to the extent outlined above.", "192. It is also necessary, at this point, to reiterate that Finland is one of very few Council of Europe Member States which provides for this degree of public access to taxation data. When assessing the margin of appreciation in a case such as this, as well as the proportionality of the impugned interference and the Finnish regime pursuant to which it was adopted, the Court must also assess the legislative choices which lay behind it and, in that context, the quality of the parliamentary and judicial review of the necessity of that legislation and the measures adopted on that basis which interfere with freedom of expression (see, in this regard, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §§ 108 and 110, ECHR 2013 (extracts)).", "193. As both parties have demonstrated, parliamentary review of Finnish legislation relating to access to information and taxation data in particular, as well as that relating to data protection, has been both exacting and pertinent. That scrutiny and debate at domestic level was furthermore reflected in the data protection context at EU level, when it came to the adoption of the Data Protection Directive and, subsequently, of Regulation 2016/79.", "194. The Court observes that the Finnish legislator had decided, in adopting the Act on the Public Disclosure and Confidentiality of Tax Information, to maintain the public accessibility of the taxation data in question. Although a balancing exercise between the private and public interests involved had thus been conducted when this issue was decided by the Finnish Parliament, it does not follow that the treatment of such taxation data would no longer be subject to any data protection considerations as the applicant companies contend. Section 2(5) of the Personal Data Act was adopted to reconcile the rights to privacy and freedom of expression and to accommodate the role of the press but reliance on this journalistic derogation was, as the Supreme Administrative Court indicated, dependent on the fulfilment of certain conditions. The Public Disclosure and Confidentiality of Tax Information also clearly stated that such information “is public to the extent provided in this Act” (see paragraph 39 above).", "195. The Court emphasises that the safeguards in national law were built in precisely because of the public accessibility of personal taxation data, the nature and purpose of data protection legislation and the accompanying journalistic derogation. Under these circumstances, and in line with the approach set out in Animal Defenders International (cited above, § 108), the authorities of the respondent State enjoyed a wide margin of appreciation in deciding how to strike a fair balance between the respective rights under Articles 8 and 10 of the Convention in this case. Furthermore, while the margin of appreciation of any State must be limited and its exercise is subject to external supervision by the Court, the latter may also take into consideration, when assessing the overall balance struck, the fact that that State, somewhat exceptionally, as a matter of constitutional choice and, in the interests of transparency, has chosen to make taxation data accessible to the public.", "196. In the instant case, the domestic courts, when weighing these rights, sought to strike a balance between freedom of expression and the right to privacy embodied in data protection legislation. Applying the derogation in section 2(5) of the Personal Data Act and the public interest test to the impugned interference, they and, in particular, the Supreme Administrative Court, analysed the relevant Convention and CJEU case-law and carefully applied the case-law of the Court to the facts of the instant case.", "(v) Gravity of the sanction imposed on the journalists or publishers", "197. As indicated in the Chamber judgment, the applicant companies were not prohibited from publishing taxation data or from continuing to publish Veropörssi, albeit they had to do so in a manner consistent with Finnish and EU rules on data protection and access to information. The fact that, in practice, the limitations imposed on the quantity of the information to be published may have rendered some of their business activities less profitable is not, as such, a sanction within the meaning of the case-law of the Court.", "(vi) Conclusion", "198. In the light of the aforementioned considerations, the Court considers that, in assessing the circumstances submitted for their appreciation, the competent domestic authorities and, in particular, the Supreme Administrative Court gave due consideration to the principles and criteria as laid down by the Court ’ s case-law for balancing the right to respect for private life and the right to freedom of expression. In so doing, the Supreme Administrative Court attached particular weight to its finding that the publication of the taxation data in the manner and to the extent described did not contribute to a debate of public interest and that the applicants could not in substance claim that it had been done solely for a journalistic purpose within the meaning of domestic and EU law. The Court discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them (see Von Hannover (no. 2), cited above, § 107; and Perinçek, cited above, § 198). It is satisfied that the reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake.", "199. The Court therefore concludes that there has been no violation of Article 10 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "200. The applicant companies complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts.", "The relevant parts of Article 6 § 1 of the Convention read as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "A. The Chamber judgment", "201. The Chamber noted that the impugned proceedings before the domestic authorities and courts had lasted over six years and six months at two levels of jurisdiction, of which both levels twice. There had not been any particularly long period of inactivity on the part of the authorities and domestic courts. Even though the case had been of some complexity, it could not be said that this in itself had justified the entire length of the proceedings. According to the Chamber, the excessive total length of the proceedings could be attributed essentially to the fact that the case had been examined twice by each level of jurisdiction.", "B. The parties ’ submissions", "1. The applicant companies", "202. The applicant companies submitted that the legal proceedings in the present case had lasted eight years at three levels of jurisdiction, each jurisdiction examining the case twice. It would have been within the power of the Supreme Administrative Court to issue the order of prohibition in its first decision in 2009, without referring the case back to the Data Protection Board. This could have been done in the name of procedural economy and with due regard for the applicant companies ’ right to a fair trial within a reasonable time. The length of the proceedings had thus violated the applicant companies ’ right guaranteed by Article 6 § 1 of the Convention.", "2. The Government", "203. The Government disagreed with the Chamber ’ s findings. They considered that, excluding the time taken for the preliminary reference to the CJEU, the first set of proceedings had lasted three years and three and a half months and the second some two years and three months. The total length had therefore been five years and seven months, from which six months should be deducted as it related to the preparation at national level of that preliminary reference. The overall length was thus five years and seven days.", "204. The Government noted that none of the procedural stages had lasted very long. The case had involved two separate sets of proceedings as the subject-matter of the two sets of proceedings was not the same, in spite of the fact that the proceedings related to the same parties and the same facts. The first set of proceedings had concerned the issue of whether the applicant companies had processed personal data in conflict with the provisions of the Personal Data Act. The Supreme Administrative Court had quashed the appealed decision and referred the matter back to the Data Protection Board, which had to conduct a new administrative consideration of the matter and to make a new administrative decision. The second set of proceedings had concerned the question of whether the Data Protection Board ’ s new decision of 26 November 2009 had corresponded to the previous Supreme Administrative Court ’ s decision.", "205. The Government noted that the matter was exceptionally complex from a legal point of view. In addition to the normal preparation of the case, it also included the drafting of the request to the CJEU for a preliminary ruling, the related interlocutory decision and two hearings. The present case was the first of its kind where the freedom to impart taxation information and data protection concerns were dealt with by the national authorities. No prior domestic case-law existed on this subject.", "206. Furthermore, the applicant companies ’ conduct had prolonged the second set of proceedings by one and a half months, a delay which could not be attributed to the Government.", "207. The Government concluded that in view of the particular circumstances of the case, the proceedings had been conducted within a reasonable time within the meaning of Article 6 § 1 of the Convention.", "C. The Court ’ s assessment", "208. The Court notes that the period to be taken into consideration began on 12 February 2004 when the Data Protection Board ’ s first decision was appealed against, and ended on 18 June 2012 when the Supreme Administrative Court gave a final decision in the case. The case was pending before the CJEU for a preliminary ruling for one year and ten months which time, according to the Court ’ s case-law, is to be excluded from the length attributable to the domestic authorities (see Pafitis and Others v. Greece, 26 February 1998, § 95, Reports 1998 ‑ I; and Koua Poirrez v. France, no. 40892/98, § 61, ECHR 2003 ‑ X). Deducting this period from the overall duration, the impugned proceedings before the domestic authorities and courts lasted over six years and six months, twice at two different levels of jurisdiction.", "209. The reasonableness of the length of proceedings must be assessed, in accordance with well-established case-law, in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 143, ECHR 2016 (extracts)).", "210. The Court agrees with the Government that the proceedings were not characterised by any particularly long period of inactivity on the part of the domestic authorities and courts. The proceedings were pending before the domestic authorities and courts for approximately one and a half years for each stage, which cannot be considered excessive as such.", "211. The total length of the proceedings is nonetheless excessive, which seems to have been caused by the fact that the case was examined twice by each level of jurisdiction. The Court considers that even if one were to accept the Government ’ s argument that the applicant companies ’ conduct had prolonged the second set of proceedings by one-and-a-half months and that this period ought to be deducted from the overall length, the total length of the proceedings would still be excessive.", "212. The Court is of the view that the case was indeed legally complex, a fact demonstrated by a paucity of jurisprudence at Finnish level, the need to refer questions relating to the interpretation of EU law to the CJEU and the very fact that the case was referred to the Grand Chamber of this Court. However, it cannot be said that the legal complexity of the case in itself justified the entire length of the proceedings. Some of this complexity was, in addition, caused by the fact that the case was referred back to the Data Protection Board for a new examination.", "213. As regards what was at stake for the applicant companies, it is uncontested that the impugned national decisions had consequences for both the extent to which and the form in which the applicant companies could publish the taxation data and therefore continue their publishing activities unchanged.", "214. Having examined all the material submitted to it, the Court considers that, even taking into account the complexity of the case from a legal point of view, the length of the proceedings as a whole was excessive and failed to meet the reasonable time requirement.", "215. There has therefore been a breach of Article 6 § 1 of the Convention on account of the length of the proceedings.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "216. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "217. The applicant companies claimed EUR 900,000 in respect of pecuniary damage, corresponding to a net loss of income for three years. They did not specify their claim for pecuniary damage further with reference to the two Articles of the Convention which they alleged had been violated.", "218. The Government agreed with the Chamber that no causal link had been established between the damage claimed and the alleged violation of Article 6 § 1 of the Convention. Nor had any causal link been established between the damage claimed and the alleged violation of Article 10 of the Convention. According to the Government, no compensation should thus be awarded under this head. Were the Court to consider that pecuniary damage was due, the application of Article 41 of the Convention should be reserved.", "219. The Court does not discern, on the basis of the material submitted to it, any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by the applicant companies. The Court therefore rejects this claim. As to the non-pecuniary damage, the Court notes that the applicant companies have made no claim under that head.", "B. Costs and expenses", "220. The applicant companies claimed EUR 58,050 in respect of costs and expenses incurred both before the domestic courts and the Court.", "221. The Government noted that the Chamber had awarded the applicant companies EUR 9,500 (inclusive of value-added tax) to cover the costs claimed at both levels. In the Government ’ s view this sum was reasonable and should not be increased.", "222. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, no documentary evidence supporting the claim for legal fees before the Grand Chamber has been submitted to the Court, as required by Rule 60 § 2 of the Rules of Court. The additional claim for costs and expenses incurred in the proceedings before the Grand Chamber must thus be rejected. Regard being had to the documentary proof provided by the applicant companies in support of their claim at the Chamber level and the above criteria, the Court considers it reasonable to award the sum of EUR 9,500 (inclusive of value-added tax) covering costs incurred before the domestic courts and the Chamber.", "C. Default interest", "223. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "10. The applicant is a British citizen and was born on 2 December 1959. Following the death of his mother, he was received into care by the Liverpool City Council under section 1 of the Children Act 1948 (\"the 1948 Act\") on 1 September 1960. Save for five periods varying between one week and five months when he was discharged to the care of his father, the applicant remained in voluntary care until 18 June 1974. On that date the applicant appeared before the Liverpool Juvenile Court and pleaded guilty to a number of offences including burglary and theft. The court made a care order in respect of him under section 7 of the Children and Young Persons Act 1969. The applicant ceased to be in the care of the Liverpool City Council on attaining the age of majority (18) on 2 December 1977.", "During the major part of the period while he was in care the applicant was boarded out with various foster parents, subject to the provisions of the Boarding-Out of Children Regulations 1955 (\"the 1955 Regulations\"). Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care (see paragraph 13 below).", "11. The applicant contends that he was ill-treated in care, and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past.", "12. On 9 October 1978, the applicant was permitted by a social worker in the employment of the Liverpool City Council to see the case records relating to him kept by the Social Services Department of the Council in accordance with its statutory duty. He removed those records without the Council ’ s consent, retaining them in his possession until he returned them to the Social Services Department on 12 October 1978.", "I. THE APPLICANT ’ S CASE RECORDS AND THE APPLICATION FOR DISCOVERY THEREOF", "13. It is the practice of the local authorities to keep a case record in respect of every child in care. In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of the 1955 Regulations, which were made under section 14 of the 1948 Act. Regulation 10 of the 1955 Regulations, so far as relevant, provides that:", "\"10.-(1) A local authority shall compile a case record in respect of -", "(a) every child boarded out by them;", "(b) ...", "(c) ... and the said records shall be kept up-to-date.", "(2) ...", "(3) Every case record compiled under this Regulation or a microfilm recording thereof shall be preserved for at least three years after the child to whom it relates has attained the age of eighteen years or has died before attaining that age, and such microfilm recording or, where there is none, such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of State.\"", "14. In 1979 the applicant, wishing to bring proceedings against the local authority for damages for negligence, made an application under section 31 of the Administration of Justice Act 1970 (\"the 1970 Act\") for discovery of the local authority ’ s case records made during his period in care. Section 31 of the 1970 Act provides, inter alia, that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries.", "15. The application was heard by the High Court on 22 February 1980. The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest. The principal contributors to those case records were medical practitioners, school teachers, police and probation officers, social workers, health visitors, foster parents and residential school staff. Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible. If discovery were ordered, the public interest in the proper operation of the child-care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future.", "16. The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery, for the purpose of his proposed proceedings for personal injuries against the local authority. He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available.", "17. The judge did not read the records in question, but balanced the public interest in maintaining an efficient child-care system with the applicant ’ s private interest in receiving access to his case records for the purpose of the proposed litigation. After referring to the case of Re D (infants) [1970] 1 Weekly Law Reports (\"WLR\") 599, in which Lord Denning, Master of the Rolls, held that case records compiled pursuant to Regulation 10 of the 1955 Regulations were regarded as private and confidential, he concluded:", "\"I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved. This is a very important service to which the interests - also very important - of the individual must, in my judgment, bow. I have no doubt that the public interest will be better served by refusing discovery and this I do.\"", "18. The applicant appealed from this decision to the Court of Appeal. On 27 June 1980 the Court of Appeal unanimously dismissed the appeal. In the Court of Appeal ’ s view, the High Court, in its judgment, had correctly balanced the competing interests. It added that the inspection of a document is a course which it is proper for a court to take in certain cases, for example where grave doubt arises and the court cannot properly decide upon which side the balance of public and private interests falls without itself inspecting the documents. However, this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents. The High Court ’ s decision was accordingly affirmed and leave to appeal to the House of Lords was refused (Gaskin v. Liverpool City Council [1980] 1 WLR 1549).", "II. RESOLUTIONS OF LIVERPOOL CITY COUNCIL RELATING TO ACCESS TO PERSONAL FILES", "19. On 21 October 1980, Liverpool City Council set up the Child Care Records Sub-Committee (\"the Sub-Committee\") to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant.", "20. On 17 June 1982, the Sub-Committee recommended making available case records to ex-clients of the social services, subject to certain safeguards and restrictions relating in particular to medical and police information. As to the applicant, the Sub-Committee viewed with concern the number of placements which he had while in care, and which they recognised could be detrimental to a young person ’ s development, but found no evidence to suggest that \"the officers carried out their duties in other than a caring manner\". The applicant was to be allowed access to, and to make photocopies of, his case records, subject however to the exclusion of medical and police information.", "21. On 30 June 1982, the Sub-Committee ’ s recommendations, subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed, were embodied in a resolution of the Social Services Committee. However, Mr Lea, a dissenting member of the Sub-Committee, brought an action challenging the resolution and obtained an interlocutory court order preventing the City Council from implementing it until the trial of the action or until further order.", "22. On 26 January 1983, Liverpool City Council passed a further resolution. As regards future records this reiterated the general terms of the resolution of 30 June 1982 and added certain further restrictions to protect information given in confidence and to provide for the non-disclosure of the whole or part of the personal record in particular cases, but as regards information obtained and compiled before 1 March 1983 it was resolved that this should be disclosed only with the consent of the suppliers thereof. Pursuant to this policy the resolution went on to instruct the Council ’ s officers to contact the various suppliers of information to the Gaskin file immediately with a view to disclosure. The local authority ’ s officers were, however, ordered not to implement this resolution pending the outcome of the legal action brought by Mr Lea. This action was discontinued on 13 May 1983 and on 29 June the local authority confirmed a further resolution to the effect that the resolution of 26 January would be implemented as from 1 September 1983.", "23. On 24 August 1983 the Department of Health and Social Security issued Circular LAC (Local Authority Circular) (83) 14 to local authorities and health authorities pursuant to section 7 of the Local Authority Social Services Act 1970 setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records. The general policy laid down in paragraph 3 of the circular was that persons receiving personal social services should, subject to adequate safeguards, be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto. Paragraph 5 set out under five headings the reasons for withholding information. These included the protection of third parties who contributed information in confidence, protecting sources of information, and protecting social service department staff ’ s confidential judgments. Paragraphs 6 to 9 set out in more specific terms the policy governing client access to case records. Paragraph 7 in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access, the most relevant for the purposes of the present case being that \"information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party\". However, it was then provided in paragraph 9 that since existing records had been compiled on the basis that their contents would never be disclosed, material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information.", "24. On 31 August 1983, the High Court granted the Attorney General leave to apply for judicial review of the resolution of 26 January 1983 as amended by that of 29 June 1983 on the ground that it went beyond what were considered to be the proper limits and, in particular, omitted certain important safeguards which were contained in Circular LAC (83) 14. Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of 26 January 1983.", "25. On 9 November 1983, Liverpool City Council confirmed a further resolution of its Social Services Committee of 18 October 1983 setting out certain additional grounds on which information should be withheld. The resolution provided that the information in the applicant ’ s file should be made available to him if the contributors to the file (or as regards some information the Director of Social Services) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information. Following the passing of this resolution, which was in line with Government Circular LAC (83) 14 (see paragraph 23 above), the Attorney General withdrew his application for judicial review.", "26. The applicant ’ s case record consisted of some 352 documents contributed by 46 persons. On 23 May 1986 copies of 65 documents supplied by 19 persons were sent to the applicant ’ s solicitors. These were documents whose authors had consented to disclosure to the applicant. The size of each contribution disclosed varied from one letter to numerous letters and reports.", "27. Those contributors who refused to waive confidentiality, although not asked to give reasons, stated, inter alia, that third-party interests could be harmed; that the contribution would be of no value if taken out of context; that professional confidence was involved; that it was not the practice to disclose reports to clients; and that too great a period of time had elapsed for a letter or report still to be in the contributor ’ s recollection.", "Furthermore, in June 1986, one contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant ’ s interests.", "28. In a letter of 15 July 1986, the Director of Social Services of Liverpool City Council wrote to the applicant ’ s solicitors in the following terms:", "\"I refer to your letter dated 11 June 1986.", "I would wish to be as helpful as possible to you, but at the end of the day suspect that we may have genuine differences of opinion. At least I take that to be the implication of the questions you asked.", "I do not think therefore, that we can take this correspondence further in a profitable way because, as I have said, it is, in the last analysis, for the provider of information, retrospectively collected, to release or refuse to release, in their absolute discretion, the information supplied from the ‘ confidential ’ embargo originally accorded to it. The reasons for releasing or not releasing are irrelevant whether they are good, bad or indifferent.", "I regret I do not feel able to help you further.\"", "III. SUBSEQUENT LEGISLATIVE DEVELOPMENTS", "29. On 1 April 1989 the Access to Personal Files (Social Services) Regulations 1989 came into force. These regulations, made under the Access to Personal Files Act 1987 and further explained in Local Authority Circular LAC (89) 2, impose upon social services departments a duty to give to any individual access to personal information held concerning him, except for personal health information which originated from a health professional and subject to the exceptions in Regulation 9. This latter provision exempts from the obligation of disclosure, inter alia, any information from which the identity of another individual (other than a social service employee), who has not consented to the disclosure of the information, would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it.", "According to the Government, the effect of Regulation 9 (3) is that, in future, case records will be compiled on the basis that the information contained therein is liable to be disclosed, except in so far as disclosure would be likely to reveal the identity of the informant or another third party. However, by virtue of section 2 (4) of the Access to Personal Files Act 1987, the 1989 Regulations apply only to information recorded after the Regulations came into force, that is, after 1 April 1989. As in the case of Circular LAC (83) 14, which governed the adoption of the resolution mentioned in paragraph 25 above and the subsequent partial release of documents to Mr Gaskin, the Access to Personal Files (Social Services) Regulations 1989 do not have retrospective effect." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "30. The applicant applied to the Commission (application no. 10454/83) on 17 February 1983. He claimed that the refusal of access to all his case records held by the Liverpool City Council was in breach of his right to respect for his private and family life under Article 8 (art. 8) of the Convention and his right to receive information under Article 10 (art. 10) of the Convention. He also invoked Articles 3 and 13 (art. 3, art. 13) of the Convention and Article 2 of Protocol No. 1 (P1-2).", "31. On 23 January 1986, the Commission declared admissible the applicant ’ s complaint concerning the continuing refusal of Liverpool City Council to give him access to his case records but declared the remainder of the application inadmissible.", "In its report of 13 November 1987 (Article 31) (art. 31), the Commission concluded, by six votes to six, with a casting vote by the acting President, that there had been a violation of Article 8 (art. 8) of the Convention by the procedures and decisions which resulted in the refusal to allow the applicant access to the file. It further concluded, by eleven votes to none with one abstention, that there had been no violation of Article 10 (art. 10) of the Convention.", "The full text of the Commission ’ s opinion and of the partly dissenting opinions contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "32. At the public hearing on 28 March 1989, the Government maintained the concluding submissions set out in their memorial, whereby they requested the Court to decide and declare:", "\"( i ) that the facts disclose no breach of the applicant ’ s rights guaranteed by Article 8 (art. 8) of the Convention;", "(ii) that the facts disclose no breach of the applicant ’ s rights guaranteed by Article 10 (art. 10) of the Convention.\"", "AS TO THE LAW", "I. SCOPE OF THE CASE BEFORE THE COURT", "33. The sole complaint declared admissible by the Commission was that of the applicant ’ s continuing lack of access to the whole of his case-file held by Liverpool City Council (see paragraph 31 above). Although the question of access to the file was first posed in the context of Mr Gaskin ’ s application for discovery of documents with a view to bringing legal proceedings against the local authority (see paragraphs 14-18 above), the only issues before the Court are those arising under Articles 8 and 10 (art. 8, art. 10) in relation to the procedures and decisions pursuant to which the applicant was refused access to the file subsequently to the termination of the proceedings for discovery (see paragraphs 93 and 104 of the Commission ’ s report).", "II. ALLEGED BREACH OF ARTICLE 8 (art. 8)", "A. Applicability", "34. The applicant alleges a breach of Article 8 (art. 8) of the Convention, which is worded as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "35. Before the Commission, the Government claimed that the file as such, being information compiled for and by the local authority, did not form a part of the applicant ’ s private life. Accordingly, in their submission, neither its compilation nor the question of access thereto fall within the scope of Article 8 (art. 8).", "In the proceedings before the Court the Government did not revert specifically to this contention but rather concentrated on the questions whether there was any relevant interference with the applicant ’ s right to respect for private life or alternatively whether there was any failure to comply with such positive obligations as are inherent in Article 8 (art. 8) to secure through its legal and administrative system respect for private life.", "36. In the opinion of the Commission \"the file provided a substitute record for the memories and experience of the parents of the child who is not in care\". It no doubt contained information concerning highly personal aspects of the applicant ’ s childhood, development and history and thus could constitute his principal source of information about his past and formative years. Consequently lack of access thereto did raise issues under Article 8 (art. 8).", "37. The Court agrees with the Commission. The records contained in the file undoubtedly do relate to Mr Gaskin ’ s \"private and family life\" in such a way that the question of his access thereto falls within the ambit of Article 8 (art. 8).", "This finding is reached without expressing any opinion on whether general rights of access to personal data and information may be derived from Article 8 para. 1 (art. 8-1) of the Convention. The Court is not called upon to decide in abstracto on questions of general principle in this field but rather has to deal with the concrete case of Mr Gaskin ’ s application.", "B. Approach to Article 8 (art. 8) in the present case", "38. As the Court held in the Johnston and Others judgment of 18 December 1986, \"although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘ respect ’ for family life\" (Series A no. 112, p. 25, para. 55).", "39. The Commission considered that \"respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that in principle they should not be obstructed by the authorities from obtaining such very basic information without specific justification\".", "In its report, reference was made to the Court ’ s Leander judgment of 26 March 1987, in which it was held that:", "\"Both the storing and the release of ... information, which were coupled with a refusal to allow Mr Leander an opportunity to refute it, amounted to an interference with his right to respect for private life as guaranteed by Article 8 para. 1 (art. 8-1)\" (Series A no. 116, p. 22, para. 48).", "The Commission noted that Mr Gaskin sought access to a file of a different nature from that in the Leander case. Nevertheless, since the information compiled and maintained by the local authority related to the applicant ’ s basic identity, and indeed provided the only coherent record of his early childhood and formative years, it found the refusal to allow him access to the file to be an interference with his right to respect for his private life falling to be justified under paragraph 2 of Article 8 (art. 8-2).", "40. The Government contended that, contrary to the Leander case, which was concerned with the negative obligations flowing from Article 8 (art. 8), namely the guarantee against arbitrary interference by public authorities, the present case involved essentially the positive obligations of the State under that Article.", "In their view, the applicant was complaining not about direct interference by a public authority with the rights guaranteed by Article 8 (art. 8), but of a failure by the State to secure through its legal or administrative system the right to respect for private and family life. In this connection, the Government conceded that neither the legal nor the administrative system in the United Kingdom provided an absolute and unfettered right of access to case records to a person in the applicant ’ s situation. However, the existence of such positive obligations entailed a wide margin of appreciation for the State. The question in each case was whether, regard being had to that margin of appreciation, a fair balance was struck between the competing interests, namely the public interest in this case in the efficient functioning of the child-care system, on the one hand, and the applicant ’ s interest in having access to a coherent record of his personal history, on the other.", "41. The Court agrees with the Government that the circumstances of this case differ from those of the Leander case in which the respondent State was found to have interfered with Article 8 (art. 8) rights by compiling, storing, using and disclosing private information about the applicant in that case. Nevertheless, as in the Leander case, a file exists in this case concerning details of Mr Gaskin ’ s personal history which he had no opportunity of examining in its entirety.", "However, it is common ground that Mr Gaskin neither challenges the fact that information was compiled and stored about him nor alleges that any use was made of it to his detriment. In fact, the information compiled about Mr Gaskin served wholly different purposes from those which were relevant in the Leander case. He challenges rather the failure to grant him unimpeded access to that information. Indeed, by refusing him complete access to his case records, the United Kingdom cannot be said to have \"interfered\" with Mr Gaskin ’ s private or family life. As regards such refusal, \"the substance of [the applicant ’ s] complaint is not that the State has acted but that it has failed to act\" (see the Airey judgment of 9 October 1979, Series A no. 32, p. 17, para. 32).", "The Court will therefore examine whether the United Kingdom, in handling the applicant ’ s requests for access to his case records, was in breach of a positive obligation flowing from Article 8 (art. 8) of the Convention.", "C. Compliance with Article 8 (art. 8)", "42. In accordance with its established case-law, the Court, in determining whether or not such a positive obligation exists, will have regard to the \"fair balance that has to be struck between the general interest of the community and the interests of the individual ... In striking this balance the aims mentioned in the second paragraph of Article 8 (art. 8) may be of a certain relevance, although this provision refers in terms only to ‘ interferences ’ with the right protected by the first paragraph - in other words is concerned with the negative obligations flowing therefrom ...\" (see the Rees judgment of 17 October 1986, Series A no. 106, p. 15, para. 37).", "43. Like the Commission, the Court considers that the confidentiality of the contents of the file contributed to the effective operation of the child-care system and, to that extent, served a legitimate aim, by protecting not only the rights of contributors but also of the children in need of care.", "44. As to the general policy in relation to the disclosure of information contained in case records, the Government relied on Local Authority Circular (83) 14 dated 24 August 1983 (see paragraph 23 above). The Government drew attention to paragraph 3 thereof, according to which, subject to certain exceptions, clients who wish to have access to child care records should be allowed to do so. The terms of the Circular were substantially followed in the resolution of the Liverpool City Council ’ s Social Services Committee of 18 October 1983 (see paragraph 25 above).", "The Government argued that both circular and resolution acknowledged the importance of access to the child-care records for those who are the subject of those records, and at the same time the importance of respecting the confidentiality of those who contributed to the records. That was not merely to protect the private interests of individual contributors but involved a much wider public interest. The proper operation of the child-care service depended on the ability of those responsible for the service to obtain information not only from professional persons and bodies, such as doctors, psychiatrists, teachers and the like, but also from private individuals - foster-parents, friends, neighbours and so on. The Government argued that, if the confidentiality of these contributors were not respected, their co-operation would be lost and the flow of information seriously reduced. This would have a serious effect on the operation of the child-care service.", "In this connection, the Government attached particular importance to paragraph 5 of the Circular, which contained an express recognition of the rights of persons who had provided information on the clear understanding that it would not be revealed, and to paragraph 7, pursuant to which \"information should not be disclosed to the client if derived in confidence from a third party without the consent of the third party\". They also drew attention to paragraph 9 which stated that records existing prior to the introduction of the new policy had in general been prepared on the basis that their content would never be disclosed to clients and therefore should not be disclosed without the contributor ’ s permission.", "In this respect, the balance struck by both the circular and the resolution between the interests of the individual seeking access to the records on the one hand and, on the other hand, the interests of those who have supplied information in confidence and the wider public interest in the maintenance of full and candid records, was said by the Government to be proper, rational, reasonable and consistent with their obligations under Article 8 (art. 8). There was thus no failure on the part of the United Kingdom to secure the applicant ’ s right to respect for private life guaranteed by that provision.", "45. The applicant, however, contested this. He emphasised the fundamental change which, according to him, has occurred in the Government ’ s position since the issue in August 1983 of Circular LAC (83) 14. He pointed to that Circular as evidence of an \"increasingly held view\" that persons receiving personal social services should be able to discover what is said about them in case records. The Access to Personal Files Act 1987, and the Access to Personal Files (Social Services) Regulations 1989 made thereunder, illustrated the extent to which information of the kind sought by Mr Gaskin would in the future be made available by public authorities in the United Kingdom (see paragraph 29 above).", "By way of example, Mr Gaskin explained in some detail that he wished to establish his medical condition, which was not possible without sight of all the records and expert advice.", "46. As to the alleged confidentiality of the records, the applicant submitted that it was not clear precisely how or why the contributors to his case records contended that their contributions were made in confidence; whether a condition of confidence had been made a prerequisite of the contribution; and whether confidentiality was clearly expressed at the time of the contribution or had been implied ex post facto.", "The Government explained to the Court, in reply to its question on this point, that all information contributed to a case record kept under the 1955 Regulations (see paragraph 13 above) was treated as supplied on the understanding that it was to be kept confidential, unless the contrary was clear either from the nature of the information supplied or from the fact that the contributor had waived confidentiality. The basis for this principle of confidentiality was to be found in Regulation 10 which provides that the case record shall be open to inspection by any person duly authorised in that behalf by the Secretary of State. As the Court of Appeal held in Re D (infants) [1970] 1 All England Law Reports 1089, in which that provision was applied in the context of wardship proceedings, \"that shows that the case record is regarded as private and confidential\" (see paragraph 17 above).", "47. It should be noted that, in seeking in this context to reconcile the competing interests with which it was faced, Liverpool City Council contacted the various suppliers of information with a view to obtaining waivers of confidentiality. Out of forty-six contributors nineteen gave their consent and 65 out of 352 documents were released. Mr Gaskin wishes however to have access to his entire file (see paragraph 26 above).", "The Commission observed that the applicant had not had the benefit of any \"independent procedure to enable his request to be tested in respect of each of the various entries in the file where consent is not forthcoming\". It concluded that the \"absence of any procedure to balance the applicant ’ s interest in access to the file against the claim to confidentiality by certain contributors, and the consequential automatic preference given to the contributors ’ interests over those of the applicant,\" was disproportionate to the aim pursued and could not be said to be necessary in a democratic society.", "48. In this connection, the Government maintained that the United Kingdom was not alone amongst European States in having no general independent procedure for weighing the competing interests. As in other member States, such procedure as does exist was confined to cases where legal proceedings are subsisting or in contemplation. Moreover, a balance between the competing interests was already provided for in Circular LAC (83) 14. There was no blanket refusal of access to case records. Access was given to information which was not provided in confidence and access was given even to confidential information in so far as the consent of the contributor could be obtained by the Local Authority concerned. As regards the alleged giving of \"automatic preference to the contributors ’ interest over those of the applicant\", it would, in the Government ’ s view, be unreasonable and arbitrary to assume the right to dispense with a contributor ’ s consent or to determine that a confidence should be overridden. The Government further relied on the statement contained in the partly dissenting opinion of one member of the Commission, that to do so would amount to a violation of a moral obligation on their part and would place at risk the effective operation of the child-care system.", "For his part, the applicant pointed out that, under the procedure of obtaining the consent of contributors adopted by the Circular, there were always likely to be certain contributors whom it is impracticable to ask for consent, as it may not be possible to identify or trace them. In that case, there would always be an element of the documents which may never be released to someone in his situation. The example was also given of jointly prepared reports where one of the authors consents to disclosure but the other does not.", "49. In the Court ’ s opinion, persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8 (art. 8), taking into account the State ’ s margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the present case.", "Accordingly, the procedures followed failed to secure respect for Mr Gaskin ’ s private and family life as required by Article 8 (art. 8) of the Convention. There has therefore been a breach of that provision.", "III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "50. The applicant further maintained that the same facts as constituted a violation of Article 8 (art. 8) also gave rise to a breach of Article 10 (art. 10), which reads:", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "51. The Commission found that Article 10 (art. 10) did not, in the circumstances of the case, give the applicant a right to obtain, against the will of the local authority, access to the file held by that authority. The Government agreed.", "52. The Court holds, as it did in its aforementioned Leander judgment, that \"the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.\" (Series A no. 116, p. 29, para. 74). Also in the circumstances of the present case, Article 10 (art. 10) does not embody an obligation on the State concerned to impart the information in question to the individual.", "53. There has thus been no interference with Mr Gaskin ’ s right to receive information as protected by Article 10 (art. 10).", "IV. APPLICATION OF ARTICLE 50 (art. 50)", "54. Mr Gaskin claimed just satisfaction under Article 50 (art. 50), which reads:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Pecuniary damage", "55. First of all, Mr Gaskin claimed amounts in respect of past and future loss of earnings totalling in excess of £380,000. He alleged that his employment prospects had been damaged, owing to the loss of opportunities sustained by him.", "The Government contended that no causal link had been shown to exist between the losses said to have been suffered and the alleged violations of the Convention.", "56. The Court notes that, even if a procedure as described in paragraph 49 above had existed in Mr Gaskin ’ s case, there is no evidence to show that the documents withheld would have been released and, if so, that this would have had a favourable effect on his future earnings. The claim for damages under this head should therefore be rejected.", "B. Non-pecuniary damage", "57. The applicant also sought compensation for non-pecuniary damage in respect of distress, humiliation and anxiety suffered by him. By reason of the failings in his upbringing, Mr Gaskin ’ s status and dignity had been irreversibly damaged.", "The Government contended that it could not be assumed that the applicant had sustained a real loss of opportunities such as to justify an award of just satisfaction in respect of non-pecuniary damage. Even if some loss of opportunities had been suffered, the applicant had not established any causal link between the damage claimed and any violation of the Convention found.", "58. The Court acknowledges that Mr Gaskin may have suffered some emotional distress and anxiety by reason of the absence of any independent procedure such as that mentioned in paragraph 49 above.", "Making a determination on an equitable basis, the Court awards to Mr Gaskin under this head the amount of £5,000.", "C. Costs and expenses", "59. The applicant claimed legal costs and expenses. His claim was calculated on the basis of 650 hours ’ work by his solicitor at the rate of £60 per hour, increased by a multiplier of 200% in order to reflect the importance and complexity of the case, whereby a total amount claimed of £117,000 was arrived at.", "The Court will deal with this claim in accordance with the criteria it has established (see, among other authorities, the Belilos judgment of 29 April 1988, Series A no. 132, p. 33, para. 79).", "1. Costs incurred at domestic level", "60. According to the Government, the costs arising at domestic level were not incurred in order to remedy a breach of the Convention: it was solely in connection with a prospective claim for damages that the applicant had brought proceedings before the domestic courts for the discovery of his case records.", "The Court agrees that only costs incurred subsequently to the termination of the domestic proceedings may be considered (see paragraph 33 above). It is therefore appropriate to include this aspect of the claim in the examination conducted in paragraphs 61 to 62 below.", "2. Costs incurred in the European proceedings", "61. The Government contested the amount claimed. It considered the number of hours stated to be excessive. In addition, according to them, appropriate hourly rates ranged between £36 and £60. In this connection, they also relied on paragraph 15 (d) of the Court ’ s judgment of 9 June 1988 in B v. the United Kingdom (Series A no. 136-D, p. 34), which however indicated that an upper figure of £70 might be reasonable, depending on the nature of the case.", "The Government did not dispute that the applicant had incurred liability to pay sums additional to those covered by the legal aid which he had received from the Council of Europe. If the Court were to make an award, it should not be greater than that awarded in comparable cases.", "62. The Court is of the opinion that the total amount claimed is not reasonable as to quantum. Taking into account all the circumstances and making an equitable assessment, the Court considers that Mr Gaskin is entitled to be reimbursed, for legal fees and expenses, the sum of £11,000 less 8,295 French francs already paid in legal aid." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1944 and lives in Prešov.", "A. The applicant ’ s “security clearance” and its effects", "9. The applicant worked in the State administration of the school system. He occupied a leading post that fell within the purview of section 1 of Act No. 451/1991 Coll. (“the Lustration Act”) which defined some supplementary requirements for holding certain posts in public administration.", "10. In January 1992 the applicant ’ s employer requested, pursuant to section 6 of the Lustration Act, that the Ministry of the Interior of the Czech and Slovak Federal Republic (“the Federal Ministry”) issue a clearance ( lustračné osvedčenie ) concerning the applicant under section 9 of the Lustration Act (see below).", "11. On 19 March 1992 the Federal Ministry issued a negative security clearance. It stated that it was based on section 9 (1) of the Lustration Act and certified that the applicant “[ was ] registered as a person referred to in section 2 ( 1) (b) of the Lustration Act”. This provision defined six categories of collaborators of the [former] State Security Agency ( Štátna bezpečnosť, “StB”) who, if registered as such in the StB ’ s files in the period from 25 February 1948 to 17 November 1989, were disqualified from holding certain posts in public administration. The document was served on the applicant on 26 March 1992.", "12. The applicant resigned from his post. In 1994 he left his employer completely, having felt compelled to do so. Since then the applicant has been commuting to work in a location remote from his place of residence.", "13. The information about who was registered in the StB files in the categories referred to in section 2 (1) (b) of the Lustration Act has been made public in newspapers and, unofficially as well as officially, on the internet.", "B. The action under Article 11 of the Civil Code", "14. On 25 May 1992 the applicant lodged an action against the Federal Ministry for protection of his good name and reputation under Article 11 et seq. of the Civil Code with the Prague ( the Czech Republic ) City Court ( Městský soud ). He claimed that his registration as a collaborator of the StB was wrongful and unjustified. He requested that the Federal Ministry issue a new clearance to the effect that he was not registered as a person referred to in section 2 (1) (b) of the Lustration Act.", "15. The City Court subsequently sent a copy of the action to the defendant, invited the applicant to pay the court fee and listed a hearing for 6 August 1992.", "16. On 23 July 1992 the applicant filed a request under Article 12 §§ 2 and 3 of the Code of Civil Procedure for a transfer of his action to the Košice Regional Court ( Krajský súd ). On 29 July 1992 he demanded that the hearing scheduled for 6 August 1992 be cancelled in view of his request for transfer of the action.", "17. On 7 August 1992, after the applicant had paid the court fee, the City Court sent a copy of the request of 23 July 1992 to the defendant for comments. On 23 September 1992 the latter objected to the transfer.", "18. On 24 September 1992 the City Court submitted the case file to the Supreme Court ( Najvyšší súd ) of the Czech and Slovak Federal Republic for a determination as to which court was to entertain the action at first instance.", "19. On 4 November 1992 the Supreme Court ruled that the action fell to be determined by the Regional Court. The case file was sent to it on 13 November 1992.", "20. On 16 November 1992 the Regional Court requested the defendant ’ s observations in reply. In a letter of 25 November 1992 the defendant replied that it had already filed its observations with the City Court. On 10 December 1992 the City Court transferred those observations to the Regional Court.", "21. On 18 February 1993 the Regional Court invited the applicant to specify which public body possessed the powers conferred by the Lustration Act in the area of security screening after the dissolution of the Czech and Slovak Federal Republic on 1 January 1993. On 26 February 1993 the applicant responded that the body currently responsible for security screening in Slovakia was the Ministry of the Interior of the Slovak Republic (“the Slovak Ministry”). It was thus understood that the action was directed against the said Ministry.", "22. On 9 March and 8 April 1993 the Regional Court invited the applicant to submit within ten days second copies of the action and of the submissions of 26 February 1993.", "23. On 21 April 1993 the Regional Court invited the Slovak Ministry to present its observations in reply to the action. In its response of 6 May 1993 the Ministry primarily contested its standing to be sued in the case, arguing that it had not assumed the authority of the Federal Ministry under the Lustration Act. Relying on Resolution no. 276 of the Government of Slovakia of 20 April 1993 (“Resolution no. 276”), the defendant asserted that the body which had taken over those powers under the Lustration Act was the Slovak Intelligence Service ( Slovenská informačná služba – “the SIS”). The Ministry also maintained that under the said resolution the Prime Minister of Slovakia was entrusted with the task of preparing jointly with the Minister of Justice of Slovakia a petition to the Slovak Constitutional Court ( Ústavný súd ) for a review of the constitutionality of the Lustration Act.", "24. On 4 October 1993 the applicant amended his submissions of 26 February 1993 on the ground that the Federal Ministry ’ s powers under the Lustration Act had devolved to the SIS, against which the action was accordingly directed.", "25. On 21 October 1993 the Regional Court invited the SIS to present its observations in reply. The defendant submitted the observations on 16 November 1993 and on 9 December 1993 the Regional Court sent their copy to the applicant.", "26. On 9 May 1994 the Regional Court held a hearing at which the applicant modified the subject ‑ matter of the action in that he sought a judicial ruling declaring that his registration as a person referred to in section 2 (1) (b) of the Lustration Act was wrongful. The applicant further informed the court that he wished to call ex - StB agents P., K. and M. as witnesses. He submitted the addresses of P. and K. and stated that he would submit the address of M. later. The defendant consented to the modification of the action and maintained that the relevant ex - StB documents were held in the archives of the Federal Ministry. The hearing was adjourned with a view to obtaining these documents.", "27. On 10 June 1994 the Regional Court sent a letter to the Federal Ministry inviting it to submit copies of the relevant ex - StB documents. The letter was returned unanswered as “ undelivered ”.", "28. On 12 September 1994, on the basis of a treaty of 29 October 1992 between the Slovak Republic and the Czech Republic on mutual legal assistance (“the mutual legal assistance treaty of 1992”), the Regional Court sent a letter rogatory to the City Court requesting that it obtain from the Ministry of the Interior of the Czech Republic (“the Czech Ministry”) copies of all ex - StB documents in its possession concerning the applicant.", "29. On 27 September 1994 the City Court advised the Regional Court that the request had been submitted to the Czech Ministry, which would reply directly to the Regional Court.", "30. In a letter of 3 October 1994 the Czech Ministry informed the Regional Court that all ex - StB documents concerning Slovakia had been transmitted to the Slovak Ministry and that, accordingly, the documents concerning the applicant had to be searched for there.", "31. On 12 October 1994 the Regional Court requested that the Slovak Ministry submit within 15 days copies of all ex - StB documents concerning the applicant.", "32. The request of 12 October 1994 was answered on 2 November 1994 by the SIS to the effect that, apart from a database in which the applicant was listed as an ex - StB agent, there were no ex - StB materials concerning him in its possession. The defendant relied on a treaty between the governments of the Slovak Republic and the Czech Republic on joint usage of information and archives generated by ministries of the interior in the area of internal order and security which had been signed on 29 October 1992 and promulgated in the Collection of Laws under No. 201/1993 (“the treaty of 1992”). The SIS submitted that under this treaty the relevant documents were with the Czech Ministry. The SIS again contested its standing to be sued in the case, arguing that the powers in the area of security screening which had been conferred on it under Resolution no. 276 were limited to 9 months. As this period had already expired, there was presently no official body entrusted with these powers in Slovakia.", "33. On 21 December 1994 the Regional Court reiterated its request to the Czech Ministry for copies of ex - StB documents concerning the applicant. On the same day it also addressed a request to the Office of the Government of the Slovak Republic for information as to which authority was currently vested with the powers under the Lustration Act as regards security screening. As no answer had been received, the Regional Court repeated the requests in May 1995.", "34. On 22 May 1995 the Office of the Government informed the Regional Court that the question of legal succession in respect of the powers under the Act was not currently addressed in the existing legislation. However, by analogy, the powers of the Federal Ministry had been assumed by the Slovak Ministry.", "35. In a letter of 24 May 1995 the Czech Ministry informed the Regional Court that there were no documents concerning the applicant in its archives. Considering the relevant part of the letter of the SIS of 2 November 1994 to be confused, it relied on the Protocol to the treaty of 1992 and maintained that the documents searched for were stored in Slovakia.", "36. On 9 August 1995 the Regional Court ordered that the SIS deliver within 20 days copies of all ex - StB documents concerning the applicant which were in its possession. The SIS complied on 24 August 1995 and proposed that the proceedings be discontinued on the grounds of its lack of standing to be sued. The SIS also pointed out that the documents submitted were top secret and that the applicable confidentiality rules had to be observed.", "37. Another hearing was held on 11 December 1995. The applicant extended the action by directing it also against the Government of the Slovak Republic, as a collective constitutional body with distinct legal personality. The hearing was adjourned in order for the applicant to re ‑ submit the extended action in writing. He did so on 13 December 1995.", "38. On 15 December 1995 the SIS filed its observations in reply to the extended action.", "39. At an unspecified later point the Vice - President of the Regional Court exercised his power under section 2 § 2 of the State Administration of Justice Act of 1992 and assigned the case to another Chamber of that court on the ground that the original Chamber had an excessive workload.", "40. On 9 September 1996 the Regional Court allowed the extension of the action against the Government of Slovakia. On the same day it invited the applicant to disclose the address of witness M.", "41. In a written submission of 19 September 1996 the Office of the Government asserted that the Government was not the legal successor of the Federal Ministry and possessed no powers under the Lustration Act. It was thus not the correct defendant to the action.", "42. On 28 October 1996 the applicant informed the Regional Court that he had no information as to the address of M. and requested that the court itself make an inquiry as to the address.", "43. The hearing called for 15 January 1997 had to be adjourned as the representatives of the applicant and the Government did not appear.", "44. On 21 April 1997 the Regional Court held another hearing. It made a formal ruling allowing the modification of the subject matter of the action, as sought by the applicant on 9 May 1994. The Regional Court then heard the parties and examined the StB file concerning the applicant.", "45. On 21 May 1997 the SIS informed the Regional Court of M. ’ s address.", "46. On 2 July 199 7 the applicant submitted a pleading in which he commented on the documentary evidence submitted by the defendant.", "47. By letters of 9 September, 20 November and 10 December 1997 the Regional Court requested that the Slovak Ministry discharge witnesses P., K. and M. from the obligation of confidentiality in respect of the subject matter of the proceedings. The Ministry agreed on 29 June 1998.", "48. On 13 August 1998 the Regional Court held another hearing at which witnesses P., K. and M. failed to appear. Witness K. apologised for his absence and submitted in writing that he had “no recollection of the applicant and no knowledge that the StB would have ever had any file in respect of him”.", "The applicant admitted having met K. and M. several times before and after his journeys abroad when they had, respectively, instructed him on how to behave abroad and asked for information about his stay. Their discussions were of a general nature and included the situation at the applicant ’ s workplace. The applicant also admitted having obtained and provided to K. a list of students who had been preparing for studies abroad, information he considered public in any case. He had never had the impression that he was considered a collaborator and had never been asked to keep his contacts with K. and M. secret.", "The hearing was adjourned until 24 August 1998 with a view to calling the witnesses again.", "49. At the hearing of 24 August 1998 the Regional Court heard M. and K. Witness M. confirmed that he had been in charge of recruiting the applicant as a collaborator. However, if there had ever been any act of formal undertaking to cooperate ( viazací akt ) on the part of the applicant, M. had not been present at it. He had received the impression that the applicant had not been interested in meeting him. Their conversation had concerned ordinary affairs and the applicant had not submitted any documents. The reports mentioned in the StB file had been drawn up by M. on the basis of his conversation with the applicant. According to M., the applicant had never given any information that was capable of harming any specific person. There had been norms as to how many new agents were to be recruited. As a result, new “recruitments” had frequently been only formal, with the new “agents” conceivably having no knowledge of them.", "Witness K. claimed to know the applicant only by face. He did not remember having ever met him and denied having ever received any information or documents from him. The applicant ’ s StB file was partially created by K. In the given period the situation in the StB had been such that, in order to meet their statistical objectives, it was possible for officers to run a file in respect of an “agent” by filing information from their own sources and declaring them as having been obtained from that “agent”.", "The witness P. did not appear and the court observed that it had been impossible to deliver the summons to him. In response to the court ’ s request, the parties stated that they intended to adduce no further evidence apart from hearing P. and examining the relevant Internal Guideline of the Federal Ministry of 1972 (“the 1972 guideline”) concerning secret collaboration.", "50. On 10 September 1998 the Regional Court ordered that the summons for the forthcoming hearing be served on P. by the police. No service was however actually effected.", "51. At a hearing held on 24 September 1998 the SIS submitted the 1972 guideline. As this document was classified, the applicant had no access to it. Apart from proposing to hear P. the parties adduced no other evidence.", "52. The Regional Court listed a hearing for 24 February 1999 and ordered that the summons be served on P. by the police. At this hearing P. finally appeared and gave evidence. He acknowledged that he had been the chief district police officer during the relevant period and that he remembered the applicant. However, he could not recollect clearly the details of their collaboration. P. pointed out that the StB ’ s organisation had been very strict and considered that, if something had been recorded, it must have been true. In contradiction to M., P. considered that it was not possible that the applicant had not known that he was acting for the StB as an “agent”.", "The applicant submitted that the majority of his foreign travel had taken place before 1984, when he was allegedly acquired as an agent. The contention that he had agreed to collaborate in return for the StB ’ s support in connection with travel was therefore unfounded.", "53. On 19 May 1999, following another hearing held on the same day, the Regional Court dismissed the action.", "54. First of all, the Regional Court found that the Government of the Slovak Republic had no standing to be sued in the proceedings and that the correct entity to defend the action was the SIS. The Regional Court considered that the crucial criterion for establishing standing was which entity de facto possessed the ex - StB archives.", "On the basis of the StB file pertaining to the applicant, the Regional Court established that the applicant had been listed since 1983 as a “candidate for secret collaboration” and as an “agent” of the StB since 1984. For tactical reasons it had been decided not to have the applicant sign a formal undertaking to collaborate. This was permitted under the 1972 guideline. The applicant ’ s StB file contained only an index indicating which reports and documents he had provided. There was a note that the reports and documents themselves had been officially destroyed in late 1989 when, according to the file, cooperation with the applicant had been terminated.", "The Regional Court also noted that the applicant had on thirteen occasions travelled abroad to western Europe at the relevant time and that it was then usual for a person to be interviewed by the StB prior to and after such travel. The applicant himself acknowledged having met the StB in connection with his travels. He also admitted having been in contact with K., M. and P. and having unwillingly met with them. However he categorically denied ever having given them any intelligence information.", "The other witness evidence was contradictory. The Regional Court based its finding on the testimony of P., holding it to be credible and consistent with the case file, and did not accept the testimony of K., observing that it contradicted the applicant ’ s own submissions. In the light of all the information in its possession, including what was known of the applicant ’ s intellectual capacity, the Regional Court found that he must have known that he had been meeting StB agents and that their contact had actually amounted to formal collaboration. In so far as the applicant had disputed such a conclusion and asserted that his registration in the StB files had been unjustified, he had failed to prove his case; in particular, he had failed to show that the registration was contrary to the applicable rules.", "55. On 6 July 1999 the applicant lodged an appeal with the Supreme Court. He challenged the credibility of witness P., objected that he had had no access to the 1972 guideline, which was a crucial piece of evidence, and argued that the Regional Court had erred in its factual assessment of the case.", "56. On 4 August 1999 the SIS filed its observations in reply to the appeal. On 24 August 1999 the Regional Court transmitted the case file to the Supreme Court for a decision on the appeal.", "57. On 26 October 1999, following a hearing held on the same day, the Supreme Court upheld the Regional Court ’ s judgment.", "It found that the Regional Court had adequately established the facts of the case and found no logical or other errors in the Regional Court ’ s assessment of the evidence.", "The Supreme Court held that the fact that the applicant was registered in the StB files as a person referred to in section 2 (1) (b) of the Lustration Act did not by any means constitute evidence that he had been a conscious collaborator of the StB.", "In line with established judicial practice, the Supreme Court pointed out that the procedure concerning the issuance of a security clearance under the Act could not amount to a violation of an individual ’ s good name and reputation. Only unjustified registration in the StB files would amount to such a violation.", "The Supreme Court considered that it was crucial for the applicant to prove that his registration had been contrary to the rules applicable at the material time and concurred with the Regional Court ’ s conclusion that the applicant had failed to do so. No appeal lay against this decision." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "58. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.", "B. The Code of Civil Procedure", "59. Pursuant to Article 6, as applicable at the relevant time, courts were to work together with the parties to ensure that contentious facts were established reliably and that the parties ’ rights were protected speedily and effectively.", "60. Under Article 100 § 1, once proceedings commence, the court is to act without further procedural motions so that the matter is examined and determined as expeditiously as possible.", "61. Under Article 114 § 1, a hearing is to be prepared by the President of the Chamber so that the matter can be decided, usually ( spravidla ) in a single session.", "62. Article 120 § 1 provides that the parties to the proceedings are to adduce evidence in support of their assertions. The court may also take and examine ( vykonať ) evidence which has not been adduced [by the parties]. The court decides on the facts as established on the basis of the evidence taken and examined.", "63. The mechanism of legal protection of personal integrity under Article 11 et seq. of the Civil Code has primarily found its practical application in defamation proceedings. Certain judicial decisions (see the judgments of the Supreme Court file nos. 1Co 23/94 and 5Cdo 39/2000 ) and academic views (see J. Švestka, Ochrana osobnosti, Linde Praha, a.s., 1996, p. 138 and J: Drgonec; Tlačové právo na Slovensku, Archa, 1995, p. 148 ) seem to suggest that, in actions of that type, the burden of proving that an interference with the plaintiff ’ s good name and reputation was justified lies with the defendant.", "C. The Civil Code", "64. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular of their life and health, civil and human dignity, privacy, name and personal characteristics.", "65. Under Article 13 § 1, natural persons have the right to request that unjustified infringement of their personality rights be ended and that the consequences of such infringement be eliminated. They also have the right to appropriate just satisfaction.", "66. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party ’ s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.", "D. Act of the Federal Assembly of the Czech and Slovak Federal Republic of 4 October 1991 (Law no. 451/1991 Coll. )", "67. The Act laid down supplementary requirements for the holding of certain important posts and functions in State organs and institutions which were filled by election, designation or appointment. The Act prevented persons mentioned in section 2 (1) under letters (a) through (h) from exercising the functions enumerated in section 1.", "68. Under section 2 (1) (b), the functions covered by the Act could be exercised only by persons who were not registered in the [former] StB files in the period between 25 February 1948 and 11 November 1989 as “resident”, “agent”, “holder of a conferred flat”, “holder of a conspiratorial flat”, “informer” or “ideological collaborator of the StB”.", "69. Under section 2 (1) (c), the functions covered by the Act could only be exercised by persons who had not been conscious collaborators of the StB in the above period. On 26 November 1992 the Constitutional Court of the Czech and Slovak Federal Republic ( Ústavný súd Českej a Slovenskej Federatívnej Republiky ) found that this condition was in contradiction with the Charter of Fundamental Rights and Freedoms ( Listina základných práv a slobôd ) and with the International Covenant on Economic, Social and Cultural Rights. Accordingly, this condition was repealed as from 15 December 1992.", "70. The fact that a person met the requirements of section 2 of the Act was to be proven by means of a security clearance issued by the Ministry of the Interior under section 9 of the Act. Under paragraph 1 of that section the security clearance was to be delivered into the hands of the person concerned alone.", "71. Under section 14 (1), if a person does not meet the requirements of section 2 of the Act, the employer is to terminate that person ’ s employment by notice within 15 days unless the employment terminates earlier by agreement or otherwise or the person concerned is transferred to another post outside the scope of section 1 of the Act.", "72. Under section 18 (2), such termination of employment can be challenged before the courts within two months from the date on which the employment purportedly ended.", "73. Section 19 provides that any disclosure of the clearance or of the information contained in it is prohibited, save with the consent of the person concerned.", "74. The temporal application of the Act is governed by its section 23, under which the Act ceased to have effect in Slovakia on 31 December 1996.", "75. It has been established by judicial doctrine and the relevant case law that persons who consider themselves adversely affected by their registration in the former StB files can seek redress before civil courts by means of an action for protection of their personal integrity under Article 11 et seq. of the Civil Code.", "E. National Memory Act ( Zákon o pamäti národa ) (Law no. 553/2002 Coll., as amended )", "76. Since 29 September 2002 the keeping of files generated by the StB in respect of its collaborators, purported or real, has been regulated by the Act on the Disclosure of Documents regarding the Activity of State Security Authorities in the period 1939-1989 and on Founding the National Memory Institute ( the National Memory Act) ( Zákon o sprístupnení dokumentov o činnosti bezpečnostných zložiek štátu 1939 - 1989 a o založení Ústavu pamäti národa ).", "77. The Act regulates (a) the establishment of the National Memory Institute; ( b) the recording, collecting, disclosing, publishing, managing and use of documents created by defined security forces in the period from 18 April 1939 to 31 December 1989 in respect of crimes committed against persons of Slovakian nationality or citizenship; ( c) the manner of detecting and prosecuting such crimes; ( d) the protection of the personal data of persecuted persons; and ( e) activity in the area of public education.", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems", "78. “9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.", "...", "11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.", "12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.", "13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the \"Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law\" as a reference text.”", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. As to the compatibility of the complaint under Article 6 § 1 of the Convention with the provisions of the Convention", "79. As at the admissibility stage, the Government maintained that the applicant ’ s negative security clearance of 19 March 1992 had primarily had damaging repercussions on his employment in the public administration, where he had occupied a leading position falling within the ambit of the notion of “public service”. Although his action of 1992 formally aimed at the protection of his personal integrity, it de facto concerned his employment in the public service, disputes over which were excluded from the scope of Article 6 § 1 of the Convention (see, e.g. Pellegrin v. France [GC], no. 28541/95, §§ 65-67, ECHR 1999-VIII). In their view, the proceedings at issue did not therefore enjoy ratione materiae the protection of Article 6 § 1 of the Convention.", "80. The applicant contested that argument.", "81. Relying on Resolution no. 1096 of the Parliamentary Assembly of the Council of Europe, the third party submitted that lustration, as such, was punitive in character and was capable of producing a wide range of effects in the economic and social sphere of the persons concerned. It also had an impact on their good name and reputation. Not all persons who were subject to lustration had necessarily to fall within the category of “public service”, which was excluded from the scope of Article 6 § 1 of the Convention. They maintained that the said Article, including all its procedural safeguards, applied to proceedings concerning lustration.", "82. The Court recalls that it had already examined the question of the applicability of Article 6 § 1 of the Convention to the present proceedings at the admissibility stage. It observed that the outcome of the proceedings had no effects on the applicant ’ s employment. Should his employment in the public service be at stake, he had other means which were specifically designed for asserting his interests in this area, namely an action under section 18 (2) of the Lustration Act. The applicant ’ s action was however aimed at protecting his personal integrity. This being so, the action enjoyed the protection of the Article relied upon. The Court finds nothing to justify reaching a different conclusion now. The Government ’ s preliminary objection is therefore dismissed.", "B. As to the scope of the complaint under Article 8 of the Convention and its compatibility with the Convention", "1. The applicant ’ s submissions", "83. In his original application form the applicant complained of his registration in the ex ‑ StB files, the issuance of a negative security clearance and the outcome of his proceedings, combined with the resulting repercussions on his personal life and social relations.", "The applicant later specified that he understood that his “registration” in the former StB files indicated that there continued to exist records at the State ’ s disposal which linked him to the StB. He considered that such “continued registration” lacked a good legal basis and acceptable justification.", "2. The Government ’ s submissions", "84. The Government objected that the scope of the applicant ’ s original complaint under Article 8 of the Convention, as expressed in his initial submission and defined by the Court ’ s admissibility decision, did not cover his subsequent objections in respect of the continued existence of his StB file in the State ’ s hands, its legal framework, legitimacy and proportionality. They maintained that, in any event, the last - mentioned criteria were met.", "85. As to the specific complaint regarding the issuance of the applicant ’ s security clearance, the Government asserted, as they had at the admissibility stage, that the primary effect of such clearance was that the applicant no longer qualified for certain leading posts in the public service.", "Pursuant to section 9 (1) of the Lustration Act, the clearance was delivered exclusively into the hands of the person concerned. Under section 19 of that Act, any disclosure of the clearance or its contents without the consent of the person concerned was prohibited. Even an employer could not learn about the contents of the clearance unless the person concerned revealed it.", "The applicant ’ s security clearance was therefore never meant to become public and it was relevant exclusively for his employment in the civil service, the right of access to which, as such, fell outside the scope of Article 8 of the Convention ratione materiae. If the clearance became public knowledge and produced any effects on the applicant ’ s private life, it was either the responsibility of the applicant himself or of a third person against whom the applicant could vindicate his rights.", "3. The third party ’ s submissions", "86. The third party submitted that, given their complex impact on the good name and reputation of the person concerned and the fact that personal data from secret registers was involved, lustration measures fell within the ambit of Article 8 of the Convention.", "4. The Court ’ s assessment", "87. The Court reiterates that the scope of the case before it is determined by the decision on admissibility (see, mutatis mutandis, the Çiraklar v. Turkey, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII, p. 3070, § 28).", "88. In its decision of 14 December 2004 the Court declared admissible the applicant ’ s complaints concerning the continued existence of the contested files, the issuance of a negative security clearance on the basis of his registration in such files, the fact that he was unable to rebut that registration and the effects of the above on his private life.", "89. In view of the parties ’ controversy over the scope of the case, the Court finds it appropriate to reiterate, first of all, that it has no jurisdiction ratione temporis to examine events that took place prior to the entry into force of the Convention with respect of the Contracting Party concerned, namely 18 March 1992 in the present case (see, among many other authorities, Omasta v. Slovakia (dec.), no. 40221/98, 31 August 2000). Further, it has no power to examine, as such, any facts that took place more than six months before the introduction of an application, namely 15 April 2000 in this case. Finally, the Court observes that it has no jurisdiction to examine legislation or practice in the abstract (see the Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 30-31, § 55 ).", "90. In the present case the applicant ’ s initial registration by the StB in their files as a collaborator brought about a series of consequences which are interconnected and must be examined in their context. The issuance of the applicant ’ s security clearance was based on that registration and resulted in the subsequent proceedings. Although, admittedly, the security clearance itself concerned predominantly the applicant ’ s qualification for service in the senior levels of public administration, it cannot be dissociated from the above context. Thus, the Government ’ s plea of incompatibility ratione materiae with the Convention provisions in respect of the issuance of the clearance cannot be sustained.", "91. Bearing in mind the above criteria, the Court observes that there continues to exist a file of the former StB in which the applicant is registered as their agent, that, on the basis of that file, the applicant was issued with a negative security clearance, that he unsuccessfully challenged this registration before the courts and that this registration has arguably had effects on his private life. In line with its decision on admissibility, the Court will examine these facts on the merits under Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "92. The applicant complained that the length of the proceedings had been excessive. He relied on Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”", "93. The applicant accepted that the issue of which entity had standing to be sued after the dissolution of the Czech and Slovak Federal Republic had been of some complexity. However, he contented that the courts had not handled it efficiently and there was nothing to justify the overall length of the proceedings. Moreover, there had been periods of obvious inactivity or ineffective activity on the part of the courts. All delays which had been caused by the State authorities, judicial or otherwise, were imputable to the respondent State.", "94. The Government considered that the subject matter of the proceedings was complex. There had been some delays, which, however, were immaterial and, except for these, the proceedings had been expeditious.", "95. The third party suggested that judicial proceedings concerning lustration called for special promptness, given that they concerned such sensitive issues as the reputation of the person concerned.", "96. The period to be taken into consideration began on 25 May 1992 and ended on 26 October 1999. It thus lasted seven years and some five months for two levels of jurisdiction.", "97. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "98. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "99. Having examined all the material submitted to it, including what was at stake for the applicant, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "100. The applicant also complained about his registration in the StB files, the issuance of a negative security clearance and the outcome of his proceedings with the attendant effects on him. He alleged a violation of his right to respect for his private life pursuant to Article 8 of the Convention which, insofar as relevant, provides that:", "“1. Everyone has the right to respect for his private ... life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "1. The Government ’ s submissions", "101. The Government maintained that the issuance of the clearance had had a clear legal basis in the Lustration Act and had been necessary in the interests of national security. The Lustration Act afforded comprehensive substantial and procedural guarantees, in the light of which the issuance of the applicant ’ s clearance was to be considered proportionate. Moreover, as from 1 January 1997, the Lustration Act had lost any legal force in Slovakia. It thus no longer prevented the applicant from living his life as he saw fit.", "The sole sphere in which the applicant ’ s security clearance had had an impact was his employment in the senior levels of public administration. The applicant had failed to show that there was a direct connection between his negative security clearance and his resignation in 1994.", "In so far as the contents of the clearance might have become public through the actions of a third person, the Government declined any responsibility.", "102. The Government further pointed out that the applicant ’ s case had been thoroughly examined at two levels of jurisdiction in proceedings which had met the relevant standards. In their view those standards were those of a fair hearing as set out in Article 6 § 1 of the Convention.", "The proceedings had been adversarial and the applicant, who had been represented throughout by a lawyer, had had ample opportunity to state his arguments, challenge the submissions made by the adversary parties and submit whatever materials he found relevant.", "The applicant had not had full access to the 1972 guideline as it was top secret. However, the sole information which the applicant had sought from the guideline was whether it was possible to become an StB “agent” without a formal undertaking to collaborate by the person concerned. The courts had examined the guideline and familiarised the applicant with the relevant section, including the information about acquiring new “agents”. Thus, the fact that the applicant had been unable to see the 1972 guideline as such had not had any effect on the outcome of the proceedings.", "In addition, the courts had obtained and examined the evidence adduced by the applicant and, in any event, the admissibility of evidence was primarily a matter for regulation by the domestic law and courts.", "The dismissal of the applicant ’ s action was duly supported by relevant and sufficient reasons (see, for example, Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII).", "As to the distribution of the burden of proof, the applicant was not accused or charged. On the contrary, he was the claimant. It was therefore up to him to prove his allegations. The Government discerned no arbitrariness or unfairness in the way the courts had treated the action and assessed the evidence.", "In conclusion, the Government considered that the proceedings and their outcome were not vitiated in such a way as to make them incompatible with the procedural guarantees inherent in Article 8 of the Convention.", "2. The applicant ’ s submissions", "103. The applicant maintained that the StB was generally known for suppressing human rights and that it was commonly seen as discreditable. Labelling him an “StB collaborator” was a serious interference with his moral and psychological integrity and with his good name and reputation.", "104. The issuing of security clearances conceivably pursued the legitimate aim of protecting national security. However, his security clearance had been based on a wrongful registration and was therefore unacceptable.", "105. The manner in which the courts had handled the applicant ’ s action did not enable him to secure effective protection of his right to respect for his private life.", "106. Throughout the proceedings he had had no access to the 1972 guideline which defined the category of “agent” and established rules of cooperation with agents, including the rules for their recruitment. This guideline was a crucial piece of evidence. Without it the applicant was not in a equal position vis-à-vis his opponent as regards the choice of an adequate procedural strategy. Moreover, it was questionable whether continuing to classify this instruction as “top secret” had any real justification years after the fall of the communist system, especially since the instruction had already been formally repealed.", "107. The imposition on the applicant of the burden of proving the inaccuracy of his registration by the StB as a collaborator was in breach of established judicial practice in actions for the protection of one ’ s good name and reputation. It was especially disproportionate in the present case, in that the registration which gave rise to all the subsequent grievances had been carried out by the State in secret. It was virtually impossible for the applicant to prove that he was not an StB agent, since he had no access to the definition of this term.", "A corollary of the imposition of the burden of proof is the imposition of consequences should that burden not be borne. Placing the burden of proof on the applicant in this case amounted to presuming his collaboration with the StB, contrary to Resolution no. 1096 (1996). It failed to respect the presumption boni viri which, according to the applicant, was to be applied in interpreting and applying the Convention. Although the applicant was not accused in a formal sense, the State authorities had made him out to be an StB collaborator, and it should have been up to them to prove that assertion.", "108. Finally, the applicant argued that the assessment of witness statements and other evidence by the domestic courts had been arbitrary and prejudicial in that, inter alia, the courts had failed to examine and take account of the testimony by witness M. They had dismissed the action without establishing whether he had ever actually provided any intelligence information and without even seeing the entire StB file concerning him, and had been satisfied with its formal remains, the substantial contents of the file having allegedly been destroyed in the late 1980s.", "3. The third party ’ s submissions", "109. The third party maintained that lustration measures were more than capable of interfering with the rights protected under Article 8 of the Convention. In general, such interference was justified by the legitimate interest in social information and clearance and in the protection of new democracies during a transition period. However, the interference had to be balanced against the individual interests of those concerned, so that their good name and reputation were duly protected. This included substantive as well as procedural guarantees. Finally, the third party considered that the Contracting Parties enjoyed a wide margin of appreciation in this area.", "4. The Court ’ s assessment", "110. The Court notes that the applicant ’ s registration by the StB as their “agent” lies at the heart of the application. Although the Court has no jurisdiction ratione temporis to examine the registration as such, it observes that, further to his registration, the applicant was issued with a negative security clearance and his name and reputation were called into question. The legal system provided an opportunity for the applicant to seek protection of his rights by way of challenging his registration before the courts, which he did without success.", "These facts constitute an interference with the applicant ’ s right to respect for his private life (see Leander v. Sweden, judgment of 26 March 1997, Series A no. 116, p. 22, § 48, Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ ... ).", "111. The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Buckley v. the United Kingdom, no. 20348/92, § 76, ECHR 1996-IV).", "112. The Court also reiterates that the difference between the purposes pursued by the safeguards afforded by Article 6 § 1 and Article 8 of the Convention, respectively, may justify an examination of the same set of facts under both Articles (see, for example, Görgülü v. Germany, no. 74969 /01, § 58, 26 February 2004 ). In the circumstances of the present case the Court finds it appropriate to examine the fairness of these proceedings under Article 8 of the Convention.", "113. In particular, the Court will examine whether the procedural protection enjoyed by the applicant at the domestic level in respect of his right to respect for his private life under Article 8 of the Convention was practical and effective (see, among many other authorities, Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, § 42), and consequently compatible with that Article.", "114. In so doing, the Court will bear in mind that, according to Article 19 of the Convention, its duty is to ensure the observance of the undertakings of the Contracting States to the Convention. In particular, it is not its function to act as a court of appeal and to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Furthermore, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33). However, the Court must ascertain whether, taken as a whole, the proceedings, including the way in which the evidence was dealt with, were fair for the purposes of Article 8 of the Convention.", "115. The Court recognises that, particularly in proceedings related to the operations of state security agencies, there may be legitimate grounds to limit access to certain documents and other materials. However, in respect of lustration proceedings, this consideration loses much of its validity. In the first place, lustration proceedings are, by their very nature, oriented towards the establishment of facts dating back to the communist era and are not directly linked to the current functions and operations of the security services. Thus, unless the contrary is shown on the facts of a specific case, it cannot be assumed that there remains a continuing and actual public interest in imposing limitations on access to materials classified as confidential under former regimes. Secondly, lustration proceedings inevitably depend on the examination of documents relating to the operations of the former communist security agencies. If the party to whom the classified materials relate is denied access to all or most of the materials in question, his or her possibilities to contradict the security agency ’ s version of the facts would be severely curtailed. Finally, under the relevant laws, it is typically the security agency itself that has the power to decide what materials should remain classified and for how long. Since, it is the legality of the agency ’ s actions which is in question in lustration proceedings, the existence of this power is not consistent with the fairness of the proceedings, including the principle of equality of arms. Thus, if a State is to adopt lustration measures, it must ensure that the persons affected thereby enjoy all procedural guarantees under the Convention in respect of any proceedings relating to the application of such measures.", "116. In the present case the applicant was asserting his rights in the context of an interference with them which had been occasioned by State power and arguably without his knowledge. The courts considered it crucial for the applicant to prove that the interference was contrary to the applicable rules. These rules were, however, secret and the applicant did not have full access to them. On the other hand, the State – in the person of the SIS – did have full access. In those circumstances, and irrespectively of whether the placing of the burden of proof on the applicant was compatible with domestic law, that requirement placed an unrealistic burden on him in practice and did not respect the principle of equality. It was thus excessive. The applicant ’ s proceedings therefore cannot be considered as offering him effective protection of his right to respect for his private life. The Court arrives at this conclusion without embarking on an examination of the assessment of evidence in this case, which, in its view, is also open to criticism.", "There has accordingly been a breach of Article 8 of the Convention on account of the lack of a procedure by which the applicant could seek effective protection of his right to respect for his private life.", "117. The Court cannot speculate as to what would have been the outcome of the applicant ’ s proceedings had they been conducted in a manner compatible with Article 8 of the Convention. In view of the above finding (paragraph 11 6 ), and observing that its role in relation to that of the domestic courts is subsidiary, the Court considers that it is unnecessary to examine separately the effects on the applicant ’ s private life of his registration in the StB files and his negative security clearance.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "118. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "119. The applicant claimed 300 ,000 Slovakian korunas (SKK) in damages for the breach of his right to a hearing within a reasonable time and SKK 500,000 in damages for the breach of his right to respect for his private life. He did not specify whether he sought pecuniary or non ‑ pecuniary damages. As to his second claim, the applicant emphasised that his good name was at issue. It was being associated with a regime which had terrorised its own citizens, and it was impossible for him to clear it. As a result, the applicant felt frustrated and helpless and had lost trust in the rule of law.", "120. The Government contested that claim, considering that it was unacceptable, overstated and not supported by any evidence.", "121. In so far as the claim has been substantiated, the Court does not discern any pecuniary damage. On the other hand, it accepts that the applicant must have suffered non ‑ pecuniary damage as a result of the violations found (see paragraphs 99 and 11 6 above). Ruling on an equitable basis, it awards him 8 ,000 euros (EUR) under this head.", "B. Costs and expenses", "122. The applicant sought SKK 9,641 in compensation for the costs of the domestic proceedings, SKK 8 ,900 for various travel expenses and SKK 23,800 for his representation before the Court.", "123. The Government considered these claims to be overstated and pointed out that the travel expenses were not documented. They requested that the Court award only such costs and expenses as were actually and reasonably incurred and adequate as to the quantum.", "124. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession, including the complexity of the case and the above criteria, the Court considers it reasonable to award the sum of EUR 900 to cover costs under all heads.", "C. Default interest", "125. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The present application was brought by five applicants, all of whom are Swedish nationals: (1) Ms Ingrid Segerstedt-Wiberg (born in 1911), (2) Mr Per Nygren ( born in 1948 ), (3) Mr Staffan Ehnebom ( born in 1952), (4) Mr Bengt Frejd ( born in 1948) and (5) Mr Herman Schmid ( born in 1939). The first applicant lives in Gothenburg, the second applicant lives in Kungsbacka and the third and fourth applicants live in Västra Frölunda, Sweden. The fifth applicant lives in Copenhagen, Denmark.", "A. The first applicant, Ms Ingrid Segerstedt-Wiberg", "9. The first applicant is the daughter of a well-known publisher and anti-Nazi activist, Mr Torgny Segerstedt. From 1958 to 1970 she was a Liberal member of parliament. During that period she was a member of the Standing Committee on the Constitution ( konstitutionsutskottet ). She has also been Chairperson of the United Nations Association of Sweden. She is a prominent figure in Swedish political and cultural life.", "10. On 22 April 1998, relying on section 9A of the Police Register Act ( lag om polisregister m.m., 1965:94), the first applicant made a request to the Minister of Justice for access to her Security Police records. She said that she had become aware of certain material held by the foreign service of the United States of America from which it appeared that since the Second World War she and others had been under continuous surveillance, in particular because of her work for the United Nations Association of Western Sweden. That information had originated from Sweden and had apparently been communicated by the United States to other countries in order to cause her damage and harm her work for the protection of refugees. She also referred to the spreading of rumours that she was “unreliable” in respect of the Soviet Union. Those rumours had started during the 1956 parliamentary elections, but had not prevented her, a couple of years later, being returned to Parliament or sitting on its Standing Committee on the Constitution.", "By a decision of 17 June 1998, the Ministry of Justice refused her request. It pointed out that absolute secrecy applied not only to the content of the police register but also to whether or not a person was mentioned in it. The government considered that the reasons relied on by the first applicant, with reference to section 9A of the Police Register Act, could not constitute special grounds for derogation from the rule of absolute secrecy.", "Appended to the refusal was a letter signed by the Minister of Justice, pointing out that neither the first applicant ’ s previous access to material indicating that she had been the subject of secret surveillance nor the age of any such information (40 to 50 years old) could constitute a special reason for a derogation under section 9A of the Act. The Minister further stated:", "“As you may be aware, some time ago the government submitted a proposal to Parliament as to the manner in which the Security Police register should be made more accessible to the public. It may be of interest to you to know that a few weeks ago Parliament passed the bill, which means that absolute secrecy will be abolished. The bill provides that the Security Police must make an assessment of the need for secrecy on a case-by-case basis, which opens up new possibilities for individuals to see records that are today covered by absolute secrecy. It is first of all historical material that will be made accessible.”", "11. On 28 April 1999, following an amendment on 1 April 1999 to Chapter 5, section 1 (2), of the Secrecy Act 1980 ( sekretesslagen, 1980:100), the first applicant submitted a new request to the Security Police to inform her whether or not her name was on the Security Police register.", "On 17 September 1999 the Security Police decided to grant the first applicant authorisation to view “ seventeen pages from the Security Police records, with the exception of information about Security Police staff and information concerning the Security Police ’ s internal [classifications]”. Beyond that, her request was rejected, pursuant to Chapter 5, section 1 (2), of the Secrecy Act 1980, on the ground that further “information could not be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations”.", "On 4 October 1999 the first applicant went to the headquarters of the Security Police in Stockholm to view the records in question. They concerned three letter bombs which had been sent in 1990 to Sveriges Radio ( the national radio corporation of Sweden), to her and to another well-known writer (Hagge Geigert) because of their stand against Nazism and xenophobia and in favour of the humanitarian treatment of refugees in conformity with international treaties ratified by Sweden. The Security Police had gathered a number of police reports, photographs and newspaper cuttings, and had reached the conclusion that there was nothing to confirm the suspicion that there was an organisation behind the letter bombs. That was all the information the first applicant was allowed to view.", "12. On 8 October 1999 the first applicant instituted proceedings before the Administrative Court of Appeal ( kammarrätten ) in Stockholm, requesting authorisation to view the entire file on her and other entries concerning her that had been made in the register. In a judgment of 11 February 2000, the court rejected her request. Its reasoning included the following:", "“The Administrative Court of Appeal considers that, beyond what emerges from the documents already released, it is not clear that information about whether or not [the first applicant] is on file in the Security Police records regarding such activities as are referred to in Chapter 5, section 1(2), could be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations.”", "13. On 28 February 2000 the first applicant appealed to the Supreme Administrative Court ( Regeringsrätten ). She submitted that the rejection of her request had left her with the impression of being accused of involvement in criminal activities. In order to counter these accusations, she requested permission to see all files concerning her.", "On 10 May 2000 the Supreme Administrative Court refused the first applicant leave to appeal.", "14. During the proceedings before the Strasbourg Court, the Government provided the following additional information.", "The first applicant was put on file for the first time in 1940. The Security Police were interested in her because of the circles in which she moved and which, during the war in Europe, were legitimately targeted by the security services. In accordance with the legislation in force at the relevant time, additional entries were made in her file until 1976, in part on independent grounds and in part to supplement records entered previously.", "Between 1940 and 1976, information and documents regarding the first applicant had been collected in the filing system that existed at the time. While those documents were microfilmed, no documents concerning her had been microfilmed since 1976. The documents contained in the file were probably weeded some time before 1999. However, while backup copies on microfiche had been retained, they were not accessible in practice, unless marked as having already been “deactivated”.", "A new filing system was introduced in 1980-82. As the first applicant came under a bomb threat in 1990, a new file on her was opened under the new system. It included a reference to the previous file under the old system and the microfilm number required to retrieve the microfiche. The Security Police ’ s register was also updated with the new information regarding the first applicant. The 1990 file had also been weeded. It was not destroyed but transferred to the National Archives.", "The first applicant was again put on file by the Security Police in 2001, because of a new incident that could have been interpreted as a threat against her.", "On 13 December 2002 the Security Police decided of their own accord to release all stored information that had been kept about the applicant until 1976, representing fifty-one pages. No copies of these documents or particulars of their specific content were submitted to the Court.", "B. The second applicant, Mr Per Nygren", "15. The second applicant is an established journalist at Göteborgs-Posten, one of the largest daily newspapers in Sweden. He is the author of a number of articles published by that paper on Nazism and on the Security Police that attracted wide public attention.", "16. On 27 April 1998 the Security Police rejected a request by the applicant for access to their quarterly reports on communist and Nazi activities for the years 1969 to 1998, and for information on which authorities had received those reports.", "17. By a letter of 7 June 1999 addressed to the Security Police, the second applicant stated that, having received one of the quarterly reports from the police in Karlskrona, he had become aware that the Security Police had been interested in him; he therefore wished “to read [ his ] file and all other documents at [their] disposal where [his] name might occur”. In addition, the second applicant made a similar request in respect of his recently deceased father, in accordance with the latter ’ s wishes.", "In a decision of 11 November 1999, the Security Police allowed the applicant ’ s request in part by replying that his father did not appear in any files or entries in the register and rejected the remainder of his request. It stated:", "“As from 1 April 1999 the treatment of personal data by the Security Police of the kind referred to in your request is governed in the first place by the Police Data Act (1998:622).", "According to Chapter 5, section 1(2), of the Secrecy Act (1980:100), secrecy applies to information relating to undercover activities under section 3 of the Police Data Act or that otherwise falls within the Security Police ’ s remit in preventing or revealing crimes committed against the security of the Realm or in preventing terrorism, if it is not clear that the information may be imparted without jeopardising the purpose of the decision or measures planned or without harm to future activities. The implied starting - point is that secrecy applies as the main rule irrespective of whether the information, for example, appears in a file or emanates from a preliminary investigation or undercover activities.", "In the preparatory work for the relevant provision of the Secrecy Act ( prop. 1997/98:97, p. 68), it is stated that even information about whether a person is mentioned in a secret intelligence register should be classified in accordance with Chapter 5, section 1, of the Secrecy Act. It is further stated that in view of the nature of undercover activities only in special circumstances can there be a question of disclosing information. If there are no such circumstances, the government assume in accordance with the preparatory work that even the information that a person is not registered is classified as secret under the Act.", "In the present case the Security Police consider that ... the fact that your father was born in 1920 and has recently passed away satisfies the kind of conditions in which information can be disclosed that a person is not registered.", "In so far as your request concerns yourself, it is rejected for the reasons given in the preparatory work and the relevant provisions of the Secrecy Act.”", "According to the applicant, the above reasons given for the rejection of the request made for access to his own records were identical to those given in all other rejection cases.", "18. In their pleadings to the Court, the Government stated that at the time of the Security Police ’ s decision on 11 November 1999 it had not been possible to find the file owing to the fact that the second applicant had not been the subject of a personal record in connection with the report in issue.", "19. On 25 November 1999 the second applicant appealed to the Administrative Court of Appeal in Stockholm, requesting authorisation to view his file and all other entries made on him by the Security Police. He relied on certain written evidence to the effect that he had been mentioned in the records of the Security Police, notably on the cover page and page 7 of a secret report dating back to the third quarter of 1967 and emanating from Section ( byrå ) A of the Security Police, that had been released by the Karlskrona police shortly beforehand. The report was entitled “Presentation on communist and Nazi activities in Sweden from July to September 1967”. Page 7 contained the following statement:", "“On 18-20 September a meeting was held within the DUV [ Demokratisk Ungdoms Världsfederation – World Federation of Democratic Youth] in Warsaw. A youngster, probably [identifiable as] Mr Per Rune Nygren from Örebro, participated as a representative for the VUF [ Världsungdomsfestivalen – World Youth Festival].”", "The second applicant requested, in particular, access to the quarterly reports for the years 1969-98 and information regarding the authorities to which those reports had been communicated. He stressed that since he had never been convicted, charged or notified of any suspicion of crime and had never taken part in any illegal, subversive or terrorist activity, refusing him full access to the files could not be justified. The wishes of the Security Police to maintain secrecy about their work should have been balanced against his interest in clarifying the extent of the violation that he had suffered, not only through their collection of information about him but also through their disclosure of such information.", "20. In accordance with standard procedure, the appeal was brought to the attention of the Security Police, who then decided, on 20 December 1999, to release the same two pages of the 1967 report referred to above, while maintaining their refusal regarding the remainder of the second applicant ’ s initial request. The reasons given were largely the same as in the first decision, with the following addition:", "“In the Security Police archives there are a number of documents which contain information both about different subject matter and individuals. The fact that such documents exist in the Security Police ’ s archives does not mean that all information in the documents is registered and therefore searchable. Information which is not registered can only be retrieved if details have been submitted about the document in which the information is contained. Since you provided us with such details, it was possible for us to find the document you asked for in your request.”", "After receipt of the above decision, the second applicant had a telephone conversation with Ms Therese Mattsson, an officer of the Security Police (who had signed the decision of 27 April 1998 ). According to the applicant, she explained that, when dealing with requests such as his, only documents that were searchable by computer would be verified, which was the reason why the initial request had been rejected in its entirety and access had been granted to the two pages of the 1967 report.", "21. In his appeal to the Administrative Court of Appeal, the applicant pointed out that from the above telephone conversation it emerged, firstly, that since 1969 several hundred thousand personal files in the Security Police ’ s register had been destroyed. Secondly, information about persons whose files had been erased could still be found in the Security Police ’ s archives but could not be searched under names or personal identity numbers. Thirdly, the so-called destruction lists, comprising several hundred thousand names, was all that remained of the erased files. The second applicant complained that the Security Police had failed to search those lists (assuming that the files no longer existed).", "On 14 February 2000 the Administrative Court of Appeal dismissed the appeal in its entirety, giving essentially the same reasons as the Security Police, with the following further considerations:", "“In connection with the introduction of [section 3 of the Police Data Act], the government stated that even the information that a person is not registered by the Security Police is such that it should be possible to keep it secret under the said provision ( prop. 1997/98:97, p. 68). According to the government bill, the reason is the following. A person who is engaged in criminal activity may have a strong interest in knowing whether the police have information about him or her. In such a case it could be highly prejudicial to the investigation for the person concerned to be informed whether or not he or she is of interest to the police. It is therefore important for a decision on a request for information from the register not to have to give information on whether the person appears in the register or not. The nature of secret intelligence is such that there can only be disclosure of information in special cases.", "The Administrative Court of Appeal finds that it is not clear that information, beyond that which emerges from the disclosed documents, about whether [the second applicant] has been the subject of any secret police activity falling under Chapter 5, section 1(2), of the Secrecy Act can be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations.”", "22. On 25 July 2000 the Supreme Administrative Court refused the second applicant leave to appeal.", "C. The third applicant, Mr Staffan Ehnebom", "23. The third applicant has been a member of the KPML(r) ( Kommu - nistiska Partiet Marxist-Leninisterna – Marxist-Leninist (revolutionaries) Party, established in 1970 ) since 1978. He is an engineer, and since 1976 has been employed by the Ericsson Group.", "24. On 10 April 1999, after the absolute secrecy requirement applying to information held in the records of the Security Police had been lifted on 1 April 1999, the third applicant submitted a request to the Security Police to see all files that might exist on him. By a decision dated 17 November 1999, the Security Police granted him access to thirty pages, two of which could only be read on the Security Police ’ s premises and could not be copied by technical means. Copies of the twenty-eight remaining pages were sent to his home. Twenty-five of these consisted of the decision by the Parliamentary Ombudsperson concerning the above-mentioned matter and the three remaining pages were copies of press articles, two dealing with the applicant and a third, not mentioning him, consisting of a notice from the paper Proletären about a forthcoming 1993 KPML(r) party congress. Thus, all of the said twenty-five pages contained publicly available, not classified, material. The two pages which the third applicant was permitted to see on the Security Police ’ s premises consisted of two security checks concerning him dating from 1980. These were copies of forms used by the FMV (the Försvarets Materialverk, an authority responsible for procuring equipment for the Swedish Army, and with whom the Ericsson Group worked) to request a personnel check ( now known as a register check) concerning the third applicant. The registered information contained the following text in full:", "“In September 1979 it was revealed that [ the third applicant ] was/is a member of the Frölunda cell of the KPML(r) in Gothenburg. At this time he was in contact with leading members of the KPML(r) regarding a party meeting in the Frölunda town square.”", "25. The third applicant submitted that the above information about his membership of the KPML(r) was the real reason for the FMV ’ s demand that he be removed from his post, although every authority involved would deny this. He pointed out that the KPML(r) was a registered and lawful political party that took part in elections.", "26. On 24 November 1999 the third applicant appealed against the decision of the Security Police to the Administrative Court of Appeal, maintaining his request to see all the material that the Security Police might have on him. He disputed, inter alia, that the material released to him revealed that he constituted a security risk. In a judgment of 14 February 2000, the Administrative Court of Appeal rejected his request, giving the same type of reasons as in the cases of the first and second applicants.", "27. On 13 April 2000 the Supreme Administrative Court refused the third applicant leave to appeal.", "D. The fourth applicant, Mr Bengt Frejd", "28. The fourth applicant has been a member of the KPML(r) since 1972, and the Chairman of Proletären FF, a sports club which has about 900 members, since 1974. He is renowned within sporting circles in Sweden and has actively worked with children and young people in sport, both nationally and internationally, to foster international solidarity and facilitate social integration through sport.", "29. On 23 January 1999 the fourth applicant requested access to information about him contained in the Security Police register, which he suspected had been entered because of his political opinions. On 4 February 1999 the Security Police rejected his request under the rules on absolute secrecy.", "30. The fourth applicant renewed his request after the abolition of the rule on 1 April 1999. On 8 February 2000 the Security Police granted the fourth applicant permission to see parts of his file.", "This comprised, firstly, fifty-seven pages of paper cuttings and various information concerning him and other athletes and sports leaders, their participation in conferences, meetings and tournaments, and about sport and the promotion of social integration through sport, particularly involving international exchanges and solidarity in cooperation with the African National Congress in South Africa. There was information about a much publicised sports project in 1995, where representatives of several sports such as basketball, football and handball had left Sweden for South Africa with the aim of helping young people in black townships. A number of people from within the Swedish sports movement whom the fourth applicant had met, many of whom had no connection with any political organisations, had been mentioned in his file. These included, for example, a prominent sports leader, Mr Stefan Albrechtson, who had himself been subjected to Security Police surveillance.", "The file further included a number of items dealing with sports organisations and events, such as an appeal (in the file from as late as 1993) from all the sports clubs in Gothenburg demanding lower fees for the use of sports fields, a document with the names of some one hundred people, including that of the fourth applicant, and in some instances their telephone numbers. A list of the participants at a spring meeting of the Gothenburg Handball League could also be found.", "In addition to the above material, on 28 February 1999 the fourth applicant was granted access to two pages from his file, provided that they were read on the Security Police ’ s premises and not reproduced by technical means. The pages contained the following information:", "“ 1 January 1973. F. is a member of the KPML(r) and has been working actively for six months. He is responsible for propaganda in the Högsbo-Järnbrott group of the KPML(r), 4 March 1975. According to an article in Göteborgs Tidningen of 4 March 1975, F. is the Chairman of Proletären FF, 9 June 1977. According to an article in Stadsdelsnytt/Väster, F. is one of the leaders of the youth section of Proletären FF, 6 September 1979. F. is number 19 on the KPML(r) ballot for the municipal elections in the fourth constituency of Gothenburg. Not elected.”", "31. On 1 March 2000 the fourth applicant appealed to the Administrative Court of Appeal against the decision of the Security Police, requesting to see his file in its entirety and all other records that might have been entered concerning him. He disputed the Security Police ’ s right to store the information that had already been released to him, and stressed that none of it justified considering him a security risk.", "On 12 May 2000 the Administrative Court of Appeal rejected the fourth applicant ’ s appeal, basically on the same grounds as those stated in the judgments pertaining to the first, second and third applicants.", "32. On 29 August 2000 the Supreme Administrative Court refused the fourth applicant leave to appeal.", "E. The fifth applicant, Mr Herman Schmid", "33. The fifth applicant was a member of the European Parliament from 1999 to 2004, belonging to the GUE/NGL Group and sitting for the Swedish Left Party ( Vänsterpartiet ).", "34. On 9 December 1997 the fifth applicant filed a request with the Ministry of Defence to have access to the data files and all entries about him that may have been made in the Security Police registers. On 20 January 1998 the Ministry of Defence informed him that the request had been transmitted to the Defence Authority ( Försvarsmakten ) for decision. On the same date the fifth applicant was informed of another government decision to lift secrecy regarding certain information contained in an attachment B to a report entitled “The Military Intelligence Service, Part 2” ( Den militära underrättelsetjänsten. Del 2 ). In this research document, which had previously been released to two journalists, it was stated:", "“ One document ... contains the information that among the teachers listed in the Malmö ABF [ Arbetarnas Bildningsförbund – Workers ’ Association of Education] study programme for the autumn of 1968 are sociologists Schmid and Karin Adamek. It was stated that both of them had previously been reported in different contexts.”", "On 19 March 1998 the National Police Authority sent a duplicate letter to the fifth applicant and an unknown number of others, announcing that their requests for access to registered information had been rejected.", "35. On 29 October 1999 the Security Police took a new decision, granting the fifth applicant access to “eight pages from the Security Police archives with the exception of information regarding Security Police staff and ... internal classifications”, on the condition that the documents be consulted on the Security Police ’ s premises and not copied by technical means. As far as all other information was concerned, the initial rejection of his request remained, with the following standard reasoning:", "“All information about whether or not you are reported in other security cases filed by the Security Police is subject to secrecy according to Chapter 5, section 1(2), of the Secrecy Act. Thus, such information cannot be released without jeopardising the purpose of actions taken or planned, or without detriment to future activity.”", "On the above-mentioned date the fifth applicant went to the police headquarters in Malmö in order to have access to the eight pages in question. While under surveillance, he read out loud the text on each page and tape-recorded himself, for later transcription. According to a transcript provided by the applicant, the entries bore various dates between 18 January 1963 and 21 October 1975.", "The above-mentioned entries concerned mostly political matters such as participation in a campaign for nuclear disarmament and general peace - movement activities, including public demonstrations and activities related to membership of the Social Democratic Student Association. According to one entry dated 12 May 1969, the fifth applicant had extreme left-wing leanings and had stated that during demonstrations one should proceed with guerrilla tactics in small groups and if necessary use violence in order to stage the demonstration and achieve its goals. There were also some notes about job applications he had made for university posts and a report he had given to the Norwegian police with his comments in connection with the murder of a Moroccan citizen, Mr Bouchiki, in Lillehammer on 21 July 1973. Finally, the documents contained entries on the opening of a boarding school for adults ( folkhögskola ) in 1984 in which the fifth applicant had played a major role.", "The fifth applicant, for his part, challenged the allegation that he had advocated violence, saying that it was totally against his principles and emphasising that since 1960 he had been active in the peace movement in Skåne and was a well-known pacifist who had been imprisoned three times on account of his conscientious objection to military service.", "36. On 29 November 1999 the applicant appealed to the Administrative Court of Appeal against the Security Police ’ s refusal to give him access to all the information about him registered in their archives. He disputed their right to store the information to which he had had access. The appeal was dismissed by a judgment of 15 May 2000 on the same grounds as those given to the other applicants in the present case.", "37. On 27 June 2000 the Supreme Administrative Court refused the fifth applicant leave to appeal.", "F. Particulars of the KPML(r) party programme", "38. Clause 1 of the KPML(r) party programme states that the party is a revolutionary workers ’ party whose goal is the complete transformation of existing society. Clause 4 affirms that the power of the bourgeoisie in society is protected by the State and rests ultimately on its organs of violence, such as the police, armed forces, courts and jails, supplemented to some extent by private security companies. Clause 22 provides that the socialist transformation of society has to take place contrary to the laws and regulations of bourgeois society, and that for a transitional period a revolutionary dictatorship of the working class will be established. Clause 23 states that the forms of the socialist revolution are determined by the prevailing concrete conditions but that the bourgeoisie will use any means available to prevent the establishment of real people ’ s power, and the revolutionary forces must therefore prepare themselves for an armed struggle. According to Clause 28, socialist democracy does not make any distinction between economic and political power, or between judicial and executive power, but subjects all social functions to the influence of the working people." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "39. Domestic provisions of relevance to the present case are found in a number of instruments. Certain constitutional provisions regarding freedom of opinion, expression and association found in the Instrument of Government ( regeringsformen ) provide the starting - point. This is also the case with regard to the principle of free access to official documents enshrined in the Freedom of the Press Ordinance ( tryckfrihetsförordningen ) and the restrictions on that freedom imposed by the Secrecy Act ( sekretesslagen, 1980:100). The Security Police ’ s handling of personal information is regulated by the Police Data Act ( polisdatalagen, 1998:62 2, which came into force on 1 April 1999), the Police Data Ordinance ( polisdataförordningen, 1999:81, which also came into force on 1 April 1999 ), the Personal Data Act ( personuppgiftslagen, 1998:204) and the Personal Data Ordinance ( personuppgiftsförordningen, 1998:1191).", "A. Constitutional guarantees", "40. Chapter 2, section 1 (1), of the Instrument of Government (“the Constitution”) guarantees the freedom to form opinions, the right to express them and the right to join others in the expression of such opinions. The freedoms and rights referred to in Chapter 2, section 1 (1), may be restricted by law to the extent provided for in sections 13 to 16. Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never exceed what is necessary having regard to its purpose, nor may it be so onerous as to constitute a threat to the free expression of opinion, which is one of the foundations of democracy. No restriction may be imposed solely on grounds of political, religious, cultural or other such opinions (Chapter 2, section 12).", "41. According to Chapter 2, section 13, freedom of expression may be restricted, for instance, “having regard to the security of the Realm”. However, the second paragraph of the latter provision states that “[i]n judging what restraints may be imposed by virtue of the preceding paragraph, particular regard shall be had to the importance of the widest possible freedom of expression and freedom of information in political, religious, professional, scientific and cultural matters”. The term “security of the Realm” covers both external and internal security.", "42. With regard to freedom of association, fewer limitations are provided for. It follows from Chapter 2, section 14, that it may be restricted “only in respect of organisations whose activities are of a military or quasi-military nature, or which involve the persecution of a population group of a particular race, skin colour or ethnic origin”.", "43. Chapter 2, section 3, provides that no entry regarding a citizen in a public register may be based, without his or her consent, exclusively on that person ’ s political opinion. The prohibition is absolute.", "44. Under Chapter 2, section 2, of the Freedom of the Press Ordinance, everyone is entitled to have access to official documents unless, within defined areas, such access is limited by law.", "B. Security intelligence", "45. The Security Police form part of the National Police Board ( Rikspolisstyrelsen ). The Security Police are engaged in four major fields of activity. Three of them – the upholding of the Constitution, counter-espionage and counterterrorism – fall under the common heading of security intelligence. The fourth area concerns security protection.", "1. Legal basis for registration", "46. The legal basis for the register kept by the Security Police before 1999 has been described in Leander v. Sweden ( 26 March 1987, §§ 19-22, Series A no. 116). For the period thereafter the matter is governed by the 1999 Police Data Act and Police Data Ordinance. The Police Data Act is a lex specialis in relation to the 1998 Personal Data Act. The Security Police ’ s own rules of procedure ( arbetsordning ), which are not public in their entirety, contain more detailed rules on the registration and use of personal information.", "47. Section 5 of the Police Data Act (under the heading “Processing of sensitive personal data”) provides:", "“Personal information may not be processed merely on the ground of what is known about the person ’ s race or ethnic origin, political opinions, religious or philosophical conviction, membership of a trade union, health or sexual orientation.", "If personal information is processed on another ground, the information may be completed with such particulars as are mentioned in the first paragraph if it is strictly necessary for the purposes of the processing.”", "48. Section 32 reads:", "“The Security Police shall keep a register [ SÄPO-registret ] for the purposes of:", "1. facilitating investigations undertaken in order to prevent and uncover crimes against national security;", "2. facilitating investigations undertaken in order to combat terrorist offences under section 2 of the Act; or", "3. providing a basis for security checks under the Security Protection Act [ säkerhetsskyddslagen, 1996:627]. The Security Police are responsible [ personuppgiftsansvarig ] for the processing of personal data in the register.”", "49. Section 33 of the Act provides :", "“The Security Police ’ s register may contain personal information only if:", "1. The person concerned by the information is suspected of having engaged in or of intending to engage in criminal activity that entails a threat to national security or a terrorist offence;", "2. The person concerned has undergone a security check under the Security Protection Act; or", "3. Considering the purpose for which the register is kept, there are other special reasons therefor.", "The register shall indicate the grounds for data entry. The government may lay down further regulations on the type of data that may be entered (Act 2003:157).”", "The scope of the expression “special reasons” in sub-paragraph 3 of section 33 of the Police Data Act is commented on in the preparatory work in respect of that legislation (Government Bill 1997/98:97, pp. 153-54 and pp. 177-78), where the following points are made in particular. In order to enable the Security Police to perform the tasks assigned to them by the relevant legislation, it could in certain cases be deemed necessary to register persons also for reasons other than those laid down in sub-paragraphs 1 and 2 of section 33: for instance, persons who are connected with other persons registered under sub-paragraphs 1 and 2 of section 33; persons who could be the targets of threats; and persons who could be the object of recruitment attempts by foreign intelligence services. In order for the Security Police to be able to prevent and uncover crimes against national security, it was necessary to survey and identify potential threats and recruitment attempts. It should also be possible for the Security Police to identify links between persons who move to Sweden after participating in oppositional activities in their home countries. Moreover, it should be possible for the Security Police to register information about persons who have been smuggled into Sweden on assignment from foreign non-democratic regimes with the task of collecting information concerning fellow countrymen. There was a need to update information concerning such informers continuously. Also, information concerning contacts with foreign missions in Sweden was relevant in this context.", "The Government stated that the fact that an individual ’ s name had been included in the register did not necessarily mean that he or she was suspected of an offence or other incriminating activities. Other than the examples already mentioned above from the preparatory work, the Government gave the following illustrations:", "– he or she is in contact with someone suspected of a crime;", "– he or she is in contact with personnel from a foreign mission;", "– he or she has attracted the attention of a foreign intelligence service or is used by such a service;", "– he or she is active in a circle that has attracted the attention of a foreign intelligence service;", "– he or she is used by an organisation whose activities are the subject of an investigation regarding threats to security;", "– he or she is the referee of a foreign citizen seeking a visa;", "– he or she has contacted the Security Police and provided information;", "– he or she is contacted by the Security Police.", "The Government stated that information in respect of the person in question may be needed in order to determine the interests of an entity (State, organisational or individual) constituting a threat to Swedish security, and the extent and development of that threat.", "50. Section 34 of the Police Data Act provides:", "“The Security Police register may only contain:", "– information for identification;", "– information on the grounds for registration; and", "– references to the files where information concerning the registered person can be found.”", "51. Under section 3 of the Personal Data Act, the treatment of personal information includes every operation or series of operations carried out with respect to personal information, whether automatic or manual. Examples of such treatment are the gathering, entry, collation, storage, processing, use, release and destruction of personal information. Personal information is defined by the same provision as all kinds of information that relate directly or indirectly to a physical, living person. The Personal Data Act applies to the processing of personal information that is wholly or partially automated. It also applies to all other processing of personal data if the information is or is intended to be part of a structured collection of personal information that can be accessed by means of a search or compilation according to certain criteria (section 5).", "2. Registration and filing", "52. Documents that contain information are collected in files. Depending on its content, a document may, when necessary, either be placed in a file on a certain individual – a personal file ( personakt ) – or in a so-called thematic file ( sakakt ). It may also be added to both kinds of files.", "53. A thematic registration is done, and a thematic file opened, whenever there is a need to collect and compile documents systematically. The documents may concern a matter or a subject that the Security Police have a duty to supervise or cover, or on which the Security Police need to have access to relevant information for any other reason. A thematic file may be started in order to collect documents that concern the relations between States and organisations. It may also be started in order to collect a certain type of document, for instance a series of reports. It should be observed that thematic registration as such does not mean that names are entered into the Security Police ’ s register, even though names may be found in the documents of a thematic file. Thus, a search for a person who has been mentioned in a thematic file cannot be done unless, for independent reasons, that person has also been registered in a personal file. Moreover, the name of a person who has been registered personally may occur in a thematic file but may still not show up in a search for the name in the latter file if, for instance, the name in the thematic file lacks relevance for the Security Police.", "3. Correction and destruction of registered information", "54. The Data Inspection Board ( Datainspektionen ) monitors compliance with the Personal Data Act (unlike the Records Board which supervises the Security Police ’ s compliance with the Police Data Act). The Data Inspection Board is empowered to deal with individual complaints and, if it finds that personal information is not processed in accordance with the Personal Data Act, it is required to call attention to the fact and request that the situation be corrected. If the situation remains unchanged, the Board has the power to prohibit, on pain of a fine ( vite ), the person responsible for the register from continuing to process the information in any other way than by storing it (section 45 of the Personal Data Act).", "55. The Data Inspection Board may request a county administrative court to order the erasure of personal information that has been processed in an unlawful manner (section 47 of the Act).", "4. Removal of registered information", "56. Registered information in respect of an individual suspected of committing or of being liable to commit criminal activities that threaten national security or a terrorist offence, shall as a rule be removed no later than ten years after the last entry of information concerning that person was made ( section 35 of the Police Data Act). The same applies to information that has been included in the register for other special reasons connected with the purpose of the register. The information may be kept for a longer period if justified by particular reasons. More detailed rules concerning the removal of information are to be found in the regulations and decisions issued by the National Archives ( Riksarkivet ) and in the Security Police ’ s own rules of procedure. All documents removed by the Security Police are transferred to the National Archives.", "C. Access to official documents", "57. The limitations on access in this particular field before 1 April 1999 have been described in detail in Leander ( cited above, §§ 41 ‑ 43). With regard to access to information kept by the Security Police, absolute secrecy was thus the principal rule prior to 1 April 1999. The only exceptions made were for the benefit of researchers. From 1 July 1996 it was also possible to allow exemptions ( dispens ) if the government held the view that there were extraordinary reasons for an exemption to be made from the main rule of absolute secrecy.", "58. The absolute secrecy of files kept exclusively by the Security Police was abolished by an amendment to Chapter 5, section 1 (2), of the Secrecy Act, made at the same time as the Police Data Act came into force on 1 April 1999. According to the amended provision, information concerning the Security Police ’ s intelligence activities referred to in section 3 of the Police Data Act, or that otherwise concerns the Security Police ’ s activities for the prevention and investigation of crimes against national security, or to prevent terrorism, was to be kept secret. However, if it was evident that the information could be revealed without detriment to the aim of measures that had already been decided upon or that were anticipated, or without harm to future activities, the information should be disclosed. When submitting the relevant bill to Parliament, the government stressed that the nature of the intelligence service was such that information could only be disclosed in special cases. They presumed that in other cases the fact that a person was not registered would also remain secret (Government Bill 1997/98:97, p. 68).", "A fourth subsection was added to section 1 of Chapter 5 on 1 March 2003, under which a person may upon request be informed of whether or not he or she can be found in the Security Police ’ s files as a consequence of registration in accordance with the Personnel Security Check Ordinance that was in force until 1 July 1996 or corresponding older regulations. However, the government was still of the view that there were in principle no reasons for the Security Police to reveal whether or not there was any information concerning an individual in their files and registers:", "“The Government acknowledge that it may appear unsatisfactory not to be given a clear answer from the Security Police as to whether an individual is registered in their files or not. There are, however, valid reasons for the Security Police not to disclose in certain cases whether a person appears in Security Police records. This point of view was also taken in the preparatory work on the Police Data Act (Government Bill 1997/98:97, p. 68), where it was stated that a person linked to criminal activities may have a strong interest in knowing whether the police have any information regarding him or her. In such a case, it could be very damaging for an investigation if it were revealed to the person in question either that he or she was of interest to the police or that he or she was not. It is therefore essential that the information whether a person appears [in the files] or not may be kept secret.” ( Government Bill 2001/02:191, pp. 90-91 )", "59. The Security Police apply the Secrecy Act directly. There are thus no internal regulations that deal with the issue of access to official documents since that would be in breach of the Secrecy Act. Under Chapter 5, section 1 (2), of the Secrecy Act, there is a presumption of secrecy, meaning that whenever it is uncertain whether the disclosure of information in an official document is harmful or not, such information shall not be disclosed.", "60. A request for access to official documents kept by the Security Police gives rise to a search to ascertain whether or not the person in question appears in the files. If there is no information, the person who has made the request is not informed thereof and the request is rejected. A few exceptions have been made from this practice in cases where the person concerned has died and the request has been made by his or her children (as in the second applicant ’ s case). However, if information is found, the Security Police make an assessment of whether or not all or part of it can be disclosed. It is not indicated whether the disclosed information is all that exists in the files.", "61. The Government have stated that it was standard practice for the Administrative Court of Appeal to go to the Security Police and take part of their files – if any – in every case that had been brought to it. The three judges examined all the documents and made an assessment of every document that had not been released to the appellant. If the appellant did not appear in the register and files of the Security Police, the court obtained part of a computer print-out showing that the appellant did not appear in the documents kept by the Security Police.", "D. Review bodies", "1. The Records Board", "62. The Records Board ( Registernämnden ) was established in 1996 and replaced the National Police Board (described in paragraphs 19 to 34 of the above-mentioned Leander judgment). It is entrusted with the task of determining whether information kept by the Security Police may be disclosed in security checks, to monitor the Security Police ’ s registration and storage of information and their compliance with the Police Data Act, in particular section 5 ( see section 1 of the Ordinance prescribing instructions for the Records Board – förordningen med instruktion för Registernämnden, 1996:730). In order to carry out its supervisory function, the Board is entitled to have access to information held by the Security Police (section 11). It presents an annual report to the government on its activities (section 6). The report is made public.", "Under sections 2 and 13 of the Ordinance prescribing instructions for the Records Board, the Board consists of a maximum of eight members, including a chairperson and a vice-chairperson, all appointed by the government for a fixed term. The chairperson and the vice-chairperson have to be or to have been permanent judges. The remaining members include parliamentarians. The Records Board ’ s independence is guaranteed by, inter alia, Chapter 11, section 7, of the Constitution, from which it follows that neither Parliament nor the government nor any other public authority may interfere with the manner in which the Board deals with a particular case.", "2. The Data Inspection Board", "63. Under section 1 of the Ordinance prescribing instructions for the Data Inspection Board (1998:1192), the Board ’ s main task is to protect individuals from violations of their personal integrity through the processing of personal data. The Board is competent to receive complaints from individuals. Its independence is guaranteed, inter alia, by Chapter 11, section 7, of the Constitution.", "64. In order to carry out its monitoring function, the Data Inspection Board is entitled to have access to the personal data that is being processed, to receive relevant additional information and documentation pertaining to the processing of personal data and to the safety measures in respect of the processing and, moreover, to have access to the premises where the processing takes place ( section 43 of the Personal Data Act).", "The Board ’ s powers in relation to the correction and erasure of registered data are summarised in paragraphs 55 and 56 above.", "65. A personal data representative ( personuppgiftsombud ) has been appointed within the Security Police with the function of ensuring independently that the personal data controller processes personal data in a lawful and correct manner and in accordance with good practice, and of pointing out any shortcomings. If the representative has reason to suspect that the controller has contravened the provisions on the processing of personal data, and if the situation is not rectified as soon as is practicable after being pointed out, the representative shall notify the Data Inspection Board (section 38 (1) and (2) of the Personal Data Act).", "3. Other review bodies", "66. The Security Police, the Records Board and the Data Inspection Board and their activities come under the supervision of the Parliamentary Ombudspersons and the Chancellor of Justice. Their functions and powers are described in Leander ( cited above, §§ 36 - 39).", "67. Unlike the Parliamentary Ombudspersons, the Chancellor of Justice may award compensation in response to a claim from an individual that a public authority has taken a wrongful decision or omitted to take a decision. This power of the Chancellor of Justice is laid down in the Ordinance concerning the administration of claims for damages against the State ( förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301). The Chancellor may examine claims under several provisions of the Tort Liability Act ( skadeståndslagen, 1972:207), notably Chapter 3, section 2, pursuant to which the State shall be liable to pay compensation for financial loss caused by a wrongful act or omission in connection with the exercise of public authority. Compensation for non-pecuniary damage may be awarded in connection with the infliction of personal injury or the commission of certain crimes, such as defamation (Chapter 5, section 1, and Chapter 1, section 3).", "A decision by the Chancellor of Justice to reject a claim for damages in full or in part may not be appealed against. The individual may, however, institute civil proceedings against the State before a district court, with the possibility of appealing to a higher court. In the alternative, such proceedings may be instituted immediately without any previous decision by the Chancellor. Before the courts, the State is represented by the Chancellor.", "68. Under section 48 of the Personal Data Act, a person responsible for a register shall pay compensation to a data subject for any damage or injury to personal integrity caused by the processing of personal data in breach of the Act.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "69. The relevant parts of Article 8 of the Convention read as follows :", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security ... [or] for the prevention of disorder or crime .. .”", "A. Storage of the information that had been released to the applicants", "70. Under Article 8 of the Convention, the applicants complained that the storage in the Security Police files of the information that had been released to them constituted unjustified interference with their right to respect for private life.", "1. Applicability of Article 8", "71. The Government questioned whether the information released to the applicants could be said to fall within the scope of the notion of private life for the purposes of Article 8 § 1. They stressed that the information that had been released to the first applicant did not concern her own activities but the activities of other persons, namely those responsible for the letter bombs that had been sent to her and others. The information kept on the other applicants that was subsequently released to them appeared to a large extent to have emanated from open sources, such as observations made in connection with their public activities (the second applicant ’ s participation in a meeting abroad and the fifth applicant ’ s participation in a demonstration in Stockholm). In addition, the bulk of the information was already in the public domain since it consisted of newspaper articles (the third, fourth and fifth applicants), radio programmes (the fifth applicant) or of decisions by public authorities (decision by the Parliamentary Ombudspersons with regard to the third applicant). None of them had alleged that the released information was false or incorrect.", "72. The Court, having regard to the scope of the notion of “private life” as interpreted in its case-law (see, in particular, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000 ‑ II, and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000 ‑ V), finds that the information about the applicants that was stored on the Security Police register and was released to them clearly constituted data pertaining to their “private life”. Indeed, this embraces even those parts of the information that were public, since the information had been systematically collected and stored in files held by the authorities. Accordingly, Article 8 § 1 of the Convention is applicable to the impugned storage of the information in question.", "2. Compliance with Article 8", "(a) Whether there was interference", "73. The Court further considers, and this has not been disputed, that it follows from its established case-law that the storage of the information in issue amounted to interference with the applicants ’ right to respect for private life as secured by Article 8 § 1 of the Convention (see Leander, cited above, § 48; Kopp v. Switzerland, 25 March 1998, § 53, Reports of Judgments and Decisions 1998-II; Amann, cited above, §§ 69 and 80; and Rotaru, cited above, § 46 ).", "(b) Justification for the interference", "(i) Whether the interference was in accordance with the law", "74. The applicants did not deny that the contested storage of information had a legal basis in domestic law. However, they maintained that the relevant law lacked the requisite quality flowing from the autonomous meaning of the expression “in accordance with the law”. In particular, they submitted that the terms of the relevant national provisions were not formulated with sufficient precision to enable them to foresee – even with the assistance of legal advice – the consequences of their own conduct. The ground of “special reasons” in sub-paragraph 3 of section 33 of the Police Data Act was excessively broad and could be applied to almost anybody. This had been amply illustrated by the instances of gathering and storage of information that had been released to them.", "75. The Government submitted that not only did the impugned interference have a basis in domestic law but the law was also sufficiently accessible and foreseeable to meet the quality requirement under the Court ’ s case-law.", "76. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, Rotaru, cited above, § 52). The law must be compatible with the rule of law, which means that it must provide a measure of legal protection against arbitrary interference by public authorities with the rights safeguarded by paragraph 1 of Article 8. Especially where, as here, a power of the executive is exercised in secret, the risks of arbitrariness are evident. Since the implementation in practice of measures of secret surveillance is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference ( see Malone v. the United Kingdom, 2 August 1984, §§ 67-68, Series A no. 82, reiterated in Amann, cited above, § 56, and in Rotaru, cited above, § 55).", "77. In this regard, the Court notes from the outset that the legal basis in Swedish law of the collection and storage of information on the secret police register, and the quality of that law prior to the amendments which came into force on 1 April 1999, were the subject of the Court ’ s scrutiny in the above-cited Leander judgment ( §§ 19 - 22). It concluded that such measures had a legal basis in national law and that the law in question was sufficiently accessible and foreseeable to satisfy the quality requirements flowing from the autonomous interpretation of the expression “in accordance with the law” ( ibid. , §§ 52 - 57). In the present instance, the parties have centred their pleadings on the situation after 1 April 1999. The Court will therefore not deal of its own motion with the period before that date and will limit its examination to the subsequent period.", "78. In the first place, the Court is satisfied that the storage of the information in issue had a legal basis in sections 5, 32 and 33 of the 199 8 Police Data Act.", "79. Secondly, as to the question regarding the quality of the law, the Court notes that, as is made clear by the terms of section 33 of the Police Data Act, “[t]he Security Police ’ s register may contain personal information only ” (emphasis added) on any of the grounds set out in sub- paragraphs 1, 2 or 3. The Court considers that an issue may arise, but only in relation to the apparent broadness of the ground in sub- paragraph 3 of section 33 : “ Considering the purpose for which the register is kept, there are other special reasons therefor ” ( see paragraph 4 9 above ). The Government stated that a person may be registered without his or her being incriminated in any way. Here the preparatory work gives some specific and clear examples : in particular, a person who is connected with another person who has been registered, a person who may be the target of a threat and a person who may be the object of recruitment by a foreign intelligence service ( ibid. ). The Government have also given examples of wider categories, for instance “a person in contact with someone suspected of a crime” ( ibid. ). It is clear that the Security Police enjoys a certain discretion in assessing who and what information should be registered and also if there are “ special reasons ” other than those mentioned in sub-paragraphs 1 and 2 of section 33 ( a person suspected of a crime threatening national security or a terrorist offence, or undergoing a security check).", "However, the discretion afforded to the Security Police in determining what constitutes “special reasons” under sub-paragraph 3 of section 33 is not unfettered. Under the Swedish Constitution, no entry regarding a citizen may be made in a public register exclusively on the basis of that person ’ s political opinion without his or her consent. A general prohibition of registration on the basis of political opinion is further set out in section 5 of the Police Data Act. The purpose of the register must be borne in mind where registration is made for “special reasons” under sub-paragraph 3 of section 33. Under section 32 of the Police Data Act, the purpose of storing information on the Security Police register must be to facilitate investigations undertaken to prevent and uncover crimes against national security or to combat terrorism. Further limitations follow from section 34 governing the manner of recording data in the Security Police register.", "Against this background, the Court finds that the scope of the discretion conferred on the competent authorities and the manner of its exercise was indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.", "80. Accordingly, the interference with the respective applicants ’ private lives was “in accordance with the law”, within the meaning of Article 8.", "(ii) Aim and necessity of the interference", "81. The applicants stressed the absence of any concrete actions recorded by the Security Police that substantiated the alleged risk that any of them might be connected with terrorism, espionage or any other relevant crime.", "82. The Government maintained that the interference pursued one or more legitimate aims : the prevention of crime, in so far as the first applicant ’ s own safety was concerned by the bomb threats, and the interests of national security with regard to all the applicants. In each case the interference was moreover “necessary” for the achievement of the legitimate aim or aims pursued.", "83. The Government submitted that they were at a loss to understand the reason why the first applicant should claim at all that the Security Police ’ s registration and filing of information concerning threats against her were not in her best interests but, on the contrary, entailed a violation of her rights under the Convention. The information that had been released to the other four applicants was highly varied in nature. Most of it appeared to have been found in the public domain, such as the media. The Government were unaware of the origins of each and every piece of information, and therefore could not comment on that particular aspect. They noted, however, that from today ’ s perspective the information seemed either fairly old or quite harmless and that the interference was proportionate to the legitimate aim pursued, namely the protection of national security.", "84. As to the second applicant, given the Cold War context at the time, it could not be deemed unreasonable for the Security Police to have kept themselves informed about a meeting in 1967 of left-wing sympathisers in Poland in which he may have taken part. He had not been the subject of personal data registration and the information about him had been carefully phrased (with the use of the word “probably”).", "85. The third and fourth applicants had since the 1970s been members of the KPML(r), a political party which advocated the use of violence in order to bring about a change in the existing social order. One of the Security Police ’ s duties was to uphold the Constitution, namely, by preventing and uncovering threats against the nation ’ s internal security. It was evident that persons who were members of political parties like the KPML(r) would attract the attention of the Security Police.", "86. The case of the fifth applicant should also be seen against the background of the Cold War, and he too seemed to have advocated violence as a means of bringing about changes in society. According to one of the entries in the records released to him, he was said to have stated that violence could be resorted to in order to stage demonstrations and to achieve their goals.", "(iii) The Court ’ s assessment", "87. The Court accepts that the storage of the information in question pursued legitimate aims, namely the prevention of disorder or crime, in the case of the first applicant, and the protection of national security, in that of the remainder of the applicants.", "88. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see Klass and Others v. Germany, 6 September 1978, § 42, Series A no. 28, and Rotaru, cited above, § 47 ). Such interference must be supported by relevant and sufficient reasons and must be proportionate to the legitimate aim or aims pursued. In this connection, the Court considers that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security and combating terrorism must be balanced against the seriousness of the interference with the respective applicants ’ right to respect for private life. Here again the Court will limit its examination to the period from 1999 onwards.", "89. In so far as the first applicant is concerned, the Court finds no reason to doubt that the reasons for keeping on record the information relating to bomb threats in 1990 against her and certain other personalities were relevant and sufficient as regards the aim of preventing disorder or crime. The measure was at least in part motivated by the interest in protecting her security; there can be no question of any disproportionate interference with her right to respect for private life thus being entailed. The Court has received no particulars about the precise contents of the documents released to the applicant on 13 December 2002 and will not therefore examine that matter.", "90. However, as to the information released to the second applicant ( namely, his participation in a political meeting in Warsaw in 1967), the Court, bearing in mind the nature and age of the information, does not find that its continued storage is supported by reasons which are relevant and sufficient as regards the protection of national security.", "Similarly, the storage of the information released to the fifth applicant could for the most part hardly be deemed to correspond to any actual relevant national security interests for the respondent State. The continued storage of the information to the effect that he, in 1969, had allegedly advocated violent resistance to police control during demonstrations was supported by reasons that, although relevant, could not be deemed sufficient thirty years later.", "Therefore, the Court finds that the continued storage of the information released to the second and fifth applicants entailed a disproportionate interference with their right to respect for private life.", "91. The information released to the third and fourth applicants raises more complex issues in that it related to their membership of the KPML(r), a political party which, the Government stressed, advocated the use of violence and breaches of the law in order to bring about a change in the existing social order. In support of their argument, the Government submitted a copy of the KPML(r) party programme, as adopted on 2 - 4 January 1993, and referred in particular to its Clauses 4, 22, 23 and 28 (see paragraph 38 above).", "The Court observes that the relevant clauses of the KPML(r) party programme rather boldly advocate establishing the domination of one social class over another by disregarding existing laws and regulations. However, the programme contains no statements amounting to an immediate and unequivocal call for the use of violence as a means of achieving political ends. Clause 23, for instance, which contains the most explicit statements on the matter, is more nuanced in this respect and does not propose violence as either a primary or an inevitable means in all circumstances. Nonetheless, it affirms the principle of armed opposition.", "However, the Court reiterates that “ the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions; the contents of the programme must be compared with the actions of the party ’ s leaders and the positions they defend ” (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 101, ECHR 2003 ‑ II; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 46, Reports 1998-I; Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998 ‑ III; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII ). This approach, which the Court has adopted in assessing the necessity under Article 11 § 2 of the Convention of the dissolution of a political party, is also pertinent for assessing the necessity in the interests of national security under Article 8 § 2 of collecting and storing information on a secret police register about the leaders and members of a political party.", "In this case, the KPML(r) party programme was the only evidence relied on by the Government. Beyond that, they did not point to any specific circumstance indicating that the impugned programme clauses were reflected in actions or statements by the party ’ s leaders or members and constituted an actual or even potential threat to national security when the information was released in 1999, almost thirty years after the party had come into existence. Therefore, the reasons for the continued storage of the information about the third and fourth applicants, although relevant, may not be considered sufficient for the purposes of the necessity test to be applied under Article 8 § 2 of the Convention. Thus, the continued storage of the information released to the respective applicants in 1999 amounted to a disproportionate interference with their right to respect for private life.", "92. In sum, the Court concludes that the continued storage of the information that had been released was necessary with respect to the first applicant, but not for any of the remaining applicants. Accordingly, the Court finds that there has been no violation of Article 8 of the Convention with regard to the first applicant, but that there has been a violation of this provision with regard to each of the other applicants.", "B. The refusals to advise the applicants of the full extent to which information was kept about them on the Security Police register", "1. The parties ’ submissions", "( a ) The applicants", "93. The applicants further submitted that the respective refusals to grant full access to all information kept about them on the Security Police register amounted to unjustified interference with their right to respect for private life under Article 8 of the Convention.", "94. In the applicants ’ view, the interference was not “in accordance with the law” as the relevant national law failed to fulfil the requirements as to quality under the Convention. It had not been foreseeable what kind of information might be stored or what considerations governed the decisions by the Security Police or the courts on each applicant ’ s request for access to information kept on file about them.", "95. Nor was the interference “necessary in a democratic society”. The applicants pointed to the absence of any specific information recorded by the Security Police that could substantiate any assumption of a risk that the applicants might be connected with terrorism, espionage or other relevant criminal activities. Moreover, the lack of access to declassified data kept mainly for purely historical or political reasons could not be viewed as strictly necessary.", "In this connection, the applicants argued that the relevant law did not offer adequate safeguards against abuse. They stressed that the Records Board, a body established in 1996, had failed to review their files following their request for access. The Board had no power to order the destruction of files or the suppression or rectification of information therein. Nor was it empowered to award compensation. The Data Inspection Board had never carried out a substantial review of the files kept by the Security Police. The Parliamentary Ombudsperson could not grant the applicants access to their files and was not empowered to correct false or irrelevant information therein. The Chancellor of Justice was the government ’ s representative and was therefore not independent.", "( b ) The Government", "96. The Government acknowledged that, at some point in time, the Swedish Security Police had kept some information about the applicants but, referring to their above-mentioned arguments, questioned whether the applicants had shown that there was at least a reasonable likelihood that the Security Police retained personal information about them and that there had consequently been interference with their private life.", "97. However, were the Court to conclude that there was interference with the applicants ’ rights under Article 8 § 1 in this context, the Government submitted that it was justified under Article 8 § 2 : it was “in accordance with the law”, pursued a legitimate aim and was “necessary in a democratic society” in order to achieve that aim.", "98. As to the issue of necessity, the Government argued that under Swedish law there were adequate safeguards against abuse.", "(i) The discretion afforded to the Security Police was subject to limitations set out in the more general Personal Data Act, which dealt with the processing of personal information wherever it took place, and the more specific Police Data Act, which in positive terms obliged the Security Police to keep a register, specified its aims and laid down the conditions under which personal information could be included in it.", "(ii) Both the Constitution and the Police Data Act expressly provided that certain sensitive information could only be registered in exceptional circumstances, that is to say when it was “ strictly necessary”. Under no circumstances could a person be registered by the Security Police simply because of his or her political views or affiliations.", "(iii) The Data Inspection Board was an important safeguard, considering its mandate with respect to the overall treatment of personal information. It was empowered to take various measures to protect personal integrity, such as prohibiting all processing of personal data (other than merely storing it) pending the rectification of illegalities. It could also institute judicial proceedings in order to have registered information erased.", "(iv) The Records Board, another important safeguard, had two functions. It monitored the Security Police ’ s filing and storage of information and their compliance with the Police Data Act. It also determined whether information held by the Security Police could be disclosed in security checks.", "(v) The Parliamentary Ombudspersons supervised the application of laws and other regulations not only by the Security Police themselves but also by the bodies monitoring them (the Data Inspection Board and the Records Board). The Ombudspersons were empowered to carry out inspections and other investigations, institute criminal proceedings against public officials and report officials for disciplinary action. It was to be recalled that the third applicant ’ s trade union had in fact lodged a complaint with the Parliamentary Ombudspersons, arguing that there had been a breach of the Personnel Security Check Ordinance in connection with the security check carried out with regard to the third applicant, and that the Ombudspersons had voiced some criticism about the manner in which the matter had been handled.", "(vi) The Chancellor of Justice had a role similar to that of the Parliamentary Ombudspersons, was competent to report public servants for disciplinary action, to institute criminal proceedings against them and to award compensation.", "In addition, damages could be claimed under the Tort Liability Act in direct judicial proceedings. The Personal Data Act moreover contained a separate ground for damages that was of relevance in the context of the present case.", "The Government argued that, in view of the absence of any evidence or indication that the system was not functioning as required by domestic law, the framework of safeguards achieved a compromise between the requirements of protecting a democratic society and the rights of the individual which was compatible with the provisions of the Convention.", "2. The Court ’ s assessment", "99. The Court, bearing in mind its assessment in paragraphs 72 and 73 above, finds it established that the impugned refusal to advise the applicants of the full extent to which information was being kept about them on the Security Police register amounted to interference with their right to respect for private life.", "100. The refusal had a legal basis in domestic law, namely Chapter 5, section 1 (2), of the Secrecy Act. As to the quality of the law, the Court refers to its findings in paragraphs 79 and 80 above, as well as paragraphs 57 to 61, describing the conditions of a person ’ s access to information about him or her on the Security Police register. The Court finds no reason to doubt that the interference was “in accordance with the law” within the meaning of Article 8 § 2.", "101. Moreover, the refusal pursued one or more legitimate aims – reference is made to paragraph 87 above.", "102. The Court notes that, according to the Convention case-law, a refusal of full access to a national secret police register is necessary where the State may legitimately fear that the provision of such information may jeopardise the efficacy of a secret surveillance system designed to protect national security and to combat terrorism (see Klass and Others, cited above, § 58, and Leander, cited above, § 66 ). In this case the national administrative and judicial authorities involved all held that full access would jeopardise the purpose of the system. The Court does not find any ground on which it could arrive at a different conclusion.", "103. Moreover, having regard to the Convention case-law (see Klass and Others, cited above, § 50; Leander, cited above, § 60; Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993, unreported; and Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994, Decisions and Reports 78-A ) and referring to its findings regarding the quality of the law (see paragraphs 79 and 80 above) and the various guarantees that existed under national law (see paragraphs 52 to 68 ), the Court finds it established that the applicable safeguards met the requirements of Article 8 § 2.", "104. In the light of the foregoing, the Court finds that the respondent State, having regard to the wide margin of appreciation available to it, was entitled to consider that the interests of national security and the fight against terrorism prevailed over the interests of the applicants in being advised of the full extent to which information was kept about them on the Security Police register.", "Accordingly, the Court finds that there has been no violation of Article 8 of the Convention under this head.", "II. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION", "105. The applicants complained that, in so far as the storage of secret information was used as a means of surveillance of political dissidents, as was particularly noticeable with regard to the first and fourth applicants, it entailed a violation of their rights under Article 10 of the Convention. The relevant parts of that Article provide:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security ... [or] for the prevention of disorder or crime .. .”", "They further complained that, for each of them, membership of a political party had been a central factor in the decision to file secret information on them. This state of affairs constituted an unjustified interference with their rights under Article 11, the relevant parts of which provide :", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or ... for the prevention of disorder or crime ... ”", "106. The Government argued that no separate issues arose under either Article 10 or Article 11 in the circumstances of the present case in so far as the first, second, fourth and fifth applicants were concerned. They had not been the subject of personnel security checks. The information on them held by the Security Police was apparently never consulted by third parties. In fact, it seemed only to have been released to the applicants themselves following their own requests for access. Furthermore, their suspicions that the Security Police were holding information on them – suspicions that were confirmed when information was indeed released to them – appeared not to have had any impact on their opportunities to exercise their rights under either Article 10 or Article 11. They had at all times been free to hold and express their political or other opinions. It was not supported by the facts of the present case that their opportunities to enjoy freedom of association had in any way been impaired. Therefore, the Government maintained that there had been no interference with their rights under Articles 10 and 11 and requested the Court to declare their complaints under these provisions inadmissible as being manifestly ill-founded.", "107. The Court, for its part, considers that the applicants ’ complaints under Articles 10 and 11, as submitted, relate essentially to the adverse effects on their political freedoms caused by the storage of information on them in the Security Police register. However, the applicants have not adduced specific information enabling it to assess how such registration in the concrete circumstances could have hindered the exercise of their rights under Articles 10 and 11. Nevertheless, the Court considers that the storage of personal data related to political opinion, affiliations and activities that is deemed unjustified for the purposes of Article 8 § 2 ipso facto constitutes an unjustified interference with the rights protected by Articles 10 and 11. Having regard to its findings above under Article 8 of the Convention with regard to the storage of information, the Court finds that there has been no violation of these provisions with regard to the first applicant, but that there have been violations of Articles 10 and 11 of the Convention with regard to the other applicants.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "108. The applicants further complained that no effective remedy existed under Swedish law with respect to the above violations, contrary to Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties ’ submissions", "1. The applicants", "109. Apart from arguing that the relevant Swedish law on data registration was vague and that the safeguards against improper data entry were inadequate, the applicants submitted, in particular, that Swedish law did not provide for a judicial remedy enabling aggrieved parties to have the files destroyed.", "110. The applicants further alleged that the standardised reasoning the national courts gave when rejecting their request for full access to their respective files had been arbitrary and even stigmatising.", "The first applicant claimed that the Administrative Court of Appeal did not look into the Security Police ’ s files on her before adopting its judgment.", "111. The applicants maintained that during its thirty years of existence the Data Inspection Board had never performed a substantial review of the files of the Security Police. While the Records Board had been a success, it had not been involved in any of the instances in issue under the Convention. The Parliamentary Ombudsperson was not empowered to decide on whether the applicants should be granted a right of access to their files or to correct irrelevant or false information on them. The Chancellor of Justice was not independent of the executive.", "2. The Government", "112. The Government disputed that the applicants had an arguable claim for the purposes of Article 13 and contended that this provision was therefore not applicable. In any event, the requirements of this provision had been complied with.", "113. In so far as the applicants could be deemed to have arguable claims when it came to the correction and erasure of information held by the Security Police, the Government referred to the available remedies. The applicants could have complained – but had failed to do so – to the Data Inspection Board in order to seek appropriate measures.", "114. The Government further disputed the first applicant ’ s contention that the administrative courts had failed to look into the Security Police ’ s files. It was evident from the case file of the Administrative Court of Appeal that the court had visited the premises of the Security Police on 3 February 2000 in order to obtain some of the documents.", "115. In so far as the applicants had also complained of a lack of opportunity to seek compensation for any grievances resulting from the storage of information on them by the Security Police, they had had the opportunity to (1) lodge complaints with the Chancellor of Justice, (2) institute judicial proceedings under the Tort Liability Act, or (3) claim – also within the framework of judicial proceedings – damages under the Personal Data Act. None of the applicants appeared to have made use of any of those remedies.", "B. The Court ’ s assessment", "116. The Court sees no reason to doubt that the applicants ’ complaints under Article 8 of the Convention about the storage of information and refusal to advise them of the full extent to which information on them was being kept may, in accordance with its consistent case-law (see, for example, Rotaru, cited above, § 67), be regarded as “arguable” grievances attracting the application of Article 13. They were therefore entitled to an effective domestic remedy within the meaning of this provision.", "117. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. It therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision. The remedy must be “effective” in practice as well as in law ( ibid., § 67).", "The “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy is effective. Furthermore, where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret. It is only once the measures have been divulged that legal remedies must become available to the individual ( ibid., § 69 ).", "118. Turning to the present case, the Court observes that the Parliamentary Ombudsperson and the Chancellor of Justice have competence to receive individual complaints and have a duty to investigate them in order to ensure that the relevant laws have been properly applied. By tradition, their opinions command great respect in Swedish society and are usually followed. However, in the above-cited Leander judgment ( § 82), the Court found that the main weakness in the control afforded by these officials is that, apart from their competence to institute criminal proceedings and disciplinary proceedings, they lack the power to render a legally binding decision. In addition, they exercise general supervision and do not have specific responsibility for inquiries into secret surveillance or into the entry and storage of information on the Security Police register. As it transpires from the aforementioned judgment, the Court found neither remedy, when considered on its own, to be effective within the meaning of Article 13 of the Convention ( ibid., § 84).", "119. In the meantime, a number of steps have been taken to improve the remedies, notably enabling the Chancellor of Justice to award compensation, with the possibility of judicial appeal against the dismissal of a compensation claim, and the establishment of the Records Board, replacing the former National Police Board. The Government further referred to the Data Inspection Board.", "Moreover, it should be noted that, with the abolition of the absolute secrecy rule under former Chapter 5, section 1(2), of the Secrecy Act (when it is deemed evident that information could be revealed without harming the purposes of the register), a decision by the Security Police whether to advise a person of information kept about him or her on their register may form the subject of an appeal to the county administrative court and the Supreme Administrative Court. In practice, the former will go and consult the Security Police register and appraise for itself the contents of files before determining an appeal against a refusal by the Security Police to provide such information. For the reasons set out below, it is not necessary here to resolve the disagreement between the first applicant and the Government as to the scope of the Administrative Court of Appeal ’ s review in her case.", "In the circumstances, the Court finds no cause for criticising the similarities in the reasoning of the Administrative Court of Appeal in the applicants ’ cases.", "120. However, the Court notes that the Records Board, the body specifically empowered to monitor on a day-to-day basis the Security Police ’ s entry and storage of information and compliance with the Police Data Act, has no competence to order the destruction of files or the erasure or rectification of information kept in the files.", "It appears that wider powers in this respect are vested in the Data Inspection Board, which may examine complaints by individuals. Where it finds that data is being processed unlawfully, it can order the processor, on pain of a fine, to stop processing the information other than for storage. The Board is not itself empowered to order the erasure of unlawfully stored information, but can make an application for such a measure to the county administrative court. However, no information has been furnished to shed light on the effectiveness of the Data Inspection Board in practice. It has therefore not been shown that this remedy is effective.", "121. What is more, in so far as the applicants complained about the compatibility with Articles 8, 10 and 11 of the storage on the register of the information that had been released to them, they had no direct access to any legal remedy as regards the erasure of the information in question. In the view of the Court, these shortcomings are not consistent with the requirements of effectiveness in Article 13 (see Rotaru, cited above, § 71, and Klass and Others, cited above, § 71) and are not offset by any possibilities for the applicants to seek compensation (see paragraphs 6 7 and 6 8 above).", "122. In the light of the above, the Court does not find that the applicable remedies, whether considered on their own or in the aggregate, can be said to satisfy the requirements of Article 13 of the Convention.", "Accordingly, the Court concludes that there has been a violation of this provision.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "123. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "124. The applicants each sought 400,000 Swedish kronor (SEK ) (approximately 42 ,970 euros ( EUR ) ), exclusive of value-added tax (VAT), in compensation for non-pecuniary damage, arguing that they should be awarded the same level of compensation as was offered to Mr Leander following the revelations as to what information had been kept about him on the secret police register and subsequent to the delivery of the Court ’ s judgment in his case.", "125. The Government stressed that the offer to Mr Leander had been made on an ex gratia basis under a special agreement reached on 25 November 1997 between him and them. In their view, the grant of compensation to Mr Leander could not serve as a model for any award to be made in this case. The Government submitted that the applicants had not substantiated their claim and had not shown any causal link between the alleged violation of the Convention and any non-pecuniary damage. In any event, the injury which may have been sustained by the applicants was not of such a serious nature as to justify a pecuniary award in this case. In the Government ’ s view, the finding of a violation would in itself constitute sufficient just satisfaction.", "126. The Court agrees with the Government that the settlement they reached with Mr Leander cannot serve as a model for an award in the present case. However, the Court considers that each of the applicants must have suffered anxiety and distress as a result of the violation or violations of the Convention found in his or her case that cannot be compensated solely by the Court ’ s findings. Accordingly, having regard to the nature of the violations and the particular circumstances pertaining to each applicant, the Court awards under this head EUR 3,000 to the first applicant, EUR 7,000 each to the second and fifth applicants and EUR 5,000 each to the third and fourth applicants.", "B. Costs and expenses", "127. The applicants sought, firstly, the reimbursement of their legal costs and expenses, in an amount totalling SEK 289,000 (approximately EUR 31,000), in respect of their lawyer ’ s work on the case (115 hours and 35 minutes, at SEK 2,500 per hour).", "Secondly, the applicants ’ lawyer sought certain sums in reimbursement of the cost of his work in connection with a “first session” with the third applicant and a number of other persons.", "128. The Government maintained that costs and expenses relating to other cases were not relevant and should not be taken into account in any award to be made in this case. As to the amount claimed with respect to the present case, the Government did not question the number of hours indicated but considered the hourly rate charged to be excessive. SEK 1,286 (inclusive of VAT) was the hourly rate currently applied under the Swedish legal aid system. In view of the special character of the case, the Government could accept a higher rate, not exceeding SEK 1,800. Accordingly, should the Court find a violation, they would be prepared to pay a total of SEK 208,000 in respect of legal costs (approximately EUR 22,000).", "129. The Court will consider the above claims in the light of the criteria laid down in its case-law, namely whether the costs and expenses were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and are reasonable as to quantum.", "Accordingly, the Court dismisses the applicants ’ second costs claim. As to the first claim, the Court is not convinced that the hourly rate and the number of hours were justified. Deciding on an equitable basis, it awards the applicants, jointly, EUR 20,000 under this head.", "C. Default interest", "130. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant, Magyar Helsinki Bizottság ( Hungarian Helsinki Committee ), is a non-governmental organisation (NGO) that was founded in 1989. It monitors the implementation of international human-rights standards in Hungary, provides legal representation to victims of alleged human-rights abuses and promotes legal education and training both in Hungary and abroad. Its main areas of activity are protecting the rights of asylum seekers and foreigners in need of international protection, and monitoring the human-rights performance of law-enforcement agencies and the judicial system. In particular, it focuses on access to justice, conditions of detention, and the effective enforcement of the right to defence.", "A. Background to the case", "11. Between 2005 and 2007 the applicant NGO conducted a project “Model Legal Aid Board Programme” aimed at developing and testing a model to overcome shortcomings in the system for the ex officio appointment of defence counsel. The study summarising the outcome of the project was published in 2007 under the title “Without Defence”, suggesting that there should be a standard set of criteria developed to assess the quality of defence counsel ’ s work.", "12. In 2008, as a follow-up to its 2005-2007 survey, the applicant NGO launched a new project entitled “The Right to Effective Defence and the Reform of the ex-Officio Appointment System”. Together with the Ministry of Justice and Law Enforcement and various bar associations, the applicant NGO developed a questionnaire aimed at evaluating the performance of defence counsel. It also assessed the quality of legal representation provided by ex officio appointed and retained defence counsel, by examining the case files in 150 closed criminal cases. In parallel, the applicant NGO made a contribution in respect of Hungary to the comparative research project “ Effective Defence Rights in the European Union and Access to Justice: Investigating and Promoting Best Practices” carried out in nine European countries and funded by the European Commission and the Open Society Justice Initiative.", "The results of the two projects were presented at a conference in April 2009, the conclusions of which were summarised in the report “In the Shadow of Suspicion: A critical account of enforcing the right to an effective defence”.", "13. In addition, the applicant NGO carried out continuous advocacy activities for reform of the ex officio appointments system; in cooperation with the Budapest Bar Association, it also drew up recommendations for a proposed code of professional ethics for ex officio defence counsel.", "14. In the applicant NGO ’ s assessment, its research showed that the system of ex officio appointed defenders did not operate adequately, essentially because the investigative authorities, in particular the police, were free to choose defence counsel from a list compiled by the relevant bar associations. This gave rise to distrust on the part of defendants. Furthermore, according to the applicant NGO ’ s findings, many police departments had recourse to the same lawyers or law firms in the majority of cases, resulting in defence counsels ’ dependency on ex officio appointments to earn their living. The applicant NGO also concluded that the selection system lacked transparency.", "15. In 2009, in the framework of the project “Steps Towards a Transparent Appointment System in Criminal Legal Aid”, an experimental method was put in place, in cooperation with the applicant NGO, the county bar associations and certain county police departments. A key facet of this method was replacement of the existing system of discretionary appointments by a randomised computer-generated one.", "16. As a feature of the project, the applicant NGO requested the names of the public defenders selected in 2008 and the number of assignments given to each lawyer from a total of twenty-eight police departments, situated in the seven Hungarian regions. The aim of the data request was to demonstrate whether there existed discrepancies in police departments ’ practice in appointing defence counsel from the lists provided by the bar associations. These requests were made under section 20 (1) of Act no. LXIII of 1992 (“the Data Act”). The applicant NGO maintained that the number of defence counsel appointments was public-interest data ( közérdekű adat ) and that thus the names of defence counsel were data subject to disclosure in the public interest ( közérdekből nyilvános adat ).", "17. Seventeen police departments complied with the request; a further five police departments disclosed the requested information following a successful legal challenge by the applicant NGO.", "18. On 18 August 2009 the applicant NGO addressed the same request to the Hajdú-Bihar County Police Department, seeking access to information concerning the names of defence counsel appointed in the police department ’ s area of jurisdiction and the number of appointments given to each defence counsel.", "19. In its response of 26 August 2009 the Hajdú-Bihar County Police Department refused the applicant NGO ’ s request, stating that “the names of the defence counsel are not public-interest data nor information subject to disclosure in the public interest under section 19 (4) of the Data Act, since defence counsel are not members of a body performing State, municipal or public duties. Thus their names constitute private data, which are not to be disclosed under the law”. The police department also referred to the disproportionate burden the provision of the data would impose on it.", "20. A similar request by the applicant NGO was rejected by the Debrecen Police Department on 27 August 2009.", "B. Civil proceedings instituted by the applicant organisation", "21. On 25 September 2009 the applicant NGO brought an action against these two police departments, arguing that ex officio defence counsel performed a duty in the interest of the public which was financed from public funds. Data concerning them thus qualified as information subject to disclosure in the public interest.", "22. In its counter-claim, the Hajdú-Bihar County Police Department maintained its view that the names of defence counsel constituted personal data rather than information subject to disclosure in the public interest, since they neither carried out their tasks within the scope of the duties and competences of the police departments, nor were they members of those bodies. It further maintained that processing the data requested by the applicant NGO would entail a prohibitive workload.", "23. The Debrecen Police Department requested the discontinuation of the proceedings.", "24. The Debrecen District Court joined the two cases. On 21 October 2009 the District Court found for the applicant NGO, ordering the respondents to release the relevant information within 60 days.", "25. The court found that although defence counsel did not qualify as persons performing public duties, they were also not employees or agents of the respondent police departments, and the question whether defence was an activity of a public-interest nature was a matter which should be assessed with reference to its aim and role. Referring to Article 46 of the Code of Criminal Procedure on mandatory defence and to Article 48 of the same Code on the investigative authorities ’ duty to appoint defence counsel under certain conditions, the court observed that the duties of the investigative authorities also included giving effect to the constitutional right to defence. The court concluded that measures concerning the exercise of mandatory defence qualified as public-interest activities, and any related data were of great importance for society and were not to be considered as a matter of personality rights or subject to the protection of private interests. The names of defence counsel and the number of their respective appointments did not therefore constitute information of a private nature, in relation to which disclosure would only be possible with the approval of the person concerned. The court went on to state that, given the public-interest nature of mandatory defence, the interest in informing society seemed to be stronger than the need to protect privacy, which in any case was not infringed since the role of defence counsel was public from the moment of indictment. The court ordered the respondents to surrender the information requested.", "26. Both police departments appealed, reiterating in essence their argument that the names and number of appointments of defence counsel did not represent information subject to disclosure in the public interest, but personal data, since those persons did not perform State, municipal or public duties. They also maintained that the transfer of the requested information would cause an undue burden.", "27. In its judgment of 23 February 2010, the Hajdú-Bihar County Regional Court, acting as a second-instance court, overturned the first ‑ instance judgment and dismissed the applicant NGO ’ s claim in its entirety. The court rejected the applicant NGO ’ s argument that ex officio defence counsel exercised public functions within the meaning of the Data Act. In the court ’ s view, the provisions of the Code of Criminal Procedure relied on by the applicant NGO provided for equal recognition before the law and for the right to defence and imposed a duty on the State to ensure these rights. However, the provisions did not prescribe that the activities of ex officio defence counsel were public duties, irrespective of the fact that they were financed by the State. The court held that the duty of the police to appoint defence counsel in certain cases was to be distinguished from the latter ’ s activities. It noted that personal data could only be processed under section 5(1) of the Data Act for a well-defined purpose in the exercise of a right or in fulfilment of an obligation, and that personal data processed by the police departments could only be transferred with the permission of the person concerned.", "28. The applicant NGO sought review of the second-instance judgment, maintaining that although the names of the defence counsel and the number of their respective appointments were personal data, this was nevertheless information subject to disclosure in the public interest as being related to the public duties carried out by ex officio defence counsel.", "29. The Supreme Court dismissed the applicant NGO ’ s petition for review on 15 September 2010. It upheld the Regional Court ’ s judgment in substance, partly modifying its reasoning.", "30. The Supreme Court held as follows:", "“ ... [W]hat needs to be examined is whether defence counsel are to be considered ‘ other persons performing public duties ’. The Supreme Court considers, in compliance with Recommendation no. 1234/H/2006 of the Parliamentary Commissioner for Data Protection, that the question of whether an individual was a person performing public duties has to be determined solely on the basis of the provisions of the Data Act. Only a person vested with independent powers and competences is to be considered a person performing public duties.", "In answering this question [of interpretation of the notion of ‘ persons performing public duties ’ ], the applicant ’ s argument concerning Article 137(2) of the Criminal Code is irrelevant, since that provision only prescribes that defence counsel were to be regarded as persons performing public duties for the purposes of the Criminal Code itself, but not for the purposes of the Data Act or for any other legal relationship.", "Under Article 57 § 3 of the Constitution, the State has a duty to secure the right to defence. The courts, the prosecution services and the investigative authorities perform this task by, in particular, ensuring the right to defence (Article 5 § 3 of the Code of Criminal Procedure) and by appointing defence counsel when required under Articles 46 and 48 of the Code of Criminal Procedure. In so doing, these bodies accomplish their public duties, which are thus terminated with the appointment of defence counsel. Following his or her appointment, a defence counsel ’ s activities constitute private activities although they are performed in pursuance of a public goal.", "The court has thus found that defence counsel cannot be regarded as ‘ other persons performing public duties ’, since no powers or competences defined by law are vested in them. The mere fact that procedural laws specify rights and obligations in respect of persons performing the task of defence counsel in criminal proceedings cannot be interpreted as constituting powers and competences defined by law. In respect of the right to defence, the Code of Criminal Procedure prescribes obligations only for authorities, not for defence counsel. The wording of Article 1 of the Code of Criminal Procedure, which states that prosecution, defence and adjudication are separate tasks, also supports this view.", "Thus, the names and number of appointments of defence counsel constitute personal data under section 2(1) of the Data Act. Accordingly, under section 19(4) of the Data Act, the respondent police departments cannot be obliged to surrender such personal data. It follows that the second-instance court was right to dismiss the applicant ’ s action.”", "III. General principle on access to official documents", "Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.", "IV. Possible limitations to access to official documents", "1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:", "i. national security, defence and international relations;", "ii. public safety;", "iii. the prevention, investigation and prosecution of criminal activities;", "iv. privacy and other legitimate private interests;", "v. commercial and other economic interests, be they private or public;", "vi. the equality of parties concerning court proceedings;", "vii. nature;", "viii. inspection, control and supervision by public authorities;", "ix. the economic, monetary and exchange rate policies of the state;", "x. the confidentiality of deliberations within or between public authorities during the internal preparation of a matter.", "2. Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure. ... ”", "53. The Council of Europe Convention on Access to Official Documents (opened to signature on 18 June 2009), which has so far been ratified by seven member States (Bosnia and Herzegovina, Finland, Hungary, Lithuania, Montenegro, Norway and Sweden) and which will enter into force on the first day of the month following the expiration of three months after the date on which ten member States of the Council of Europe express their consent to be bound by the Convention, contains the following:", "Article 2 – Right of access to official documents", "“1. Each Party shall guarantee the right of everyone, without discrimination on any ground, to have access, on request, to official documents held by public authorities.", "2. Each Party shall take the necessary measures in its domestic law to give effect to the provisions for access to official documents set out in this Convention.", "3. These measures shall be taken at the latest at the time of entry into force of this Convention in respect of that Party.”", "Article 3 – Possible limitations to access to official documents", "“1. Each Party may limit the right of access to official documents. Limitations shall be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:", "a. national security, defence and international relations;", "b. public safety;", "c. the prevention, investigation and prosecution of criminal activities;", "d. disciplinary investigations;", "e. inspection, control and supervision by public authorities;", "f. privacy and other legitimate private interests;", "g. commercial and other economic interests;", "h. the economic, monetary and exchange rate policies of the State;", "i. the equality of parties in court proceedings and the effective administration of justice;", "j. environment; or", "k. the deliberations within or between public authorities concerning the examination of a matter.", "Concerned States may, at the time of signature or when depositing their instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that communication with the reigning Family and its Household or the Head of State shall also be included among the possible limitations.", "2. Access to information contained in an official document may be refused if its disclosure would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.", "3. The Parties shall consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply.”", "Article 4 – Requests for access to official documents", "“1. An applicant for an official document shall not be obliged to give reasons for having access to the official document.", "... ”", "Article 5 – Processing of requests for access to official documents", "“1. The public authority shall help the applicant, as far as reasonably possible, to identify the requested official document.", "2. A request for access to an official document shall be dealt with by any public authority holding the document. If the public authority does not hold the requested official document or if it is not authorised to process that request, it shall, wherever possible, refer the application or the applicant to the competent public authority.", "3. Requests for access to official documents shall be dealt with on an equal basis.", "4. A request for access to an official document shall be dealt with promptly. The decision shall be reached, communicated and executed as soon as possible or within a reasonable time limit which has been specified beforehand.", "5. A request for access to an official document may be refused:", "i. if, despite the assistance from the public authority, the request remains too vague to allow the official document to be identified; or", "ii. if the request is manifestly unreasonable.", "6. A public authority refusing access to an official document wholly or in part shall give the reasons for the refusal. The applicant has the right to receive on request a written justification from this public authority for the refusal.”", "54. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data ( which entered into force on 1 October 1985) contains the following relevant passages:", "Article 2 – Definitions", "“For the purposes of this convention:", "‘ personal data ’ means any information relating to an identified or identifiable individual (“data subject”);", "... ”", "Article 5 – Quality of data", "“Personal data undergoing automatic processing shall be:", "a. obtained and processed fairly and lawfully;", "b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;", "c. adequate, relevant and not excessive in relation to the purposes for which they are stored;", "d. accurate and, where necessary, kept up to date;", "e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”", "Article 9 – Exceptions and restrictions", "“ 1. No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article.", "2. Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "...", "b. protecting the data subject or the rights and freedoms of others.”", "C. European Union", "55. The Charter of Fundamental Rights of the European Union provides as follows:", "Article 11 Freedom of expression and information", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "2. The freedom and pluralism of the media shall be respected.”", "Article 42 Right of access to documents", "“Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.”", "56. Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents provides, in so far as relevant, as follows:", "Article 2 Beneficiaries and scope", "“1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.", "2. The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.", "3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.”", "Article 4 Exceptions", "“1. The institutions shall refuse access to a document where disclosure would undermine the protection of:", "...", "(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.”", "57. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on protection of individuals with regard to the processing of personal data provides as follows:", "Article 2 Definitions", "“For the purposes of this Directive:", "(a) ‘ personal data ’ shall mean any information relating to an identified or identifiable natural person ( ‘ data subject ’ ); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;", "(b) ‘ processing of personal data ’ ( ‘ processing ’ ) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;", "... ”", "Article 9 Processing of personal data and freedom of expression", "“Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”", "58. The Court of Justice of the European Union (Grand Chamber), in its judgment of 9 November 2010, in Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke Gbr and Hartmut Eifert v. Land Hessen, held as follows :", "“48. The right to the protection of personal data is not, however, an absolute right, but must be considered in relation to its function in society...", "85. ... It is necessary to bear in mind that the institutions are obliged to balance, before disclosing information relating to a natural person, the European Union ’ s interest in guaranteeing the transparency of its actions and the infringement of the rights recognised by Articles 7 and 8 of the Charter. No automatic priority can be conferred on the objective of transparency over the right to protection of personal data ..., even if important economic interests are at stake.”", "59. In its judgment of 29 June 2010, the Court of Justice of the European Union (Grand Chamber) held, in Case C-28/08 P, Commission v. the Bavarian Lager Co. Ltd regarding the company ’ s claim to have full access to the minutes of a meeting, as follows :", "“76. This Court finds that, by releasing the expurgated version of the minutes of the meeting of 11 October 1996 with the names of five participants removed therefrom, the Commission did not infringe the provisions of Regulation No 1049/2001 and sufficiently complied with its duty of openness.", "77. By requiring that, in respect of the five persons who had not given their express consent, Bavarian Lager establish the necessity for those personal data to be transferred, the Commission complied with the provisions of Article 8(b) of Regulation No 45/2001.", "78. As Bavarian Lager has not provided any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission has not been able to weigh up the various interests of the parties concerned. Nor was it able to verify whether there was any reason to assume that the data subjects ’ legitimate interests might be prejudiced, as required by Article 8(b) of Regulation No 45/2001.", "79. It follows from the above that the Commission was right to reject the application for access to the full minutes of the meeting of 11 October 1996.”", "D. Inter-American Court of Human Rights", "60. Article 13 (Freedom of Thought and Expression) of the American Convention on Human Rights establishes, inter alia, that:", "“1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one ’ s choice.”", "61. In the case of Claude Reyes et al. v. Chile (judgment of 19 September 2006), the Inter-American Court found that:", "“ ... by expressly stipulating the right to ‘ seek” and “receive ’ ‘ information, ’ Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.”", "E. African system of human-rights protection", "62. Article 9 of the African Charter on Human and Peoples ’ Rights provides as follows:", "“1. Every individual shall have the right to receive information.", "2. Every individual shall have the right to express and disseminate his opinions within the law.”", "63. The Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples ’ Rights and published on 23 October 2002 reads, in its relevant part, as follows:", "I. The Guarantee of Freedom of Expression", "“1. Freedom of expression and information, including the right to seek, receive and impart information and ideas... is a fundamental and inalienable human right and an indispensable component of democracy.", "2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.”", "IV. Freedom of Information", "“1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.", "2. The right to information shall be guaranteed by law in accordance with the following principles:", "3. Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.”", "F. Comparative law", "64. It follows from the materials available to the Court on the legislation of member States of the Council of Europe that all of the thirty-one member States surveyed, save for Luxembourg, recognise the right of access to information and/or official documents held by public bodies. It would also appear that in most member States the right of access to information and/or documents appears not to be limited to the executive branch of power but extends to information and/or documents held by the legislative or judicial branches of power and even to State-owned companies and private bodies which perform public functions or receive substantial public funding. All access-to-information laws set out categories of information that can be withheld from release. Some countries have enacted a public-interest test which requires the public authorities and the supervisory bodies to balance the interest in withholding information against the public interest in disclosure." ]

[ "II. RELEVANT DOMESTIC LAW", "31. The Constitution, as in force at the material time, provided as follows:", "Article 59", "“(1) In the Republic of Hungary everyone has the right to reputation, to privacy of the home and to protection of secrecy in private affairs and of personal data.”", "Article 61", "“(1) In the Republic of Hungary everyone has the right freely to express his opinion, and to access and impart information of public interest.”", "32. Act no. LXIII of 1992 on the Protection of Personal Data and the Disclosure of Information of Public Interest (the “Data Act”), as in force at the material time, provided, in so far as relevant:", "DefinitionsSection 2", "“(1) ‘ Personal data ’ means any information relating to an identified or identifiable natural person (hereinafter referred to as ‘ data subject ’ ) and any reference drawn, whether directly or indirectly, from such information. In the course of data processing, such information shall be treated as personal data as long as the data subject remains identifiable through it. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, psychological, economic, cultural or social identity. ...", "(4) ‘ Data of public interest ’ ( közérdekű adat, hereinafter ‘ public-interest data ’ ) means any information or knowledge, other than personal data, processed by an authority or a person performing State or municipal duties, or other public duties defined by law, including those data pertaining to the activities of the given authority or person, irrespective of the method or format in which it is recorded, and its individual or collective nature;", "(5) ‘ Data subject to disclosure in the public interest ’ ( közérdekből nyilvános adat ) means any data, other than public-interest data, that are prescribed by law to be published or disclosed for the benefit of the general public; ... ”", "The purpose of data processingSection 5", "“(1) Personal data may be processed only for specified and explicit purposes, where this is necessary for guaranteeing certain rights or fulfilling certain obligations. This purpose must be satisfied at all stages of the data-processing operations.”", "Data transfer, combination of data managementSection 8", "“(1) Personal data may be transferred, whether in a single operation or in a set of operations, if the data subject has given his or her consent or if the transfer is legally permitted, and if the safeguards for data processing are satisfied with regard to each and every component of the personal data.", "(2) Subsection (1) shall also apply where data are shared between various filing systems of the same processor, or between those of government and local authorities.”", "Access to information of public interestSection 19", "“(1) Authorities and persons performing State or municipal duties or other public duties defined by law (hereinafter jointly referred to as ‘ the agency/agencies ’ ) shall provide the general public with accurate and speedy information concerning the matters under their competence, such as the budgets of the central government and local governments and the implementation thereof, the management of assets controlled by the central government and by local governments, the appropriation of public funds, and special and exclusive rights conferred upon market actors, private organisations or individuals.", "(2) The agencies specified in subsection (1) shall regularly publish by electronic means or otherwise make available – including, upon request, the means specified in section 20 – all information of importance concerning their competence, jurisdiction, organisational structure, professional activities, the evaluation of such activities (including their effectiveness), the categories of data they process, the legal regulations that pertain to their operations, and their financial management. The manner of disclosure and the data to be disclosed may be prescribed by legal regulation.", "(3) The agencies defined in subsection (1) shall allow free access to data of public interest held on file by them to any person, with the exception of information classified by an agency vested with proper authorisation or if classified by virtue of commitment under treaty or convention, or if access to specific information of public interest is restricted by law in connection with:", "(a) defence;", "(b) national security;", "(c) prevention, investigation, detection and prosecution of criminal offences;", "(d) central financial or foreign-exchange policy;", "(e) external relations, relations with international organisations;", "(f) court or administrative proceedings.", "(4) Unless otherwise prescribed by law, the personal data of any person acting in the name and on behalf of the agencies specified in subsection (1), to the extent that they relate to his or her duties, and the personal data of other persons performing public duties shall be deemed to be data subject to disclosure in the public interest. Access to such data shall be governed by the provisions of this Act pertaining to information of public interest.", "(5) Unless otherwise prescribed by law, any data, other than personal data, that are processed by bodies or persons providing services prescribed mandatory by law or under contract with any central or local governmental agency, if such services are not available in any other way or form and to the extent that such processing is necessary for their activities, shall be deemed to be information subject to disclosure in the public interest.", "(6) Access to business secrets within the context of access to and publication of information of public interest shall be governed by the relevant provisions of the Civil Code.", "(7) The availability of public information may also be limited by European Union legislation in respect of any important economic or financial interests of the European Union, including monetary, budgetary and tax policies.”", "Section 19/A", "“(1) Any data compiled or recorded by an agency referred to in subsection (1) of section 19 as part of and in support of a decision-making process for which it is vested with powers and competence, shall not be made available to the public for ten years from the date on which they were compiled or recorded. Access to these data may be authorised – in the light of the content of subsection (1) of section 19 – by the head of the agency that controls the data in question.", "(2) A request for disclosure of data underpinning a decision may be rejected after the decision is adopted, within the time-limit referred to in subsection (1), if disclosure is likely to jeopardise the agency ’ s legal functioning or the discharging of its duties without any undue influence, such as, in particular, the freedom to express its position during the preliminary stages of the decision-making process on account of which the data were required in the first place.", "(3) The time-limit for restriction of access as defined in subsection (1) to certain specific data may be reduced by law.”", "Section 20", "“(1) Information of public interest shall be made available to any person upon a request that is submitted verbally, in writing or by electronic means.", "(2) The agencies processing information of public interest must comply with requests for information without delay, and shall provide it within not more than 15 days.", "(3) The applicant may also be provided a copy of the document or part of a document containing the data in question, regardless of the form of storage. The agency controlling the information in question may charge a fee covering only the costs of making the copy, and shall communicate this amount in advance when requested.", "(4) If a document that contains information of public interest also contains any data that cannot be disclosed to the applicant, these data must be eliminated or rendered unrecognisable on the copy.", "(5) Data shall be supplied in a readily intelligible form and by way of the technical means requested by the applicant, provided this does not entail unreasonably high costs. A request for data may not be refused on the grounds that they cannot be made available in a readily intelligible form.", "(6) When a request for information is refused the applicant must be notified in writing within 8 days, or by electronic means if the applicant has conveyed his or her electronic mailing address, and the reasons for refusal must be given.", "(7) A request for information of public interest by an applicant whose native language is not Hungarian may not be refused on the ground that it was written in his or her native language or in any other language he or she understands.", "(8) State or local public authorities and agencies and other bodies carrying out the public duties specified by law shall adopt regulations governing the procedures for satisfying requests for information of public interest.", "(9) The agencies specified in subsection (1) of section 19 shall notify the data protection commissioner once a year about refused requests, including the reasons for refusal.”", "Section 21", "“(1) Where a person ’ s petition for public information is refused, he or she may file a court action.", "(2) The burden of proof with regard to compliance with the law shall lie with the agency processing the data.", "(3) Proceedings are to be brought within 30 days from the date of refusal, or from the last day of the time-limit specified in subsection (2) of section 20 if the refusal was not communicated, against the agency which has refused to disclose the information.", "...", "(7) If a decision is taken in favour of the plaintiff, the court shall order the agency processing the data to provide the information.”", "Section 21/A", "“(1) The agencies specified in subsection (1) of section 19 may not render access to public information contingent upon the disclosure of personal identification data. The processing of personal data for access to information of public interest that have been published by electronic means is permitted only to the extent required for technical reasons, after which such personal data must be erased without delay.", "(2) The processing of personal identification data in connection with any disclosure upon request is permitted only to the extent absolutely necessary, including the collection of payment of any charges. Following the disclosure of data and upon receipt of the said payment, the personal data of the applicant must be erased without delay.", "(3) Provisions may be prescribed by law in derogation from what is contained in subsections (1) and (2).”", "33. Act no. XIX of 1998 on the Code of Criminal Procedure, in its relevant part, provides as follows:", "Right to defenceArticle 5", "“(1) Defendants shall have the right to defend themselves ... ”", "Article 46", "“The involvement of defence counsel in the criminal proceedings is mandatory where:", "(a) the offence is punishable under the law by imprisonment of 5 years or more;", "(b) the defendant is detained;", "(c) the defendant is deaf, mute, blind or – irrespective of his or her legal responsibility – is of unsound mind;", "(d) the defendant does not speak Hungarian or the language of the proceedings;", "(e) the defendant is unable to defend himself or herself in person for any other reason;", "(f) it is expressly stipulated in this Act.”", "Article 48", "“(1) The court, the prosecutor or the investigating authority shall appoint defence counsel where defence is mandatory and the defendant has no defence counsel of his or her own choice ...", "(2) The court, the prosecutor or the investigating authority shall also appoint defence counsel where defence is not mandatory but the defendant requests for the appointment of defence counsel because of his or lack of adequate means to provide his or her own defence.", "(3) The court, the prosecutor or the investigating authority shall ... appoint defence counsel where they find this to be necessary in the interests of the defendant.", "...", "(5) The appointment of defence counsel shall not be subject to appeal but the defendant may – on submission of valid reasons – request the appointment of another defence counsel. Such requests shall be determined by the court, prosecutor or investigating authority before which the proceedings are pending.", "(6) Where valid grounds exist, the defence counsel appointed may ask to be released from the appointment. Such requests shall be determined by the court, prosecutor or investigating authority before which the proceedings are pending.", "...", "(9) The appointed defence counsel shall be entitled to a fee and to his or her costs for appearing before the court, the prosecutor or the investigating authority when he or she is summoned or notified, for studying the case file and for advising a detained defendant in the detention premises.”", "34. Recommendation no. 1234/H/2006 of the Parliamentary Commissioner for Data Protection on the harmonisation of laws applicable to the disclosure of personal data related to the functions of persons performing public duties reads, in its relevant part, as follows:", "Interpretation of section 19 (4), aspects to be taken into consideration in its application", "“ ...", "(b) In determining the notion of “ other person performing public duties ”, an autonomous interpretation taking into account the internal logic of this provision of the Data Act should be made, independently of the use of the term in other laws. For example, the interpretative provision of the Criminal Code on the notion of “a person performing public duty” (Article 137 (2) of the Criminal Code) cannot be used, because in the light of the other rules of the Data Act, one part of the content of that provision falls under the first phrase of the Data Act, whereas other parts of its content fall outside the scope of the Data Act.", "Therefore, in the context of the above subsection the notion of “ other person performing public duties ” includes State and municipal officials (for example, the President of the Republic, the Speaker of Parliament, the President of the Constitutional Court, the President of the Supreme Court, the President of the State Court of Audit, the President of the Hungarian National Bank, the Prime Minister, government ministers) who have independent functions and competences and operate as one ‑ person institutions. The persons entrusted with State and municipal tasks and competences are the specific individuals who hold such offices, and they are personally responsible for disclosing the data relevant to them.”", "III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW MATERIAL", "A. United Nations", "35. The Vienna Convention of 1969 on the Law of Treaties provides as follows:", "Article 31 General rule of interpretation", "“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.", "2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:", "(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;", "(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.", "3. There shall be taken into account, together with the context:", "(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;", "(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;", "(c) any relevant rules of international law applicable in the relations between the parties.", "4. A special meaning shall be given to a term if it is established that the parties so intended.”", "Article 32 Supplementary means of interpretation", "“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:", "(a) leaves the meaning ambiguous or obscure; or", "(b) leads to a result which is manifestly absurd or unreasonable.”", "36. Article 19 of the Universal Declaration of Human Rights provides:", "“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”", "37. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, came into force on 23 March 1976 and was ratified by Hungary on 17 January 1974, provides as follows:", "“1. Everyone shall have the right to hold opinions without interference.", "2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.", "3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:", "(a) For respect of the rights or reputations of others;", "(b) For the protection of national security or of public order ( ordre public ), or of public health or morals.”", "38. In its General Comment no. 34 on Article 19 of the ICCPR (Freedoms of opinion and expression), published on 12 September 2011, the United Nations Human Rights Committee stated as follows:", "“Right of access to information", "18. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. Public bodies are as indicated in paragraph 7 of this general comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. As has already been noted, taken together with article 25 of the Covenant, the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to receive media output.”", "39. In the case of Gauthier v. Canada ( Communication No. 633/1995, 5 May 1999), the Human Rights Committee stated as follows:", "“13.3 The issue before the Committee is thus whether the restriction of the author ’ s access to the press facilities in Parliament amounts to a violation of his right under article 19 of the Covenant, to seek, receive and impart information.", "13.4 In this connection, the Committee also refers to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: ‘ In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. ’ General comment No. 25, paragraph 25, adopted by the Committee on 12 July 1996. Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.", "13.5 In the present case, the State party has restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organisation, the Canadian Press Gallery. The author has been denied active (i.e. full) membership of the Press Gallery. On occasion he has held temporary membership which has given him access to some but not all facilities of the organisation. When he does not hold at least temporary membership he does not have access to the media facilities nor can he take notes of Parliamentary proceedings. The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party ’ s argument and is of the opinion that the author ’ s exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information ... ”", "40. In the case of Toktakunov v. Kyrgyzstan (Communication No. 1470/2006, 28 March 2011), the Human Rights Committee stated:", "“6.3 ... The Committee further notes that the reference to the right to ‘ seek ’ and ‘ receive ’ ‘ information ’ as contained in article 19, paragraph 2, of the Covenant, includes the right of individuals to receive State-held information, with the exceptions permitted by the restrictions established in the Covenant. It observes that the information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The Committee also recalls its position in relation to press and media which includes a right for the media actors to have access to information on public affairs and the right of the general public to receive media output. It further notes that among the functions of the press and media are the creation of forums for public debate and the forming of public or, for that matter, individual opinions on matters of legitimate public concern, such as the use of the death penalty. The Committee considers that the realisation of these functions is not limited to the media or professional journalists, and that they can also be exercised, for example, by public associations or private individuals. With reference to its conclusions in Communication S.B. v. Kyrgyzstan, the Committee also notes that the author in the present case is a legal consultant of a human rights public association, and as such, he can be seen as having ... special ‘ watchdog ’ functions on issues of public interest. In light of the considerations listed above, in the present communication, the Committee is satisfied, due to the particular nature of the information sought, that the author has substantiated, for purposes of admissibility, that he, as an individual member of the public, was directly affected by the refusal of the State party ’ s authorities to make available to him, on request, the information on use of the death penalty.", "...", "7.4 In this regard, the Committee recalls its position in relation to press and media freedom that the right of access to information includes a right of the media to have access to information on public affairs and the right of the general public to receive media output. The Committee considers that the realisation of these functions is not limited to the media or professional journalists, and that they can also be exercised by public associations or private individuals (see paragraph 6.3). When, in the exercise of such ‘ watchdog ’ functions on matters of legitimate public concern, associations or private individuals need to access State-held information, as in the present case, such requests for information warrant similar protection by the Covenant to that afforded to the press. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State. In these circumstances, the Committee is of the opinion that the State party had an obligation either to provide the author with the requested information or to justify any restrictions of the right to receive State-held information under article 19, paragraph 3, of the Covenant.”", "41. In the case of Rafael Rodríguez Castañeda v. Mexico (Communication No. 2202/2012, 29 August 2013), the Human Rights Committee held:", "“7.6 The Committee observes the author claims that he requested access to the ballot papers to analyse how accurately their contents had been recorded in the polling station records and to identify any discrepancies that may have arisen during that process, merely with the intention of ensuring the transparency of public administration and evaluating the to access the ballot papers. The Institute did, however, place at his disposal the ballot paper accounts drawn up by randomly selected citizens at each polling station of the country ’ s 300 electoral districts. According to the national legislation, those accounts list the number of votes cast for each candidate, the number of spoilt ballot papers and the number of unused ballot papers. By law, votes are scrutinized in the presence of representatives of the political parties, as well as by accredited election observers in some cases, and the results returned by each polling station may be challenged and submitted for review by higher authorities, as indeed occurred in the 2006 presidential election when the initial results were partially reviewed by the Electoral Tribunal.", "7.7 Given the existence of a legal mechanism for verifying the vote count, which was used in the election in question; the fact that the author was provided with the ballot paper accounts drawn up by randomly selected citizens at each polling station of the country ’ s 300 electoral districts; the nature of the information and the need to preserve its integrity; and of the complexity of providing access to the information requested by the author, the Committee finds that the denial of access to the requested information, in the form of physical ballot papers, was intended to guarantee the integrity of the electoral process in a democratic society. This measure was a proportionate restriction by the State party necessary for the protection of public order in accordance with the law and to give effect to electors ’ rights, as set forth in article 25 of the Covenant. In the circumstances, the Committee therefore considers that the facts before it do not reveal a violation of article 19, paragraph 2, of the Covenant.”", "42. Relevant extracts from the Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the General Assembly on the right to access information, published on 4 September 2013 (A/68/362), read as follows:", "“18. The right to seek and receive information is an essential element of the right to freedom of expression...", "19. The right to access information has many aspects. It encompasses both the general right of the public to have access to information of public interest from a variety of sources and the right of the media to access information, in addition to the right of individuals to request and receive information of public interest and information concerning themselves that may affect their individual rights. As noted previously, the right to freedom of opinion and expression is an enabler of other rights (A/HRC/17/27, para. 22) and access to information is often essential for individuals seeking to give effect to other rights.”", "43. The Joint Declaration of 6 December 2004 made by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe and the Special Rapporteur on Freedom of Expression of the Organization of American States contains the following passage:", "“The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.”", "B. Council of Europe", "1. The drafting history of Article 10", "44. The text prepared by the Committee of the Consultative Assembly of the Council of Europe on legal and administrative questions provided, in what became Article 10 of the Convention, as follows:", "“In this Convention, the Member States shall undertake to ensure to all persons residing within their territories: ... freedom of opinion and expression, in accordance with Article 19 of the United Nations Declaration.”", "45. The preliminary draft Convention prepared by the Committee of Experts at its first meeting (2-8 February 1950) provided in Article 2 § 6 (which was almost identical to Article 19 of the Universal Declaration) as follows:", "“Everyone has the right of freedom of opinion and expression: this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”", "46. At the second meeting of the Committee of Experts (6-10 March 1950), the United Kingdom representative suggested replacing Article 2 § 6 of the preliminary draft with an Article 11, worded as follows:", "“Everyone shall have the right to freedom of thought and to freedom [of] expression without governmental interference; these rights shall include freedom to hold opinions and to receive and impart information and ideas without governmental interference regardless of frontiers, either orally, in writing or in print, in the form of art or by duly licensed visual or auditory devices ... ”", "47. The draft Convention submitted to the Committee of Ministers by the Committee of Experts at the end of its work contained two Articles corresponding to the present Article 10 of the Convention. In the alternative drafted following the method of enumeration of the rights and freedoms to be safeguarded, Article 2 § 6 was almost an exact repetition of Article 2 § 6 of the preliminary draft of the Committee of Experts and of Article 19 of the Universal Declaration. On the other hand, Article 10, in the alternative drafted following the method of precise definition of the rights and freedoms to be safeguarded, closely followed the wording of Article 11 suggested by the United Kingdom.", "48. The Conference of Senior Officials (8-17 June 1950) convened by the Committee of Ministers adopted the method of precise definition as the basis of its work, and reached an agreement on a text of Article 10 worded as follows:", "“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority regardless of frontiers, either orally, in writing or in print, in the form of art or by duly licences visual or auditory devices...”", "49. Article 10 received its final form on the basis of the above text.", "2. Other Council of Europe materials related to the interpretation of Article 10", "50. Recommendation No. 582 on Mass communication media and Human Rights adopted by the Council of Europe Parliamentary Assembly on 23 January 1970 recommended instructing the Committee of Experts on Human Rights to consider and make recommendations on:", "“ ... the extension of the right of freedom of information provided for in Article 10 of the European Convention on Human Rights, by the conclusion of a protocol or otherwise, so as to include freedom to seek information (which is included in Article 19(2) of the United Nations Covenant on Civil and Political Rights); there should be a corresponding duty on public authorities to make information available on matters of public interest, subject to appropriate limitations.”", "51. At its 44 th meeting, held from 10 to 14 November 1975, the Committee of Experts on Human Rights appointed a Sub-Committee to make an exploratory study of the question of extending the human rights covered by the European Convention on Human Rights and its Protocols with reference to the United Nations Covenant on Civil and Political Rights. The Steering Committee for Human Rights (CDDH) adopted a preliminary draft final activity report containing Draft Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and a draft Explanatory Report on the draft Protocol on 28 November 1980 (doc. CDDH (80) 28). The relevant part of the draft Protocol reads as follows:", "Article 6", "“The right to freedom of expression referred to in Article 10 of the Convention shall include, in addition to the freedoms specified in the second sentence of paragraph 1 of that Article, freedom to seek information. The provisions of paragraph 2 of Article 10 and of Article 16 of the Convention shall also apply to freedom to seek information.”", "The relevant part of the Explanatory Report on the Protocol reads as follows:", "Article 6", "“1. According to both Article 10 of the Convention and Article 19 (2) of the International Covenant on Civil and Political Rights, freedom of expression includes freedom to receive and impart information and ideas regardless of frontiers. However, Article 19 (2) of the Covenant also refers to freedom to “seek” information and ideas, which is not referred to in Article 10 of the Convention. To dispel any doubts which might arise in this connection, Article 6 of the Protocol brings the Convention in line with the Covenant on this point.", "2. This Article brings within the scope of Article 10 of the Convention the right to freedom to seek information. The right to freedom to seek information imposes no obligation on the authorities of a State to supply the information which may be sought.", "3. The freedom may be made subject to restrictions of the kind permitted by Article 10, paragraph 2, and Article 16 of the Convention, including for example restrictions under /existing/national laws relating to the protection of official secrets.”", "The European Commission of Human Rights set out its observations on the draft Protocol as follows (doc. DH (81) 3):", "Article 6", "“19. This article is a good illustration of the danger referred to in para 2. above that an amendment intended to clarify an existing provision can provide an argument in favour of a restrictive interpretation of the provision in question.", "20. It is true that the present wording of Article 10 of the Convention does not mention the freedom to seek information, but it cannot be excluded that such a freedom is included by implication among those protected by that article. In this context the Commission recalls that in its Sunday Times judgment (para 66) the European Court of Human Rights found that Article 10 guarantees the public ’ s right to adequate information. The Commission for its part has stated that although this Article is primarily intended to guarantee access to general sources of information it cannot be excluded that in certain circumstances it includes a right of access to documents which are not generally accessible (No. 8383/78, DR 17, p. 227, at pp. 228 and 230).", "It would therefore be wiser to forgo the formal enunciation which Article 6 of the draft seeks to make and leave the possibility of development to judicial interpretation of Article 10 in its present wording.", "Furthermore, the second sentence of Article 6 appears superfluous in view of the provision of Article 13 (1) of the draft.”", "The observations of the Court (doc. Court (81) 76) contain the following:", "Article 6", "“15. The Court considers that the freedom to receive information, guaranteed by Article 10 of the Convention, implies freedom to seek information. Further, it appears self-evident to the Court that the search for information (and indeed its receipt and communication) must in any event be effected by lawful means. The Court would also observe, as does the explanatory report (second sentence of paragraph 2), that the freedom to seek information does not imply any obligation to supply it on the part of the authority; it is a right to receive and not a right to be given information.”", "The Request for an Opinion from the Committee of Ministers on an additional Protocol to the European Convention on Human Rights extending the list of civil and political rights set forth in the Convention, addressed to the Parliamentary Assembly (Doc. 5039, 7 February 1983), contains the following explanation:", "“Lastly, the CDDH discussed the principle of the ‘ freedom to seek information ’, whose inclusion in Article 10, paragraph 1, of the Convention had already been authorised by the Committee of Ministers. The CDDH pointed out that a provision to that effect had been included in a preliminary draft of the Protocol but that, on reconsidering it in the light of the various observations submitted, notably by the European Commission and Court of Human Rights, it had finally decided not to retain the said provision because it could reasonably be considered that the ‘ freedom to seek information ’ was already comprised in the freedom to receive information guaranteed in Article 10, paragraph 1, of the Convention. That viewpoint seems to be confirmed by the case-law of the Commission and the Court, and particularly in the judgment given in the Sunday Times case.”", "The Rapporteur for the Parliamentary Assembly ’ s Report on the draft Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms extending the list of political and civil rights set forth in the Convention (Doc. 5106, 9 September 1983) stated, in the Explanatory Memorandum on the freedom to seek information, as follows :", "“21. The Steering Committee raised the question of the ‘ freedom to seek information ’, which the Committee of Ministers had already agreed should be included in Article 10, paragraph 1, of the Convention. In the light of observations by the European Commission and Court of Human Rights, it was decided not to include such a provision in the Protocol. The Commission and the Court decided that the freedom to seek information may reasonably be construed as already included in the freedom to receive information guaranteed by Article 10, paragraph 1, of the Convention. The case-law of the Commission and Court confirms this point of view.", "22. In the light of the foregoing, I consider that this right should not be formally included in Article 10 of the Convention and that the organs of the Convention should be left every opportunity to expand the interpretation of this article.”", "3. Council of Europe materials related to access to official documents and protection of personal data", "52. On 21 February 2002 Recommendation Rec(2002)2 of the Committee of Ministers to the member States on Access to Official Documents was adopted. The relevant part of the Recommendation reads as follows:", "“The Committee of Ministers ...", "Bearing in mind, in particular, Article 19 of the Universal Declaration of Human Rights, Articles 6, 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms, the United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted in Aarhus, Denmark, on 25 June 1998) and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (ETS No. 108); the Declaration on the freedom of expression and information adopted on 29 April 1982; as well as Recommendation No. R (81) 19 on the access to information held by public authorities, Recommendation No. R (91) 10 on the communication to third parties of personal data held by public bodies; Recommendation No. R (97) 18 concerning the protection of personal data collected and processed for statistical purposes and Recommendation No. R (2000) 13 on a European policy on access to archives;", "...", "Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.( ... ) ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "65. The applicant NGO complained that the authorities ’ denial of access to the information sought by it from certain police departments represented a breach of its rights as set out in Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "66. The Government contested that argument.", "A. The Government ’ s preliminary objection concerning compatibility ratione materiae with the provisions of the Convention", "1. The parties ’ submissions to the Grand Chamber", "67. The Government contested the applicability of Article 10 of the Convention to the applicant NGO ’ s complaint and invited the Court to declare the application inadmissible as being incompatible ratione materiae with the provisions of the Convention. In their view, Article 10 of the Convention covered only the freedom to receive and impart information, while any reference to “freedom to seek” information had been deliberately omitted from Article 10 during the drafting process, in contrast to Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights.", "68. The applicant NGO contended that, in view of the Court ’ s case-law, Article 10 was applicable in the circumstances of the present case. In the applicant NGO ’ s view, unless access to information was included in the right to receive and impart information and the right to freedom to hold opinions, States could easily render these rights devoid of substance by denying access to important data on matters of public interest. Access to information was a conditio sine qua non for the effective exercise of the right to freedom of expression, just as without access to a court, the right to a fair trial would be meaningless (see Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18). The applicant NGO argued that access to information was inherent in the right to freedom of expression, since rejecting access to data impeded the realisation of that freedom.", "69. The Government of the United Kingdom, intervening in the proceedings, submitted that Article 10 of the Convention was not applicable in the circumstances of the present case. They requested the Court to take into account the travaux préparatoires and the case-law following the judgment in Leander v. Sweden (26 March 1987, Series A no. 116).", "70. Media Legal Defence Initiative, the Campaign for Freedom of Information, ARTICLE 19, the Access to Information Programme and the Hungarian Civil Liberties Union took the view that the right to freedom of expression included a right of access to information, rendering Article 10 applicable in the present case.", "2. The Court ’ s assessment", "71. The core question to be addressed in the present case is whether Article 10 of the Convention can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities. The Court is therefore called upon to rule on whether the denial of the applicant ’ s request for information resulted, in the circumstances of the case, in an interference with its right to receive and impart information as guaranteed by Article 10.", "The question whether the grievance of which the applicant NGO complained falls within the scope of Article 10 is therefore inextricably linked to the merits of its complaint. Accordingly, the Court holds that the Government ’ s objection should be joined to the merits of the application.", "72. The Court further finds that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions to the Grand Chamber", "(a) The Government", "73. The Government maintained that Article 10 of the Convention was not applicable, since the findings in the case of Társaság a Szabadságjogokért v. Hungary ( no. 37374/05, § 14, April 2009, hereinafter referred to as “ Társaság ”) could not be decisive in the present application. In that case, in the absence of an objection from the Government, the Court had not been required to examine the applicability of Article 10. They added that their concession with regard to the applicability of Article 10 in the Társaság case had been based exclusively on domestic-law considerations and could not serve as a basis for expansion of the Convention into areas which it had not been intended to cover.", "74. They further observed that the Committee of Ministers had adopted a separate, specific, Convention on the right of access to official documents, thus indicating that the drafters of Article 10 had not intended to include in the Convention on the Protection of Human Rights and Fundamental Freedoms the right to seek information from public authorities.", "75. The mere fact that High Contracting Parties had established in their domestic legislation the right to seek information did not justify the same right being interpreted as falling within the guarantees of Article 10, since States were free to adopt a higher level of protection of human rights in their domestic legal system than that afforded by the Convention.", "76. The right of access to information was an autonomous right aimed at enhancing transparency and good governance and was not simply auxiliary to the right to freedom of expression. In their view, neither the “living instrument” approach, nor the existence of a European consensus reflected in the adoption of freedom of information acts in the domestic legal systems could justify such a right being read into Article 10 of the Convention.", "77. According to the Government, no public debate had been hindered by the lack of disclosure of the requested personal data, since the information sought was not necessary in order for the applicant NGO either to express its opinion on an issue of public interest or to draw conclusions on the efficiency of the appointment system of public defenders.", "78. Should the Court find that Article 10 was applicable in the circumstances of the present case, the Government maintained that the interference with the applicant ’ s right to freedom of expression had in any event been justified under Article 10 § 2 of the Convention.", "79. The names of ex officio defence counsel constituted personal data and such data could only be disclosed if authorised by law. They endorsed the Supreme Court ’ s finding that defence counsel did not exercise public powers either in the name of the law-enforcement authorities which had appointed them or on their own behalf and could not be qualified as “other persons performing public duties” under section 19 (4) of the Data Act. They also pointed out that the interpretation given by the Supreme Court in the present case had been foreseeable in the light of the recommendation of the Parliamentary Commissioner for Data Protection and that this interpretation had been consistently applied in all subsequent similar cases.", "80. Therefore, in their view, there was no legal basis for authorising disclosure of information about the appointment of public defenders; in other words, the refusal to make public the requested information was prescribed by law.", "81. The Government were of the opinion that the restriction on access to the requested information had served the legitimate aim of the protection of the rights of others. The protection of personal data constituted a legitimate aim in itself, irrespective of whether the reputation of the person concerned had also been at stake. The measure could also be regarded as necessary for the protection of the reputation of others within the meaning of Article 10, since the research carried out by the applicant NGO was critical of the professional activities of ex officio defence counsel.", "82. On the question of proportionality, the Government emphasised that even if the Court were to find that there was a positive obligation on the part of the State to facilitate the exercise of the freedom of expression, States should enjoy a wide margin of appreciation in granting access to the requested information. This margin was limited only by an applicant ’ s overriding interest in supporting his or her statements with facts in order to fend off civil or criminal liability for statements concerning the exercise of public power and when there were no alternative means for an applicant to obtain the necessary information.", "83. Moreover, there was no obligation on the State to impart information consisting of personal data when the disclosure of that information was not justified by a pressing social need. Any positive obligation under Article 10 ought to be construed in the light of the authorities ’ obligation to respect and ensure the enjoyment of other rights enshrined in the Convention and to strike a fair balance not only between private and public interests but also between competing private interests – in the present case the applicant NGO ’ s right to receive information under Article 10 and defence counsel ’ s right to respect for private life under Article 8. In addition, any restriction on public defenders ’ rights under Article 8 ought to be construed narrowly. In contrast, the interpretation of the expression “other persons exercising public duties” suggested by the applicant NGO would create an extremely vague exception to the right to protection of personal data, which would not be justified under Article 8 of the Convention.", "84. Furthermore, the applicant NGO had had available to it alternative means of obtaining the necessary information without insisting on the disclosure of the personal data. It could have requested anonymous statistical data or had recourse to other means, for example by liaising with the National Police Headquarters in order to evaluate police practices concerning the appointment of legal-aid defence counsel.", "85. The Government argued that the press and non-governmental organisations could not be afforded the same level of protection, since the former were bound by professional rules, whereas the latter could not be held liable for the accuracy of their statements. In any case, they expressed doubts as to whether the applicant NGO had been acting in the role of public watchdog or whether it had had other ulterior motives, given that it was an association which had a network of lawyers who also provided legal aid in criminal cases, and was thus a potential competitor to ex officio appointed defence counsel.", "(b) The applicant NGO", "86. The applicant NGO requested the Grand Chamber to confirm the applicability of Article 10 to the case. It contended that although the Convention used the specific terms “receive” and “impart”, Article 10 also covered the right to seek information, as first acknowledged by the Court in the Dammann v. Switzerland case (no. 77551/01, § 52, 25 April 2006). It referred to the Court ’ s case-law in Sdruženi Jihočeské Matky v. the Czech Republic ((dec.), no. 19101/03, 10 July 2006 ), Társaság (cited above), Youth Initiative for Human Rights v. Serbia ( no. 48135/06, 25 June 2013 ), and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria ( no. 39534/07, 28 November 2013, hereinafter referred to as “ Österreichische Vereinigung” ) to demonstrate that the Court had departed from its previous case-law in Leander (cited above) and Gaskin v. the United Kingdom (7 July 1989, § 57, Series A no. 160), and had clearly taken the stance that the right of access to information held by public authorities fell within the ambit of Article 10.", "87. The applicant organisation further argued that this approach was corroborated by international instruments and case-law, among others Article 19 of the International Covenant on Civil and Political Rights and General Comment No. 34 of the Human Rights Committee, showing a widespread acceptance that the right to seek information was an essential part of free expression.", "88. In Guerra and Others v. Italy and Roche v. the United Kingdom, the Court had held that the freedom to receive information could not be construed as imposing on a Contracting Party to the Convention positive obligations to collect and disseminate information of their own motion (see Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998 ‑ I; and Roche v. the United Kingdom [GC], no. 32555/96, § 172, ECHR 2005 ‑ X).", "89. However, in the present case the data requested were readily available to the authorities. This was demonstrated by the fact that seventeen police departments had provided the requested data without delay, apparently without having to make disproportionate efforts to obtain them.", "90. The applicant NGO submitted that the Convention, as a “living instrument” should be interpreted in the light of present-day conditions, taking into account sociological, technological and scientific changes as well as evolving standards in the field of human rights.", "91. The denial of access to the relevant information was, in the applicant NGO ’ s opinion, to be analysed as an issue of failure to comply with the respondent State ’ s negative obligation not to interfere without justification with the rights protected by Article 10. By denying access to the requested information, the domestic authorities had prevented the applicant NGO from exercising a fundamental freedom, which amounted to an unjustifiable interference with the right protected under Article 10.", "92. The interference with the applicant NGO ’ s rights under Article 10 had not been in compliance with the relevant domestic legal provisions, in particular the Data Act. It had requested access to information subject to disclosure in the public interest under section 19 (4) of the Data Act. Under the terms of the Data Act, personal data concerning “other persons performing public duties” constituted information subject to disclosure in the public interest under the same conditions as information of public interest. When a claimant requested the personal data of persons performing public duties, and where those data were related to the exercise of their public duties, the right to protection of personal data could not be relied on to dismiss the request.", "93. The applicant NGO pointed out that the main question in the domestic proceedings had been whether ex officio appointed defence counsel were to be regarded as “other persons performing public duties”. The domestic law did not provide a definition of public duties. The Government ’ s interpretation, to the effect that only persons vested with independent powers and competences were to be considered as persons performing public duties, did not stand up to scrutiny. The applicant NGO argued that defence counsel performed a public duty in the course of criminal proceedings and that their activities were not of a private nature. Furthermore, the fees and expenses of ex officio appointed defence counsel were paid from public funds and their activities were supervised by the State. The applicant NGO also relied on the Court ’ s case-law in Artico v. Italy (13 May 1980, Series A no. 37), Kamasinski v. Austria, (19 December 1989, Series A no. 168) and Czekalla v. Portugal (no. 38830/97, ECHR 2002 ‑ VIII), where it was found that in certain circumstances the State could be held responsible for certain shortcomings in the ex officio defence counsel system. Finally, the names of ex officio appointed defence counsel were not anonymised when court judgments were published, and a number of police departments and courts had found that the applicant NGO had a right of access to the requested information.", "94. In conclusion, the domestic authorities had wrongly found that defence counsel did not exercise public duties and that their appointment and activities constituted personal data. This consideration removed the domestic legal basis for the interference complained of.", "95. As regards the proportionality of the measure, the applicant NGO maintained that the requested information had concerned an issue of public interest. It was aimed at providing background data for the public debate on the functioning of the ex officio appointed defence counsel system and, in particular, the distribution of appointments favouring certain defence counsel, leading to inadequate legal representation of defendants. The research for which it sought access to certain information was aimed at a fact-based public debate on the realisation of the right to an effective defence, enshrined in Article 6 of the Convention. In particular, the right to legal aid was recognised as a cornerstone of justice, and the data obtained from other police departments proved that there were indeed structural deficiencies which would have merited further inquiry. However, this had been hindered by the decision of the domestic authorities to deny access to the information in question. Thus, given the public-interest nature of the issue on which it sought to obtain information, its activities as a public watchdog warranted a high level of protection, similar to that afforded to the press.", "96. According to the applicant NGO, the requested data were otherwise inaccessible, which had given the two police departments an effective information monopoly over the appointment of defence counsel within their respective jurisdictions. Thus, the denial of access to the requested information had constituted an exercise of censorial power.", "97. The applicant NGO further considered that the restriction on its right of access to information had not been necessary for the protection of defence counsel ’ s right to respect for their private life. The information sought did not concern their private sphere but only their public duties. It did not relate to the actual exercise of their role as defence counsel, but merely to their appointment. Thus, in the applicant NGO ’ s view, the domestic authorities had failed to strike a fair balance between its right under Article 10 and defence counsel ’ s right under Article 8.", "98. The applicant NGO invited the Court to find that the interference with its right to receive information had not been necessary in a democratic society within the meaning of Article 10 § 2 of the Convention.", "(c) The third parties", "(i) The Government of the United Kingdom", "99. Relying on Article 31 § 1 of the Vienna Convention on the Law of Treaties 1969, the Government of the United Kingdom argued that the ordinary meaning of the language used by the Contracting States ought to be the principal means of interpreting the Convention. In their view the clear object of Article 10 was to impose negative obligations on organs of the State to refrain from interfering with the right of communication. A positive obligation of Contracting States to provide access to information was not warranted by the language of Article 10 § 1. This was confirmed by the travaux préparatoires, since the right to “ seek ” information had been deliberately omitted from the final text of Article 10.", "100. Reading the right to freedom of information into Article 10 would amount to constructing a “European freedom of information law” in the absence of the normal consensus. In the understanding of the intervening Government, there was no European consensus as to whether there should be access to State-held information, demonstrated by the fact that the Council of Europe Convention on Access to Official Documents had only been ratified by seven member States.", "101. They also referred to the Court ’ s judgment in the Leander case, in which the Court had held that Article 10 did not “ confer on the individual a right of access to a register containing information on his personal position, nor [did] it [embody] an obligation on the Government to impart such information to the individual” (see Leander, cited above, § 74). This ruling was subsequently confirmed by the Court in the case of Guerra and Others, where the information was not in itself private and individual (see Guerra and Others, cited above, §§ 53-54) and by the Grand Chamber in Roche (cited above, §§ 172-73). Finally, in the case of Gillberg, the Court reaffirmed that [the right to receive and impart information] basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see Gillberg v. Sweden [GC], no. 41723/06, § 83, 3 April 2012).", "102. The intervening Government also maintained that in the recent cases of Kenedi v. Hungary (no. 31475/05, 26 May 2009), Gillberg (cited above), Roşiianu v. Romania (no. 27329/06, 24 June 2014), Shapovalov v. Ukraine (no. 45835/05, 31 July 2012), Youth Initiative for Human Rights (cited above), and Guseva v. Bulgaria (no. 6987/07, 1 7 February 2015) the Court had recognised that the applicants had had a right of access to information under Article 10 by virtue of domestic court orders. In their view the non-enforcement of domestic court orders fell more naturally to be considered in the context of Article 6. According to the intervening Government, the cases of Társaság, Sdruženi Jihočeské Matky and Österreichische Vereinigung ( all cited above ) were not explicable on the basis of a domestic-law right to information. In their view these judgments failed to provide a cogent basis for ignoring the previous line of case-law. The Grand Chamber should therefore find that Article 10 was not applicable and that there had been no violation of the applicant ’ s right to freedom of expression.", "103. At the hearing the intervening Government submitted that in previous cases where the Court had found it necessary to update its case ‑ law, this had been to ensure that it reflected contemporary social attitudes. No such need existed in the case of freedom of information. If the Court were to recognise a right of access to information held by the State, this would far exceed the legitimate interpretation of the Convention and would amount to judicial legislation.", "(ii) Media Legal Defence Initiative, the Campaign for Freedom of Information, ARTICLE 19, the Access to Information Programme and the Hungarian Civil Liberties Union", "104. The interveners jointly relied on four arguments, namely the text of Article 10 itself, the underlying principle of freedom of expression, the Court ’ s evolving case-law and comparative material, to argue that the right to freedom of expression included a right of access to information held by public bodies.", "105. In their opinion, the wording of Article 10 expressly supported a conclusion that a right of access to information fell within the scope of Article 10, since the right to impart information and the right to receive information were two distinct rights. Seeking information from the State was an expression of the wish to receive it.", "106. An understanding of freedom of expression as conferring a right of access to information also accorded with the general principles underlying the protection of the right. Free speech was integral to the discovery of “truth”. An individual was unable to reach a view of truth if he or she could not have access to potentially relevant information held by the State. Moreover, freedom of expression was essential to allow informed participation in a democracy, and such participation was ensured by access to State-held information. Furthermore, restrictions on freedom of expression undermined public trust. Finally, freedom of expression had been justified by the Court as an aspect of self-fulfilment. Without access to information, citizens were less likely to receive and impart information and ideas on their own terms.", "107. As to the Court ’ s case-law, the interveners acknowledged that the right of access to information had not been recognised in the Court ’ s early case-law. Nonetheless, they maintained that the Convention was to be treated as a “living instrument” and that the Court had in the past attached less importance to the lack of evidence of a common European approach than to the clear and uncontested evidence of a continuing international trend (see Rantsev v. Cyprus and Russia, no. 25965/04, § 277, ECHR 2010 (extracts)). The Grand Chamber could not interpret the Convention solely in accordance with the intentions of its authors as expressed several decades ago, at a time when only a minority of the present Contracting Parties were Member States of the Council of Europe. Thus, in their opinion the Grand Chamber was not bound to follow its previous judgments, but ought to interpret the Convention as a living instrument in the light of present-day conditions.", "108. The interveners also noted that in the cases of Leander, Gaskin, Guerra and Others and Roche (all cited above), the Court had derived a right of access to information through the interpretation of Article 8, which contained no textual basis for proclaiming such a right.", "109. It emerged from the Court ’ s recent case-law that the right of access to information was expressly recognised as falling within the scope of Article 10. Access to information contributed to the free exchange of opinions and ideas and the efficient administration of public affairs. The collection of information was an essential part of journalism and there was an obligation on the part of the State not to impede the flow of information. It was in the general public interest that information held by a public body be made accessible. The function of acting as a watchdog, that is generating and contributing to a public debate, was not restricted to professional journalists, but encompassed NGOs, researchers and individual activists. The right of access to information was not restricted to cases where the applicant had a domestic court judgment in his, her or its favour requiring a public body to provide the information and that body had been unable or unwilling to enforce it.", "110. The interveners also argued that a Convention right ought not to be restricted to a particular category of persons; the role of a particular requester as a public watchdog was better suited for consideration at the justification stage.", "111. Where the domestic legislation provided a right of access to information, that right ought to be implemented in a manner which was compatible with Article 10, a provision which, in the interveners ’ view, included the right of access to information.", "112. The interveners understood the denial of access to information as an interference under Article 10, rather than a failure by the State to fulfil any positive obligations, as interpreted under Articles 2, 6 and 8 of the Convention.", "113. As to the striking of a fair balance between the competing interests of the protection of private life and freedom of expression, the interveners submitted that there was little scope for restrictions on freedom of expression on matters of public interest, and the right to protection of personal data was not an absolute right, but ought to be considered in relation to its function in society.", "(iii) Fair Trials", "114. Fair Trials submitted that a “watchdog” scrutiny of police appointments of legal-aid lawyers was an essential guarantee of fair trial rights. There was an important public interest attached to information on the making of such appointments, which called for utmost protection under Article 10.", "115. The right to legal aid was recognised as a cornerstone of justice by, among others, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. Concerns as to the independence of police-appointed lawyers had been raised by a number of organs, among others, the Court in its judgment in the case of Martin v. Estonia (no. 35985/09, 30 May 2013), the United Nations (“Early access to legal aid in criminal justice processes: a handbook for policy-makers and practitioners”) and their own study presented in 2012 on “The practical Operation of Legal Aid in the EU”. For that reason, external scrutiny of police appointments of legal-aid lawyers was an essential guarantee of ensuring fair-trial rights under Article 6 of the Convention.", "116. In balancing the interest of public defenders to their right to privacy under Article 8 and the competing interest of NGOs in scrutinising the operation of the legal-aid system under Article 10, it was important to distinguish between the role of a lawyer as an agent of the public justice system and the privacy of the client-lawyer relationship. Lists of public defenders were widely available to the public, thereby showing that lawyers providing legal aid had waived, to some extent, their privacy rights. Furthermore, the publication of information concerning appointments did not encroach upon the confidentiality of lawyer-client relationships. If a national authority categorised information as private rather than public ‑ interest information, it had to justify such a decision by reference to the countervailing interests protected by Article 10. Without such a balancing exercise, national authorities could not be viewed as having struck a fair balance between the relevant interests at issue. If such a balancing exercise was carried out, it should necessarily favour the disclosure of information on the appointments of lawyers, since access to information ensured external oversight and thereby safeguarded compliance with Article 6 of the Convention, an interest far more important than the protection of the identities and commercial activities of lawyers.", "2. The Court ’ s assessment", "(a) Applicability of Article 10 and the existence of an interference", "117. The first question which arises in the present case is whether the matter complained of by the applicant organisation falls within the scope of Article 10 of the Convention. The Court observes that paragraph 1 of this Article provides that the “right to freedom of expression ... shall include the freedom to hold opinions and to receive and impart information and ideas without interference by a public authority”. It does not specify, unlike comparable provisions in other international instruments (see paragraphs 36-37, 60 as well as 63 above and 1 40 and 14 6 -4 7 below), that it encompasses a freedom to seek information. In order to determine whether the impugned refusal by the national authorities to grant the applicant organisation access to the requested information entailed an interference with its Article 10 rights, the Court must embark on a more general analysis of this provision in order to establish whether and to what extent it embodies a right of access to State-held information as claimed by the applicant NGO and the non ‑ governmental third-party interveners, but which is disputed by the respondent and intervening third-party Governments.", "(i) Preliminary remarks regarding the interpretation of the Convention", "118. The Court has emphasised that, as an international treaty, the Convention must be interpreted in the light of the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties (see Golder, cited above, § 29; Lithgow and Others v. the United Kingdom, 8 July 1986, §§ 114 and 117, Series A no. 102; Johnston and Others v. Ireland, 18 December 1986, §§ 51 et seq., Series A no. 112; and Witold Litwa v. Poland, no. 26629/95, §§ 57-59, ECHR 2000 ‑ III).", "119. Thus, in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Johnston and Others, cited above, § 51, and Article 31 § 1 of the Vienna Convention quoted above in paragraph 35 ).", "120. Regard must also be had to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 47-48, ECHR 2005 ‑ X, and Rantsev, cited above, § 274).", "121. The Court emphasises that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161).", "122. Furthermore the Convention comprises more than mere reciprocal engagements between Contracting States (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 100, ECHR 2005 ‑ I, and Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25).", "123. Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties (see Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016 ); the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see, for instance, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005 ‑ VI; Hassan v. the United Kingdom [GC], no. 29750/09, §§ 77 and 102, ECHR 2014; and Article 31 § 3 (c) of the Vienna Convention quoted above in paragraph 35 ).", "124. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic-law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision (see Opuz v. Turkey, no. 33401/02, § 184, ECHR 2009). The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases (see Bayatyan v. Armenia [GC], no. 2345 9/03, § 102 and §§ 108-10, ECHR 2011, finding that an objection to military service fell within the ambit of Article 9; Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 104 ‑ 109, 17 September 2009, on the principle of retrospectiveness of the more lenient criminal law under Article 7; and Rantsev, cited above, §§ 278 ‑ 82, on the applicability of Article 4 to human trafficking).", "125. Finally, recourse may also be had to supplementary means of interpretation, including the preparatory work ( travaux préparatoires ) of the treaty, either to confirm a meaning determined in accordance with the above steps, or to establish the meaning where it would otherwise be ambiguous, obscure, or manifestly absurd or unreasonable (see Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008, and Article 32 of the Vienna Convention quoted above in paragraph 35 ). It can be seen from the case-law that the travaux préparatoires are not delimiting for the question whether a right may be considered to fall within the scope of an Article of the Convention if the existence of such a right was supported by the growing measure of common ground that had emerged in the given area (see, for example Sigurður A. Sigurjónsson v. Iceland, 30 June 1993, § 35, Series A no. 264 ).", "(ii) The Convention case-law", "126. It is in the light of the above-mentioned principles that the Court will consider whether and to what extent a right of access to State-held information as such can be viewed as falling within the scope of “freedom of expression” under Article 10 of the Convention, notwithstanding the fact that such a right is not immediately apparent from the text of that provision. The respondent and the intervening Governments both argued, in particular, that the authors of the Convention had omitted to mention a right of access to information in the text of the Convention precisely because they did not intend that Contracting Parties should assume any such obligation (see also paragraphs 69 and 101 above).", "127. The Court reiterates that the question whether – in the absence of an express reference to access to information in Article 10 of the Convention – an applicant ’ s complaint that he was denied access can nevertheless be regarded as falling within the scope of this provision is a matter which has been the subject of gradual clarification in the Convention case-law over many years, both by the former European Commission of Human Rights (see, most notably, Sixteen Austrian Communes and Some of Their Councillors v. Austria, nos. 5767/72 etc., Commission decision of 31 May 1974, Yearbook 1974, p. 338; X. v. Federal Republic of Germany, no. 8383/78, Commission decision of 3 October 1979, Decisions and Reports (DR) 17, p. 227; Clavel v. Switzerland, no. 11854/85, Commission decision of 15 October 1987, DR 54, p. 153; A. Loersch and Nouvelle Association du Courrier v. Switzerland, nos. 23868/94 and 23869/94, Commission decision of 24 February 1995, DR 80, p. 162; Bader v. Austria, no. 26633/95, Commission decision of 15 May 1996; Nurminen and Others v. Finland, no. 27881/95, Commission decision of 26 February 1997; and Grupo Interpres SA v. Spain, no. 32849/96, Commission decision of 7 April 1997, DR 89, p. 150) and by the Court, which in paragraph 74 of its 1987 judgment in the Leander case set out the approach which was to become the standard jurisprudential position on the matter in later years:", "“ [T]he right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.”", "128. Thus, the plenary Court in Gaskin (cited above, § 52) in 1989 and the Grand Chamber in Guerra in 1998 confirmed this approach, the Grand Chamber adding in the latter judgment that freedom to receive information “cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion” (see § 53 of the Guerra judgment, cited above; see also Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, §§ 17-19, 15 June 2004). In 2005 the Grand Chamber followed the same line of reasoning in Roche (cited above, § 172), it being noted that the Court had previously done so in Eccleston v. the United Kingdom ((dec.), no. 42841/02, 18 May 2004 ) and Jones v. the United Kingdom ((dec.), no. 42639/04, 13 September 2005 ).", "129. The cases mentioned in the previous paragraph are similar in that the applicants sought access to information which was relevant to their private lives. Whilst the Court stated, with reference to the specific circumstances of the given cases, that the right of access to information was not provided under Article 10, it found that the information requested related to the applicants ’ private and/or family life in such a way that it fell within the ambit of Article 8 of the Convention (see Gaskin, cited above, § 37) or rendered Article 8 applicable (see Leander, § 48; Guerra and Others, § 57; and Roche, §§ 155-56, all cited above).", "130. Later, in Dammann (cited above, § 52), the Court held that the gathering of information was an essential preparatory step in journalism and an inherent, protected part of press freedom (see also Shapovalov, cited above ). This consideration was, without much discussion, further developed in Sdruženi Jihočeské Matky (cited above). The Court first referred to the principles set out in Leander, Guerra and Roche and observed that “it is difficult to derive from the Convention a general right of access to administrative data and documents (see Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII (extracts) ”. Then, referring to Grupo Interpres SA (cited above), it went on to hold that the impugned refusal of the public authority to grant access to the relevant administrative documents, which were readily available, constituted an interference with the applicant ’ s right to receive information guaranteed by Article 10 of the Convention. As in the situation in the Grupo Interpres SA case, the Convention complaint in the Dammann case related to the application of a duty, imposed by national law, to provide access to the requested documents, subject to certain conditions. Having satisfied itself that the impugned restriction had not been disproportionate to the legitimate aim pursued, the Court subsequently declared the complaint inadmissible as being manifestly ill-founded.", "131. Subsequently, in a series of judgments following the above ‑ mentioned Sdruženi Jihočeské Matky decision, the Court found that there had been an interference with a right protected by Article 10 § 1 in situations where the applicant was deemed to have had an established right to the information under domestic law, in particular based on a final court decision, but where the authorities had failed to give effect to that right. In finding an interference, the Court moreover had regard to the consideration that access to the information in question was an essential element of the exercise of the applicant ’ s right to freedom of expression, or that it formed part of the legitimate gathering of information of public interest with the intention of imparting that information to the public and thereby contributing to public debate (see Kenedi, 26 May 2009, § 43; Youth Initiative for Human Rights, 25 June 2013, § 24; Roşiianu, 24 June 2014, § 64; and Guseva, 14 February 2015, § 55; all cited above, and all referring in this context to Társaság, described in more detail below ). Dealing with comparable circumstances in Gillberg (judgment of 3 April 2012, cited above), the Grand Chamber adopted a similar approach (see § 93 of that judgment, cited above ), whilst reiterating the Leander principle that Article 10 “basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” (ibid., § 83). With hindsight the Court considers that this line of case-law did not represent a departure from, but rather an extension of, the Leander principles, in that it referred to situations where, as described by the intervening Government, one arm of the State had recognised a right to receive information but another arm of the State had frustrated or failed to give effect to that right.", "132. Concurrently with the aforementioned line of case-law there emerged a closely related approach, namely that set out in the Társaság and Österreichische Vereinigung judgments (respectively of 14 April 2009 and 28 November 2013, both cited above). Here the Court recognised, subject to certain conditions – irrespective of the domestic-law considerations prevailing in Kenedi, Youth Initiative for Human Rights, Roşiianu and Guseva – the existence of a limited right of access to information, as part of the freedoms enshrined in Article 10 of the Convention. In Társaság the Court emphasised the social “watchdog” role of the applicant organisation and observed, using reasoning which was confirmed in Kenedi, Youth Initiative for Human Rights, Roşiianu and Guseva, that the applicant organisation had been involved in the legitimate gathering of information on a matter of public importance (a request by a politician for review of the constitutionality of criminal legislation concerning drug-related offences) and that the authorities had interfered in the preparatory stage of this process by creating an administrative obstacle. The Constitutional Court ’ s monopoly of information had thus amounted to a form of censorship. Furthermore, given that the applicant organisation ’ s intention had been to impart to the public the information gathered from the constitutional complaint, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information had been clearly impaired (see Társaság, §§ 26 to 28). Comparable conclusions were reached in Österreichische Vereinigung (see § 36 of that judgment).", "133. The fact that the Court has not previously articulated in its case-law the relationship between the Leander principles and the more recent developments described above does not mean that they are contradictory or inconsistent. The dictum that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” was, it appears, based on what may be considered a literal reading of Article 10. It was repeated in the plenary and Grand Chamber rulings in Guerra and Others, Gaskin and Roche (and also in Gillberg ). However, whilst holding that Article 10 did not, in circumstances such as those at issue in Guerra and Others, Gaskin and Roche, confer on the individual a right of access to the information in question or embody an obligation on the Government to impart such information, the Court did not, however, exclude the existence of such a right for the individual or a corresponding obligation on the Government in other types of circumstance. The above-mentioned recent case-law (including Gillberg ) may be viewed as illustrating the types of circumstance in which the Court has been prepared to recognise an individual right of access to State-held information. For the purposes of its examination of the present case, the Court finds it useful to take a broader look at the question of the extent to which the right of access to information can be gleaned from Article 10 of the Convention.", "(iii) Travaux préparatoires", "134. The Court notes from the outset the United Kingdom Government ’ s submission, relying on Article 31 § 1 of the Vienna Convention on the Law of Treaties 1969, that the ordinary meaning of the language used by the Contracting States is to be the principal means of interpreting the Convention (see paragraph 99 above). In the UK Government ’ s view, the clear object of Article 10 was to impose negative obligations on organs of the State to refrain from interfering with the right of communication. A positive obligation on the State to provide access to information was not warranted by the language of Article 10 § 1, which was confirmed by the travaux préparatoires, since the right to “seek” information had been deliberately omitted from the final text of Article 10.", "135. As regards the preparatory work on Article 10, the Court observes that it is true that the wording of the preliminary draft Convention, prepared by the Committee of Experts at its first meeting on 2-8 February 1950, was identical to Article 19 of the Universal Declaration and contained the right to seek information. However, in later versions of the text, the right to seek information no longer appeared (see paragraphs 44-49 above). There is no record of any discussions entailing this change or indeed on any debate on the particular elements which constituted freedom of expression (compare and contrast Young, James and Webster v. the United Kingdom, 13 August 1981, § § 51- 52, Series A no. 44).", "The Court is not therefore persuaded that any conclusive relevance can be attributed to the travaux préparatoires as regards the possibility of interpreting Article 10 § 1 as including a right of access to information in the present context. Nor is it convinced that there are no circumstances in which such an interpretation could find support in the ordinary meaning of the words “receive and impart information and ideas without interference by a public authority” or in the object and purpose of Article 10.", "136. On the contrary, it is noteworthy that the drafting history of Protocol No. 6 reveals a common understanding between the bodies and institutions of the Council of Europe that Article 10, paragraph 1 of the Convention, in its wording as originally drafted, could reasonably be considered as already comprising the “freedom to seek information”.", "In particular, in its Opinion on Draft Protocol No. 6 the Court considered that the freedom to receive information, guaranteed by Article 10, did imply a freedom to seek information, but not, as pointed out in the Explanatory Report, any obligation on the part of the authority to supply it. Also, the Opinion of the European Commission of Human Rights on the same Draft Protocol stated that although Article 10 did not mention freedom to seek information, it could not be ruled out that such a freedom was included, by implication, among those protected by that article and that, in certain circumstances, Article 10 included the right of access to documents which were not generally accessible. For the Commission, it was necessary to leave the possibility of development to judicial interpretation of Article 10 (see paragraph 51 above).", "137. In the same vein, for the reasons set out below, the Court considers that, in certain types of situations and subject to specific conditions, there may be weighty arguments in favour of reading into this provision an individual right of access to State-held information and an obligation on the State to provide such information.", "(iv) Comparative and international law", "138. As already stated (in paragraph 123) above, the Convention cannot be interpreted in a vacuum and must, in accordance with the criterion contained in Article 31 § 3(c) of the Vienna Convention (see paragraph 35 above), be interpreted in harmony with other rules of international law, of which it forms part. Moreover, bearing in mind the special character of the Convention as a human-rights instrument containing substantive rules of a domestic-law nature imposing obligations on States vis-à-vis individuals, the Court may also have regard to developments in domestic legal systems indicating a uniform or common approach or a developing consensus between the Contracting States in a given area (see, in this regard, Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31, and Stafford v. the United Kingdom [GC], no. 46295/99, §§ 67-68, ECHR 2002-IV ).", "139. In this regard, the Court observes that in the great majority of the Contracting States, in fact in all the thirty-one States surveyed with one exception, the national legislation recognises a statutory right of access to information and/or official documents held by public authorities, as a self ‑ standing right aimed at reinforcing transparency in the conduct of public affairs generally (see paragraph 64 above). Although this aim is broader than that of advancing the right to freedom of expression as such, the Court is satisfied that a broad consensus exists within the Council of Europe member States on the need to recognise an individual right of access to State-held information so as to enable the public to scrutinise and form an opinion on any matters of public interest, including on the manner of functioning of public authorities in a democratic society.", "140. A high degree of consensus has also emerged at the international level. In particular, the right to seek information is expressly guaranteed by Article 19 (the provision corresponding to the free speech guarantee in Article 10 of the Convention ) of the 1966 International Covenant on Civil and Political Rights, which instrument has been ratified by all of the forty ‑ seven Contracting Parties to the Convention, including Hungary (and all of which, except for Switzerland and the United Kingdom, have accepted the right of individual petition under its Optional Protocol). The same right is enshrined in Article 19 of the UN Universal Declaration.", "141. In this connection, it is of importance to observe that the existence of a right of access to information has been confirmed by the United Nations Human Rights Committee (UNHRC) on a number of occasions. The Committee has emphasised the importance of access to information in the democratic process, and the link between the author ’ s access to information and his or her opportunity to disseminate information and opinions on matters of public concern to citizens. It considered that freedom of thought and expression included protection of the right of access to State-held information. It pointed out in one case that, whilst the right to seek information could be exercised without the need to prove direct interest or personal involvement, the author association ’ s functions as a special watchdog and the particular nature of the information sought warranted the conclusion that the author had been directly affected by the refusal in question (see paragraphs 39-41 above).", "142. The Court further notes that, in the view of the UN Special Rapporteur on freedom of opinion and freedom of expression, the right to seek and receive information is an essential element of the right to freedom of expression, which encompasses the general right of the public to have access to information of public interest, the right of individuals to seek information concerning themselves that may affect their individual rights and the right of the media to access information (see paragraph 42 above).", "143. Admittedly, the above conclusions were adopted in regard to Article 19 of the Covenant, the wording of which is different from that of Article 10 of the Convention. For the Court, however, their relevance in the present case derives from the findings that the right of access to public ‑ interest data and documents was inherent in freedom of expression. For the UN bodies, the right of public watchdogs to have access to State-held information in order to discharge their obligations as public watchdogs, that is, to impart information and ideas was a corollary of the public ’ s right to receive information on issues of public concern (see paragraphs 39 ‑ 42 above).", "144. Furthermore, Article 42 of the European Union ’ s Charter of Fundamental Rights as well as Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 guarantee to citizens a right of access to documents held by the EU institutions, subject to the exceptions set out in Article 4 of the Regulation (see paragraphs 55 ‑ 56 above).", "145. The right of access to public documents has moreover been recognised by the Committee of Ministers of the Council of Europe in Recommendation Rec (2002) 2 on access to official documents, which declares that member States should, with some exceptions, guarantee the right of everyone to have access, on request, to official documents held by public authorities (see paragraph 52 above). Furthermore, the adoption of the Council of Europe Convention on Access to Official Documents, even though it has to date been ratified by only seven member States, denotes a continuous evolution towards the recognition of the State ’ s obligation to provide access to public information (for other examples where the Court has previously taken into account international instruments not ratified by all or the majority of State Parties to the Convention, see Glass v. the United Kingdom, no. 61827/00, § 75, ECHR 2004 ‑ II, and Öneryıldız v. Turkey [GC], no. 48939/99, § 59, ECHR 2004 ‑ XII; or that were not binding at the material time, see Christine Goodwin v. the United Kingdom [GC], no. 28957/9 5, ECHR 2002 ‑ VI; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007 ‑ II; and Marckx, cited above, §§ 20 and 41). Thus, even if the present case does not raise an issue of a fully-fledged right of access to information, the above Convention, in the Court ’ s view, indicates a definite trend towards a European standard, which must be seen as a relevant consideration.", "146. It is also instructive for the Court ’ s inquiry to have regard to the developments concerning the recognition of a right of access to information in other regional human ‑ rights protection systems. The most noteworthy is the Inter ‑ American Court of Human Right ’ s interpretation of Article 13 of the American Convention on Human Rights, as set out in the case of Claude Reyes et al. v. Chile, which expressly guarantees a right to seek and receive information. The Inter-American Court considered that the right to freedom of thought and expression included the protection of the right of access to State-held information (see paragraph 61 above).", "147. Mention may also be made of the Declaration of Principles of Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples ’ Rights in 2002. While Article 9 of the African Charter on Human and Peoples ’ Rights does not refer to the right to seek information, the Declaration of Principles explicitly states that “[f]reedom of expression and information, including the right to seek, receive and impart information and ideas... is a fundamental and inalienable human right” (see paragraph 63 above).", "148. Thus, as the above considerations make clear, since the Convention was adopted the domestic laws of the overwhelming majority of Council of Europe member States, along with the relevant international instruments, have indeed evolved to the point that there exists a broad consensus, in Europe (and beyond) on the need to recognise an individual right of access to State-held information in order to assist the public in forming an opinion on matters of general interest.", "(v) The Court ’ s approach to the applicability of Article 10", "149. Against the above background, the Court does not consider that it is prevented from interpreting Article 10 § 1 of the Convention as including a right of access to information.", "150. The Court is aware of the importance of legal certainty in international law and of the argument that States cannot be expected to implement an international obligation to which they did not agree in the first place. It considers that it is in the interest of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see Mamatkulov and Askarov, cited above, § 121, and Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001 ‑ I). Since the Convention is first and foremost a system for the protection of human rights, regard must also be had to the changing conditions within Contracting States and the Court must respond, for example, to any evolving convergence as to the standards to be achieved (see Biao v. Denmark [GC], no. 38590/10, § 131, 24 May 2016).", "151. From the survey of the Convention institutions ’ case-law as outlined in paragraphs 127-132 above, it transpires that there has been a perceptible evolution in favour of the recognition, under certain conditions, of a right to freedom of information as an inherent element of the freedom to receive and impart information enshrined in Article 10 of the Convention.", "152. The Court further observes that this development is also reflected in the stance taken by international human-rights bodies, linking watchdogs ’ right of access to information to their right to impart information and to the general public ’ s right to receive information and ideas (see paragraphs 39 ‑ 42 and 14 3 above).", "153. Moreover, it is of paramount importance that according to the information available to the Court nearly all of the thirty-one member States of the Council of Europe surveyed have enacted legislation on freedom of information. A further indicator of common ground in this context is the existence of the Convention on Access to Official Documents.", "154. In the light of these developments and in response to the evolving convergence as to the standards of human rights protection to be achieved, the Court considers that a clarification of the Leander principles in circumstances such as those at issue in the present case is appropriate.", "155. The object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Soering, cited above, § 87). As is clearly illustrated by the Court ’ s recent case-law and the rulings of other human-rights bodies, to hold that the right of access to information may under no circumstances fall within the ambit of Article 10 of the Convention would lead to situations where the freedom to “receive and impart” information is impaired in such a manner and to such a degree that it would strike at the very substance of freedom of expression. For the Court, in circumstances where access to information is instrumental for the exercise of the applicant ’ s right to receive and impart information, its denial may constitute an interference with that right. The principle of securing Convention rights in a practical and effective manner requires an applicant in such a situation to be able to rely on the protection of Article 10 of the Convention.", "156. In short, the time has come to clarify the classic principles. The Court continues to consider that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.” Moreover, “the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion”. The Court further considers that Article 10 does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, as is seen from the above analysis, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force (which is not an issue in the present case) and, secondly, in circumstances where access to the information is instrumental for the individual ’ s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right.", "(vi) Threshold criteria for right of access to State-held information", "157. Whether and to what extent the denial of access to information constitutes an interference with an applicant ’ s freedom-of-expression rights must be assessed in each individual case and in the light of its particular circumstances. In order to define further the scope of such a right, the Court considers that the recent case-law referred to above (see paragraphs 131-32 above) offers valuable illustrations of the criteria that ought to be relevant.", "(α) The purpose of the information request", "158. First, it must be a prerequisite that the purpose of the person in requesting access to the information held by a public authority is to enable his or her exercise of the freedom to “receive and impart information and ideas” to others. Thus, the Court has placed emphasis on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate (see, mutatis mutandis, Társaság, cited above, §§ 27-28; and Österreichische Vereinigung, cited above, § 36).", "159. In this context, it may be reiterated that in the area of press freedom the Court has held that, “by reason of the ‘ duties and responsibilities ’ inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” (see Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996 ‑ II; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ). The same considerations would apply to an NGO assuming a social watchdog function (see more on this aspect below).", "Therefore, in order for Article 10 to come into play, it must be ascertained whether the information sought was in fact necessary for the exercise of freedom of expression (see Roşiianu, cited above, § 63). For the Court, obtaining access to information would be considered necessary if withholding it would hinder or impair the individual ’ s exercise of his or her right to freedom of expression (see Társaság, cited above, § 28), including the freedom “to receive and impart information and ideas”, in a manner consistent with such “duties and responsibilities” as may follow from paragraph 2 of Article 10.", "(β) The nature of the information sought", "160. The Court has previously found that the denial of access to information constituted an interference with the applicants ’ right to receive and impart information in situations where the data sought was “factual information concerning the use of electronic surveillance measures” (see Youth Initiative for Human Rights, cited above, § 24), “ information about a constitutional complaint” and “on a matter of public importance” (see Társaság, cited above, §§ 37-38), “original documentary sources for legitimate historical research” (see Kenedi¸ cited above, § 43), and decisions concerning real property transaction commissions (see Österreichische Vereinigung, cited above, § 42), attaching weighty consideration to the presence of particular categories of information considered to be in the public interest.", "161. Maintaining this approach, the Court considers that the information, data or documents to which access is sought must generally meet a public ‑ interest test in order to prompt a need for disclosure under the Convention. Such a need may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large.", "162. The Court has emphasised that the definition of what might constitute a subject of public interest will depend on the circumstances of each case. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. The public interest cannot be reduced to the public ’ s thirst for information about the private life of others, or to an audience ’ s wish for sensationalism or even voyeurism. In order to ascertain whether a publication relates to a subject of general importance, it is necessary to assess the publication as a whole, having regard to the context in which it appears (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 97 to 103, ECHR 2015 (extracts), with further references).", "163. In this connection, the privileged position accorded by the Court in its case-law to political speech and debate on questions of public interest is relevant. The rationale for allowing little scope under Article 10 § 2 of the Convention for restrictions on such expressions (see Lingens v. Austria, 8 July 1986, §§ 38 and 41, Series A no. 103, and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV), likewise militates in favour of affording a right of access under Article 10 § 1 to such information held by public authorities.", "(γ) The role of the applicant", "164. A logical consequence of the two criteria set out above – one regarding the purpose of the information request and the other concerning the nature of the information requested – is that the particular role of the seeker of the information in “receiving and imparting” it to the public assumes special importance. Thus, in assessing whether the respondent State had interfered with the applicants ’ Article 10 rights by denying access to certain documents, the Court has previously attached particular weight to the applicant ’ s role as a journalist (see Roşiianu, cited above, § 61) or as a social watchdog or non-governmental organisation whose activities related to matters of public interest (see Társaság, § 36; Österreichische Vereinigung, § 35; Youth Initiative for Human Rights, § 20; and Guseva, § 41, all cited above).", "165. While Article 10 guarantees freedom of expression to “everyone”, it has been the Court ’ s practice to recognise the essential role played by the press in a democratic society (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I) and the special position of journalists in this context. It has held that the safeguards to be afforded to the press are of particular importance (see Goodwin, cited above, § 39, and Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). The vital role of the media in facilitating and fostering the public ’ s right to receive and impart information and ideas has been repeatedly recognised by the Court, as follows:", "“The duty of the press is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘ public watchdog ’ (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III).”", "166. The Court has also acknowledged that the function of creating various platforms for public debate is not limited to the press but may also be exercised by, among others, non-governmental organisations, whose activities are an essential element of informed public debate. The Court has accepted that when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, ECHR 2013 (extracts)) and may be characterised as a social “watchdog” warranting similar protection under the Convention as that afforded to the press ( ibid.; Társaság, cited above, § 27; and Youth Initiative for Human Rights, cited above, § 20). It has recognised that civil society makes an important contribution to the discussion of public affairs (see, for instance, Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005 ‑ II; and Társaság, § 38, cited above).", "167. The manner in which public watchdogs carry out their activities may have a significant impact on the proper functioning of a democratic society. It is in the interest of democratic society to enable the press to exercise its vital role of “public watchdog” in imparting information on matters of public concern (see Bladet Tromsø and Stensaas, cited above, § 59), just as it is to enable NGOs scrutinising the State to do the same thing. Given that accurate information is a tool of their trade, it will often be necessary for persons and organisations exercising watchdog functions to gain access to information in order to perform their role of reporting on matters of public interest. Obstacles created in order to hinder access to information may result in those working in the media or related fields no longer being able to assume their “watchdog” role effectively, and their ability to provide accurate and reliable information may be adversely affected (see Társaság, cited above, § 38).", "168. Thus, the Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers (see Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 61-67, ECHR 1999 ‑ IV; Kenedi, cited above, § 42; and Gillberg, cited above, § 93) and authors of literature on matters of public concern (see Chauvy and Others v. France, no. 64915/01, § 68, ECHR 2004 ‑ VI, and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 48, ECHR 2007 ‑ IV). The Court would also note that given the important role played by the Internet in enhancing the public ’ s access to news and facilitating the dissemination of information (see Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015 ), the function of bloggers and popular users of the social media may be also assimilated to that of “public watchdogs” in so far as the protection afforded by Article 10 is concerned.", "(δ) Ready and available information", "169. In reaching its conclusion that the refusal of access was in breach of Article 10, the Court has previously had regard to the fact that the information sought was “ready and available” and did not necessitate the collection of any data by the Government (see Társaság, cited above, § 36, and, a contrario, Weber v. Germany (dec.), no. 70287/11, § 26, 6 January 2015 ). On the other hand, the Court dismissed a domestic authority ’ s reliance on the anticipated difficulty of gathering information as a ground for its refusal to provide the applicant with documents, where such difficulty was generated by the authority ’ s own practice (see Österreichische Vereinigung, cited above, § 46).", "170. In the light of the above-mentioned case-law, and bearing in mind also the wording of Article 10 § 1 (namely, the words “without interference by public authority”), the Court is of the view that the fact that the information requested is ready and available ought to constitute an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an “interference” with the freedom to “receive and impart information” as protected by that provision.", "(vii) Application of those criteria to the present case", "171. The applicant organisation argued that it had a right under Article 10 to obtain access to the information requested, since the purpose of the request had been to complete a survey in support of proposals for reform of the public defenders scheme and to inform the public on a matter of general interest (see paragraph 95 above). The Government maintained however that the actual purpose of the survey was to discredit the existing system of public defenders (see paragraph 85 above).", "172. The Court is satisfied that the applicant NGO wished to exercise the right to impart information on a matter of public interest and sought access to information to that end.", "173. The Court also notes the Government ’ s submission that the information sought, specifically, the names of lawyers who had been assigned as public defence counsel, was by no means necessary for reaching conclusions and publishing findings about the efficiency of the public defender system. Consequently, in their view, the non-disclosure of those personal data did not hinder the applicant NGO ’ s participation in a public debate (see paragraph 77 above). They also challenged the usefulness of the nominative information, arguing that anonymously processed extracts from the files in question would have met the applicant NGO ’ s needs (see paragraph 84 above).", "174. The applicant NGO submitted that the names of public defenders and the number of appointments given to each one was information that was required in order to investigate and determine any malfunctioning in the system (see paragraph 96 above). The applicant NGO also argued that the core aspect of its publication on the efficiency of the public defender system was the allegedly disparate distribution of appointments.", "175. In the Court ’ s view, the information requested by the applicant NGO from the police departments was, undisputedly, within the subject area of its research. In order to be able to support its arguments, the applicant wished to collect nominative information on the individual lawyers in order to demonstrate any recurrent appointment patterns. Had the applicant NGO limited its inquiry to anonymised information, as suggested by the Government, it would in all likelihood have been unable to produce verifiable results in support of its criticism of the existing scheme. Moreover, with regard to the completeness or statistical significance of the information in dispute, the Court notes that the aim of the data request was to cover the entire country, including all the County Police Departments. The refusal by two departments to provide information represented an obstacle to producing and publishing a fully comprehensive survey. Thus, it can reasonably be concluded that without the information concerned the applicant was unable to contribute to a public debate drawing on accurate and reliable information. The information was therefore “necessary” within the meaning referred to in paragraph 159 above for the applicant ’ s exercise of its right to freedom of expression.", "176. As regards the nature of the information, the Court observes that the domestic authorities made no assessment whatsoever of the potential public-interest character of the information sought and were concerned only with the status of public defenders from the perspective of the Data Act. The latter allowed for very limited exceptions to the general rule of non ‑ disclosure of personal data. Once the domestic authorities had established that public defenders did not fall within the category of “other persons performing public duties”, which was the only relevant exception in the particular context, they were prevented from examining the potential public-interest nature of the information.", "177. The Court notes that this approach deprived the public-interest justification relied on by the applicant NGO of any relevance. In the Court ’ s view, however, the information on the appointment of public defenders was of an eminently public-interest nature, irrespective of whether public defenders could be qualified as “other persons performing public duties” under the relevant national law.", "178. As to the role of the applicant NGO, it is common ground between the parties that the present case concerns a well-established public-interest organisation committed to the dissemination of information on issues of human rights and the rule of law. Its professional stance on the matters it deals with and its outreach to the broader public have not been called into question. The Court sees no reason to doubt that the survey in question contained information of the kind which the applicant NGO undertook to impart to the public and which the public had a right to receive. The Court is further satisfied that it was necessary for the applicant ’ s fulfilment of this task to have access to the requested information.", "179. Lastly, the Court notes that the information was ready and available; and it has not been argued before the Court that its disclosure would have been particularly burdensome for the authorities (compare and contrast Weber, cited above).", "(viii) Conclusion", "180. In sum, the information sought by the applicant NGO from the relevant police departments was necessary for the completion of the survey on the functioning of the public defenders ’ scheme being conducted by it in its capacity as a non-governmental human-rights organisation, in order to contribute to discussion on an issue of obvious public interest. By denying it access to the requested information, which was ready and available, the domestic authorities impaired the applicant NGO ’ s exercise of its freedom to receive and impart information, in a manner striking at the very substance of its Article 10 rights. There has therefore been an interference with a right protected by this provision, which is applicable to the present case. The Government ’ s objection that the applicant ’ s complaint is incompatible ratione materiae must therefore be dismissed.", "(b) Whether the interference was justified", "181. In order to be justified, an interference with the applicant NGO ’ s right to freedom of expression must be “prescribed by law”, pursue one or more of the legitimate aims mentioned in paragraph 2 of Article 10, and be “necessary in a democratic society”.", "(i) Lawfulness", "182. The Court observes that the parties disagreed as to whether the interference with the applicant NGO ’ s freedom of expression was “prescribed by law”. The applicant organisation relied on section 19 (4) of the Data Act and argued that it expressly provided for the disclosure of personal data of “other persons performing public duties”, whereas there was no provision which prohibited the disclosure of the names of ex officio appointed defence counsel. The Government, for their part, referred to the opinion of the Data Protection Commissioner and the judgments of the domestic courts interpreting section 19 (4) of the Data Act to the effect that ex officio appointed defence counsel were not “other persons performing public duties”, and thus their personal data could not be disclosed. In their view, the Court ought to proceed from the facts as established and the law as applied and interpreted by the domestic courts.", "183. The Court observes that the difference in the parties ’ opinions as regards the applicable law originates in their diverging views on the issue of how public defenders are to be characterised in the domestic law. According to the applicant NGO, they should be classified as “other persons exercising public duties”, whereas the Government argued that they were to be seen as private persons, including with regard to their activities carried out when appointed by public authorities.", "184. As the Court has held on numerous occasions, it is not its task to take the place of the domestic courts and it was primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many authorities, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III). Nor is it for the Court to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I).", "185. The Court notes that the Supreme Court examined in detail the legal status of ex officio appointed defence counsel and the applicant NGO ’ s arguments as to their duties to ensure the right to defence and that it found that they were not “other persons exercising public duties”. The Supreme Court ’ s interpretation was in line with the Recommendation of the Parliamentary Commissioner for Data Protection, published in 2006 (see paragraph 34 above). The Court sees no reason to question the Supreme Court ’ s interpretation that public defenders could not be regarded as “other persons exercising public duties” and that section 19(4) of the Data Act provided a legal basis for the impugned denial of access. The interference was thus “prescribed by law” within the meaning of the second paragraph of Article 10.", "(ii) Legitimate aim", "186. The Court observes that it was not in dispute between the parties that the restriction on the applicant NGO ’ s freedom of expression pursued the legitimate aim of protecting the rights of others, and it sees no reason to hold otherwise.", "(iii) Necessary in a democratic society", "187. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court ’ s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris, cited above, § 87; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts); Animal Defenders International, cited above, § 100; and most recently Delfi, cited above, § 131):", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "188. The Court observes that the central issue underlying the applicant NGO ’ s grievance is that the information sought was characterised by the authorities as personal data not subject to disclosure. This was so because, under Hungarian law, the concept of personal data encompassed any information that could identify an individual. Such information was not susceptible to disclosure, unless this possibility was expressly provided for by law, or the information was related to the performance of municipal or governmental (State) functions or was related to other persons performing public duties. Since the Supreme Court ’ s ruling excluded public defenders from the category of “other persons performing public duties”, there was no legal possibility open to the applicant NGO to argue that disclosure of the information was necessary for the discharge of its watchdog role.", "189. In this regard, the applicant NGO maintained that there was no justification for the non-disclosure of information concerning the appointment of public defenders who are retained by public authorities within the framework of a State-funded scheme, even in the face of any privacy considerations advanced by the Government.", "190. For their part, the Government argued that the broad interpretation of the notion “other persons performing public duties”, as suggested by the applicant NGO, would be liable to nullify any protection of the private life of public defenders (see paragraph 83 above).", "191. The Court reiterates that the disclosure of information relating to an individual ’ s private life comes within the scope of Article 8 § 1 (see Leander, cited above, § 48 ). It points out in this connection that the concept of “private life” is a broad term not susceptible to exhaustive definition (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of a person ’ s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see S. and Marper, cited above, § 66, and Pretty, cited above, § 61, with further references). Private life may also include activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B). The Court has also held that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Couderc and Hachette Filipacchi Associés, cited above, § 83).", "192. In the context of personal data, the Court has previously referred to the Council of Europe ’ s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (see paragraph 54 above), the purpose of which is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1). Personal data are defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II). It has identified examples of personal data relating to the most intimate and personal aspects of an individual, such as health status (see Z v. Finland, 25 February 1997, §§ 96-97, Reports 1997 ‑ I, concerning HIV ‑ positive status, and M.S. v. Sweden, 27 August 1997, § 47, Reports 1997 ‑ IV, concerning records on abortion), attitude to religion (see, in the context of freedom of religion, Sinan Işık v. Turkey, no. 21924/05, §§ 42-53, ECHR 2010), and sexual orientation (see Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32377/96, § 82, 27 September 1999), finding that such categories of data constituted particular elements of private life falling within the scope of the protection of Article 8 of the Convention.", "193. In determining whether the personal information retained by the authorities related to the relevant public defenders ’ enjoyment of their right to respect for private life, the Court will have due regard to the specific context (see S. and Marper, cited above, § 67). There are a number of elements which are relevant to the assessment of whether a person ’ s private life is concerned by measures effected outside that person ’ s home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person ’ s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 ‑ IX).", "194. In the present case, the information requested consisted of the names of public defenders and the number of times they had been appointed to act as counsel in certain jurisdictions. For the Court, the request for these names, although they constituted personal data, related predominantly to the conduct of professional activities in the context of public proceedings. In this sense, public defenders ’ professional activities cannot be considered to be a private matter. Moreover, the information sought did not relate to the public defenders ’ actions or decisions in connection with the carrying out of their tasks as legal representatives or consultations with their clients. The Government have not demonstrated that disclosure of the information requested for the specific purposes of the applicant ’ s inquiry could have affected the public defenders ’ enjoyment of their right to respect for private life within the meaning of Article 8 of the Convention.", "195. The Court also finds that the disclosure of public defenders ’ names and the number of their respective appointments would not have subjected them to exposure to a degree surpassing that which they could possibly have foreseen when registering as public defenders (compare and contrast Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I). There is no reason to assume that information about the names of public defenders and their appointments could not be known to the public through other means, such as information contained in lists of legal-aid providers, court hearing schedules and public court hearings, although it is clear that it was not collated at the moment of the survey.", "196. Against this background, the interests invoked by the Government with reference to Article 8 of the Convention are not of such a nature and degree as could warrant engaging the application of this provision and bringing it into play in a balancing exercise against the applicant NGO ’ s right as protected by paragraph 1 of Article 10 (compare and contrast Couderc and Hachette Filipacchi Associés, § 91; Axel Springer AG, § 87, both cited above; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, and Perinçek v. Switzerland [GC], no. 27510/08, §§ 227-28, ECHR 2015 (extracts) ). Nonetheless, Article 10 does not guarantee an unlimited freedom of expression; and as already found in paragraph 188 above, the protection of the private interests of public defenders constitutes a legitimate aim permitting a restriction on freedom of expression under paragraph 2 of that provision. Thus, the salient question is whether the means used to protect those interests were proportionate to the aim sought to be achieved.", "197. The Court notes that the subject matter of the survey concerned the efficiency of the public defenders system (see paragraphs 15-16 above). This issue was closely related to the right to a fair hearing, a fundamental right in Hungarian law (see paragraph 33 above) and a right of paramount importance under the Convention. Indeed, any criticism or suggested improvement to a service so directly connected to fair-trial rights must be seen as a subject of legitimate public concern. In its intended survey, the applicant NGO wished to explore its theory that the pattern of recurrent appointments of the same lawyers was dysfunctional, casting doubt on the adequacy of the scheme. The contention that the legal-aid scheme might be prejudiced as such because public defenders were systematically selected by the police from the same pool of lawyers – and were then unlikely to challenge police investigations in order not to be overlooked for further appointments – does indeed raise a legitimate concern. The potential repercussions of police-appointed lawyers on defence rights have already been acknowledged by the Court in the Martin case (cited above). The issue under scrutiny thus going to the very essence of a Convention right, the Court is satisfied that the applicant NGO intended to contribute to a debate on a matter of public interest (see paragraphs 164-65 above). The refusal to grant the request effectively impaired the applicant NGO ’ s contribution to a public debate on a matter of general interest.", "198. Having regard to the considerations in paragraphs 194-196, the Court does not find that the privacy rights of the public defenders would have been negatively affected had the applicant NGO ’ s request for the information been granted. Although the information request admittedly concerned personal data, it did not involve information outside the public domain. As already mentioned above, it consisted only of information of a statistical nature about the number of times the individuals in question had been appointed to represent defendants in public criminal proceedings within the framework of the publicly funded national legal-aid scheme.", "199. The relevant Hungarian law, as interpreted by the competent domestic courts, excluded any meaningful assessment of the applicant ’ s freedom-of-expression rights under Article 10 of the Convention, in a situation where any restrictions on the applicant NGO ’ s proposed publication – which was intended to contribute to a debate on a matter of general interest – would have required the utmost scrutiny.", "200. In the light of the above, the Court considers that the arguments advanced by the Government, although relevant, were not sufficient to show that the interference complained of was “necessary in a democratic society”. In particular, the Court considers that, notwithstanding the respondent State ’ s margin of appreciation, there was not a reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued.", "There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "201. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "202. The applicant NGO did not submit any claim in respect of non-pecuniary damage. However, it claimed 215 euros (EUR) in respect of pecuniary damage. This sum corresponded to the amount which the applicant NGO was ordered to pay the respondent police departments in respect of the latter ’ s legal costs in the domestic proceedings.", "203. The Government contested this claim.", "204. The Court accepts that there is a causal link between the violation found and the pecuniary damage alleged; it therefore awards the full sum claimed. It notes that the applicant did not request that the information sought by it should be disclosed.", "B. Costs and expenses", "205. The applicant NGO claimed EUR 6,400 plus 27 % value-added tax (VAT) for the legal fees incurred before the Court. This amount corresponded to 64 hours of legal work charged at an hourly rate of EUR 100 plus VAT, including 4 hours of consultation, 6 hours to study the file, 16 hours to study the case-law of the Court, 30 hours for drafting submissions and, lastly, 8 hours for preparing for and participating at the Grand Chamber hearing.", "Furthermore, the applicant NGO claimed EUR 2,475 for travel and accommodation expenses related to the hearing.", "The applicant NGO ’ s total claim for costs and expenses came to EUR 8,875 plus VAT where applicable.", "206. The Government contested this claim.", "207. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, that is, EUR 8,875.", "C. Default interest", "208. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The applicant's conviction in 1948", "7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bârlad.", "8. In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” ( Suflet de student ) and “Protests” ( Proteste ), on the ground that they expressed anti ‑ government sentiments.", "9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment.", "B. The proceedings brought under Legislative Decree no. 118/1990", "10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below).", "11. On 30 July 1990 the applicant brought proceedings in the Bârlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements.", "12. The court gave judgment on 11 January 1993. Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iaşi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990.", "13. As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service ( Serviciul Român de Informaţii – “the RIS”). The letter read as follows:", "“In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bârlad :", "(a) during his studies in the Faculty of Sciences at Iaşi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [ legionar ]-type [ [2] ] movement.", "(b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them;", "(c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948;", "(d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions;", "(e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...”", "C. The action for damages against the RIS", "14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iaşi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained. He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past.", "15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it.", "16. The applicant appealed.", "17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990.", "18. On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms:", "“... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.”", "D. The action for damages against the judges", "19. On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action.", "In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court.", "E. The application for review", "20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review.", "21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iaşi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”. The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bârlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iaşi and Vaslui have not provided any other information to confirm that the two names refer to the same person.”", "22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation.", "23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose.", "24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms:", "“It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol. 796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iaşi, entry 165 of which contains the following:'Rotaru Aurel – science student, rank ‑ and-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iaşi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name'Aurel Rotaru'does not seem to be connected with an individual living in Bârlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant.", "Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control.", "That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors. Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour.", "In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed. It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.”", "25. The court did not make any order as to damages or costs." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "26. The relevant provisions of the Constitution read as follows:", "Article 20", "“(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.", "(2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”", "Article 21", "“(1) Anyone may apply to the courts for protection of his rights, liberties and legitimate interests.", "(2) The exercise of this right shall not be restricted by any statute.”", "B. The Civil Code", "27. The relevant provisions of the Civil Code are worded as follows:", "Article 3", "“A judge who refuses to adjudicate, on the pretext that the law is silent, obscure or defective, may be prosecuted on a charge of denial of justice.”", "Article 998", "“Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”", "Article 999", "“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”", "C. The Code of Civil Procedure", "28. The relevant provision of the Code of Civil Procedure reads as follows:", "Article 322-5", "“An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties' control is discovered after the decision has been delivered ...”", "D. Decree no. 31 of 1954 on natural and legal persons", "29. The relevant provisions of Decree no. 31 of 1954 on natural and legal persons are worded as follows:", "Article 54", "“(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights.", "(2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights.”", "Article 55", "“If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed, the court may sentence him to pay a periodic pecuniary penalty to the State ...”", "E. Legislative Decree no. 118 of 30 March 1990 on the granting of certain rights to persons who were persecuted on political grounds by the dictatorial regime established on 6 March 1945", "30. At the material time, the relevant provisions of Legislative Decree no. 118/1990 read:", "Article 1", "“The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons –", "(a) served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences;", "...”", "Article 5", "“A committee composed of a chairman and at most six other members shall be set up in each county ... in order to verify whether the requirements laid down in Article 1 have been satisfied ...", "The chairman must be legally qualified. The committee shall include two representatives from the employment and social-welfare departments and a maximum of four representatives from the association of former political detainees and victims of the dictatorship.", "...”", "Article 6", "“The persons concerned may establish that they satisfy the conditions laid down in Article 1 by means of official documents issued by the relevant authorities or ... of any other material of evidential value.", "...”", "Article 11", "“The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established, by means of the procedure indicated in Articles 5 and 6, that they engaged in Fascist activities within a Fascist-type organisation.”", "F. Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service", "31. The relevant provisions of Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service, which was published in the Official Gazette on 3 March 1992, read as follows:", "Section 2", "“The Romanian Intelligence Service shall organise and carry out all activities designed to gather, verify and utilise the information needed for discovering, preventing and frustrating any actions which, in the eyes of the law, threaten Romania's national security.”", "Section 8", "“The Romanian Intelligence Service shall be authorised to hold and to make use of any appropriate resources in order to secure, verify, classify and store information affecting national security, as provided by law.”", "Section 45", "“All internal documents of the Romanian Intelligence Service shall be secret, shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law.", "Documents, data and information belonging to the Romanian Intelligence Service shall not be made public until forty years after they have been archived.", "The Romanian Intelligence Service shall, in order to keep and make use of them, take over all the national-security archives that belonged to the former intelligence services operating on Romanian territory.", "The national-security archives of the former Securitate shall not be made public until forty years after the date of the passing of this Act.”", "G. Law no. 187 of 20 October 1999 on citizens' access to the personal files held on them by the Securitate, enacted with the intention of unmasking that organisation's nature as a political police force", "32. The relevant provisions of Law no. 187 of 20 October 1999, which came into force on 9 December 1999, are worded as follows:", "Section 1", "“(1) All Romanian citizens, and all aliens who have obtained Romanian nationality since 1945, shall be entitled to inspect the files kept on them by the organs of the Securitate ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents.", "(2) Additionally, any person who is the subject of a file from which it appears that he or she was kept under surveillance by the Securitate shall be entitled, on request, to know the identity of the Securitate agents and collaborators who contributed documents to the file.", "(3) Unless otherwise provided by law, the rights provided in subsections (1) and (2) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased.”", "Section 2", "“(1) In order to provide for a right of access to information of public interest, all Romanian citizens ..., the media, political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the Securitate :", "(a) the President of Romania;", "(b) member of Parliament or of the Senate;", "...”", "Section 7", "“A National Council for the Study of the Archives of the Securitate ... (hereinafter 'the Council'), with its headquarters in Bucharest, shall be set up to apply the provisions of this Act.", "The Council shall be an autonomous body with legal personality, subject to supervision by Parliament. ...”", "Section 8", "“The Council shall consist of a college of eleven members.", "The members of the college of the Council shall be appointed by Parliament, on a proposal by the parliamentary groups, according to the political composition of the two Chambers ... for a term of office of six years, renewable once.”", "Section 13", "“(1) The beneficiaries of this Act may, in accordance with section 1(1), request the Council –", "(a) to allow them to consult the files ... compiled by the Securitate up to 22 December 1989;", "(b) to issue copies of ... these files ...;", "(c) to issue certificates of membership or non-membership of the Securitate and of collaboration or non-collaboration with it;", "...”", "Section 14", "“(1) The content of certificates under section 13(1)(c) may be challenged before the college of the Council ...”", "Section 15", "“(1) The right of access to information of public interest shall be exercisable by means of a request sent to the Council. ...", "...", "(4) In response to requests made under section 1, the Council shall verify the evidence at its disposal, of whatever form, and shall immediately issue a certificate ...”", "Section 16", "“(1) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the Council a certificate issued under section 15. ...", "The college's decision may be challenged ... in the Court of Appeal ...”", "THE LAW", "I. the government's preliminary objections", "A. Applicant's victim status", "33. As their primary submission, the Government maintained – as they had done before the Commission – that the applicant could no longer claim to be the “victim” of a violation of the Convention within the meaning of Article 34. They pointed out that the applicant had won his case in the Bucharest Court of Appeal, since that court had, in its judgment of 25 November 1997, declared null and void the details contained in the letter of 19 December 1990 from the Romanian Intelligence Service ( Serviciul Român de Informaţii – “the RIS”), and, in the Government's view, the only infringement of the applicant's rights stemmed from that letter.", "At all events, the Government continued, the applicant now had available to him the procedure put in place by Law no. 187 of 20 October 1999, which afforded him all the safeguards required by the Convention for the protection of his rights.", "34. The applicant requested the Court to continue its consideration of the case. He argued that the circumstances that had given rise to the application had not fundamentally changed following the decision of 25 November 1997. Firstly, the mere fact of acknowledging, after the Commission's admissibility decision, that a mistake had been made could not amount to adequate redress for the violations of the Convention. Secondly, he had still not had access to his secret file, which was not only stored by the RIS but also used by it. It was consequently not to be excluded that even after the decision of 25 November 1997 the RIS might make use of the information that the applicant had supposedly been a legionnaire and of any other information in his file.", "35. The Court reiterates, as to the concept of victim, that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 18-19, § 34). Furthermore, “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).", "36. In the instant case the Court notes that the applicant complained of the holding of a secret register containing information about him, whose existence was publicly revealed during judicial proceedings. It considers that he may on that account claim to be the victim of a violation of the Convention.", "The Court also notes that in a judgment of 25 November 1997 the Bucharest Court of Appeal found that the details given in the letter of 19 December 1990 about the alleged fact that the applicant had been a legionnaire were false, in that they probably related to someone else with the same name, and declared them null and void.", "Assuming that it may be considered that that judgment did, to some extent, afford the applicant redress for the existence in his file of information that proved false, the Court takes the view that such redress is only partial and that at all events it is insufficient under the case-law to deprive him of his status of victim. Apart from the foregoing considerations as to his being a victim as a result of the holding of a secret file, the Court points to the following factors in particular.", "The information that the applicant had supposedly been a legionnaire is apparently still recorded in the RIS's files and no mention of the judgment of 25 November 1997 has been made in the file concerned. Furthermore, the Court of Appeal expressed no view – and was not entitled to do so – on the fact that the RIS was authorised by Romanian legislation to hold and make use of files opened by the former intelligence services, which contained information about the applicant. A key complaint made to the Court by the applicant was that domestic law did not lay down with sufficient precision the manner in which the RIS must carry out its work and that it did not provide citizens with an effective remedy before a national authority.", "Lastly, the Bucharest Court of Appeal in its judgment of 25 November 1997 did not rule on the applicant's claim for compensation for non ‑ pecuniary damage and for costs and expenses.", "37. As to Law no. 187 of 20 October 1999, which the Government relied on, the Court considers, having regard to the circumstances of this case, that it is not relevant (see paragraph 71 below).", "38. The Court concludes that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. The objection must therefore be dismissed.", "B. Exhaustion of domestic remedies", "39. The Government also submitted that the application was inadmissible for failure to exhaust domestic remedies. They argued that the applicant had had a remedy which he had not made use of, namely an action based on Decree no. 31/1954 on natural and legal persons, under which the court may order any measure to restrain injury to a person's reputation.", "40. The Court notes that there is a close connection between the Government's argument on this point and the merits of the complaints made by the applicant under Article 13 of the Convention. It accordingly joins this objection to the merits (see paragraph 70 below).", "ii. alleged violation of article 8 of the convention", "41. The applicant complained that the RIS held and could at any moment make use of information about his private life, some of which was false and defamatory. He alleged a violation of Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Applicability of Article 8", "42. The Government denied that Article 8 was applicable, arguing that the information in the RIS's letter of 19 December 1990 related not to the applicant's private life but to his public life. By deciding to engage in political activities and have pamphlets published, the applicant had implicitly waived his right to the “anonymity” inherent in private life. As to his questioning by the police and his criminal record, they were public information.", "43. The Court reiterates that the storing of information relating to an individual's private life in a secret register and the release of such information come within the scope of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48).", "Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings: furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, pp. 1015-16, §§ 42-46).", "The Court has already emphasised the correspondence of this broad interpretation with that of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II).", "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past.", "44. In the instant case the Court notes that the RIS's letter of 19 December 1990 contained various pieces of information about the applicant's life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years earlier. In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. That is all the more so in the instant case as some of the information has been declared false and is likely to injure the applicant's reputation.", "Article 8 consequently applies.", "B. Compliance with Article 8", "1. Whether there was interference", "45. In the Government's submission, three conditions had to be satisfied before there could be said to be interference with the right to respect for private life: information had to have been stored about the person concerned; use had to have been made of it; and it had to be impossible for the person concerned to refute it. In the instant case, however, both the storing and the use of the information relating to the applicant had occurred before Romania ratified the Convention. As to the alleged impossibility of refuting the information, the Government maintained that, on the contrary, it was open to the applicant to refute untrue information but that he had not made use of the appropriate remedies.", "46. The Court points out that both the storing by a public authority of information relating to an individual's private life and the use of it and the refusal to allow an opportunity for it to be refuted amount to interference with the right to respect for private life secured in Article 8 § 1 of the Convention (see the following judgments : Leander cited above, p. 22, § 48; Kopp v. Switzerland, 25 March 1998, Reports 1998-II, p. 540, § 53; and Amann cited above, §§ 69 and 80).", "In the instant case it is clear beyond peradventure from the RIS's letter of 19 December 1990 that the RIS held information about the applicant's private life. While that letter admittedly predates the Convention's entry into force in respect of Romania on 20 June 1994, the Government did not submit that the RIS had ceased to hold information about the applicant's private life after that date. The Court also notes that use was made of some of the information after that date, for example in connection with the application for review which led to the decision of 25 November 1997.", "Both the storing of that information and the use of it, which were coupled with a refusal to allow the applicant an opportunity to refute it, amounted to interference with his right to respect for his private life as guaranteed by Article 8 § 1.", "2. Justification for the interference", "47. The cardinal issue that arises is whether the interference so found is justifiable under paragraph 2 of Article 8. That paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see the Klass and Others judgment cited above, p. 21, § 42).", "48. If it is not to contravene Article 8, such interference must have been “in accordance with the law”, pursue a legitimate aim under paragraph 2 and, furthermore, be necessary in a democratic society in order to achieve that aim.", "49. The Government considered that the measures in question were in accordance with the law. The information concerned had been disclosed by the RIS in connection with a procedure provided in Legislative Decree no. 118/1990, which was designed to afford redress to persons persecuted by the communist regime. By the terms of Article 11 of that legislative decree, no measure of redress could be granted to persons who had engaged in Fascist activities.", "50. In the applicant's submission, the keeping and use of the file on him were not in accordance with the law, since domestic law was not sufficiently precise to indicate to citizens in what circumstances and on what terms the public authorities were empowered to file information on their private life and make use of it. Furthermore, domestic law did not define with sufficient precision the manner of exercise of those powers and did not contain any safeguards against abuses.", "51. The Commission considered that domestic law did not define with sufficient precision the circumstances in which the RIS could archive, release and use information relating to the applicant's private life.", "52. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, as the most recent authority, Amann cited above, § 50).", "53. In the instant case the Court notes that Article 6 of Legislative Decree no. 118/1990, which the Government relied on as the basis for the impugned measure, allows any individual to prove that he satisfies the requirements for having certain rights conferred on him, by means of official documents issued by the relevant authorities or any other material of evidential value. However, the provision does not lay down the manner in which such evidence may be obtained and does not confer on the RIS any power to gather, store or release information about a person's private life.", "The Court must therefore determine whether Law no. 14/1992 on the organisation and operation of the RIS, which was likewise relied on by the Government, can provide the legal basis for these measures. In this connection, it notes that the law in question authorises the RIS to gather, store and make use of information affecting national security. The Court has doubts as to the relevance to national security of the information held on the applicant. Nevertheless, it reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kopp judgment cited above, p. 541, § 59) and notes that in its judgment of 25 November 1997 the Bucharest Court of Appeal confirmed that it was lawful for the RIS to hold this information as depositary of the archives of the former security services.", "That being so, the Court may conclude that the storing of information about the applicant's private life had a basis in Romanian law.", "54. As to the accessibility of the law, the Court regards that requirement as having been satisfied, seeing that Law no. 14/1992 was published in Romania's Official Gazette on 3 March 1992.", "55. As regards the requirement of foreseeability, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. The Court has stressed the importance of this concept with regard to secret surveillance in the following terms (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, § 67, reiterated in Amann cited above, § 56):", "“The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the 'law', requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ...", "... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”", "56. The “quality” of the legal rules relied on in this case must therefore be scrutinised, with a view, in particular, to ascertaining whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant's private life.", "57. The Court notes in this connection that section 8 of Law no. 14/1992 provides that information affecting national security may be gathered, recorded and archived in secret files.", "No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept.", "Section 45 of the Law empowers the RIS to take over for storage and use the archives that belonged to the former intelligence services operating on Romanian territory and allows inspection of RIS documents with the Director's consent.", "The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained.", "58. It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences is not laid down with sufficient precision.", "59. The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it (see the Klass and Others judgment cited above, pp. 23-24, §§ 49-50).", "In order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see the Klass and Others judgment cited above, pp. 25-26, § 55).", "60. In the instant case the Court notes that the Romanian system for gathering and archiving information does not provide such safeguards, no supervision procedure being provided by Law no. 14/1992, whether while the measure ordered is in force or afterwards.", "61. That being so, the Court considers that domestic law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.", "62. The Court concludes that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law”, a fact that suffices to constitute a violation of Article 8. Furthermore, in the instant case that fact prevents the Court from reviewing the legitimacy of the aim pursued by the measures ordered and determining whether they were – assuming the aim to have been legitimate – “necessary in a democratic society”.", "63. There has consequently been a violation of Article 8.", "iii. alleged violation of article 13 of the convention", "64. The applicant complained that the lack of any remedy before a national authority that could rule on his application for destruction of the file containing information about him and amendment of the inaccurate information was also contrary to Article 13, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "65. The Government argued that the applicant had obtained satisfaction through the judgment of 25 November 1997, in which the details contained in the RIS's letter of 19 December 1990 had been declared null and void. As to the destruction or amendment of information in the file held by the RIS, the Government considered that the applicant had not chosen the appropriate remedy. He could have brought an action on the basis of Decree no. 31 of 1954, Article 54 § 2 of which empowered the court to order any measure to restore the right infringed, in the instant case the applicant's right to his honour and reputation.", "The Government further pointed out that the applicant could now rely on the provisions of Law no. 187 of 1999 to inspect the file opened on him by the Securitate. Under sections 15 and 16 of that Law, the applicant could challenge in court the truth of the information in his file.", "66. In the Commission's opinion, the Government had not managed to show that there was in Romanian law a remedy that was effective in practice as well as in law and would have enabled the applicant to complain of a violation of Article 8 of the Convention.", "67. The Court reiterates that it has consistently interpreted Article 13 as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV). Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. This Article therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision. The remedy must be “effective” in practice as well as in law (see Wille v. Liechtenstein [GC], no. 28396/95, § 75, ECHR 1999-VII).", "68. The Court observes that the applicant's complaint that the RIS held information about his private life for archiving and for use, contrary to Article 8 of the Convention, was indisputably an “arguable” one. He was therefore entitled to an effective domestic remedy within the meaning of Article 13 of the Convention.", "69. The “authority” referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see the Klass and Others judgment cited above, p. 30, § 67).", "Furthermore, where secret surveillance is concerned, objective supervisory machinery may be sufficient as long as the measures remain secret. It is only once the measures have been divulged that legal remedies must become available to the individual (ibid., p. 31, §§ 70-71).", "70. In the instant case the Government maintained that the applicant could have brought an action on the basis of Article 54 of Decree no. 31/1954. In the Court's view, that submission cannot be accepted.", "Firstly, it notes that Article 54 of the decree provides for a general action in the courts, designed to protect non-pecuniary rights that have been unlawfully infringed. The Bucharest Court of Appeal, however, indicated in its judgment of 25 November 1997 that the RIS was empowered by domestic law to hold information on the applicant that came from the files of the former intelligence services.", "Secondly, the Government did not establish the existence of any domestic decision that had set a precedent in the matter. It has therefore not been shown that such a remedy would have been effective. That being so, this preliminary objection by the Government must be dismissed.", "71. As to the machinery provided in Law no. 187/1999, assuming that the Council provided for is set up, the Court notes that neither the provisions relied on by the respondent Government nor any other provisions of that Law make it possible to challenge the holding, by agents of the State, of information on a person's private life or the truth of such information. The supervisory machinery established by sections 15 and 16 relate only to the disclosure of information about the identity of some of the Securitate 's collaborators and agents.", "72. The Court has not been informed of any other provision of Romanian law that makes it possible to challenge the holding, by the intelligence services, of information on the applicant's private life or to refute the truth of such information.", "73. The Court consequently concludes that the applicant has been the victim of a violation of Article 13.", "iv. alleged violation of article 6 of the convention", "74. The applicant complained that the courts' refusal to consider his applications for costs and damages infringed his right to a court, contrary to Article 6 of the Convention, which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ...”", "75. The Government made no submission.", "76. The Commission decided to consider the complaint under the more general obligation, imposed on the States by Article 13, of affording an effective remedy enabling complaints to be made of violations of the Convention.", "77. The Court observes that apart from the complaint, examined above, that there was no remedy whereby an application could be made for amendment or destruction of the file containing information about him, the applicant also complained that the Bucharest Court of Appeal, although lawfully seised of a claim for damages and costs, did not rule on the matter in its review judgment of 25 November 1997.", "78. There is no doubting that the applicant's claim for compensation for non-pecuniary damage and costs was a civil one within the meaning of Article 6 § 1, and the Bucharest Court of Appeal had jurisdiction to deal with it (see the Robins v. the United Kingdom judgment of 23 September 1997, Reports 1997-V, p. 1809, § 29).", "The Court accordingly considers that the Court of Appeal's failure to consider the claim infringed the applicant's right to a fair hearing within the meaning of Article 6 § 1 (see the Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, pp. 12-13, § 30).", "79. There has therefore been a violation of Article 6 § 1 of the Convention also.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "80. The applicant sought just satisfaction under Article 41 of the Convention, which provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "81. The applicant claimed 20,000,000,000 Romanian lei (ROL) in compensation for non-pecuniary damage caused by the discredit associated with the public disclosure of false and defamatory information about him and with the authorities' refusal for several years to admit the mistake and correct it.", "82. The Government objected to this claim, which they considered unreasonable, especially as the applicant had not raised the point in the domestic courts.", "83. The Court draws attention to its settled case-law to the effect that the mere fact that an applicant has not brought his claim for damages before a domestic court does not require the Court to dismiss those claims as being ill-founded any more than it raises an obstacle to their admissibility (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 ( Article 50 ), Series A no. 14, pp. 9-10, § 20). Furthermore, the Court notes in the instant case that, contrary to what the Government maintained, the applicant did seek compensation in the domestic courts for the non ‑ pecuniary damage he had sustained, in the form of payment of a token sum of 1 Romanian leu, a claim which was not addressed by the Romanian courts.", "It notes, further, that the Bucharest Court of Appeal declared the allegedly defamatory information null and void, thereby partly meeting the applicant's complaints. The Court considers, however, that the applicant must actually have sustained non-pecuniary damage, regard being had to the existence of a system of secret files contrary to Article 8, to the lack of any effective remedy, to the lack of a fair hearing and also to the fact that several years elapsed before a court held that it had jurisdiction to declare the defamatory information null and void.", "It therefore considers that the events in question entailed serious interference with Mr Rotaru's rights and that the sum of 50,000 French francs (FRF) will afford fair redress for the non-pecuniary damage sustained. That amount is to be converted into Romanian lei at the rate applicable at the date of settlement.", "B. Costs and expenses", "84. The applicant sought reimbursement of ROL 38,000,000 (FRF 13,450) which he broke down as follows:", "(a) ROL 30,000,000 corresponding to costs incurred in the domestic proceedings, including ROL 20,000,000 for travel and subsistence in respect of visits to Iaşi and Bucharest and ROL 10,000,000 for sundry expenses (stamp duty, telephone calls, photocopying, etc.);", "(b) ROL 8,000,000 corresponding to expenses incurred before the Convention institutions, including ROL 6,000,000 for translation and secretarial expenses, ROL 1,000,000 for travel expenses between Bârlad and Bucharest and ROL 1,000,000 for a French visa for the applicant's son.", "85. The Government considered that sum excessive, especially as the applicant had, they said, sought judgment in default in all the domestic proceedings.", "86. The Court reiterates that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In this connection, it should be remembered that the Court may award an applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred in the national courts for the prevention or redress of a violation of the Convention found by the Court (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999-I).", "87. The Court notes that the applicant was not represented in the domestic courts, that he presented his own case to the Commission and that in the proceedings before the Court he was represented at the hearing. It also notes that the Council of Europe paid Mr Rotaru the sum of FRF 9,759.72 by way of legal aid.", "The Court awards the full amount claimed by the applicant, that is to say FRF 13,450, less the sum already paid by the Council of Europe in legal aid. The balance is to be converted into Romanian lei at the rate applicable at the date of settlement.", "C. Default interest", "88. The Court considers it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, that is to say 2.74% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant, who is the eldest daughter of Prince Rainier III of Monaco, was born in 1957. Her official residence is in Monaco but she lives in the Paris area most of the time.", "As a member of Prince Rainier ’ s family, the applicant is the president of certain humanitarian or cultural foundations, such as the Princess Grace Foundation or the Prince Pierre of Monaco Foundation, and also represents the ruling family at events such as the Red Cross Ball or the opening of the International Circus Festival. She does not, however, perform any function within or on behalf of the State of Monaco or any of its institutions.", "A. Background to the case", "9. Since the early 1990s the applicant has been trying – often through the courts – in a number of European countries to prevent the publication of photos about her private life in the tabloid press.", "10. The photos that were the subject of the proceedings described below were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in the German magazine Neue Post.", "1. The first series of photos", "(a) The five photos of the applicant published in Freizeit Revue magazine ( issue no. 30 of 22 July 1993 )", "11. These photos show her with the actor Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the magazine refers to “ The most tender photos of her romance with Vincent” (“ Die zärtlichsten Fotos Ihrer Romanze mit Vincent ”) and the photos themselves bear the caption “These photos are evidence of the most tender romance of our time” ( “ Diese Fotos sind der Beweis für die zärtlichste Romanze unserer Zeit ” ).", "(b) The two photos of the applicant published in Bunte magazine ( issue no. 32 of 5 August 1993 )", "12. The first photo shows her on horseback with the caption “Caroline and the blues. Her life is a novel with innumerable misfortunes, says the author Roig” (“ Caroline und die Melancholie. Ihr Leben ist ein Roman mit unzähligen Unglücken, sagt Autor Roig ” ).", "The second photo shows her with her children Pierre and Andrea.", "The photos are part of an article entitled “I don ’ t think I could be a man ’ s ideal wife ” ( “ Ich glaube nicht, dass ich die ideale Frau für einen Mann sein kann ” ).", "(c) The seven photos of the applicant published in Bunte magazine ( issue no. 34 of 19 August 1993 )", "13. The first photo shows her canoeing with her daughter Charlotte, the second shows her son Andrea with a bunch of flowers in his arms.", "The third photo shows her doing her shopping with a bag slung over her shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone on a bicycle.", "The sixth photo shows her with Vincent Lindon and her son Pierre.", "The seventh photo shows her doing her shopping at the market, accompanied by her bodyguard.", "The article is entitled “ Pure happiness” (“ Vom einfachen Glück ”).", "2. The second series of photos", "(a) The ten photos of the applicant published in Bunte magazine ( issue no. 10 of 27 February 1997 )", "14. These photos show the applicant on a skiing holiday in Zürs/Arlberg. The accompanying article is entitled “Caroline ... a woman returns to life” (“ Caroline... eine Frau kehrt ins Leben zurück ”).", "(b) The eleven photos of the applicant published in Bunte magazine ( issue no. 12 of 13 March 1997 )", "15. Seven photos show her with Prince Ernst August von Hannover at a horse show in Saint-Rémy-de-Provence. The accompanying article is entitled “The kiss. Or: they are not hiding anymore ” (“ Der Kuss. Oder : jetzt verstecken sie sich nicht mehr ” ).", "Four other photos show her leaving her house in Paris with the caption “Out and about with Princess Caroline in Paris ” (“ Mit Prinzessin Caroline unterwegs in Paris ”).", "(c) The seven photos of the applicant published in Bunte magazine ( issue no. 16 of 10 April 1997 )", "16. These photos show the applicant on the front page with Prince Ernst August von Hannover and on the inside pages of the magazine playing tennis with him or both putting their bicycles down.", "3. The third series of photos", "17. The sequence of photos published in Neue Post magazine ( issue no. 35/97 ) shows the applicant at the Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling down. The photos, which are quite blurred, are accompanied by an article entitled “Prince Ernst August played fisticuffs and Princess Caroline fell flat on her face ” (“ Prinz Ernst August haute auf den Putz und Prinzessin Caroline fiel auf die Nase ”).", "B. The proceedings in the German courts", "1. The first set of proceedings", "(a) Judgment of the Hamburg Regional Court of 4 February 1993", "18. On 13 August 1993 the applicant sought an injunction in the Hamburg Regional Court ( Landgericht ) against any further publication by", "the Burda publishing company of the first series of photos on the ground that they infringed her right to protection of her personality rights ( Persönlichkeitsrecht ), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law ( Grundgesetz ), and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain ) Act ( Kunsturhebergesetz – “the Copyright Act” – see paragraphs 40-41 below).", "19. In a judgment of 4 February 1993, the Regional Court granted the application only in respect of the distribution of the magazines in France, in accordance with the rules of private international law (section 38 of the Introductory Act to the Civil Code – Einführungsgesetz in das bürgerliche Gesetzbuch ) read in conjunction with Article 9 of the French Civil Code.", "With regard to the distribution of the magazines in Germany, however, the Regional Court reiterated that it was German law which applied. Under section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of contemporary society “ par excellence ” ( eine “absolute” Person der Zeitgeschichte ), had to tolerate this kind of publication.", "The Regional Court held that she had failed to establish a legitimate interest ( berechtigtes Interesse ) justifying an injunction against further publication because, where figures of contemporary society “ par excellence ” were concerned, the right to protection of private life stopped at their front door. All the photos of the applicant had been taken exclusively in public places.", "(b) Judgment of the Hamburg Court of Appeal of 8 December 1994", "20. The applicant appealed against that judgment.", "21. In a judgment of 8 December 1994, the Hamburg Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s appeal and set aside the injunction against subsequent publications in France.", "Indeed, like the Regional Court, the Court of Appeal found that the applicant was a contemporary figure “ par excellence ” and therefore had to tolerate publication without her consent of the photos in question, which had all been taken in public places. Even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public.", "(c) Judgment of the Federal Court of Justice of 19 December 1995", "22. The applicant appealed on points of law against that judgment.", "23. In a judgment of 19 December 1995, the Federal Court of Justice ( Bundesgerichtshof ) allowed the applicant ’ s appeal in part, granting her an injunction against any further publication of the photos that had appeared in Freizeit Revue magazine ( issue no. 30 of 22 July 1993) showing her with Vincent Lindon in a restaurant courtyard on the ground that the photos interfered with her right to respect for her private life.", "The Federal Court held that even figures of contemporary society “ par excellence ” were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos. Outside their home, however, they could not rely on the protection of their privacy unless they had retired to a secluded place – away from the public eye ( in eine örtliche Abgeschiedenheit ) – where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in a public place. Unlawful interference with the protection of that privacy could therefore be made out if photos were published that had been taken secretly and/or by catching unawares a person who had retired to such a place. That was the position here, where the applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the clear aim of being out of the public eye.", "However, the Federal Court dismissed the remainder of her appeal on the ground that, as a figure of contemporary society “ par excellence ”, the applicant had to tolerate the publication of photos in which she appeared in a public place even if they were photos of scenes from her daily life and not photos showing her exercising her official functions. The public had a legitimate interest in knowing where the applicant was staying and how she behaved in public.", "(d) Judgment of the Federal Constitutional Court of 15 December 1999", "24. The applicant then appealed to the Federal Constitutional Court ( Bundesverfassungsgericht ), submitting that there had been an infringement of her right to the protection of her personality rights ( Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law).", "In the applicant ’ s submission, the criteria established by the Federal Court of Justice regarding the protection of privacy in respect of photos taken in public places did not effectively protect the free development of the personality, be it in the context of private life or family life. Those criteria were so narrow that in practice the applicant could be photographed at any time outside her home and the photos subsequently published in the media.", "Given that the photos were not used genuinely to inform people, but merely to entertain them, the right to control the use of one ’ s image in respect of scenes from private life, which had been recognised by the case-law of the Federal Constitutional Court, prevailed over the right – also guaranteed by the Basic Law – to freedom of the press.", "25. In a landmark judgment of 15 December 1999, delivered after a hearing, the Constitutional Court allowed the applicant ’ s appeal in part on the ground that the publication of the three photos in issues nos. 32 and 34 of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the applicant with her children had infringed her right to the protection of her personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law. It referred the case to the Federal Court of Justice on that point. However, the Constitutional Court dismissed the applicant ’ s appeal regarding the other photos.", "The relevant extract of the judgment reads as follows:", "“The appeal is well- founded in part.", "...", "II.", "The decisions being appealed do not fully satisfy the requirements of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law.", "1. The provisions of sections 22 and 23 of the KUG [ Kunsturhebergesetz – Copyright Act] on which the civil courts based their decisions in the present case are, however, compatible with the Basic Law.", "Under Article 2 § 1 of the Basic Law, general personality rights are guaranteed only within the framework of the constitutional order. The provisions concerning the publication of photographical representations of persons listed in sections 22 and 23 of the KUG are part of that constitutional order. They derive from an incident which at the time caused a scandal ( photos of Bismarck on his deathbed ... ) and from the ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair balance between respect for personality rights and the community ’ s interest in being informed ...", "Under section 22, first sentence, of the KUG, pictures can only be disseminated or exposed to the public eye with the express approval of the person represented. Pictures relating to contemporary society are excluded from that rule under section 23(1) of the KUG ... Under section 23(2) of the KUG, however, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented. The protection by degrees under these rules ensures that they take account of the need to protect the person being represented as well as the community ’ s desire to be informed and the interest of the media which satisfy that desire. That much has already been established by the Federal Constitutional Court ...", "...", "(b) In the instant case regard must be had, in interpreting and applying sections 22 and 23 of the KUG, not only to general personality rights, but also to the freedom of the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as the provisions in question also affect those freedoms.", "...", "The fact that the press fulfils the function of forming public opinion does not exclude entertainment from the functional guarantee under the Basic Law. The formation of opinions and entertainment are not opposites. Entertainment also plays a role in the formation of opinions. It can sometimes even stimulate or influence the formation of opinions more than purely factual information. Moreover, there is a growing tendency in the media to do away with the distinction between information and entertainment both as regards press coverage generally and individual contributions, and to disseminate information in the form of entertainment or mix it with entertainment ( ‘ infotainment ’ ). Consequently, many readers obtain information they consider to be important or interesting from entertaining coverage ...", "Nor can mere entertainment be denied any role in the formation of opinions. That would amount to unilaterally presuming that entertainment merely satisfies a desire for amusement, relaxation, escapism or diversion. Entertainment can also convey images of reality and propose subjects for debate that spark off a process of discussion and assimilation relating to philosophies of life, values and behaviour models. In that respect, it fulfils important social functions ... When measured against the aim of protecting press freedom, entertainment in the press is neither negligible nor entirely worthless and therefore falls within the scope of application of fundamental rights ...", "The same is true of information about people. Personalisation is an important journalistic means of attracting attention. Very often it is this which first arouses interest in a problem and stimulates a desire for factual information. Similarly, interest in a particular event or situation is usually stimulated by personalised accounts. Additionally, celebrities embody certain moral values and lifestyles. Many people base their choice of lifestyle on their example. They become points of crystallisation for adoption or rejection and act as examples or counter-examples. This is what explains the public interest in the various ups and downs occurring in their lives.", "As regards politicians, this public interest has always been deemed to be legitimate from the point of view of transparency and democratic control. Nor can it in principle be disputed that it exists in respect of other public figures. To that extent it is the function of the press to show people in situations that are not limited to specific functions or events and this also falls within the sphere of protection of press freedom. It is only when a balancing exercise has to be done between competing personality rights that an issue arises as to whether matters of essential interest for the public are involved and treated seriously and objectively or whether private matters, designed merely to satisfy the public ’ s curiosity, are being disseminated ...", "(c) The decision of the Federal Court of Justice largely stands up to an examination of its compatibility with the constitutional rules.", "(aa) The Federal Court of Justice cannot be criticised under constitutional law for assessing the conditions of application [ Tatbestandsvoraussetzungen ] of section 23(1) no. 1 of the KUG according to the criterion of the community ’ s interest in being informed and deciding on that basis that the photos showing the appellant outside her representative function in the Principality of Monaco were lawful.", "Under section 23(1) no. 1 of the KUG, the publication of pictures portraying an aspect of contemporary society are exempted from the obligation to obtain the consent of the person concerned within the meaning of section 22 of the KUG. Judging from the drafting history of the Act ... and from the meaning and purpose of the words used, the provision in question takes into consideration the community ’ s interest in being informed and the freedom of the press. Accordingly, the interpretation of this element [ Tatbestandsmerkmal ] must take account of the interests of the public. Pictures of people who are of no significance in contemporary society should not be made freely accessible to the public: they require the prior consent of the person concerned. The other element that is affected by fundamental rights, that of a ‘ legitimate interest ’ for the purposes of section 23(2) of the KUG, concerns only – and this must be stressed at the outset – figures of contemporary society and cannot therefore take sufficient account of the interests of the freedom of the press if these have previously been neglected when the circle of the persons concerned was defined.", "It is in keeping with the importance and scope of the freedom of the press, and not unreasonably restrictive of the protection of personality rights, that the concept of contemporary society referred to in section 23(1) no. 1 of the KUG should not only cover, in accordance with a definition given by the courts, events of historical or political significance, but be defined on the basis of the public interest in being informed ... The kernel of press freedom and the free formation of opinions requires the press to have, within legal limits, sufficient margin of manoeuvre to allow it to decide, in accordance with its publishing criteria, what the public interest demands, and the process of forming opinion to establish what amounts to a matter of public interest. As has been stated, entertaining coverage is no exception to these principles.", "Nor should the Federal Court of Justice be criticised for including in the ‘ domain of contemporary society ’, within the meaning of section 23(1) no. 1 of the KUG, pictures of people who have not only aroused public interest at a certain point on the occasion of a particular historical event but who, on account of their status and importance, attract the public ’ s attention in general and not just on the odd occasion. Account should also be taken in this regard of the fact that, compared to the situation at the time the Copyright Act was passed, increased importance is given today to illustrated information. The concept of a ‘ figure of contemporary society “ par excellence ” ’ [ ‘ absolute ’ Person der Zeitgeschichte ], often employed in this respect in the case-law and legal theory, does not conclusively derive from statute or the Constitution. If, as was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a shortened expression designating people whose image is deemed by the public to be worthy of respect out of consideration for the people concerned, it is irreproachable from the point of view of constitutional law at least as long as a balancing exercise is carried out, in the light of the circumstances of the case, between the public ’ s interest in being informed and the legitimate interests of the person concerned.", "General personality rights do not require publications that are not subject to prior consent to be limited to pictures of figures of contemporary society in the exercise of their function in society. Very often the public interest aroused by such figures does not relate exclusively to the exercise of their function in the strict sense. It can, on the contrary, by virtue of the particular function and its impact, extend to information about the way in which these figures behave generally – that is, also outside their function – in public. The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements.", "If, on the other hand, the right to publish pictures of people considered to be figures of contemporary society were to be limited to their official functions, insufficient account would be taken of the public interest properly aroused by such figures and this would, moreover, favour a selective presentation that would deprive the public of certain necessary judgmental possibilities in respect of figures of socio-political life, having regard to the function of role model of such figures and the influence they exert. The press is not, however, allowed to use every picture of figures of contemporary society. On the contrary, section 23(2) of the KUG gives the courts adequate opportunity to apply the protective provisions of Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law ...", "(bb) In theory the criteria established by the Federal Court of Justice for interpreting the concept of ‘ legitimate interest ’ used in section 23(2) of the KUG are irreproachable from the point of view of constitutional law.", "According to the decision being appealed, the privacy meriting protection that must also be afforded to ‘ figures of contemporary society “ par excellence ” ’ presupposes that they have retired to a secluded place with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public. The Federal Court of Justice accepted that there had been a breach of sections 22 and 23 of the KUG where this type of picture was taken secretly or by catching the person unawares.", "The criterion of a secluded place takes account of the aim, pursued by the general right to protection of personality rights, of allowing the individual a sphere, including outside the home, in which he does not feel himself to be the subject of permanent public attention – and relieves him of the obligation of behaving accordingly – and in which he can relax and enjoy some peace and quiet. This criterion does not excessively restrict press freedom because it does not impose a blanket ban on pictures of the daily or private life of figures of contemporary society, but allows them to be shown where they have appeared in public. In the event of an overriding public interest in being informed, the freedom of the press can even, in accordance with that case-law authority, be given priority over the protection of the private sphere ...", "The Federal Court of Justice properly held that it is legitimate to draw conclusions from the behaviour adopted in a given situation by an individual who is clearly in a secluded spot. However, the protection against dissemination of photos taken in that context does not only apply where the individual behaves in a manner in which he would not behave in public. On the contrary, the development of the personality cannot be properly protected unless, irrespective of his behaviour, the individual has a space in which he can relax without having to tolerate the presence of photographers or cameramen. That is not in issue here, however, since, according to the findings on which the Federal Court of Justice based its decision, the first of the conditions to which protection of private life is subject has not been met.", "Lastly, there is nothing unconstitutional, when balancing the public interest in being informed against the protection of private life, in attaching importance to the method used to obtain the information in question ... It is doubtful, however, that the mere fact of photographing the person secretly or catching them unawares can be deemed to infringe their privacy outside the home. Having regard to the function attributed to that privacy under constitutional law and to the fact that it is usually impossible to determine from a photo whether the person has been photographed secretly or caught unawares, the existence of unlawful interference with that privacy cannot in any case be made out merely because the photo was taken in those conditions. As, however, the Federal Court of Justice has already established in respect of the photographs in question that the appellant was not in a secluded place, the doubts expressed above have no bearing on the review of its decision.", "(cc) However, the constitutional requirements have not been satisfied in so far as the decisions of which the appellant complains did not take account of the fact that the right to protection of personality rights of persons in the appellant ’ s situation is strengthened by Article 6 of the Basic Law regarding those persons ’ intimate relations with their children.", "(dd) The following conclusions can be drawn from the foregoing considerations with regard to the photographs in question:", "The decision of the Federal Court of Justice cannot be criticised under constitutional law regarding the photos of the appellant at a market, doing her shopping at a market accompanied by her bodyguard or dining with a male companion at a well-attended restaurant. The first two cases concerned an open location frequented by the general public. The third case admittedly concerned a well - circumscribed location, spatially speaking, but one in which the appellant was exposed to the other people present. It is for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban photos showing the appellant in a restaurant garden, which were the subject of the decision being appealed but are not the subject of the constitutional appeal. The presence of the appellant and her companion there presented all the features of seclusion. The fact that the photographs in question were evidently taken from a distance shows that the appellant could legitimately have assumed that she was not exposed to public view.", "Nor can the decision being appealed be criticised regarding the photos of the appellant alone on horseback or riding a bicycle. In the Federal Court of Justice ’ s view, the appellant had not been in a secluded place, but in a public one. That finding cannot attract criticism under constitutional law. The appellant herself describes the photos in question as belonging to the intimacy of her private sphere merely because they manifest her desire to be alone. In accordance with the criteria set out above, the mere desire of the person concerned is not relevant in any way.", "The three photos of the appellant with her children require a fresh examination, however, in the light of the constitutional rules set out above. We cannot rule out the possibility that the review that needs to be carried out in the light of the relevant criteria will lead to a different result for one or other or all the photos. The decision must therefore be set aside in that respect and remitted to the Federal Court of Justice for a fresh decision.", "(d) The decisions of the Regional Court and the Court of Appeal resulted in a violation of fundamental rights by limiting to the home the privacy protected by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance, moreover, with a rationale that was in keeping with the case-law at the time. The decisions in question do not need to be set aside, however, since the violation complained of has been remedied in part by the Federal Court of Justice and the remainder of the case remitted to that court.", "... ”", "(e) Sequel to the proceedings", "26. Following the remittal of the case to the Federal Court of Justice in connection with the three photos that had appeared in Bunte magazine ( issue no. 32 of 5 August 1993 and no. 34 of 19 August 1993 ) showing the applicant with her children, the Burda publishing company undertook not to republish the photos ( Unterlassungserklärung ).", "2. The second set of proceedings", "(a) Judgment of the Hamburg Regional Court of 26 September 1997", "27. On 14 May 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Burda publishing company from republishing the second series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and her right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act.", "28. In a judgment of 26 September 1997, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice ’ s judgment of 19 December 1995.", "(b) Judgment of the Hamburg Court of Appeal of 10 March 1998", "29. The applicant appealed against that judgment.", "30. In a judgment of 10 March 1998, the Hamburg Court of Appeal dismissed the applicant ’ s appeal for the same reasons.", "(c) Decision of the Federal Constitutional Court of 4 April 2000", "31. As the Court of Appeal did not grant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.", "32. In a decision of 4 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice ’ s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.", "3. The third set of proceedings", "(a) Judgment of the Hamburg Regional Court of 24 April 1998", "33. On 5 November 1997 the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the third series of photos on the ground that they infringed her right to protection of her personality rights, guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to protection of her private life and to the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act.", "The applicant submitted, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to the effect that the swimming baths in question were a private establishment, access to which was subject to a high fee and strictly controlled and from which journalists and photographers were debarred unless they had the express permission of the owner of the establishment. The fact that the photos were very blurred showed that they had been taken secretly, at a distance of several hundred metres, from the window or roof of a neighbouring house.", "34. In a judgment of 24 April 1998, the Hamburg Regional Court rejected the application, referring in particular to the grounds of the Federal Court of Justice ’ s judgment of 19 December 1995. The court stated that the Monte Carlo Beach Club had to be considered as an open-air swimming pool that was open to the public, even if an entry fee was charged and access restricted.", "(b) Judgment of the Hamburg Court of Appeal of 13 October 1998", "35. The applicant appealed against that judgment.", "36. In a judgment of 13 October 1998, the Hamburg Court of Appeal dismissed the applicant ’ s appeal for the same reasons.", "The Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling down were not such as to denigrate or demean her in the public ’ s eyes.", "(c) The decision of the Federal Constitutional Court of 13 April 2000", "37. As the Court of Appeal did not grant the applicant leave to appeal on points of law to the Federal Court of Justice, the applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions.", "38. In a decision of 13 April 2000, the Federal Constitutional Court, ruling as a panel of three judges, refused to entertain the appeal. It referred in particular to the Federal Court of Justice ’ s judgment of 19 December 1995 and to its own landmark judgment of 15 December 1999.", "The Constitutional Court held that the ordinary courts had properly found that the Monte Carlo Beach Club was not a secluded place and that the photos of the applicant wearing a swimsuit and falling down were not capable of constituting an infringement of her right to respect for her private life." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW", "A. The Basic Law", "39. The relevant provisions of the Basic Law are worded as follows :", "Article 1 § 1", "“ The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.”", "Article 2 § 1", "“Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ]. ”", "Article 5 §§ 1 and 2", "“1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.", "2. These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [ Recht der persönlichen Ehre ]. ”", "Article 6 §§ 1 and 2", "“1. Marriage and the family enjoy the special protection of the State.", "2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty. ”", "B. The Copyright ( Arts Domain ) Act", "40. Section 22(1) of the Copyright ( Arts Domain ) Act provides that images can only be disseminated with the express approval of the person concerned.", "41. Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly where the images portray an aspect of contemporary society ( Bildnisse aus dem Bereich der Zeitgeschichte ) on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)).", "C. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy", "42. The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded as follows:", "“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.", "2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.", "3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.", "4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘ the right to live one ’ s own life with a minimum of interference ’.", "5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one ’ s own data should be added to this definition.", "6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people ’ s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.", "8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.", "11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.", "12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.", "13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.", "14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:", "(i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;", "(ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;", "(iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned;", "( iv) economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy;", "(v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited;", "(vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘ visual or auditory enhancement devices ’ to capture recordings that they otherwise could not have captured without trespassing;", "(vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;", "(viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published.", "15. It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.", "16. The Assembly also calls upon the governments of the member states to:", "(i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct;", "(ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole;", "(iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users ’ awareness of what the right to privacy necessarily entails;", "(iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims ’ rights are better protected. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "43. The applicant submitted that the German court decisions had infringed her right to respect for her private and family life, guaranteed by Article 8 of the Convention, which is worded as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties and interveners", "1. The applicant", "44. The applicant stated that she had spent more than ten years in unsuccessful litigation in the German courts trying to establish her right to the protection of her private life. She alleged that as soon as she left her house she was constantly hounded by paparazzi who followed her every daily movement, be it crossing the road, fetching her children from school, doing her shopping, out walking, engaging in sport or going on holiday. In her submission, the protection afforded to the private life of a public figure like herself was minimal under German law because the concept of a “ secluded place ” as defined by the Federal Court of Justice and the Federal Constitutional Court was much too narrow in that respect. Furthermore, in order to benefit from that protection the onus was on her to establish every time that she had been in a secluded place. She was thus deprived of any privacy and could not move about freely without being a target for the paparazzi. She affirmed that in France her prior agreement was necessary for the publication of any photos not showing her at an official event. Such photos were regularly taken in France and then sold and published in Germany. The protection of private life from which she benefited in France was therefore systematically circumvented by virtue of the decisions of the German courts. On the subject of the freedom of the press, the applicant stated that she was aware of the essential role played by the press in a democratic society in terms of informing and forming public opinion, but in her case it was just the entertainment press seeking to satisfy its readers ’ voyeuristic tendencies and make huge profits from generally innocuous photos showing her going about her daily business. Lastly, the applicant stressed that it was materially impossible to establish in respect of every photo whether or not she had been in a secluded place. As the judicial proceedings were generally held several months after publication of the photos, she was obliged to keep a permanent record of her every movement in order to protect herself from paparazzi who might photograph her. With regard to many of the photos that were the subject of this application, it was impossible to determine the exact time and place at which they had been taken.", "2. The Government", "45. The Government submitted that German law, while taking account of the fundamental role of the freedom of the press in a democratic society, contained sufficient safeguards to prevent any abuse and ensure the effective protection of the private life of even public figures. In their submission, the German courts had in the instant case struck a fair balance between the applicant ’ s rights to respect for her private life guaranteed by Article 8 and the freedom of the press guaranteed by Article 10, having regard to the margin of appreciation available to the State in this area. The courts had found in the first place that the photos had not been taken in a secluded place and had, subsequently, examined the limits on the protection of private life, particularly in the light of the freedom of the press and even where the publication of photos by the entertainment press was concerned. The protection of the private life of a figure of contemporary society “ par excellence ” did not require the publication of photos without his or her authorisation to be limited to showing the person in question engaged in their official duties. The public had a legitimate interest in knowing how the person behaved generally in public. The Government submitted that this definition of the freedom of the press by the Federal Constitutional Court was compatible with Article 10 and the European Court ’ s relevant case-law. Furthermore, the concept of a secluded place was only one factor, albeit an important one, of which the domestic courts took account when balancing the protection of private life against the freedom of the press. Accordingly, while private life was less well protected where a public figure was photographed in a public place, other factors could also be taken into consideration, such as the nature of the photos, for example, which should not shock the public. Lastly, the Government observed that the decision of the Federal Court of Justice – which had held that the publication of photos of the applicant with the actor Vincent Lindon in a restaurant courtyard in Saint-Rémy-de-Provence were unlawful – showed that the applicant ’ s private life was protected even outside her home.", "3. The interveners", "46. The Association of German Magazine Publishers submitted that German law, which was halfway between French law and United Kingdom law, struck a fair balance between the right to protection of private life and the freedom of the press. In its submission, it also complied with the principles set out in Resolution 1165 of the Parliamentary Assembly of the Council of Europe on the right to privacy and the European Court ’ s case-law, which had always stressed the fundamental role of the press in a democratic society. The public ’ s legitimate interest in being informed was not limited to politicians, but extended to public figures who had become known for other reasons. The press ’ s role of “watchdog” could not be narrowly interpreted here. In that connection, account should also be taken of the fact that the boundary between political commentary and entertainment was becoming increasingly blurred. Given that there was no uniform European standard concerning the protection of private life, the State had a wide margin of appreciation in this area.", "47. Burda joined the observations of the Association of German Magazine Publishers and stated that German law required the courts to balance the competing interests of informing the public and protecting the right to control the use of one ’ s image very strictly and on a case - by - case basis. Even figures of contemporary society “ par excellence ” enjoyed a not inconsiderable degree of protection, and recent case-law had even tended towards reinforcing that protection. Since the death of her mother in 1982, the applicant had officially been First Lady of the reigning family in Monaco and was as such an example for the public ( Vorbildfunktion ). Moreover, the Grimaldi family had always sought to attract media attention and was therefore itself responsible for the public interest in it. The applicant could not therefore, especially if account were taken of her official functions, be regarded as a victim of the press. The publication of the photos in question had not infringed her right to control the use of her image because they had been taken while she was in public and had not been damaging to her reputation.", "B. The Court ’ s assessment", "1. As regards the subject of the application", "48. The Court notes at the outset that the photos of the applicant with her children are no longer the subject of this application, as it stated in its admissibility decision of 8 July 2003.", "The same applies to the photos published in Freizeit Revue magazine ( issue no. 30 of 22 July 1993 ) showing the applicant with Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence (see paragraph 11 above). In its judgment of 19 December 1995, the Federal Court of Justice prohibited any further publication of the photos on the ground that they infringed the applicant ’ s right to respect for her private life (see paragraph 23 above).", "49. Accordingly, the Court considers it important to specify that the present application concerns the following photos, which were published as part of a series of articles about the applicant :", "(i) the photo published in Bunte magazine ( issue no. 32 of 5 August 1993 ) showing the applicant on horseback (see paragraph 12 above)", "(ii) the photos published in Bunte magazine ( issue no. 34 of 19 August 1993) showing the applicant shopping on her own; with Mr Vincent Lindon in a restaurant; alone on a bicycle; and with her bodyguard at a market (see paragraph 13 above);", "(iii) the photos published in Bunte magazine ( issue no. 10 of 27 February 1997 ) showing the applicant on a skiing holiday in Austria (see paragraph 1 4 above);", "(iv ) the photos published in Bunte magazine ( issue no. 1 2 of 13 March 1997 ) showing the applicant with Prince Ernst August von Hannover and alone leaving her Parisian residence (see paragraph 15 above);", "(v) the photos published in Bunte magazine ( issue no. 16 of 10 April 1997 ) showing the applicant playing tennis with Prince Ernst August von Hannover and both of them putting their bicycles down (see paragraph 16 above);", "(vi) the photos published in Neue Post magazine ( issue no. 35/97) showing the applicant tripping over an obstacle at the Monte Carlo Beach Club (see paragraph 17 above).", "2. Applicability of Article 8", "50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person ’ s picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).", "Furthermore, private life, in the Court ’ s view, includes a person ’ s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33 -34, § 29, and Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998- I, p. 422, § 32). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 20 01- IX, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003- I).", "51. The Court has also indicated that, in certain circumstances, a person has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant “would have had a reasonable expectation of privacy for such calls ” (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997- III, p. 1016, § 45).", "52. As regards photos, with a view to defining the scope of the protection afforded by Article 8 against arbitrary interference by public authorities, the European Commission of Human Rights had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v. Austria, judgment of 31 January 1995, Series A no. 3 05- B, opinion of the Commission, p. 21, §§ 49-52; P.G. and J.H. v. the United Kingdom, cited above, § 58; and Peck, cited above, § 61).", "53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life.", "3. Compliance with Article 8", "(a) The domestic courts ’ position", "54. The Court notes that, in its landmark judgment of 15 December 1999, the Federal Constitutional Court interpreted sections 22 and 23 of the Copyright (Arts Domain) Act (see paragraphs 40-41 above) by balancing the requirements of the freedom of the press against those of the protection of private life, that is, the public interest in being informed against the legitimate interests of the applicant. In doing so the Federal Constitutional Court took account of two criteria under German law, one functional and the other spatial. It considered that the applicant, as a figure of contemporary society “ par excellence ”, enjoyed the protection of her private life even outside her home but only if she was in a secluded place out of the public eye to which persons retire “ with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public ”. In the light of those criteria, the Federal Constitutional Court held that the Federal Court of Justice ’ s judgment of 19 December 1995 regarding publication of the photos in question was compatible with the Basic Law. The court attached decisive weight to the freedom of the press, even the entertainment press, and to the public interest in knowing how the applicant behaved outside her representative functions (see paragraph 25 above).", "55. Referring to its landmark judgment, the Federal Constitutional Court did not entertain the applicant ’ s appeals in the subsequent proceedings brought by her (see paragraphs 32 and 38 above).", "( b ) General principles governing the protection of private life and the freedom of expression", "56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image.", "57. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299- B, pp. 60-61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001 ‑ VII). That also applies to the protection of a person ’ s picture against abuse by others ( see Schüssel, cited above).", "The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33).", "58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention.", "In that context, the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).", "In that connection, the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999- III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, §§ 59-63, ECHR 2001- I; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003).", "59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.", "60. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, Tammer, cited above, §§ 59 et seq.; News Verlags GmbH & Co. KG v. Austria, no. 31457/96, §§ 52 et seq., ECHR 2000-I; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual ’ s private life was not “ justified by considerations of public concern ” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterrand ’ s former private doctor of a book containing revelations about the President ’ s state of health, the Court held that “the more time that elapsed, the more the public interest in discussion of the history of President Mitterrand ’ s two terms of office prevailed over the requirements of protecting the President ’ s rights with regard to medical confidentiality” (see Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV ) and held that there had been a breach of Article 10.", "( c ) Application of these general principles by the Court", "61. The Court notes at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus involving activities of a purely private nature such as engaging in sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such innocuous titles as “Pure happiness”, “Caroline ... a woman returning to life”, “Out and about with Princess Caroline in Paris ” and “The kiss. Or: they are not hiding anymore ” (see paragraphs 11-17 above).", "62. The Court also notes that the applicant, as a member of the Prince of Monaco ’ s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or any of its institutions (see paragraph 8 above).", "63. The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “ watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest ( see Observer and Guardian, loc. cit. ), it does not do so in the latter case.", "64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Editions Plon, loc. cit .), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant ’ s private life.", "65. As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of the applicant ’ s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54 224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003; and Prisma Presse, cited above).", "66. In these conditions freedom of expression calls for a narrower interpretation (see Prisma Presse, cited above, and, by converse implication, Krone Verlag GmbH & Co. KG, cited above, § 37).", "67. In that connection, the Court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the “one-sided interpretation of the right to freedom of expression ” by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that “ their readers are entitled to know everything about public figures ” (see paragraph 42 above, and Prisma Presse, cited above).", "68. The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken – without the applicant ’ s knowledge or consent –and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above).", "In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down (see paragraph 17 above). It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists ’ and photographers ’ access to the club was strictly regulated (see paragraph 33 above).", "69. The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being ’ s personality. That protection – as stated above – extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life (see paragraph 51 above and, mutatis mutandis, Halford, cited above, p. 1016, § 45).", "70. Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data (see point 5 of the Parliamentary Assembly ’ s resolution on the right to privacy, paragraph 42 above, and, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, § § 65-67, ECHR 2000- II; Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000- V; P.G. and J.H. v. the United Kingdom, cited above, § § 57 ‑ 60; and Peck, cited above, §§ 59-63 and 78). This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public.", "71. Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33).", "72. The Court finds it hard to agree with the domestic courts ’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society “ par excellence ”. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a “private” individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions.", "In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one ’ s image.", "73. Lastly, the distinction drawn between figures of contemporary society “ par excellence ” and “relatively ” public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.", "74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant ’ s private life effectively. As a figure of contemporary society “ par excellence ” she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.", "75. In the Court ’ s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society “ par excellence ” does not suffice to justify such an intrusion into her private life.", "( d ) Conclusion", "76. As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution, since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.", "77. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.", "Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court ’ s view, yield to the applicant ’ s right to the effective protection of her private life.", "78. Lastly, in the Court ’ s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant ’ s private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life.", "79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests.", "80. There has therefore been a breach of Article 8 of the Convention.", "81. Having regard to that finding, the Court does not consider it necessary to rule on the applicant ’ s complaint relating to her right to respect for her family life.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "82. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "83. The applicant claimed 50,000 euros (EUR) for non-pecuniary damage on the ground that the German courts ’ decisions prevented her from leading a normal life with her children without being hounded by the media. She also claimed EUR 142,851.31 in reimbursement of her costs and expenses for the many sets of proceedings she had had to bring in the German courts.", "84. The Government contested the amounts claimed. As regards non-pecuniary damage, they reiterated that, under German law, the applicant enjoyed protection of her private life even outside her home, particularly where her children were concerned. With regard to costs and expenses, they submitted that not all the proceedings could be taken into account, that the value of parts of the subject matter was less than the amount stated, and that the legal fees being claimed, in view of the amount concerned, could not be reimbursed.", "85. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicants, who are the elder daughter of the late Prince Rainier III of Monaco and her husband, were born in 1957 and 1954 respectively and live in Monaco.", "A. Background to the cases", "11. Since the early 1990s the first applicant has been trying – often through the courts – to prevent the publication of photos about her private life in the press.", "12. Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995 and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant’s claims.", "13. Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no. 59320/00, ECHR 2004 ‑ VI) in which the Court held that the court decisions had infringed the first applicant’s right to respect for her private life, a right guaranteed by Article 8 of the Convention.", "14. Regarding the reasoning of the domestic courts, the Court made the following findings in particular:", "“72. The Court finds it hard to agree with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘ par excellence ’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions.", "In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image.", "73. Lastly, the distinction drawn between figures of contemporary society ‘ par excellence ’ and ‘relatively’ public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.", "74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘ par excellence ’ she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.", "75. In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society ‘ par excellence ’ does not suffice to justify such an intrusion into her private life.”", "B. The photos in issue", "15. Relying on the Court’s judgment in the first applicant’s case, the applicants subsequently brought several sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had appeared in German magazines.", "1. The photos published in the magazine Frau im Spiegel", "16. The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the magazine Frau im Spiegel.", "(a) The first photo", "17. The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk during their skiing holiday in St Moritz. It is accompanied by an article with the heading: “Prince Rainier – not home alone” (“ Fürst Rainier – Nicht allein zu Haus ”). The article reads as follows.", "“The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monegasques saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the St Devota celebration held in honour of the national Patron Saint. The Principality is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left home alone when he is not well. Not without his children’s love.”", "A photo of Prince Rainier with his daughter Princess Stéphanie and a photo of Prince Albert of Monaco taken during the Olympic Games in Salt Lake City appeared on the same page.", "(b) The second photo", "18. The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a walk in St Moritz. The caption says: “Ernst August von Hannover and his wife, Princess Caroline of Monaco, enjoy the sun and snow in St Moritz.” A small photo of Prince Albert and two photos of members of a European royal family appeared on the same page. The article accompanying the photos, bearing the heading “Royal fun in the snow”, is about how happy the persons photographed are to meet up in St Moritz.", "(c) The third photo", "19. The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift in Zürs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the first applicant and Prince Albert, taken during the national holiday on 19 November and bearing the heading “The princess’s last appearance”. Another photo, taking up half the page, shows the first applicant at the Rose Ball.", "The three photos illustrate an article bearing the heading “Princess Caroline. The whole of Monaco awaits her”, of which the passages relevant to the present case read as follows.", "“Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She has not attended any official engagements since the national holiday ... She was not at the circus festival or the St Devota celebration held in honour of the patron saint of Monaco. By tradition, the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from her mother, who died in an accident, and this ball is Caroline’s favourite ... The prince, who is seriously ill, has just come out of hospital after a heart operation and is still too weak to attend the ball. The welcome speech which he will be making in honour of the guests will be retransmitted via television cameras and projected onto a big screen. Princess Caroline and her husband [Prince] Ernst August von Hannover will open the Rose Ball with a waltz.", "They celebrated their fifth wedding anniversary together in January. And there was more cause for celebration in the von Hannover household: the prince turned 50 on 26 February. He celebrated his birthday with Caroline and some friends at the fashionable resort of St Moritz, glistening white in the snow. The couple were actually spending their holiday in Zürs am Arlberg, but for the birthday party they went down to the Palace Hotel in St Moritz for a few days.”", "2. The photo published in the magazine Frau Aktuell", "20. The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no. 9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above). The article accompanying the photo in Frau Aktuell bears the heading: “That is genuine love. Princess Stéphanie. She is the only one looking after the sick prince.” The relevant passages of the article are worded as follows.", "“Her love life may appear unbridled. One thing is certain, though: as far as her father is concerned, Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. ‘For the fifth and last time,’ he said. From time to time he would disappear for a number of days. It is said that the prince has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who is rumoured to become his future wife. [Prince Rainier], who hates being alone now, was very glad to see his younger daughter. Stéphanie has devoted a lot of time to him. She has been out on long walks with him and they have greatly confided in each other. ‘Rainier has relished the company of his younger daughter. When she is at his side he truly flourishes. During those moments he forgets that he is old and sick,’ say the Monegasques. ‘Stéphanie should come much more often.’”", "On the same page there is the photo of Princess Stéphanie with her father that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of Prince Albert alone and the other of the prince with Alicia Warlick.", "C. The proceedings in issue", "1. The proceedings instituted by the first applicant", "(a) The first set of proceedings", "(i) Judgment of the Regional Court of 29 April 2005", "21. On an unspecified date in 2004, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the three photos by the Ehrlich & Sohn publishing company.", "22. In a judgment of 29 April 2005, the Regional Court granted the injunction on the ground that the first applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright (Arts Domain) Act (hereafter “the Copyright Act” – see paragraph 70 below). The court stated, however, that even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from contemporary society ( Bildnis aus dem Bereich der Zeitgeschichte ) within the meaning of section 23(1)(1) of the same Act, publication of the photo was not justified. Under subsection 2 of that provision, publication of such an image was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests of the person photographed against those of the public in being informed.", "23. The Regional Court found that in the present case it was the first applicant’s right to the protection of her personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court’s judgment in Von Hannover. It found that the first applicant’s relationship with her father, regardless of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant was connected to the prince of a State of minor importance in international politics merely through a family tie and did not exercise any official function.", "24. The Regional Court stated that, whilst that reasoning was not entirely in keeping with the principles established by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it could not take into consideration the Court’s case-law on the subject.", "(ii) Judgment of the Court of Appeal of 31 January 2006", "25. The publishing company appealed against that judgment.", "26. In a judgment of 31 January 2006, the Hamburg Court of Appeal set aside the judgment on the ground that the applicant’s right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found that, whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning ( tragende Erwägungen ) was binding on the Court of Appeal. It pointed out that public figures should certainly be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently published. However, in the Court of Appeal’s opinion, the legitimate interest of such figures, within the meaning of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on well ‑ known people outside their official appearances. In any event, the right to respect for private life did not require the banning of publication of photos taken in public places accessible to all and where the individual concerned was amongst many other people.", "(iii) Judgment of the Federal Court of Justice of 6 March 2007", "27. The first applicant appealed on points of law against that judgment.", "28. In a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice dismissed her appeal in respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court.", "29. The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the concept of graduated protection ( abgestuftes Schutzkonzept ) that had been developed in the case-law on the basis of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered following the Von Hannover judgment and in response to the reservations of principle which the Court had expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act, which provided for an exception to the rule according to which a photo could not be published without the prior consent of the person concerned, took account of the public’s interest in being informed and of the freedom of the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary society within the meaning of section 23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken between the rights under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention on the one hand, and those under Article 5 § 1, second sentence, of the Basic Law and Article 10 of the Convention on the other hand.", "30. The Federal Court of Justice added that the Court’s criticism of the expression “figure of contemporary society par excellence ” ultimately concerned the determination of the conditions in which the media could report on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should be regarded as a figure of contemporary society par excellence, she was in any case a well-known person who particularly attracted public attention. In the court’s view, that fact, combined with the fact that she had not been in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court’s ruling but also reflected a proper understanding of the concept of protection thus developed.", "31. Accordingly, the Federal Court of Justice found that the publication of images of persons who – on account of their importance in contemporary society – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report in question concerned an important event of contemporary society. The expression “contemporary society” – and indeed the term “information value” – had to be interpreted in a broad sense and according to whether there was a public interest. It comprised any matter of general interest to society and included reports for entertainment purposes, which could also play a role in the formation of opinions, or even stimulate or influence these to a greater degree than purely factual information.", "32. Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from the duty to weigh its interest in publishing the information against the protection of the privacy of the person concerned. The greater the information value for the general public, the more the right to protection had to yield. Conversely, where the interest in informing the public decreased, the importance of protecting the person concerned carried correspondingly greater weight. The reader’s interest in being entertained generally carried less weight than that of protecting privacy, in which case the reader’s interest did not merit protection.", "33. The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded as figures of contemporary society were concerned, consideration must be given to the question whether the report contributed to a factual debate ( mit Sachgehalt ) and whether the content went beyond a mere intention to satisfy public curiosity. In determining that question, there was nothing to prevent regard being had to how well the person concerned was known to the public.", "34. The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded to the requirements of the Court regarding effective protection of the private sphere and the requirements of the freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts – when balancing the various interests – from having more regard to the value of the information for the public. Furthermore, the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006, no. 1 BvR 565/06).", "35. The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the information value of the photo in question and as it had been published in the context of a written article, the content of the text accompanying the photo could not be ignored.", "36. Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning with the second and third photos, observed that the second photo showed the applicants in a busy street in St Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area ( Kernbereich ) of his or her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with the first applicant’s consent.", "37. The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zürs during their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of general interest to society, there was no link between the photo and that event. The purpose of the photo had been to supplement the part of the article about the second applicant’s birthday party in St Moritz and the applicants’ skiing holiday in Zürs. Thus the information centred exclusively on the first applicant’s private life and served merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant’s consent either.", "38. Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information having any connection with an event of contemporary society or contributing to a debate of general interest, the same was not true of the accompanying text. Admittedly, the part about the first applicant’s skiing holiday did not concern an event of contemporary society or general interest, even interpreting those terms broadly. However, with regard to the prince’s health, the Federal Court of Justice found as follows:", "“The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.”", "39. The Federal Court of Justice concluded that, in those circumstances and having regard to the context of the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted a violation ( eigenständiger Verletzungseffekt ) and thus justified a different conclusion; nor was there anything to suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication unlawful.", "(iv) Judgment of the Federal Constitutional Court of 26 February 2008", "40. In a judgment of 26 February 2008, the First Division ( Senat ) of the Federal Constitutional Court dismissed constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co. KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR 51/06).", "In the same judgment it allowed a constitutional appeal (no. 1 BvR 1606/07) lodged by the Klambt-Verlag GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6 March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine showing the applicants on holiday in an unspecified location and accompanying a written and photographic report on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are the subject of a separate application by the first applicant to the Court (no. 8772/10).", "41. The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with the first applicant’s right to the protection of her personality rights guaranteed by Articles 1 § 1 and 2 § 1 of the Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however. The freedom of the press was subject to the restrictions laid down in sections 22 et seq. of the Copyright Act and Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited the right to the protection of personality rights. In the German legal order the Convention had the status of an ordinary federal law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the Court’s case-law served as guides to interpretation when determining the content and scope of a fundamental right.", "42. The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the Convention and its own case-law on the different fundamental rights at stake by referring to the principles established in its leading judgment of 15 December 1999 ( Von Hannover, cited above, § 25). It added that in so far as an image did not itself make any contribution to the formation of public opinion, its information value had to be assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing a photo of a well-known person, no contribution was made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights.", "43. The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to the protection of personality rights, regard had to be had not only to the circumstances in which the photo had been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by photographers, but also to the situation in which the person concerned had been photographed and how he or she was portrayed. The right to protection of personality rights thus carried more weight where the photo showed details of the person’s private life that were not normally the subject of public discussion. The same was true where the person concerned could legitimately expect, having regard to the circumstances, that no photo would be published because he or she was in a private place ( räumliche Privatheit ), such as in a specially protected location. The right to protection of personality rights could also prevail over the interest in publication in cases other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of relaxation or letting go, freed from the constraints of professional or everyday life.", "44. The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant for the balancing of the competing interests. Where the press intended to publish a photo without the consent of the person concerned, it could be required to substantiate the circumstances in which the photo had been taken in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds of the legitimate expectations of the person photographed.", "45. The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled their obligation to incorporate the Court’s relevant case-law into the national legal order ( Teilrechtsordnung ). The fact that the court’s balancing exercise of the various rights in multi-polar disputes – that is, disputes involving the interests of several different persons – and complex ones could also result in a different outcome was not sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would be a violation of the Constitution if the protective scope ( Schutzbereich ) or extent of a fundamental right had been wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional law or the Convention had not been duly taken into account.", "46. Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from departing from its own established case-law in the field and developing a new concept of protection. The fact that it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court of Justice had not been prevented, in particular, from dispensing with the legal concept of “figure of contemporary society” and instead balancing the competing interests when examining the question whether a photo was an aspect of contemporary society and could accordingly be published without the consent of the person concerned (unless it interfered with a legitimate interest of the latter).", "47. Applying the criteria thus established to the photos in question, starting with the second and third ones on which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich & Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant’s skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant’s need for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to the submissions of the publishing company, the readers’ interest in the applicant’s fashionable ski suit did not amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article.", "48. In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant and her husband’s trip to St Moritz to celebrate the latter’s birthday or the photo showing them both in a chairlift. Whilst the article had also mentioned the Rose Ball – an event which, according to the Federal Court of Justice, could possibly be regarded as an aspect of contemporary society – no link had been made between that event and the photo.", "49. With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had had valid grounds for considering that the reigning Prince of Monaco’s ill-health was a matter of general interest and that the press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that had been published had a sufficiently close link with the event described in the article, was constitutionally unobjectionable.", "50. The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the protection of personality rights could prevail in cases where the photo in question had been taken in conditions that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously or following continual harassment by photographers. However, the publishing company had given details about how the photo had been taken and the first applicant had not complained before the lower civil courts or the Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had been taken in conditions that were unfavourable to her.", "51. The Federal Constitutional Court also dismissed the first applicant’s allegation that the Federal Court of Justice had disregarded or taken insufficient account of the Court’s case-law. Pointing out that a complaint of that nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in Von Hannover, cited above, and Karhuvaara and Iltalehti v. Finland (no. 53678/00, ECHR 2004 ‑ X) and had not failed to comply with its obligation to satisfy the criteria established by the Convention. The Federal Constitutional Court had undertaken an analysis of the Court’s relevant case-law and observed that the Court’s decisive criterion when balancing the competing rights was the question whether the report in its entirety (article and photo) contributed to the free formation of public opinion. Furthermore, a distinction had to be drawn between political figures, public figures and ordinary individuals. Whilst the latter enjoyed the greatest protection of the three groups, political figures could expect only a small degree of protection from media reports about themselves.", "52. According to the Court’s case-law ( Gurgenidze v. Georgia, no. 71678/01, § 57, 17 October 2006, and Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I), the first applicant was a public figure, which allowed the press – where there was an interest in informing the public – to publish photos, even of the person going about his or her daily business in public. Publication of that sort, which, moreover, attracted the protection of Article 10 of the Convention, could serve to exercise public scrutiny over the private conduct of persons who were influential in the economic, cultural or media sectors. The Federal Constitutional Court pointed out that the Court had previously criticised the approach taken by domestic courts which had applied over-restrictive criteria to the question whether the media were or were not reporting matters of public interest when they reported on circumstances relating to the private life of a person who was not part of political life ( Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007). It was sufficient that the report concerned, at least to some degree, important matters relating to politics or another sphere ( Karhuvaara and Iltalehti, cited above, § 45).", "53. The Federal Constitutional Court concluded that the Federal Court of Justice had found in the present case that the report in question concerned important subjects in a democratic society. In its Von Hannover judgment, cited above, the Court had not categorically excluded the possibility that a report contributing to a debate about questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political or public figure. Even though the Court had concluded in Von Hannover that the photos in question had not been of information value, the decision reached by the Federal Court of Justice – after assessing the circumstances of the case submitted to it and having regard to the Court’s case-law – that the photo in question was of information value was constitutionally unobjectionable.", "(b) The second set of proceedings", "54. On an unspecified date, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the photo that had appeared in the magazine Frau Aktuell, issue no. 9/02 of 20 February 2002.", "55. In a judgement of 1 July 2005, the Regional Court granted the applicant’s request.", "56. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal lodged by the publishing company and set aside the Regional Court’s judgment.", "57. In a judgment of 6 March 2007 (no. VI ZR 14/06), the Federal Court of Justice dismissed an appeal by the first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 – see paragraphs 28-39 above). It stated that the first applicant had not argued before it – and nor was there anything to suggest – that the photo had been taken surreptitiously or with equivalent secret technical devices such as to render its publication unlawful.", "58. In a decision of 16 June 2008 (no. 1 BvR 1625/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant.", "2. The proceedings brought by the second applicant", "(a) The first set of proceedings", "59. On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had appeared in the magazine Frau im Spiegel.", "60. In a judgment of 1 July 2005, the Regional Court granted the injunction.", "61. In a judgment of 31 January 2006, the Hamburg Court of Appeal allowed an appeal by the publishing company.", "62. In a judgment of 6 March 2007 (no. VI ZR 50/06), the Federal Court of Justice dismissed an appeal on points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06 of the same day (see paragraphs 28-39 above). With regard to the second applicant’s high profile, it upheld the opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first applicant who was especially the subject of public attention.", "63. In a decision of 16 June 2008 (no. 1 BvR 1624/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.", "(b) The second set of proceedings", "64. On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of the photo that had appeared in the magazine Frau Aktuell.", "65. In a judgment of 24 June 2005, the Regional Court granted the injunction.", "66. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal by the publishing company.", "67. In a judgment of 6 March 2007 (no. VI ZR 13/06), the Federal Court of Justice dismissed an appeal on points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 14/06 – see paragraph 57 above).", "68. In a decision of 16 June 2008 (no. 1 BvR 1622/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.", "I. Payment of just satisfaction and individual measures", "...", "b) Individual measures", "Although it is possible under German law, the applicant did not take action to prevent further publication of the photographs in question after the European Court’s judgment, but took action against a similar photograph (see under “General Measures”, No. 4) below. According to information available to the Secretariat, the photographs at issue in the European Court’s judgment have not been reprinted by the German press.", "II. General measures", "– Publication and dissemination of the judgment of the European Court: The judgment has been widely published and discussed by the German legal community. As is the case with all judgments of the European Court against Germany it is publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf _Deutsch/). Furthermore, the judgment was disseminated by letter of the Government Agent to the courts and justice authorities concerned.", "– Change of domestic case-law: When deciding upon similar cases, domestic courts have taken into account the judgment of the European Court, thus giving it direct effect in German law:", "1) The partner of a famous singer successfully sued at the Berlin Court of Appeal (KG Urt. v. 29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW, 2005, pp. 605-07).", "2) The Convention’s principles as set out in the European Court’s judgments were also acknowledged, even though they were not directly relevant to the case, in a judgment of the Hamburg District Court forbidding commercial exploitation of the popularity of former Chancellor Schröder (AG Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, pp. 196-98).", "3) On the basis of the judgment of the European Court, the German Federal Civil Court upheld a judgment allowing the publication of an article about fining the applicant’s husband for speeding on a French motorway. The Court stated that the public had a justified interest in this information as it constitutes an offence, making this behaviour the topic of a public discussion (BGH, Urt. v. 15.11.2005, VI ZR 286/04, available via www.bundesgerichtshof.de).", "4) Concerning the applicant herself, in July 2005, the regional court of Hamburg ( Landgericht ), referring to the judgment of the European Court, decided in favour of the applicant, prohibiting the publication of a photograph showing her together with her husband in a St Moritz street during a skiing holiday. However, in December 2005, the second instance (Appeal Court of Hamburg, Oberlandesgericht ) reversed this decision, basing its judgment rather on the case-law of the German Federal Constitutional Court ( Bundesverfassungsgericht ). Upon revision to the Federal Civil Court ( Bundesgerichtshof ) sought by the applicant, the Federal Civil Court on 6 March 2007 decided that the photograph in question may be published. In its reasoning the domestic court, balancing the different interests at stake, explicitly took into account the Convention’s requirements as set out in the European Court’s judgment (BGH, Urt. v. 6.3.2007, VI ZR 14/06 available via www.bundesgerichtshof.de).", "...”" ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW", "A. The Basic Law", "69. The relevant provisions of the Basic Law provide as follows.", "Article 1 § 1", "“The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.”", "Article 2 § 1", "“Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [ Sittengesetz ].”", "Article 5 §§ 1 and 2", "“1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting via the radio, television and cinema shall be guaranteed. There shall be no censorship.", "2. These rights shall be subject to the limitations laid down by the provisions of the general laws and to statutory provisions for the protection of young people and to the obligation to respect personal honour [ Recht der persönlichen Ehre ].”", "B. The Copyright (Arts Domain) Act", "70. Section 22(1) of the Copyright (Arts Domain) Act ( Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie ) provides that images can only be disseminated with the express consent of the person concerned. Section 23(1)(1) of the Act provides for exceptions to that rule, where the images portray an aspect of contemporary society ( Bildnisse aus dem Bereich der Zeitgeschichte ) on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)).", "C. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy", "71. The relevant passages of this Resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows.", "“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.", "2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.", "3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.", "4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’.", "5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.", "6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.", "8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.", "11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.", "12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.", "13. The Assembly believes that, since all member States have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.", "...”", "D. Resolution of the Committee of Ministers on the execution of the Von Hannover judgment (no. 59320/00) of 24 June 2004", "72. The Resolution of the Committee of Ministers (CM/ResDH(2007)124), including the Appendix (extracts), adopted on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies, is worded as follows:", "“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter ‘the Convention’ and ‘the Court’);", "Having regard to the judgments transmitted by the Court to the Committee once they had become final;", "Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to respect for private life of the applicant, Princess Caroline von Hannover, the eldest daughter of Prince Rainier III of Monaco, on account of [the] German courts’ refusal of her requests to prohibit publication of a series of photographs of her (see details in Appendix);", "Having invited the government of the respondent State to inform the Committee of the measures taken to comply with Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;", "Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;", "Having satisfied itself that, within the time-limit set, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in Appendix);", "Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of", "– individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and", "– general measures, preventing similar violations;", "DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and", "DECIDES to close the examination of this case.", "Appendix to Resolution CM/ResDH(2007)124", "Information about the measures to comply with the judgment in the case of", "...", "THE LAW", "I. DISJOINDER OF THE APPLICATIONS", "73. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had joined the present applications to another application, Axel Springer AG v. Germany (no. 39954/08 – see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in these cases, the Grand Chamber considers it appropriate to disjoin application no. 39954/08 from the present applications.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "74. The applicants complained of the refusal by the German courts to grant an injunction against any further publication of the photo that had appeared on 20 February 2002 in the magazines Frau im Spiegel, issue no. 9/02, and Frau aktuell, issue no. 9/02. They alleged that there had been a violation of their right to respect for their private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the protection of the rights and freedoms of others.”", "A. Admissibility", "75. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and that it must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The Government", "76. The Government pointed out at the outset that there was no conflict between the Federal Constitutional Court and the Court. They observed that in its judgment of 14 October 2004 ( Görgülü judgment – no. 2 BvR 1481/04, Reports of Judgments and Decisions of the Federal Constitutional Court no. 111, p. 307), the Federal Constitutional Court had stated that there were grounds for lodging a constitutional appeal before it where the domestic court had failed to take sufficient account of the Convention or of the Court’s case-law. They pointed out that in the present cases the Federal Court of Justice and the Federal Constitutional Court had taken the Court’s case-law into consideration, particularly the Von Hannover judgment. It could not therefore be alleged that there was an attitude of denial on the part of the German courts; on the contrary, they had granted far greater protection to personality rights than had been the case in the past.", "77. The Government pointed out that the present applications related in essence to only one photo. In their submission, whilst it was true that the photos published on 20 February 2002, although not identical, were apparently part of the same series, the fact remained that from the point of view of an unbiased observer it was the same photographic representation of the applicants, albeit in a different size and format. The Government observed that in respect of the other photos examined in the judgment of the Federal Constitutional Court of 26 February 2008 either the Federal Court of Justice had upheld the injunction on their publication or they were the subject of a separate application before the Court. Other photos, mentioned by the applicants in their observations, could not be taken into consideration by the Court as the relevant domestic proceedings had not yet been concluded.", "78. The Government submitted that up until the Von Hannover judgment the German courts had used the hard and fast concept of “figure of contemporary society par excellence ”, which attracted only limited protection under German law. Following the Von Hannover judgment, the Federal Court of Justice had abandoned that concept and developed a new concept of (graduated) protection according to which it was henceforth necessary to show in respect of every photo why there was an interest in publishing it. Furthermore, under the new approach adopted by the Federal Court of Justice the balancing of competing interests consisted in determining whether the publication contributed to a public debate. The information value of the publication was of particular importance in that respect. In sum, the new case-law of the Federal Court of Justice, endorsed by the Federal Constitutional Court, afforded greater weight to the protection of personality rights, as evidenced by the fact that an injunction was imposed on publication of two of the initial three photos. Besides that, the photo in question and the articles accompanying it could be clearly differentiated from the photos and their commentaries that had been the subject of the Von Hannover judgment.", "79. The Government contested the applicants’ allegation that, according to the clear findings of the Court, the first applicant was a private individual. The Court had in several judgments referred to her as a public figure in order to differentiate her from a private individual (see Gurgenidze v. Georgia, no. 71678/01, § 40, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I; and Reklos and Davourlis v. Greece, no. 1234/05, § 38, 15 January 2009). In categorising the applicants as public figures the German courts had merely followed the Court’s case-law. As a member of a reigning dynasty, the first applicant appeared in public at official functions in the Principality. Moreover, she was the Chair of the Princess Grace Foundation, whose activities had been published by the Monegasque authorities in the official yearbook of the Principality.", "80. The Government pointed out that the applicants had not complained before the national courts about the circumstances in which the photos had been taken, although those were factors which, as a general rule, the courts duly took into account. In their submission, whilst the photos in question had certainly been taken without the knowledge or consent of the relevant parties, this did not mean that they had been taken surreptitiously or in conditions unfavourable to the applicants.", "81. The Government argued that the special nature of certain cases, such as the present ones, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a “corridor” of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role. Consequently, it should limit the scope of its scrutiny and intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate (see, for example, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 111-20, ECHR 2004 ‑ XI). The Government argued that where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention. The scope of the Court’s scrutiny was accordingly reduced in such cases.", "82. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention (see A. v. Norway, no. 28070/06, § 66, 9 April 2009, and Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government’s submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 – Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V, and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Schmidberger of 12 June 2003, C-112/00, and Omega of 14 October 2004, C-36/02).", "(b) The applicants", "83. The applicants wished to stress the context of the present applications. Since the first applicant had lost her first husband in a tragic accident in 1985, the media had realised that the story of the widow and her three young children would sell well and provided a lucrative market. Although it was illegal under the French Civil Code to take or publish such photos in France, the applicants had nonetheless been pursued by paparazzi who could sell the photos in other markets, particularly in Germany. Whereas the public had never heard of the second applicant before, he had also been pursued by paparazzi since his marriage to the first applicant and the birth of their child. In accordance with decisions of the German civil courts, upheld by the Federal Constitutional Court in 1999, the applicants had been able to oppose publication of such photos only where they were in a secluded location, out of public view. The applicants had constantly been aware of being observed, pursued and hounded and had therefore had high hopes after the adoption of the Von Hannover judgment, in which the Court had called into question the case-law of the domestic courts. They had accordingly brought six test cases regarding photos comparable to those that had been the subject of the Von Hannover judgment. It would appear that the German authorities had not been ready to follow that judgment, however. This was evidenced both by the statements of the Federal Minister of Justice and the German Chancellor at the time, according to which the Court’s judgment was not binding on the German courts because the case ‑ law of the Federal Constitutional Court was of higher ranking than the Convention, and by the opinions expressed by the respective reporting judges in the Caroline von Hannover cases before the Federal Constitutional Court in an interview and in a legal article published in 2004 and 2009 respectively.", "84. Germany had categorically refused until now to execute the Von Hannover judgment, in breach of Article 46 of the Convention. Accordingly, in its Görgülü judgment the Federal Constitutional Court had observed that a blanket execution of the Court’s judgments should be avoided. The Court of Appeal had clearly stated in the present case that the judgment of the Federal Constitutional Court of 1999 took precedence. The Federal Court of Justice and the Federal Constitutional Court, for their part, had circumvented the Von Hannover judgment and continued to rely on the concept of figure of contemporary society ( par excellence ) that had been called into question by the Court, by using the terms “prominent persons” or “high-profile persons”, and referring – de facto – to the spatial-isolation factor by using the expression “moment of relaxation or letting go, freed from the constraints of professional or everyday life”. The applicants continued to be the subject of press articles on their daily and private life and to be hounded by paparazzi, with the German courts doing nothing to put a stop to this. As it was impossible for them to know whether they were protected from harassment by paparazzi, they complained of an intolerable situation of legal insecurity and a considerable risk of litigation and costs resulting from that.", "85. The applicants argued that none of the photos, whether considered alone or in the context of the written article, contributed to a debate of public interest in a democratic society. They served purely to satisfy the curiosity of a particular readership. How and where the applicants spent their holidays clearly did not concern any matter that materially affected the public. A walk by the applicants during their holiday was not an event of contemporary society, especially as it was not undertaken in the exercise of any official function.", "86. The reference to Prince Rainier’s long-term illness in the article accompanying the photos in question could not alter that finding. The article was not about whether the prince’s illness prevented him from carrying out his sovereign tasks. There were only a few sentences informing the reader about his illness; the article was mainly about the private life of the applicants and other members of the prince’s family. The prince’s illness had been merely a pretext for extensive coverage of the applicants’ private life. It was already doubtful whether publication of the photo of Prince Rainier with his daughter Stéphanie could be justified, so publication of the photo complained of in this case was clearly unjustified. Even if there was information value in the prince’s illness, there was no genuine link between the applicants’ skiing holiday and that illness. A simple article would, moreover, have sufficed to satisfy the public’s interest.", "87. The applicants submitted that there had been nothing unusual or reprehensible in their spending a few days on a skiing holiday with their daughter during the prince’s illness, just like other families. That information was totally irrelevant to how the Principality of Monaco was governed. It was precisely when a family member was suffering from a long-term illness that the relatives needed special protection during the few days that they could relax. If a relative’s poor health were sufficient grounds upon which to publish photos, the Article 8 guarantees would be undermined and the press could permanently report on the applicants’ private life. Where the photos showed the applicants visiting the prince, the event of contemporary society would be the visit, and where they were elsewhere the event would be their absence. The German media had fully grasped this: they could enrich their articles with a few sentences to artificially generate information value.", "88. The applicants complained of the absence of two important factors in the balancing exercise undertaken by the German courts. They argued that the courts had failed to have regard to the fact that they had never sought to publicise details of their private life in the media, but had always defended themselves against any illegal publication. They thus had a legitimate expectation that their private life would be protected. Moreover, unlike the Court, the German courts had not taken account of the fact that the applicants were being permanently observed and hounded by paparazzi and that the photos had been taken without their knowledge or consent. Furthermore, the first applicant had not at any time been called to the throne of the Principality of Monaco: her father had still been alive when the photos were taken. On the latter’s death, it was her brother Albert who had succeeded him to the throne.", "89. The applicants submitted that since the Von Hannover judgment, in which the Court had clearly established the criteria that had to be met in cases of illegal publication of photos, the German authorities could no longer rely on a margin of appreciation. In their submission, a European consensus had emerged following the influence of that judgment as illustrated by the adoption of a Resolution by the Parliamentary Assembly in 1998. The differences that remained were merely in the nuances. The Von Hannover judgment was part of a line of established case-law and had subsequently been confirmed many times. The applicants expressed surprise, moreover, that the Court, as a supreme European court, should have less extensive powers of scrutiny than those exercised by the Federal Constitutional Court, which, in the proceedings in respect of the photo published in the magazine 7 Tage (paragraph 40 above), had overridden the opinion of the eleven professional judges who had examined the case and substituted its own opinion down to the last detail.", "2. Third parties’ observations", "(a) Association of German magazine editors", "90. The third-party association observed that the Von Hannover judgment delivered by the Court had had considerable effects on the freedom of the press in Germany. Following that judgment, the German courts had attached much less weight to the freedom of the press than before. Their decisions had now fallen into line with the Court’s case-law, to which they often referred moreover. The association submitted that the press, in its role of “public watchdog”, had the task not only of watching over parliaments, governance and other political events, but also of observing public life in general whether in politics, the economy, the arts, the social sphere, sport or any other domain. Like members of other royal families, the first applicant had a function as a role model and was unquestionably a public figure. The third-party association pointed out that, since 2003, the first applicant had been a UNESCO Goodwill Ambassador, a title bestowed on famous persons such as Nelson Mandela, Claudia Cardinale or Pierre Cardin. The Court had, moreover, described the first applicant as a public figure in judgments delivered after the Von Hannover judgment. In the association’s view, the protection of privacy had already been quite extensive before the Von Hannover judgment and that protection had subsequently been further extended. The German courts had not therefore exceeded their margin of appreciation. The standard as it existed in France could not constitute a model for Europe.", "(b) Ehrlich & Sohn GmbH & Co KG publishing company", "91. The third-party publishing company reiterated the importance of the freedom of the press in Germany, particularly having regard to the country’s former National Socialist era. It observed that, in accordance with the settled case-law of the Federal Constitutional Court, the entertainment press also enjoyed the protection of press freedom. Moreover, as the daughter of the late sovereign prince of a European country, sister of the current sovereign prince and wife of the Head of a former German noble dynasty, the first applicant was undeniably a public figure who attracted attention, at least in Europe. The publishing company submitted, lastly, that following the Von Hannover judgment delivered by the Court in 2004, the German courts had departed from precedent by restricting the possibility of publishing photographs of persons taken outside official events and without the consent of the interested parties and had thus severely curtailed the freedom of information and of the press.", "(c) Media Lawyers Association", "92. The third-party association argued that Article 8 of the Convention did not create an image right or, moreover, a right to reputation. Publication of a person’s photo did not, of itself, necessarily constitute an interference with the rights guaranteed under that provision. In determining whether there had been an interference, regard had to be had to all the circumstances and a certain level of seriousness was required. It was vital that media reporting upon all matters of public interest was strongly protected. In the Association’s submission, whilst the Court had rightly held, in its Von Hannover judgment, that regard had to be had to the context in which a photo had been taken, it had gone too far in asserting – in error – that publication of any photo fell within the scope of Article 8. The Court had unfortunately confirmed that position in subsequent judgments. The association maintained that the correct approach was first to examine whether the photo that had been published did or did not fall within the private sphere. In that context consideration had to be given to whether the person concerned, having regard to all the circumstances, had a legitimate expectation of privacy. If not, that was the end of the matter as Article 8 of the Convention did not apply. If yes, the domestic courts had to balance competing rights – of equal status – under Articles 8 and 10 of the Convention, whilst taking account of all the circumstances of the case. The balancing exercise and the outcome were matters that fell within the margin of appreciation of the States. The Court should intervene only where the national authorities had failed to undertake a balancing exercise or where their decisions were unreasonable. Lastly, the decision whether to include a photo in a written report fell within the editor’s discretion and judges could not substitute their own opinion.", "(d) Joint submissions by the Media Legal Defence Initiative, International Press Institute and World Association of Newspapers and News Publishers", "93. The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another. They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court’s judgment in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III), submitting that the Court had indicated that it would allow the Contracting States a wide margin of appreciation in situations of competing interests. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly (see Fretté v. France, no. 36515/97, § 41, ECHR 2002 ‑ I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention (see A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases.", "3. The Court’s assessment", "(a) Scope of the application", "94. The Court observes at the outset that it is not its task in the present case to examine whether Germany has satisfied its obligations under Article 46 of the Convention regarding execution of the Von Hannover judgment it delivered in 2004, as that task is the responsibility of the Committee of Ministers (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009, and Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The present applications concern only new proceedings instituted by the applicants following the Von Hannover judgment and relating to the publication of other photos of them (see paragraphs 15-20 above).", "(b) General principles", "(i) Concerning private life", "95. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, photo, or physical and moral integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a person’s private life even where that person is a public figure (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover v. Germany, no. 59320/00, §§ 50 and 53, ECHR 2004-VI; Sciacca, cited above, § 29; and Petrina v. Romania, no. 78060/01, § 27, 14 October 2008).", "96. Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece, cited above, § 40).", "97. The Court also reiterates that, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see Von Hannover, cited above, § 51; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 78, 9 November 2006; Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 48, 4 June 2009; and Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 53, 23 July 2009).", "98. In cases of the type being examined here, what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Armonienė, cited above, § 36). That also applies to the protection of a person’s picture against abuse by others (see Schüssel, cited above; Von Hannover, cited above, § 57; and Reklos and Davourlis, cited above, § 35).", "99. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see White v. Sweden, no. 42435/02, § 20, 19 September 2006, and Gurgenidze, cited above, § 38).", "(ii) Concerning freedom of expression", "100. The present applications require an examination of the fair balance that has to be struck between the applicants’ right to respect for their private life and the right of the publishing company to freedom of expression guaranteed under Article 10 of the Convention. The Court therefore considers it useful to reiterate the general principles relating to the application of that provision as well.", "101. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV).", "102. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI).", "Furthermore, is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V).", "103. The Court reiterates, lastly, that freedom of expression includes the publication of photos (see Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004, and Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, §§ 29 and 40, 14 December 2006). This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photos may contain very personal or even intimate information about an individual or his or her family (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007; and Eerikäinen and Others v. Finland, no. 3514/02, § 70, 10 February 2009).", "Moreover, photos appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public’s curiosity regarding the details of a person’s strictly private life (see Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40), are often taken in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover, cited above, § 59, and Gurgenidze, cited above, § 59).", "(iii) Concerning the margin of appreciation", "104. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see X and Y v. the Netherlands, cited above, § 24, and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III).", "Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001 ‑ I, and Pedersen and Baadsgaard, cited above, § 68).", "105. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003 ‑ I, and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X). In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).", "106. In cases such as the present one, which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the article, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; see also point 11 of the Resolution of the Parliamentary Assembly – paragraph 71 above). Accordingly, the margin of appreciation should in theory be the same in both cases.", "107. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011).", "(iv) The criteria relevant for the balancing exercise", "108. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that are relevant to the present case are set out below.", "(α) Contribution to a debate of general interest", "109. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné Revue, cited above, § 68; and Standard Verlags GmbH, cited above, § 46). The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (see White, cited above, § 29; Egeland and Hanseid v. Norway, no. 34438/04, § 58, 16 April 2009; and Leempoel & S.A. ED. Ciné Revue, cited above, § 72), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010). However, the rumoured marital difficulties of the President of a country or the financial difficulties of a famous singer were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 43).", "(β) How well known is the person concerned and what is the subject of the report?", "110. The role or function of the person concerned and the nature of the activities that are the subject of the report and/or photo constitute another important criterion, related to the preceding one. In that connection a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47).", "While in the former case the press exercises its role of “public watchdog” in a democracy by imparting information and ideas on matters of public interest, that role appears less important in the latter case. Similarly, although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – despite the person concerned being well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying public curiosity in that respect (see Von Hannover, cited above, § 65 with the references cited therein, and Standard Verlags GmbH, cited above, § 53; see also point 8 of the Resolution of the Parliamentary Assembly – paragraph 71 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143).", "(γ) Prior conduct of the person concerned", "111. The conduct of the person concerned prior to publication of the report or the fact that the photo and the related information have already appeared in an earlier publication are also factors to be taken into consideration (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, §§ 52-53, and Sapan, cited above, § 34). However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the photo at issue (see Egeland and Hanseid, cited above, § 62).", "(δ) Content, form and consequences of the publication", "112. The way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis, cited above, § 42; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an important factor, depending on whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and Iltalehti, cited above, § 47, and Gurgenidze, cited above, § 55).", "(ε) Circumstances in which the photos were taken", "113. Lastly, the Court has already held that the context and circumstances in which the published photos were taken cannot be disregarded. In that connection regard must be had to whether the person photographed gave their consent to the taking of the photos and their publication (see Gurgenidze, cited above, § 56, and Reklos and Davourlis, cited above, § 41) or whether this was done without their knowledge or by subterfuge or other illicit means (see Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47, and Flinkkilä and Others v. Finland, no. 25576/04, § 81, 6 April 2010). Regard must also be had to the nature or seriousness of the intrusion and the consequences of publication of the photo for the person concerned (see Egeland and Hanseid, cited above, § 61, and Timciuc, cited above, § 150). For a private individual, unknown to the public, the publication of a photo may amount to a more substantial interference than a written article (see Eerikäinen and Others, cited above, § 70, and A. v. Norway, cited above, § 72).", "(c) Application of the principles to the present case", "114. The Court takes note of the changes made by the Federal Court of Justice to its earlier case-law following the Von Hannover judgment. That court stated, inter alia, that in future importance had to be attached to whether the report in question contributed to a factual debate and whether its contents went beyond a mere desire to satisfy public curiosity. It observed in that connection that the greater the information value for the public, the more the interest of a person in being protected against its publication had to yield, and vice versa. Whilst pointing out that the freedom of expression also included the entertainment press, it stated that the reader’s interest in being entertained generally carried less weight than the interest in protecting the private sphere.", "115. The Federal Constitutional Court confirmed that approach, stating that whilst it had not, in its judgment of 15 December 1999, called into question the former case-law of the Federal Court of Justice, that did not mean that another concept of protection – giving greater weight to balancing the conflicting interests at stake when examining the question whether a photo could be regarded as an aspect of contemporary society and could accordingly be published without the consent of the person concerned – could not be in conformity with the Basic Law.", "116. In so far as the applicants alleged that the new approach of the Federal Court of Justice and the Federal Constitutional Court merely reproduced the reasoning of the former case-law using different terms, the Court reiterates that its task is not to review the relevant domestic law and practice in abstracto, but to determine whether the manner in which they were applied to the applicants has infringed Article 8 of the Convention (see Karhuvaara and Iltalehti, cited above, § 49).", "117. The Court observes that in applying its new approach the Federal Court of Justice found that as neither the part of the article accompanying the photos of the applicants’ skiing holiday nor the photos themselves contained information related to an event of contemporary society, they did not contribute to a debate of general interest. The Federal Court of Justice found that the same could not be said, however, with regard to the information in the articles about the illness affecting Prince Rainier III, the reigning sovereign of the Principality of Monaco at the time, and the conduct of the members of his family during that illness. In the Federal Court of Justice’s opinion, that subject qualified as an event of contemporary society on which the magazines were entitled to report, and which entitled them to include the photos in question in that report as these supported and illustrated the information being conveyed.", "The Federal Constitutional Court, for its part, observed that the Federal Court of Justice had accepted that the reigning Prince of Monaco’s illness could be regarded as a matter of general interest and that the press was therefore entitled to report on how the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. It also confirmed that there was a sufficiently close link between the photo and the event described in the article.", "118. The Court observes that the fact that the Federal Court of Justice assessed the information value of the photo in question in the light of the accompanying article cannot be criticised under the Convention (see, mutatis mutandis, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007, and Österreichischer Rundfunk v. Austria, no. 35841/02, §§ 68-69, 7 December 2006). Regarding the characterisation of Prince Rainier’s illness as an event of contemporary society, the Court is of the opinion that, having regard to the reasons advanced by the German courts, that interpretation cannot be considered unreasonable (see, mutatis mutandis, Editions Plon, cited above, §§ 46-57). It is worth mentioning in this connection that the Federal Court of Justice upheld the injunction forbidding publication of two other photos showing the applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone (see paragraphs 36-37 above). The Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest. It would reiterate, on this point, that not only does the press have the task of imparting information and ideas on all matters of public interest, the public also has a right to receive them (see paragraph 102 above).", "119. In so far as the applicants complained of a risk that the media would circumvent the conditions laid down by the Federal Court of Justice by using any event of contemporary society as a pretext to justify the publication of photos of them, the Court notes that it is not its task, in the context of the present applications, to rule on the conformity with the Convention of any future publication of photos of the applicants. Should that happen, it will be open to them to bring proceedings in the appropriate national courts. The Court also observes that the Federal Constitutional Court stated in its judgment that where an article was merely a pretext for publishing a photo of a prominent person, no contribution was thereby made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights.", "120. Admittedly, the Federal Court of Justice based its reasoning on the premise that the applicants were well-known public figures who particularly attracted public attention, without going into their reasons for reaching that conclusion. The Court considers, nonetheless, that irrespective of the question whether and to what extent the first applicant assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants, who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures (see Gurgenidze, cited above, § 40; Sciacca, cited above, § 27; Reklos and Davourlis, cited above, § 38; and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 123, 13 January 2009).", "121. The Federal Court of Justice then examined the question whether the photos had been taken in circumstances unfavourable to the applicants. The Government submitted that the fact that the photos had been taken without the applicants’ knowledge did not necessarily mean that they had been taken surreptitiously in conditions unfavourable to the applicants. The latter, for their part, alleged that the photos had been taken in a climate of general harassment with which they were constantly confronted.", "122. The Court observes that the Federal Court of Justice concluded that the applicants had not adduced evidence of unfavourable circumstances in that connection and that there was nothing to indicate that the photos had been taken surreptitiously or by equivalent secret means such as to render their publication illegal. The Federal Constitutional Court, for its part, stated that the publishing company concerned had provided details of how the photo that had appeared in the Frau im Spiegel magazine had been taken, but that the first applicant had neither complained before the civil courts that those details were inadequate nor submitted that the photo in question had been taken in conditions that were unfavourable to her.", "123. The Court observes that, according to the case-law of the German courts, the circumstances in which photos have been taken constitutes one of the factors that are normally examined when the competing interests are balanced against each other. In the present case it can be seen from the decisions of the national courts that this factor did not require a more thorough examination as the applicants did not put forward any relevant arguments and there were no particular circumstances justifying an injunction against publishing the photos. The Court notes, moreover, as pointed out by the Federal Court of Justice, that the photos of the applicants in the middle of a street in St Moritz in winter were not in themselves offensive to the point of justifying their prohibition.", "(d) Conclusion", "124. The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken.", "125. The Court also observes that the national courts explicitly took account of the Court’s relevant case-law. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the Federal Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court’s case-law in response to the applicants’ complaints that the Federal Court of Justice had disregarded the Convention and the Court’s case-law.", "126. In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1948, 1951, 1962 and 1951 respectively and live in Helsinki, except for Ms Isosaari who lives in Ikkala.", "6. The first and second applicants are editors-in-chief of the nationwide magazine Seura and the third and fourth applicants are an editor-in-chief and a journalist of the nationwide magazine Nykyposti.", "7. On 4 December 1996 A. , the National Conciliator ( valtakunnansovittelija, riksförlikningsmannen ) at the time, and B. , his female friend, entered late at night A. ’ s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A. ’ s grown-up children, led to A. ’ s arrest. Due to the incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court ( käräjäoikeus, tingsrätten ) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage ( vahingonteko, skadegörelse ), and B. to a fine for assault. On 17 January 1997 the Council of State ( valtioneuvosto, statsrådet ) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court ( hovioikeus, hovrätten ) upheld the judgment with respect to B. As regards A., the case had lapsed as he had died on 14 May 1998. On 15 December 1998 the Supreme Court ( korkein oikeus, högsta domstolen ) refused B. leave to appeal.", "8. On 31 January and 1 March 1997, respectively, the magazines published an article about A. The article of 31 January 1997 in Seura magazine was based on A. ’ s interview, and B. ’ s name and age, together with her picture, were mentioned once in the article. The article was entitled “A. ’ s sincerity in the balance” and it concerned A. ’ s feelings about his dismissal and his possible divorce in the aftermath of the incident of 4 December 1996. The article of 1 March 1997 in Nykyposti magazine, which was entitled “Divorced wives ’ club”, also dealt inter alia with A. ’ s possible divorce and his feelings about his dismissal. It was claimed that A. ’ s divorce proceedings had accelerated due to the incident of 4 December 1996, and B. ’ s name was mentioned once in that context. This article contained no pictures of B. Prior to these articles, B. ’ s identity had been revealed at least in a Swedish newspaper on 21 January 1997 and in a Finnish nationwide television broadcast on 23 January 1997.", "9. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident on 4 December 1996 and the circumstances surrounding it. They made such a request with respect to the applicants, claiming that the articles published in Seura and Nykyposti had invaded B. ’ s privacy. It appears that in regard to all but one of these requests no charges were brought. On 17 September 1998 the public prosecutor decided not to bring charges against the applicants as, according to him, there was no indication of any crime.", "10. On 25 October 199 8 B. complained to the Prosecutor General ( valtakunnansyyttäjä, högsta åklagaren ) about the decisions not to prosecute and asked him to reconsider the cases. On 5 October 1999, after having considered the charges, the Deputy Prosecutor - General requested the public prosecutor to bring charges, inter alia, against the applicants. He reasoned his decision by stating, inter alia, that the facts revealed in the articles fell within the scope of private life and that no derogation could be made in this case as B. was not a public figure.", "11. On 1 5 November 1999 the public prosecutor, by order of the Deputy Prosecutor-General, brought charges against the applicants under Chapter 27, section 3(a), paragraph 2 of the Penal Code. At the same time charges were also brought against another journalist and editor-in-chief of another magazine to be examined in the same proceedings. This journalist and editor-in-chief have lodged a separate appeal with the Court ( see Tuomela and others v. Finland, no. 25711/04, 6 April 20 1 0 ).", "12. B. concurred with the charges brought by the public prosecutor. On 4 January and 10 November 2000 she pursued a compensation claim against all the applicants, which was joined to the criminal charges.", "13. Following an oral hearing on 8 December 2000, the Espoo District Court rejected all the charges on 15 December 2000, finding that the information concerning B. ’ s private life in the article could not as such be conducive to causing her particular suffering, except for the information concerning her relationship with A. However, since the incident of 4 December 1996 B. must have understood that she could no longer seek protection on this ground. Thus, the applicants had not been under a duty to assess whether revealing B. ’ s identity could have caused her suffering. Furthermore, it had not been proved that the applicants had had the intention of invading B. ’ s privacy. Accordingly, all the compensation claims against the applicants were also rejected.", "14. By letters dated 10 and 14 January 2001, respectively, the public prosecutor and B. appealed to the Helsinki Appeal Court, reiterating the charges and the compensation claims. Moreover, on 17 September 2002 B. requested that the case file be declared secret for at least ten years from the date of the judgment.", "15. In its judgment of 15 May 2003, the Appeal Court first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions and the conclusions. Additionally, B. ’ s identity was not to be revealed in the public parts of the judgment. The court found that the matter was very sensitive, that it fell within the scope of private life, and that the secrecy accorded did not violate Articles 6 or 10 of the Convention. As to the merits of the case, the court, without holding an oral hearing, quashed the District Court ’ s judgment and sentenced the applicants to pay twenty day-fines, amounting to 1 ,180 euros (EUR), EUR 1,100, EUR 1,020 and EUR 120 respectively, for invasion of private life. Moreover, the first and second applicants were ordered jointly to pay B. EUR 5 ,000 plus interest and the third and fourth applicants EUR 3,000 plus interest for non-pecuniary damage as well as her costs and expenses jointly with the publishing company. The applicants paid in total EUR 22,074.31 in fines and compensation.", "16. The Appeal Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B. ’ s name had been mentioned twice in the context of an interview with A. , had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3 ( a ), paragraph 2, of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. The fact that B. ’ s identity as A. ’ s friend had previously been revealed in the media did not justify the subsequent invasion of her private life. The Penal Code provision in question did not require that intent be shown; it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering. The applicants, therefore, had had no right to reveal facts relating to B. ’ s private life or to publish her picture.", "17. By letter dated 10 July 2003 the applicants applied for leave to appeal to the Supreme Court, claiming, inter alia, that the provision of the Penal Code in question did not define with sufficient clarity which acts fell within its scope and that, as a result, the Penal Code had been applied ex analogia. No intent had been shown, and nor was the Appeal Court judgment adequately reasoned in this respect. Moreover they claimed that, in declaring that the case file was to remain secret, the Appeal Court had not given reasons which would constitute sufficient grounds for the measure. Finally, the Appeal Court had not even tried to indicate on what grounds freedom of expression could be restricted in this case, and therefore the Appeal Court judgment was in contradiction with Article 10 of the Convention.", "18. On 20 January 2004 the Supreme Court refused the applicants leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "Legislation", "19. Section 10 of the Constitution Act ( Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919, as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000 ), provided:", "“Everyone has the right to freedom of expression. The right to freedom of expression entails the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by an Act of Parliament.", "Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”", "The same provision appears in Article 12 of the current Constitution of 2000 ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999).", "20. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone ’ s right to private life is guaranteed.", "21. Section 39 of the Freedom of the Press Act ( painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.", "22. Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising inter alia from an offence against liberty, honour, home or private life. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.", "23. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed.", "24. Chapter 27 ( as amended by Act no. 908/1974), section 3 ( a ), of the Penal Code ( rikoslaki, strafflagen ) read, at the relevant time, as follows:", "“A person who unlawfully, through the use of the mass media or in another similar manner, publicly disseminates information, an insinuation or an image depicting the private life of another person, such as to cause him or her damage or suffering, shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of two years or to a fine. A publication that deals with a person ’ s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society.”", "25. In the travaux préparatoires of the above-mentioned provision (see government bill HE 84/1974) there was no precise definition of private life but matters such as, inter alia, family life, spare time activities, health and relationships and such conduct in socially significant position that had no significance to the relevant exercise of power, were considered as a part of private life. It was further required that the act might have caused damage or suffering. Such damage might have also been \"immaterial damage, which might have manifested itself in problems with social interaction or respect\". An ordinary person enjoyed the strongest protection of private life. His or her involvement in an incident with importance to society might have warranted an exception to the protection. In any case, if an offence was of such a kind that it could not be regarded as having social significance, it was a matter to be protected as belonging to the sphere of private life, otherwise the protection of private life did not restrict publishing. Moreover, the publishing could not be to a greater extent than was necessary. Thus, the necessity of mentioning a person ’ s name or other description of a person enabling identification was always subject to careful consideration.", "26. In 2000, Chapter 27, section 3 ( a ), of the Penal Code was replaced by Chapter 24, section 8 (Act no. 531/2000). Under the new provision on the injury of personal reputation ( yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet ), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person ’ s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society.", "27. According to the travaux préparatoires (see government bill HE 184/1999), the content of the new provision corresponds to the old Chapter 27, section 3 ( a ), of the Penal Code. The amendments and clarifications made to the existing provision were mainly technical. The provision thus still restricts the protection of the private life of persons having important political or economic powers. This restriction, however, applies only to the persons referred to, not to their close friends and family. According to the Parliamentary Law Committee ’ s Report ( lakivaliokunnan mietintö, lagutskottets betänkande LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.", "28. The government bill HE 184/1999 further provides that in the assessment of interferences with private life, the lawfulness of the interference and the concept of private life are taken into account. A person ’ s consent to the provision of information has relevance in the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see Parliamentary Law Committee ’ s Report LaVM 6/2000). With regard to the concept of private life, a reference is made to the explanatory works concerning the Constitution ’ s provisions on fundamental rights and to the government bill HE 84/1974). Moreover, private life is, in particular, protected against dissemination of information which may be correct as such. In order for the act to be punishable, it is necessary that the information concerns the private life of the person in question (see the government bill HE 184/1999).", "29. Section 2 of the Act on the Publicity of Court Proceedings ( laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; Act no. 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest. Section 3 provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation. Section 9 stated that the provisions laid down in the Openness of Government Activities Act ( laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet : Act no. 621/1999 ) were applicable to trial documents. Information and documents relating to a trial are, as a rule, public once charges have been brought unless provided otherwise by an Act.", "Supreme Court practice", "30. The Supreme Court decision ( KKO 1980-II-99 ) concerned public showing of a series of photographs of half-naked children. The act was committed before the entry into force of Chapter 27, section 3 ( a ), of the Penal Code and no criminal sanctions were requested.", "31. In a Supreme Court decision ( KKO 1980 II 123 ) the following was noted (summary from the Yearbook):", "“The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff ’ s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”", "32. On 11 June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision ( KKO 1997:80 ) concerned a newspaper article (summary from the Supreme Court ’ s Yearbook):", "“A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.”", "33. The second decision ( KKO 1997:81 ) concerned an article published in a periodical, which was based on the afore- mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook):", "“Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.”", "34. The article published in the periodical had similarly mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff ’ s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant ’ s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant ’ s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant ’ s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid.", "35. The Supreme Court ’ s decision of 26 September 2001 ( KKO 2001:96 ) concerned the publication in a magazine of an article which had described a pending criminal case in which the accused had been charged with, inter alia, aggravated fraud. The article had been illustrated, without the accused ’ s permission, with another article published previously in another magazine and with a picture of the accused published in that connection. The accused ’ s name had been given in the text of the article and she could be recognised from the picture. The Supreme Court found that the criminal case had no such social significance that would justify its publication without the accused ’ s permission and, consequently, her private life had been invaded.", "36. The Supreme Court ’ s decision of 25 June 2002 ( KKO 2002:55 ) concerned the same facts as the present case: when interviewing A., B. ’ s name was mentioned in the television broadcast in January 1997, that is, after they had been convicted. The court found that the facts discussed in the television programme with regard to B. were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name. The interviewer and the television company were ordered to pay B. damages in the amount of EUR 8,000 for disclosing her identity in the television programme.", "37. Another decision of 4 July 2005 ( KKO 2005:82 ) concerned an article about a relationship between A. , who worked as a press officer for a candidate in the presidential elections, and B. , the ex-spouse of a TV journalist. A. ’ s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court ’ s case-law, found that A. did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A. ’ s privacy.", "38. In a decision of 19 December 2005 ( KKO 2005:136 ), the Supreme Court noted that an offence was not a private matter of the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoyed the right inherent in private life to live in peace. According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualified as “ sensitive ” personal data. The publicity per se of criminal proceedings and of related documents did not mean that information made public during the proceedings could be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim ’ s human dignity. Furthermore, the article in question did not include his photo.", "39. The Supreme Court ’ s decision of 16 March 2006 (KKO 2006:20) concerned the scope of the private life of a leading public prosecutor whose name or identify had not been revealed in an article which mainly concerned his wife who had been suspected of having committed a crime. The Supreme Court concluded that the issue had had social significance as the person under suspicion was the public prosecutor ’ s wife. Even though the public prosecutor could have been identified from the article, this was justified by the fact that his own impartiality as a prosecutor was at stake.", "40. In the Supreme Court ’ s latest decision of 22 January 2009 ( KKO 2009:3 ) A. had been convicted of incest with his children and the case file was declared secret. Later A. revealed certain details of the case in a television programme. The court found that even though the children had remained anonymous in the programme, they could still be identified through the fact that A. had appeared in the programme undisguised and his first name had been given. The privacy of the children and their mother had thus been invaded.", "Self-regulation of journalists", "41. The Union of Journalists in Finland ( Suomen Journalistiliitto, Finlands Journalistförbund ry ) publishes Guidelines for Journalists ( Journalistin ohjeet, Journalistreglerna ) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect ’ s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect ’ s position which justified publication (Article 26).", "42. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. The public nature of information does not necessarily mean that it may be published. Special care must be observed when discussing matters concerning a minor ( Article 30). The name, photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his or her position or offence. As regards a minor or an unaccountable person information should be disclosed with restraint ( Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he or she is only a suspect or has merely been charged ( Article 32).", "43. Also the Council for Mass Media ( Julkisen sanan neuvosto, Opinionsnämnden för massmedier ), which is a self-regulating body established in 1968 by publishers and journalists in the field of mass communication and whose task is to interpret good professional practice and defend the freedom of speech and publication, has issued a number of resolutions and statements, inter alia, in 1980 and 1981. The former concerned the content of private life and the latter disclosure of names in crime news coverage.", "44. In its statement of 1981, the Council for Mass Media stated, inter alia, that according to the main principle of protection of identity, it is justifiable to publish a person ’ s name in crime news coverage only if there is a significant public interest in doing so. A journalist shall consider such publication separately in each individual case, weighing the harm that may be caused to the person concerned and to his or her family and close persons against the general importance of publishing the name. Furthermore, the Council stated that the aggravated, cruel or special nature of an act does not alone suffice to justify disclosing the perpetrator ’ s identity. An offence may, however, arouse so much public attention as to warrant publishing the name. Finally, the Council divided persons into three groups as to the protection of identity: (1) persons exercising political, economic or administrative power; (2) other public persons, for example in the sectors of entertainment, sports, arts or science; and (3) ordinary citizens. The Council noted that the protection of identity is narrowest for group 1 and most extensive for group 3.", "III. RELEVANT INTERNATIONAL MATERIALS", "45. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec (2003)13 on the provision of information through the media in relation to criminal proceedings. In point 8 of the principles appended to the recommendation, it considers as follows:", "“ Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. ”", "46. The commentary to the recommendation considers as follows (paragraphs 26 and 27):", "“ Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.", "An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence. ”", "47. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE CONVENTION", "48. The applicants complained under Article 7 of the Convention that it had not been clear from the Penal Code provision applied that their conduct might be punishable, as the provision had not defined the scope of private life. The convictions of A. and B. had been public information that could not have fallen within the scope of private life. Furthermore, even though a conviction for invasion of private life allegedly required that intent be shown, the Appeal Court had failed to state how this requirement had been fulfilled.", "49. The applicants complained under Article 10 of the Convention that the restrictions on their right to freedom of expression had not been prescribed by law and had not been necessary in a democratic society for the protection of the reputation or rights of others. The disclosure of B. ’ s name had not fallen within the protection of private life as the national courts had not declared any parts of her criminal case file secret. She had been an active participant in the incident of 4 December 1996 and had subsequently been sentenced to a fine. The public had a right to know about issues of public interest, especially in this type of case where the person concerned had been a defendant in a high-profile criminal case. Moreover, the information in the articles had been correct in every respect. The Appeal Court had not even tried to indicate on what grounds freedom of expression could have been restricted in this case. In any event, the restrictions imposed on the applicants had been grossly disproportionate, especially in view of their obligation to pay very substantial damages in the case.", "50. Article 7 reads as follows:", "“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”", "51. Article 10 reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "52. The Government contested these arguments.", "A. Admissibility", "53. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "54. The applicants maintained that the conviction of the applicants and the heavy sanctions inflicted on them had amounted to an interference with their right to freedom of expression which had not been prescribed by law, had had no legitimate aim and had not been necessary in a democratic society.", "55. The applicants argued that neither the provision in question, Chapter 27, section 3 ( a ), of the Penal Code, nor the preparatory works had mentioned that the provision would apply to the publication of an accused or convicted person ’ s name. On the contrary, the operative part of a judgment, the legal provisions applied and the name of the convicted person had always been public information according to Finnish law. Citing a convicted person ’ s name in a newspaper had not been traditionally an offence in Finland until 2001 and 2002, when the Supreme Court had come to a different conclusion. However, it did not follow from either the provisions or the preparatory works that publication of a convicted person ’ s name was criminal and it had even been mentioned in the government bill ( HE 184/1999 ) that the general nature of Chapter 27, section 3 ( a ), of the Penal Code might be problematic from the point of view of the legality principle. In Finnish criminal law the use of a legal analogy to the detriment of an accused was prohibited. As the articles in question had been published in 1997 the applicants could not have foreseen what the Appeal Court would decide more than six years later. Nor could they have anticipated that the Supreme Court would start assessing these cases differently in 2002.", "56. The applicants pointed out that, as B. ’ s name had appeared in all of the judgments in her criminal case, this public information could not have become retrospectively private. Once somebody ’ s name had become public information, its publication could not be unlawful and could not violate that person ’ s private life. B. ’ s identity and the issues discussed in the articles had already been published earlier. Moreover, B. had not been a passive object of publicity but had participated actively in an incident of public interest. No margin of appreciation could exist at the expense of the legality principle or the freedom of expression. The amount of sanctions inflicted on the applicants, including the fines, the compensation and the legal costs, had been such that it alone constituted a violation of Article 10.", "(b) The Government", "57. The Government agreed that the conviction of the applicants and the obligation to pay damages and costs had amounted to an interference with their right to freedom expression.", "58. As to the requirement that measures be “prescribed by law” and in compliance with Article 7, the Government pointed out that the impugned measures had had a basis in Finnish law, namely in the Constitutional Act and, in particular, in Chapter 27, section 3 ( a ), of the Penal Code. B. ’ s name constituted information referred to in the latter provision, which also separately mentioned a picture, and thus the provision had fulfilled the clarity requirement. At the relevant time the provision had been in force more than 20 years and it had been interpreted by the Supreme Court, prior to the publication of the impugned article, in precedent cases KKO 1980 II 99 and KKO 1980 II 123. The rules on criminal liability could thus be regarded as having been gradually clarified through judicial interpretation in a manner which had been consistent with the essence of the offence. The liability therefore could reasonably have been foreseen.", "59. Moreover, the Guidelines for Journalists and the practice of the Council for Mass Media, both of which had had some relevance in the matter, had restricted the disclosure of a person ’ s name in crime news coverage. Offences were not automatically issues of private life, a fact that had been confirmed by the Supreme Court ’ s precedent in the case KKO 2005:136. As B. in the present case had been sentenced to a fine, this sentence had not as such reduced the protection of her privacy. This interpretation was also in line with the Court ’ s case - law (see, for example, Z v. Finland, 25 February 1997, § 99, Reports of Judgments and Decisions 1997 ‑ I, and P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003 ‑ VI). The Government thus argued that the applicants must have been aware of the regulations concerning the freedom of expression. In any event, they could have sought legal advice before publishing the article. Accordingly, there was no violation of Article 7 and the interference was “prescribed by law” as required by Article 10 § 2 of the Convention.", "60. The Government maintained that the legitimate aim had been to protect B. ’ s private life, that is, the reputation and rights of others, and that the interference had also been “necessary in a democratic society”. Even though B. had been sentenced for an offence and the proceedings had been mainly public, it did not mean that the disclosure of B. ’ s name as such had been lawful. Under Finnish law the fact that information was public did not automatically mean that it could be published. Only persons convicted of aggravated offences and sentenced to imprisonment, did not enjoy any protection of personal identity or private life.", "61. The Government pointed out that being the female friend of A. had not as such made her a person in a socially significant position whose private life could be limited. B. ’ s conduct had not in any way contributed to any discussion of general interest but had been intended to satisfy public curiosity. Notwithstanding the incident of 4 December 1996 and B. ’ s subsequent sentence, the information published by the applicants had been of such a nature that it had been covered by the protection of B. ’ s private life. The events could have been reported without mentioning B. by name. Bearing in mind the margin of appreciation, the Government argued that the interference in the present case had been “necessary in a democratic society”.", "2. The Court ’ s assessment under Article 10 of the Convention", "1. Whether there was an interference", "62. The Court agrees with the parties that the applicants ’ conviction, the fines imposed on them and the award of damages constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "2. Whether it was prescribed by law and pursued a legitimate aim", "63. As to whether the interference was “ prescribed by law ”, the applicants argued that, at the time of the publication of the article in question, the citing of a convicted person ’ s name in a newspaper had not been an offence in Finland and that they had not therefore been able to foresee that criminal sanctions could be imposed on them for having published B. ’ s name. The Government argued that the scope of criminal liability had gradually been clarified through judicial interpretation in a manner which had been consistent with the essence of the offence and with good journalistic practice and that, therefore, the liability could reasonably have been foreseen.", "64. The Court notes that the parties agree that the interference complained of had a basis in Finnish law, namely Chapter 27, section 3 ( a ), of the Penal Code. The parties ’ views, however, diverge as far as the foreseeability of the said provision is concerned. The Court must thus examine whether the provision in question fulfils the foreseeability requirement.", "65. The Court has already noted that a norm cannot be regarded as a “ law ” unless it is formulated with sufficient precision to enable the individual to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and mutatis mutandis Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A ).", "66. As concerns the provision in question at the relevant time, Chapter 27, section 3 ( a ), of the Penal Code, the Court has already found in the Eerikäinen case (see Eerikäinen and Others v. Finland, no. 3514/02, § 58, 10 February 2009 ) that it did not discern any ambiguity as to its contents: the spreading of information, an insinuation or an image depicting the private life of another person which was conducive to causing suffering qualified as invasion of privacy. Furthermore, the Court notes that the exception in the second sentence of the provision concerning persons in a public office or function, in professional life, in a political activity or in another comparable activity is equally clearly worded.", "67. While it is true that at the time when the articles in question were published, in January and March 1997 respectively, there were only two Supreme Court decisions concerning the interpretation of the provision in question, both of which concerned public dissemination of photographs, the Court finds that the possibility that a sanction would be imposed for invasion of private life was not unforeseeable. Even though there was no precise definition of private life in the preparatory works (see government bill HE 84/1974), they mentioned that the necessity of mentioning a person ’ s name or other description of a person enabling identification was always subject to careful consideration. Had the applicants had doubts about the exact scope of the provision in question they should have either sought advice about its content or refrained from disclosing B. ’ s identity. Moreover, the applicants, who were professional journalists, could not claim to be ignorant about the content of the said provision since the Guidelines for Journalists and the practice of the Council for Mass Media, although not binding, provided even more strict rules than the Penal Code provision in question.", "68. The Court concludes therefore that the interference was “prescribed by law” (see Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 ‑ II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X, Eerikäinen and Others v. Finland, cited above, § 58 ). In addition, it has not been disputed that the interference pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.", "3. Whether the interference was necessary in a democratic society", "69. According to the Court ’ s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).", "70. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).", "71. The Court ’ s task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).", "72. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), cited above § 62, Series A no. 30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 ‑ I ). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 ).", "73. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65 ). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, loc. cit.).", "74. The limits of permissible criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for example, Lingens v. Austria, cited above, § 42; Incal v. Turkey, 9 June 1998, § 54, Reports of Judgments and Decisions 1998 ‑ IV; and Castells v. Spain, 23 April 1992, § 46, Series A no. 236 ).", "75. However, the freedom of expression has to be balanced against the protection of private life guaranteed by Article 8 of the Convention. The concept of private life covers personal information which individuals can legitimately expect should not be published without their consent and includes elements relating to a person ’ s right to their image. The publication of a photograph thus falls within the scope of private life (see Von Hannover v. Germany, no. 59320/00, §§ 50-53 and 59, ECHR 2004 ‑ VI ).", "76. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has stressed the contribution made by photos or articles in the press to a debate of general interest (see Tammer v. Estonia, no. 41205/98, §§ 59 et seq., ECHR 2001-I; News Verlags GmbH & Co. KG v. Austria, cited above, §§ 52 et seq.; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual ’ s private life was not “justified by considerations of public concern” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10.", "77. Moreover, one factor of relevance is whether freedom of expression was used in the context of court proceedings. While reporting and commenting on court proceedings, provided that they do not overstep the bounds set out above, contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public, it is to be noted that the public nature of court proceedings does not function as a carte blanche relieving the media of their duty to show due care in communicating information received in the course of those proceedings (see Council of Europe Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings; paragraphs 4 5 and 46 above). In this connection, the Court notes that the Finnish Guidelines for Journalists, as in force at the relevant time, stated that the publication of a name and other identifying information in this context was justified only if a significant public interest was involved (see paragraph 41 above).", "78. The Court has balanced in its recent case -law the protection of private life against the interest of the press to inform the public on matters of public concern in the context of court proceedings (see for example Eerikäinen and Others v. Finland, cited above; and compare Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009 ).", "79. Turning to the facts of the present case, the Court notes that the applicants were convicted on the basis of the remarks made in two articles in their capacity as a journalist or as editors-in-chief.", "80. The Court observes at the outset that the article of 31 January 1997 in Seura magazine was based on A. ’ s interview and B. ’ s name and age, together with her picture, were mentioned once in the article. The article was entitled “A. ’ s sincerity in the balance” and it concerned A. ’ s feelings about his dismissal and his possible divorce in the aftermath of the incident of 4 December 1996. The article of 1 March 1997 in Nykyposti magazine, which was entitled “Divorced wives ’ club”, also dealt, inter alia, with A. ’ s divorce and his feelings about his dismissal. It was claimed that A. ’ s divorce proceedings were accelerated due to the incident of 4 December 1996, and B. ’ s name was mentioned once in that context. This article contained no pictures of B.", "81. The Court notes that there is no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants. Nor is there any suggestion that details about B. were obtained by subterfuge or other illicit means (compare Von Hannover v. Germany, cited above, § 68). The facts set out in the articles in issue were not in dispute even before the domestic courts.", "82. It is clear that B. was not a public figure or a politician but an ordinary person who had been the subject of criminal proceedings (see Schwabe v. Austria, 28 August 1992, § 32, Series A no. 242 ‑ B). Her status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life. The fact that she had been the subject of criminal proceedings cannot deprive her of the protection of Article 8 (see Sciacca v. Italy, no. 50774/99, § 28-29, ECHR 2005 ‑ I; Eerikäinen and Others v. Finland, cited above; and Egeland and Hanseid v. Norway, cited above).", "83. However, the Court notes that B. was involved in a public disturbance outside the family home of A., a senior public figure who was married and with whom she had developed a relationship. Criminal charges were preferred against both of them. They were later convicted as charged. The Court cannot but note that B., notwithstanding her status as a private person, can reasonably be taken to have entered the public domain. For the Court, the conviction of the applicants was backlit by these considerations and they cannot be discounted when assessing the proportionality of the interference with their Article 10 rights.", "84. The Court further observes that the information in the two articles mainly focused on A. ’ s behaviour, and that it contained information volunteered by A. in the course of an interview, namely about the consequences of his involvement in the incident of 4 December 1996 and his subsequent dismissal and conviction. No details of B. ’ s private life were mentioned, save for the fact that she was involved in the incident of 4 December 1996 and that she was A. ’ s female friend, both circumstances being already public knowledge before the publication of the articles in issue. Thus, the information concerning B. was essentially limited to her conviction and to facts which were inherently related to A. ’ s story. In this respect the case differs from the case of Von Hannover v. Germany (cited above, § 72).", "85. Moreover, it is to be noted that the disclosure of B. ’ s identity in the reporting had a direct bearing on matters of public interest, namely A. ’ s conduct and his ability to continue in his post as a high - level public servant. As B. had taken an active and willing part in the events of 4 December 1996, leading to A. ’ s conviction and dismissal, it is difficult to see how her involvement in the events was not a matter of public interest. Therefore, the Court considers that there was a continuing element of public interest involved also in respect of B. In this connection, the Court notes that the national authorities and the national courts reached very different conclusions as to whether B. could be considered as having waived her right to privacy when choosing to become involved with a public figure and in being a party to the incident of 4 December 1996, leading also to her conviction. In the Court ’ s opinion this indicates that, at least to some degree, the national authorities also considered that the public interest was engaged in the reporting.", "86. The Court further notes that the emphasis in the articles in question was clearly on A. ’ s feelings after his dismissal and conviction, and on the repercussions of the incident on his family life. One of the articles was based on A. ’ s interview. It is possible that the events were presented in a somewhat colourful manner to boost the sales of the magazines, but this is not in itself sufficient to justify the applicants ’ conviction.", "87. The Court next observes that the incident of 4 December 1996 and the subsequent dismissal of A. and the convictions of A. and B. had been widely publicised and discussed in the media, including in a programme broadcast nationwide on prime-time television (see paragraphs 8 and 36 above). Thus, the articles in question did not disclose B. ’ s identity in this context for the first time (see Eerikäinen and Others v. Finland, cited above; and Egeland and Hanseid v. Norway, cited above).", "88. Moreover, the Court notes that the articles were published right after the convictions of A. and B. , leading to the dismissal of A. The articles were thus closely linked in time to these events.", "89. Finally, the Court has taken into account the severity of the sanctions imposed on the applicants. It notes that the applicants were convicted under criminal law and observes that they were all ordered to pay twenty day-fines, amounting to EUR 1,180, EUR 1,100, EUR 1,020 and EUR 120 respectively. In addition, all the defendants, together with the publishing company, were ordered to pay damages jointly and severally in a total amount of EUR 8,000. The severity of the sentence and the amounts of compensation must be regarded as substantial, given that the maximum compensation afforded to victims of serious violence was approximately FIM 100,000 (EUR 1 7, 000 ) at the time (see paragraph 2 3 above).", "90. It should also be borne in mind that the Supreme Court had already acknowledged that repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation (see paragraphs 33 and 34 above). The Court notes that B. had already been paid damages in the amount of EUR 8,000 for the disclosure of her identity in the television programme (see paragraph 36 above). Similar damages had been ordered to be paid to her also in respect of other articles published in other magazines which all stemmed from the same facts (see cases Tuomela and others v. Finland, cited above; Jokitaipale and others v. Finland, no. 43349/05, 6 April 20 1 0; Soila v. Finland, no. 6806/06, 6 April 20 1 0; and Iltalehti and Karhuvaara, no. 6372/06, 6 April 20 1 0 ).", "91. The Court considers that such severe consequences, viewed against the background of the circumstances resulting in the interference with B. ’ s right to respect for her private life, were disproportionate having regard to the competing interest of freedom of expression.", "92. In conclusion, in the Court ’ s opinion the reasons relied on by the Appeal Court, although relevant, were not sufficient to show that the interference complained of was “necessary in a democratic society ”. Moreover, the totality of the sanctions imposed were disproportionate. Having regard to all the foregoing factors, and notwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts failed to strike a fair balance between the competing interests at stake.", "93. There has therefore been a violation of Article 10 of the Convention.", "3. The Court ’ s assessment under Article 7 of the Convention", "94. In view of the finding under Article 10 of the Convention that the interference was in accordance with the law, the Court finds that there has been no violation of Article 7 of the Convention in the present case.", "II. REMAINDER OF THE APPLICATION", "95. The applicants also complained under Article 6 § 1 of the Convention that the Appeal Court had not reasoned its judgment sufficiently and that it had violated the principle of equality of arms as the applicants, contrary to the public prosecutor and B., had not had access to the Supreme Court case file in an earlier, related case. Moreover, they claimed that the Appeal Court ’ s decision that their case file remain secret had not been sufficiently reasoned and therefore violated Article 6 § 1 of the Convention.", "96. As to the earlier Supreme Court judgment, the Court notes that the judgment had been relied on by B. and that the applicants had been able to comment on it. It had been published in an extensive version on the Internet as an official publication. Since the judgment was thus publicly available and it seemed to contain all the relevant information for the applicants to prepare their defence, there is no indication of any violation in this respect. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.", "97. As to the reasoning, the Court notes that Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288 ). In general, the reasoning in the Appeal Court ’ s judgment in the present case is quite extensive. As far as the reasoning concerns the restrictions on freedom of expression, the court basically stated that the facts mentioned in the article were those to which the protection of private life typically applied, that B. ’ s position in society was not such that the exception for public figures applied to her, and that neither the incident nor the fact that her identity had been revealed earlier led to any other conclusion. Moreover, the Penal Code provision in question did not require any intent to harm to be shown. Therefore the Court finds that the reasoning is acceptable from the standpoint of the fairness requirements of Article 6.", "98. As to the reasons for declaring the case file secret, the Court notes that the Appeal Court referred to Articles 6 § 1 and 10 of the Convention and concluded that the case contained sensitive private information and that secrecy was not in contradiction with these Articles. The Court considers that the declaring secret of the case file had no impact on the applicants ’ position as parties to the case nor on the actual fairness of the proceedings. Also in this respect, the Court finds the Appeal Court ’ s reasoning acceptable.", "99. It follows that also these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "100. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "101. The applicants claimed EUR 22 ,074.31 in respect of pecuniary damage and EUR 5,000 each in respect of non-pecuniary damage.", "102. The Government noted that the pecuniary damages accrued, with exception of the fines imposed on the applicants, had been paid by the publishing company, which was not a party to the present case. As the publishing company had not asked the applicants to pay their parts, no actual pecuniary damage had accrued to them. As to the non-pecuniary damage, the Government considered that the applicants ’ claims were excessive as to quantum and that the award should not exceed EUR 2,000 per applicant and EUR 8,000 in total.", "103. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage. Consequently, there is justification for making an award to the applicants under that head. Having regard to all the circumstances, the Court awards the applicants jointly EUR 22,000 in compensation for pecuniary damage. Moreover, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicants EUR 2,000 each in respect of non-pecuniary damage.", "B. Costs and expenses", "104. The applicants also claimed EUR 12,490.31 for the costs and expenses incurred before the domestic courts and EUR 6,000 for those incurred before the Court.", "105. The Government contested these claims. The Government maintained that no specification related to the costs and expenses, as required by Rule 60 of the Rules of Court, had been submitted as the hours used or the total cost for each measure performed were not specified. The claims also included postage, telephone and copying costs which were already included in the counsel ’ s fee. In any event, the total amount of compensation for costs and expenses for all applicants should not exceed EUR 3,500 (inclusive of value-added tax).", "106. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the global sum of EUR 5,000 (including any value-added tax) under this head.", "C. Default interest", "107. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I THE CIRCUMSTANCES OF THE CASE", "5. The applicant is the publisher of a national daily newspaper in the United Kingdom known as The Daily Mirror (formerly known as the Mirror ). It is represented before the Court by Mr K. Bays of Davenport Lyons, a solicitor practising in London.", "A. The relevant publications", "6. On 1 February 2001 the “ Mirror ” newspaper carried on the front page an article headed “ Naomi: I am a drug addict ”, placed between two colour photographs of Ms Naomi Campbell, a well-known model. The first photograph, slightly indistinct, showed her dressed in a baseball cap and had a caption : “ Therapy: Naomi outside meeting ”. The second showed her glamorously partially covered by a string of beads.", "7. The article read as follows:", "“Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs.", "The 30-year old has been a regular at counselling sessions for three months, often attending twice a day.", "Dressed in jeans and baseball cap, she arrived at one of NA's lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts.", "Despite her £14million fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night:'She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.'", "Her spokeswoman at Elite Models declined to comment.”", "8. The story continued inside the newspaper with a longer article across two pages. This article was headed “ Naomi's finally trying to beat the demons that have been haunting her ” and the opening paragraphs read:", "“She's just another face in the crowd, but the gleaming smile is unmistakeably Naomi Campbell's. In our picture, the catwalk queen emerges from a gruelling two-hour session at Narcotics Anonymous and gives a friend a loving hug.", "This is one of the world's most beautiful women facing up to her drink and drugs addiction - and clearly winning.", "The London-born supermodel has been going to NA meetings for the past three months as she tries to change her wild lifestyle.", "Such is her commitment to conquering her problem that she regularly goes twice a day to group counselling ...", "To the rest of the group she is simply Naomi, the addict. Not the supermodel. Not the style icon.”", "9. The article made mention of Ms Campbell's efforts to rehabilitate herself and that one of her friends had said that she was still fragile but “getting healthy”. The article gave a general description of Narcotics Anonymous (“NA”) therapy and referred to some of Ms Campbell's recently publicised activities including an occasion when she had been rushed to hospital and had her stomach pumped: while she had claimed it was an allergic reaction to antibiotics and that she had never had a drug problem, the article noted that “those closest to her knew the truth”.", "10. In the middle of the double page spread, between several innocuous pictures of Ms Campbell, was a dominating picture with a caption “ Hugs: Naomi, dressed in jeans and baseball hat, arrives for a lunchtime group meeting this week ”. The picture showed her in the street on the doorstep of a building as the central figure in a small group. She was being embraced by two people whose faces had been masked on the photograph. Standing on the pavement was a board advertising a certain café. The photograph had been taken by a free-lance photographer contracted by the newspaper for that job. He took the photographs covertly while concealed some distance away in a parked car.", "11. On 1 February 2001 Ms Campbell's solicitor wrote to the applicant stating that the article was a breach of confidentiality and an invasion of privacy and requesting an undertaking that it would not publish further confidential and/or private information.", "12. The newspaper responded with further articles.", "On 5 February 2001 the newspaper published an article headed, in large letters, “ Pathetic ”. Below was a photograph of Ms Campbell over the caption “ Help: Naomi leaves Narcotics Anonymous meeting last week after receiving therapy in her battle against illegal drugs ”. This photograph was similar to the street scene picture published on 1 February. The text of the article was headed “ After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy ”. The article mentioned that “the Mirror revealed last week how she is attending daily meetings of Narcotics Anonymous”. Elsewhere in the same edition, an editorial, with the heading “ No hiding Naomi ”, concluded with the words: “If Naomi Campbell wants to live like a nun, let her join a nunnery. If she wants the excitement of a show business life, she must accept what comes with it”.", "On 7 February 2001, the Mirror published, under the heading “ Fame on you, Ms Campbell ”, a further article mocking Ms Campbell's threatened proceedings, referring to the years during which she thrust “her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats”, stating that Ms Campbell was not an artist and that she was “about as effective as a chocolate soldier”, implying that her prior campaign against racism in the fashion industry was self-serving publicity and that “ the problem is that Naomi doesn't actually “stand” for anything. She can't sing, can't act, can't dance, and can't write.”", "B. The substantive proceedings", "1. High Court ([2002] EWHC 499 (QB))", "13. Ms Campbell claimed damages for breach of confidence and compensation under the Data Protection Act 1998. A claim for aggravated damages was made mainly as regards the article of 7 February 2001. On 27 March 2002 the High Court (Morland J.) upheld Ms Campbell's claim, following a hearing of 5 days.", "14. He described Ms Campbell as an “ internationally renowned fashion model and celebrity ”. The first issue was whether there had been a breach of confidence and, in that respect, Ms Campbell was required to prove three elements.", "The first was that the details divulged by the article about her attendance at NA meetings had the necessary quality of confidence about them. Information to the effect that her treatment was regular attendance at NA meetings was clearly confidential: the details were obtained surreptitiously, assisted by covert photography when she was engaged (deliberately “low key and drably dressed”) in the private activity of therapy to advance her recovery from drug addiction. Giving details of her therapy, including her regular attendance at NA, was easily identifiable as private and disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities. There existed a private interest worthy of protection.", "Secondly, it was found that those details were imparted in circumstances importing an obligation of confidence given the sources of the information (either a fellow sufferer of drug addiction or one of her staff).", "Thirdly, and having heard evidence on the subject, she had demonstrated that the publication was to her detriment and, notably, the publication of her treatment with NA specifically had caused her significant distress and was likely adversely to affect her attendance/participation in therapy meetings.", "15. The High Court considered these findings to be in conformity with the judgment of the Court of Appeal in Douglas v Hello! Ltd ([2001] QB 967 §164-168) which had held that there was no watertight division between the concepts of privacy and confidentiality and that the approach to the tort had to be informed by the jurisprudence of Article 8 of the Convention. Citing Dudgeon v. the United Kingdom ( 22 October 1981, Series A no. 45) it noted that Convention jurisprudence acknowledged different degrees of privacy : the more intimate the aspect of private life which was being interfered with, the more serious the justification required.", "16. The High Court adopted the approach of Lord Woolf CJ in A v B plc ( [2003] QB 195, see paragraph 88 below) as regards, inter alia, the qualification of the right to freedom of expression by the right to respect for private life guaranteed by Article 8 of the Convention.", "17. The High Court considered at some length the extent to which Ms Campbell had exposed herself and her private life to the media and, in light of this, how to reconcile the demands of Articles 8 and 10. The High Court considered that the applicant had been fully entitled to publish in the public interest the facts of her drug addiction and treatment as Ms Campbell had previously misled the public by denying drug use. “ She might have been thought of and indeed she herself seemed to be a self-appointed role model to young black women ”. However, the High Court had to protect a celebrity from publication of information about her private life which had “ the mark and badge of confidentiality ” and which she had chosen not to put in the public domain unless, despite that breach of confidentiality and the private nature of the information, publication was justifiable. The balance of Article 8 and 10 rights involved in the present case clearly called for a remedy for Ms Campbell as regards the publication of the private material.", "18. The High Court heard evidence from, inter alia, Ms Campbell as to the impact on her of the publication. It concluded:", "“Although I am satisfied that Miss Naomi Campbell has established that she has suffered a significant amount of distress and injury to feelings caused specifically by the unjustified revelation of the details of her therapy with Narcotics Anonymous, apart from that distress and injury to feelings she also suffered a significant degree of distress and injury to feelings caused by the entirely legitimate publication by the defendants of her drug addiction and the fact of therapy about which she cannot complain. In determining the extent of distress and injury to feelings for which she is entitled to compensation, I must consider her evidence with caution. She has shown herself to be over the years lacking in frankness and veracity with the media and manipulative and selective in what she has chosen to reveal about herself. I am satisfied that she lied on oath [about certain facts]. Nevertheless I am satisfied that she genuinely suffered distress and injury to feelings caused by the unjustified publication and disclosure of details of her therapy in the two articles of the 1st and 5th February 2002 complained of. I assess damages or compensation in the sum of £2500.”", "19. As to her claim for aggravated damages ( mainly the article of 7 February 2001 ), the High Court found that a newspaper faced with litigation was entitled to argue that a claim against it should never have been made and that any complaint should have been made to the Press Complaints Commission. Such assertions could even be written in strong and colourful language and it was not for the courts to censor bad taste. However, since the article also “trashed her as a person” in a highly offensive and hurtful manner, this entitled her to aggravated damages in the sum of GBP 1000.", "2. Court of Appeal ([2002] EWCA Civ 1373", "20. On 14 October 2002 the Court of Appeal (Lord Phillips of Worth Matravers MR, Chadwick and Keene LJJ) unanimously allowed the newspaper's appeal. The hearing had lasted two and a half days.", "21. The Court of Appeal noted that Ms Campbell was an “ internationally famous fashion model ” who had courted, rather than shunned, publicity in part to promote other ventures in which she was involved. In interviews with the media she had volunteered information about some aspects of her private life and behaviour including limited details about her relationships. She had gone out of her way to aver that, in contrast to many models, she did not take drugs, stimulants or tranquillisers, but this was untrue.", "22. As to the impact of the Human Rights Act 1998 (“HRA”) on the law of confidentiality, the court observed that it had to balance the rights guaranteed by Articles 8 and 10 of the Convention, noting that freedom of the media was a bastion of any democratic society.", "23. As to whether the information disclosed was confidential, the Court of Appeal did not consider that the information that Ms Campbell was receiving therapy from NA was to be equated with disclosure of clinical details of medical treatment. Since it was legitimate to publish the fact that she was a drug addict receiving treatment, it was not particularly significant to add that the treatment consisted of NA meetings which disclosure would not be offensive to a reasonable reader of ordinary sensibilities. While a reader might have found it offensive that obviously covert photographs had been taken of her, that, of itself, had not been relied upon as a ground of complaint. In addition, it was not easy to separate the distress Ms Campbell must have felt at being identified as a drug addict in treatment accompanied by covert photographs from any additional distress resulting from disclosure of her attendance at NA meetings. In short, it was not obvious that the peripheral disclosure of Ms Campbell's attendance at NA meetings was of sufficient significance as to justify the intervention of the court.", "24. Relying on Fressoz and Roire v. France ([GC], no. 29183/95, § 54, ECHR 1999 ‑ I), the Court of Appeal considered that the photographs were a legitimate, if not an essential, part of the journalistic package designed to demonstrate that Ms Campbell had been deceiving the public when she said that she did not take drugs and, provided that publication of particular confidential information was justifiable in the public interest, the journalist had to be given reasonable latitude as to the manner in which that information was conveyed to the public or his Article 10 right to freedom of expression would be unnecessarily inhibited. The publication of the photographs added little to Ms Campbell's case: they illustrated and drew attention to the information that she was receiving therapy from NA.", "3. House of Lords ([2004] UKHL 22)", "25. Following a hearing of 2 days, on 6 May 2004 the House of Lords allowed Ms Campbell's appeal ( Lord Hope of Craighead, Baroness Hale of Richmond and Lord Carswell formed the majority, Lords Nicholls of Birkenhead and Hoffman dissenting ) and restored the orders made by the High Court. They delivered separate and extensive judgments.", "(a) Lord Hope of Craighead", "26. Lord Hope began by noting the powerful international reputation of Ms Campbell in the business of fashion modelling, which business was conducted under the constant gaze of the media. He also noted her “ status as a celebrity ”. He considered that the issues were essentially questions of “ fact and degree ” which did not raise any “ new issues of principle”. In the present case, where the publication concerned a drug addict requiring treatment and, given the fact that disclosure of details concerning that treatment together with publication of a covertly taken photograph could endanger that treatment, the disclosure was of private information.", "27. The case gave rise to a competition between the rights of free speech and privacy which were of equal value in a democratic society. In balancing these rights, Lord Hope noted that the right to privacy, which lay at the heart of an action for breach of confidence, had to be balanced against the right of the media to impart information to the public and that the latter right had, in turn, to be balanced against the respect that must be given to private life. There was nothing new about this in domestic law.", "28. He examined in detail the latitude to be accorded to journalists in deciding whether or not to publish information to ensure credibility. He noted the principles set out in this respect in this Court's case law ( Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I ).", "29. Having examined the balancing exercise in the Jersild and Fressoz cases, Lord Hope reiterated there was no doubt that the choices made about the presentation of material that was legitimate to convey to the public was pre-eminently an editorial matter with which the court would not interfere. However, choices to publish private material raised issues that were not simply about presentation and editing. Accordingly, the public interest in disclosure had to be balanced against the right of the individual to respect for their private life : those decisions were open to review by the court. The tests to be applied were familiar and were set down in Convention jurisprudence. The rights guaranteed by Articles 8 and 10 had to be balanced against each other, any restriction of those rights had to be subjected to very close scrutiny and neither Article 8 nor Article 10 had any pre-eminence over each other (as confirmed by Resolution 1165 of the Parliamentary Assembly of the Council of Europe (“PACE”), 1998).", "30. As to the Article 10 rights involved, the essential question was whether the means chosen to limit Article 10 rights were “ rational, fair and not arbitrary and impair the right as minimally as is reasonably possible ”. In this respect, the relevant factors were, on the one hand, the duty on the press to impart information and ideas of public interest which the public has a right to receive ( Jersild v. Denmark, cited above) and the need to leave it to journalists to decide what material had to be reproduced to ensure credibility ( Fressoz and Roire v. France cited above) and, on the other hand, the degree of privacy to which Ms Campbell was entitled as regards the details of her therapy under the law of confidence. However, the right of the public to receive information about the details of her treatment was of a much lower order than its undoubted right to know that she was misleading the public when she said that she did not take drugs since the former concerned an intimate aspect of her private life ( Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45 ). While he acknowledged the great importance of political expression and, indeed, of freedom of expression ( constituting one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual, Tammer v. Estonia, no. 41205/98, § 59, ECHR 2001 ‑ I ), he considered that no political or democratic values were at stake and no pressing social had been identified ( a contrario, Goodwin v. the United Kingdom, 27 March 1996, § 40, Reports 1996 II).", "31. As to the competing Article 8 rights, the potential for harm by the disclosure was an important factor in the assessment of the extent of the restriction that was needed to protect Ms Campbell's right to privacy. From the point of Article 8, publication of details of her treatment ( that she was attending NA, for how long, how frequently and at what times of day, the nature of her therapy, the extent of her commitment to the process and the publication of covertly taken photographs ) had the potential to cause harm to her and Lord Hope attached a good deal of weight to this factor. The fact that she was a “celebrity” was not enough to deprive her of her right to privacy. A margin of appreciation had be accorded to a journalist but viewing details of treatment for drug addiction merely “ as background was to undervalue the importance that was to be attached to the need, if Ms Campbell was to be protected, to keep these details private ”. It was hard to see any compelling need for the public to know the name of the organisation that she was attending for therapy or the details of that therapy. The decision to publish these details suggested that greater weight was given to the wish to publish a story that would attract interest rather than any wish to maintain its credibility.", "32. Lord Hope then considered the covert photographs. It was true that, had he to consider the text of the articles only, he would have been “ inclined to regard the balance between these rights as about even ”, such was the effect of the margin of appreciation that had to be, in a doubtful case, given to a journalist. However, the text could not be separated from the photographs as the captions clearly linked what might otherwise have been anonymous and uninformative pictures to the main text. In addition, the reasonable person of ordinary sensibilities would regard publication of the covertly taken photographs, linked in that way to the text, as adding greatly to the overall intrusion into Ms Campbell's private life.", "While photographs taken in a public place had to be considered, in normal circumstances, one of the “ ordinary incidents of living in a free community ”, the real issue was whether publicising the photographs was offensive in the present circumstances. He reviewed the case-law of the Court (including P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 IX and Peck v United Kingdom, no. 44647/98, § 62, ECHR 2003 I ) and applied the reasoning in the Peck case. Ms Campbell could not have complained if the photographs had been taken to show a scene in a street by a passer-by and later published simply as street scenes. However, the photographs invaded Ms Campbell's privacy because they were taken deliberately, in secret, with a view to their publication in conjunction with the article and they focussed on the doorway of the building of her NA meeting and they revealed clearly her face. The argument that the publication of the photograph added credibility to the story had little weight, since the reader only had the editor's word as to the truth of Ms Campbell's attendance at a NA meeting. He continued:", "“ 124. Any person in Miss Campbell's position, assuming her to be of ordinary sensibilities but assuming also that she had been photographed surreptitiously outside the place where she been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs. She would have seen their publication, in conjunction with the article which revealed what she had been doing when she was photographed and other details about her engagement in the therapy, as a gross interference with her right to respect for her private life. In my opinion this additional element in the publication is more than enough to outweigh the right to freedom of expression which the defendants are asserting in this case. ”", "33. Lord Hope therefore concluded that, despite the weight that had to be given to the right to freedom of expression that the press needs if it is to play its role effectively, there was an infringement of Ms Campbell's privacy which could not be justified.", "(b) Baroness Hale of Richmond", "34. Baroness Hale observed that the examination of an action for breach of confidence began from the “reasonable expectation of privacy” test inquiring whether the person publishing the information knew or ought to have known that there was a reasonable expectation that the relevant information would be kept confidential. This was a threshold test which brought the balancing exercise between the rights guaranteed by Articles 8 and 10 of the Convention into play. Relying also on the PACE Resolution 1165 (1998), she noted that neither right took precedence over the other. The application of the proportionality test, included in the structure of Articles 8 and 10, was much less straightforward when two Convention rights were in play and, in this respect, she relied on the above-cited cases of Jersild v Denmark, Fressoz and Roire v France and Tammer v Estonia.", "35. In striking the balance in this case, she noted :", "“143. ... Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression. ”", "36. However, Baroness Hale considered it not to be a trivial case and defined the particularly private nature of the information the publication of which Ms Campbell contested. It concerned the important issue of drug abuse and, consequently, her physical and mental health. She underlined the importance of, as well as the sensitivities and difficulties surrounding, treatment for addiction and, notably, of the vital therapy to address an underlying dependence on drugs. Moreover, the Court's jurisprudence had always accepted that information about a person's health and treatment for ill-health was both private and confidential ( Z v. Finland, 25 February 1997, § 95, Reports 1997 ‑ I ). While the disclosed information may not have been in the same category as clinical medical records, it amounted to the same information which would be recorded by a doctor in such records namely, the presenting problem of addiction to illegal drugs, the diagnosis and the prescription of therapy. Baroness Hale therefore began her analysis from the fact - which was common ground - that all information about Ms Campbell's addiction and attendance at NA disclosed in the article was both private and confidential because it related to an important aspect of her physical and mental health and the treatment she was receiving for it. It had also been received from an insider in breach of confidence.", "37. As to the nature of the freedom of expression being asserted on the other side, Baroness Hale recalled the main forms of expression which she recorded in descending order of importance: political speech (which included revealing information about public figures, especially those in elective office, which would otherwise be private but was relevant to their participation in public life ), intellectual and educational expression as well as artistic expression. However, Baroness Hale found it difficult to see the contribution made by “ pouring over the intimate details of a fashion model's private life ”. It was true that the editor had chosen to run a sympathetic piece, listing Ms Campbell's faults and follies and setting them in the context of her addiction and her even more important efforts to overcome addiction and such publications might well have a beneficial educational effect. However, such pieces were normally run with the co-operation of those involved and Ms Campbell had refused to be involved with the story. The editor, nevertheless, considered that he was entitled to reveal this private information without her consent because Ms Campbell had presented herself to the public as someone who was not involved in drugs. Baroness Hale questioned why, if a role model presented a stance on drugs beneficial to society, it was so necessary to reveal that she had “ feet of clay ”. However, she accepted that the possession and use of illegal drugs was a criminal offence and was a matter of serious public concern so that the press had to be free to expose the truth and put the record straight.", "38. However, while Ms Campbell's previous public denial of drug use might have justified publication of the fact of her drug use and of her treatment for drug addiction, it was not necessary to publish any further information, especially if it might jeopardise her continued treatment. That further information amounted to the disclosure of details of her treatment with NA and Baroness Hale considered that the articles thereby “ contributed to the sense of betrayal by someone close to her of which she spoke and which destroyed the value of [NA] as a safe haven for her ”.", "39. Moreover, publishing the photographs contributed both to the revelation and to the harm that it might do. By themselves, the photographs were not objectionable. If the case concerned a photograph of Ms Campbell going about her business in a public street, there could have been no complaint. However, the accompanying text made it plain that these photographs were different in that they showed Ms Campbell outside a NA meeting in the company of some persons undoubtedly part of the NA group and they showed the place where the meeting took place, which would have been entirely recognisable to anyone who knew the locality. Photographs by their very nature added to the impact of the words in the articles as well as to the information disclosed. The photographs also added to the potential harm “ by making her think that she was being followed or betrayed, and deterring her from going back to the same place again ”.", "40. Moreover, there was no need for the photographs to be included in the articles for the editor to achieve his objective. The editor had accepted that, even without the photographs, it would have been a front page story. He had his basic information and he had his quotes. He could have used other photographs of Ms Campbell to illustrate the articles. While the photographs would have been useful in proving the truth of the story had this been challenged, there was no need to publish them for this purpose as the credibility of the story with the public would stand or fall with the credibility of stories of the Daily Mirror generally. Baroness Hale added, in this context, that whether the articles were sympathetic or not was not relevant since the way an editor “ chose to present the information he was entitled to reveal was entirely a matter for him ”.", "41. Finally, it was true that the weight to attach to these various considerations was “ a matter of fact and degree ”. Not every statement about a person's health would carry the badge of confidentiality : that a public figure had a cold would not cause any harm and private health information could be relevant to the capacity of a public figure to do the job. However, in the present case the health information was not harmless and, indeed, as the trial judge had found, there was a risk that publication would do harm :", "“ ... People trying to recover from drug addiction need considerable dedication and commitment, along with constant reinforcement from those around them. That is why organisations like [NA] were set up and why they can do so much good. Blundering in when matters are acknowledged to be at a'fragile'stage may do great harm.", "158. The trial judge was well placed to assess these matters. ... he was best placed to judge whether the additional information and the photographs had added significantly both to the distress and the potential harm. He accepted her evidence that it had done so. He could also tell how serious an interference with press freedom it would have been to publish the essential parts of the story without the additional material and how difficult a decision this would have been for an editor who had been told that it was a medical matter and that it would be morally wrong to publish it. ”", "(c) Lord Carswell", "42. Lord Carswell agreed with Lord Hope and Baroness Hale. It was not in dispute that the information was of a private nature and imparted in confidence to the applicant and that the applicant was justified in publishing the facts of Ms Campbell's drug addiction and that she was receiving treatment given her prior public lies about her drug use. He also agreed with Lord Hope as to the balancing of Articles 8 and 10 rights and, further, that in order to justify limiting the Article 10 right to freedom of expression, the restrictions imposed had to be rational, fair and not arbitrary, and they must impair the right no more than necessary.", "43. Having examined the weight to be attributed to different relevant factors, he concluded that the publication of the details of Ms Campbell's attendance at therapy by NA, highlighted by the photographs printed which revealed where the treatment had taken place, constituted a considerable intrusion into her private affairs which was capable of causing and, on her evidence, did in fact cause her, substantial distress. In her evidence, she said that she had not gone back to the particular NA centre and that she had only attended a few other NA meetings in the UK. It was thus clear, that the publication created a risk of causing a significant setback to her recovery.", "44. He did not minimise the “the importance of allowing a proper degree of journalistic margin to the press to deal with a legitimate story in its own way, without imposing unnecessary shackles on its freedom to publish detail and photographs which add colour and conviction ”, which factors were “ part of the legitimate function of a free press ” and had to be given proper weight. However, the balance came down in favour of Ms Campbell.", "(d) Lord Nicholls of Birkenhead", "45. Lord Nicholls began by noting that Ms Campbell was “ a celebrated fashion model ”, that she was a “ household name, nationally and internationally ” and that her face was “ instantly recognisable ”. He noted that the development of the common law (tort of breach of confidence) had been in harmony with Articles 8 and 10 of the Convention so that the time had come to recognise that the values enshrined in Articles 8 and 10 were now part of the cause of action for breach of confidence ( Lord Woolf CJ, A v B plc [2003] QB 195, 202, § 4 ).", "46. He found that the reference to treatment at NA meetings was not private information as it did no more than spell out and apply to Ms Campbell common knowledge of how NA meetings were conducted.", "47. However, even if Ms Campbell's attendance at meetings was considered private, her appeal was still ill-founded since:", "“ On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose.", "It is at this point I respectfully consider [that the High Court] fell into error. Having held that the details of Miss Campbell's attendance at [NA] had the necessary quality of confidentiality, the judge seems to have put nothing into the scales under article 10 when striking the balance between articles 8 and 10. This was a misdirection. The need to be free to disseminate information regarding Miss Campbell's drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.”", "48. He observed that Ms Campbell's repeated public assertions denying her drug addiction rendered legitimate the publication of the facts that she was a drug addict and in treatment had been legitimate. The additional impugned element that she was attending NA meetings as a form of therapy was of such an unremarkable and consequential nature that its disclosure had also been legitimate. The same applied to information concerning how long Ms Campbell was receiving such treatment given that the frequency and nature of NA meetings was common knowledge. Hence, the intrusion into Ms Campbell's private life was comparatively minor.", "49. Lastly, and as to the photographs, Lord Nicholls observed that she did not complain about the taking of the photographs nor assert that the taking of the photographs was itself an invasion of privacy, rather that the information conveyed by the photographs was private. However, the particular photographs added nothing of an essentially private nature : they conveyed no private information beyond that discussed in the article and there was nothing undignified about her appearance in them.", "(e) Lord Hoffmann", "50. Lord Hoffmann began his judgment by describing Ms Campbell as “a public figure” and, further, a famous fashion model who had lived by publicity. He noted that the judges of the House of Lords were “ divided as to the outcome of this appeal ” but the difference of opinion related to “ a very narrow point ” concerning the unusual facts of the case. While it was accepted that the publication of the facts of her addiction and of her treatment was justified as there was sufficient public interest given her previous public denials of drug use, the division of opinion concerned “ whether in doing so the newspaper went too far in publishing associated facts about her private life ”. He continued:", "“ But the importance of this case lies in the statements of general principle on the way in which the law should strike a balance between the right to privacy and the right to freedom of expression, on which the House is unanimous. The principles are expressed in varying language but speaking for myself I can see no significant differences. ”", "51. There being no automatic priority between Articles 8 and 10, the question to be addressed was the extent to which it was necessary to qualify one right in order to protect the underlying value protected by the other and the extent of the qualification should be proportionate to the need. The only point of principle arising was, where the essential part of the publication was justified, should the newspaper be held liable whenever the judge considered that it was not necessary to have published some of the personal information or should the newspaper be allowed some margin of choice in the way it chose to present the story (referring to Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I).", "52. In this respect, Lord Hoffman considered that it would be:", "“inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure. And if any margin is to be allowed, it seems to me strange to hold the Mirror liable in damages for a decision which three experienced judges in the Court of Appeal have held to be perfectly justified.”", "53. Given the relatively anodyne nature of the additional details, the Mirror was entitled to a degree of latitude in respect of the way it chose to present its legitimate story.", "54. As to the publication of photographs in particular, Lord Hoffman observed that the fact that the pictures were taken without Ms Campbell's consent did not amount to a wrongful invasion of privacy. Moreover, the pictures did not reveal a situation of humiliation or severe embarrassment ( as in Peck v. the United Kingdom, no. 44647/98, ECHR 2003 ‑ I) and had not been taken by intrusion into a private place. There was nothing demeaning or embarrassing about the photographs. They added nothing to what was said in the text and carried the message that the Mirror's story was true. Accordingly, the decision to publish the pictures was within the margin of editorial judgment to which the Mirror was entitled. Although the trial judge found that the publication was likely to affect her therapy, this had neither been pleaded before nor fully explored by the trial judge.", "55. The appeal was allowed, the High Court award was restored. Ms Campbell's costs (of the appeals to the Court of Appeal and to the House of Lords ) were awarded against the applicant, the amount to “be certified by the Clerk of Parliaments, if not agreed between the parties ... ”.", "C. The proceedings concerning legal costs", "56. Ms Campbell's solicitors served three bills of costs on the applicant in the total sum of GBP 1,086, 295.47: GBP 377,070.07 for the High Court; GBP 114,755.40 for the Court of Appeal; and GBP 594,470.00 for the House of Lords. The latter figure comprised “ base costs ” of GBP 288,468, success fees of GBP 279,981.35 as well as GBP 26,020.65 disbursements. In the High Court and Court of Appeal, Ms Campbell's solicitors and counsel had acted under an ordinary retainer. But the appeal to the House of Lords was conducted pursuant to a Conditional Fee Agreement (“CFA”) which provided that, if the appeal succeeded, solicitors and counsel should be entitled to base costs as well as success fees amounting to 95% and 100% of their base costs, respectively.", "1. Campbell v. MGN Limited [2005] UKHL 61", "57. On 21 February 2005 the applicant appealed to the House of Lords seeking a ruling that it should not be liable to pay the success fees as, in the circumstances, such a liability was so disproportionate as to infringe their right to freedom of expression under Article 10 of the Convention. The applicant did not seek thereby a declaration of incompatibility but argued that domestic law regulating the recoverability of success fees should be read so as to safeguard its rights under Article 10. On 26 May 2005 this appeal was heard by the House of Lords.", "58. On 2 August 2005 Ms Campbell's solicitors accepted the applicant's offers to pay GBP 290,000 (High Court costs) and GBP 95,000 (Court of Appeal costs), both amounts being exclusive of interest.", "59. On 20 October 2005 the appeal was unanimously dismissed. The House of Lords found that the existing CFA regime with recoverable success fees was compatible with the Convention, but they expressed some reservations about the impact of disproportionate costs.", "(a) Lord Hoffman", "60. Lord Hoffmann observed that the deliberate policy of the Access to Justice Act 1999 (“the 1999 Act”) was to impose the cost of all CFA litigation upon unsuccessful defendants as a class. Losing defendants were to be required to contribute to the funds which would enable lawyers to take on other cases, which might not be successful, but which would provide access to justice for people who could not otherwise have afforded to sue. Therefore, the policy shifted the burden of funding from the State to unsuccessful defendants, which was a rational social and economic policy.", "61. While he was concerned about the indirect effect of the threat of a heavy costs liability on the newspapers'decisions to publish information which ought to be published but which carried a risk of legal action, he considered that a newspaper's right could be restricted to protect the right of litigants under Article 6 to access to a court.", "62. The applicant maintained that recoverable success fees were disproportionate on the basis of two flawed arguments. The first was that the success fee was necessarily disproportionate as it was more than (and up to twice as much as) the amount which, under the ordinary assessment rules, would be considered reasonable and proportionate. This was a flawed point as it confused two different concepts of proportionality. The CPR on costs were concerned with whether expenditure on litigation was proportionate to the amount at stake, the interests of the parties, complexity of the issues and so forth. However, Article 10 was concerned with whether a rule, which required unsuccessful defendants, not only to pay the reasonable and proportionate costs of their adversary in the litigation, but also to contribute to the funding of other litigation through the payment of success fees, was a proportionate measure, having regard to the effect on Article 10 rights. The applicant did not “ really deny that in principle it is open to the legislature to choose to fund access to justice in this way.”", "63. The second argument of the applicant was to the effect that it was unnecessary to give Ms Campbell access to a court because she could have afforded to fund her own costs. However, it was desirable to have a general rule to enable the scheme to work in a practical and effective way and that concentration on the individual case and the particularities of Ms Campbell's circumstances would undermine that scheme. It was for this reason that the Court in James and Others v the United Kingdom (21 February 1986, Series A no. 98) considered that Parliament was entitled to pursue a social policy of allowing long leaseholders of low-rated houses to acquire their freeholds at concessionary rates, notwithstanding that the scheme also applied to some rich tenants who needed no such assistance. The success fee should not be disallowed simply on the ground that the applicant's liability would be inconsistent with its rights under Article 10. Thus, notwithstanding the need to examine the balance on the facts of the individual case, Lord Hoffman considered that the impracticality of requiring a means test and the small number of individuals who could be said to have sufficient resources to provide them with access to legal services entitled Parliament to lay down a general rule that CFAs were open to everyone. Success fees, as such, could not be disallowed simply on the ground that the present applicant's liability would be inconsistent with its rights under Article 10: the scheme was a choice open to the legislature and there was no need for any exclusion of cases such as the present one from the scope of CFAs or to disallow success fees because the existing scheme was compatible.", "64. However, Lord Hoffman did not wish to leave the case without commenting on other problems which defamation litigation under CFAs was currently causing and which had given rise to concern that freedom of expression might be seriously inhibited. The judgment of Eady J in Turcu v News Group Newspapers Ltd ( [2005] EWHC 799) highlighted the significant temptation for media defendants to settle cases early for purely commercial reasons, and without regard to the true merits of any pleaded defence. This'chilling effect'or'ransom factor'inherent in the CFA system was a situation which could not have arisen in the past and was very much a modern development.", "65. Lord Hoffman considered that the “blackmailing effect ” of such litigation arose from two factors: (a) the use of CFAs by impecunious claimants who did not take out insurance to protect themselves from having to pay the winning party's costs if they lost; and (b) the conduct of the case by the claimant's solicitors in a way which not only ran up substantial costs but required the defendants to do so as well. Referring to a recent case where this was particularly evident ( King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282), he continued:", "“ Faced with a free-spending claimant's solicitor and being at risk not only as to liability but also as to twice the claimant's costs, the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant's own costs were equally high”", "66. Lord Hoffman endorsed the solution offered by the Court of Appeal in the King case ( a “cost-capping” order at an early stage of the action). However, that was only a palliative as it did not deal with the problem of a newspaper risking substantial and irrecoverable costs. Smaller publishers might not be able to afford to take a stand and neither capping costs at an early stage nor assessing them later dealt with the threat of having to pay the claimant's costs at a level which was, by definition, up to twice the amount which would be reasonable and proportionate. While the DCA Consultation Paper (paragraph 101 below) discussed the problem, no legislative intervention had been proposed.", "67. Lord Hoffman distinguished between personal injury litigation and defamation proceedings. Personal injury litigation comprised a large number of small claims and the liability insurers were able to pass these costs on to their road user customers with their own solvency not being threatened and the liability insurers had considerable negotiating strength to dispute assessments of costs and to hold up the cash flow of the claimants'solicitors so that both sides therefore had good reasons for seeking a compromise. On the other hand, in defamation cases the reasons for seeking a compromise were much weaker: there was a small number of claims and payment of relatively large sums of costs; some publishers might be strong enough to absorb or insure against this but it had a serious effect upon their financial position; and publishers did not have the same negotiating strength as the liability insurers because there were few assessments to be contested and disputing them involved considerable additional costs.", "68. While the objective of enabling people of modest means to protect their reputations and privacy from powerful publishers was a good one, Lord Hoffman considered that it might be that a legislative solution would be needed for the scheme to comply with Article 10 of the Convention.", "(b) Lord Hope of Craighead", "69. Lord Hope agreed with Lord Hoffmann.", "70. He underlined the protection to the losing party contained in the CPR and the Costs Practice Directions. Reasonableness and proportionality tests were applied separately to base costs and to the percentage uplift for success fees. However, the most relevant question for a court in assessing the reasonableness of the percentage uplift was “ the risk that the client might or might not be successful ” (paragraph 11.8(l)(a) of the Costs Practice Directions ) and that “in evenly balanced cases a success fee of 100 per cent might well be thought not to be unreasonable ”.", "71. There remained the question of proportionality. Other than providing that the proportionality of base costs and success fees were to be separately assessed, the Costs Practice Directions did not identify any factors that might be relevant. However, it would be wrong to conclude that this was an empty exercise as it was the “ ultimate controlling factor ” to ensure access to the court by a claimant to argue that her right to privacy under Article 8 was properly balanced against the losing party's rights to freedom of speech under Article 10. While the losing party would pay the success fee, any reduction in the percentage increase would have to borne by the successful party under the CFA : the interests of both sides had to be weighed up in deciding whether the amount was proportionate.", "(c) Lord Carswell", "72. Lord Carswell agreed with the opinions of Lord Hoffmann and Lord Hope. While “there are many who regard the imbalance in the system adopted in England and Wales as most unjust”, the regimen of CFAs and recoverable success fees was “legislative policy which the courts must accept”. As to whether recoverable success fees, which undoubtedly constituted a “chill factor”, were compatible with Article 10 and a proportionate way of dealing with the issue of the funding of such litigation, it was not really in dispute that the legislature could in principle adopt this method of funding access to justice.", "73. The present case turned on whether it was still proportionate when the claimant was wealthy and not in need of the support of a CFA. While it was rough justice, the requirement on solicitors to means test clients before concluding a CFA was unworkable. With some regret, the conclusion was clear. While Lord Carswell was “ far from convinced about the wisdom or justice of the CFA system ” as it was then constituted, “ it had to be accepted as legislative policy”. It had not been shown to be incompatible with the Convention and the objections advanced by the applicant could not be sustained.", "(d) Lord Nicholls of Birkenhead and Baroness Hale of Richmond", "74. Lord Nicholls agreed with the preceding opinions. Baroness Hale also agreed with Lord Hoffman. It was, for her, a separate question whether a legislative solution might be needed to comply with Article 10: this was a complex issue involving a delicate balance between competing rights upon which she preferred to express no opinion.", "75. From the date of rejection of this second appeal, the applicant was liable to pay 8% interest on the costs payable.", "76. On 28 November 2005 an order for the costs of the second appeal to the House of Lords was made against the applicant. Ms Campbell therefore served an additional bill of costs of GBP 255,535.60. The bill included a success fee of 95% (GBP 85,095.78) in respect of the solicitors'base costs, her counsel having not entered into a CFA for this appeal.", "2. Review by the Judicial Taxing Officers of the costs of the second appeal to the House of Lords", "77. The applicant then sought to challenge the proportionality of the costs and success fees claimed in respect of both appeals to the House of Lords. An assessment hearing was fixed for 8 March 2006 before the Judicial Taxing Officers of the House of Lords.", "78. On 3 March 2006 the applicant agreed with Ms Campbell's solicitors to pay the sum of GBP 350,000 in respect of the costs claimed in relation to the first appeal, excluding interest and including the success fee applicable to the first appeal. The applicant considered it was unlikely to do better before the Taxing Officers, it wished to avoid accruing interest ( 8% per day ) and further litigation on costs would lead to further costs and success fees.", "79. The hearing on 8 March 2006 (before two Judicial Taxing Officers) therefore concerned the costs of the second appeal only, the Taxing Officers noting that the applicant had settled the costs of the first appeal, it “no doubt recognising the inevitability of the position”. A number of preliminary issues were decided by the Taxing Officers including the validity of the CFA, the applicable success fee rate and the proportionality of the base costs billed by Ms Campbell's representatives (and on which that success fee would be calculated).", "80. By judgment dated 8 March 2006 the Judicial Taxing Officers found that, in these hard fought proceedings ultimately decided by a split decision of the House of Lords, there was “no doubt” that the success fees (95% and 100%) claimed in respect of the first appeal to the House of Lords were appropriate having regard to the first and second instance proceedings. Since the second appeal to the House of Lords was part and parcel of the first and was clearly contemplated by the parties when they entered into the CFA, the second appeal was covered by the CFA and thus the same success fee. The effect of this was, of course, that the applicant faced a greatly increased bill of costs: however, the applicant lost this issue in the second appeal to the House of Lords. A success fee of 95% for the second appeal to the House of Lords was therefore approved. Relying on Rules 44.4 and 44.5 of the CPR as well as paragraph 15.1 of the Costs Practice Directions as well as a necessity test, the Taxing Officers reduced the hourly rates chargeable by Ms Campbell's solicitors and counsel, thereby reducing the base costs and, consequently, the success fee payable by the applicant.", "81. On 5 May 2006 the applicant appealed to the House of Lords arguing that the Taxing Officers judgment was incorrect in so far as those Officers considered that the success fee for the second appeal could not be varied. On 28 June 2006 the House of Lords refused leave to appeal.", "82. On 5 July 2007 the applicant agreed to pay GBP 150,000 ( inclusive of interest and assessment procedure costs) in settlement of Ms Campbell's costs of the second appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Breach of confidence/misuse of private information", "1. The Human Rights Act 1998 (“the HRA”)", "83. Section 2(1) of the HRA provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.", "84. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court (section 6(3)(a) of the HRA).", "85. Section 12(4) provides that a court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to journalistic material, to (a) the extent to which the material has, or is about to, become available to the public, or it is, or would be, in the public interest for the material to be published as well as to (b) any relevant privacy code.", "2. The Press Complaints Commission Code of Practice (“The PCC Code”)", "86. The PCC Code provided, at the relevant time, as follows:", "“3. Privacy", "i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.", "ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.", "Note - Private places are public or private property where there is a reasonable expectation of privacy", "...", "1. The public interest includes:", "i) Detecting or exposing crime or a serious misdemeanour.", "ii) Protecting public health and safety.", "iii) Preventing the public from being misled by some statement or action of an individual or organisation.. . .”", "3. Breach of Confidence and Article 8 of the Convention", "87. Originally the tort of breach of confidence was characterised by reference to an obligation of confidence which arose whenever a person received information he knew or ought to have known was fairly and reasonably confidential. More recently, the tort developed through the case - law so as to extend to situations where information, properly to be regarded as private information, has been misused. In principle, such a claim arises where private information has been wrongfully published and it is now well-recognised that this form of the tort of breach of confidence encapsulates the values enshrined in both Articles 8 and 10 of the Convention. The guiding principle as to what comprises an individual's private information is whether the individual had a reasonable expectation of privacy as regards the information in issue.", "88. Lord Woolf CJ held as follows, as regards the balancing of the interests protected by Articles 8 and 10, in his oft-cited judgment in the Court of Appeal in the case of A v B plc ( [2003] QB 195):", "“4......under section 6 of the 1998 [Human Rights] Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.", "5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. ...", "6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account. ...", "11(iv) ... Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. ...", "(x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified. ...", "(xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 1165 of 1998.", "(xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.”", "B. Costs, conditional fee arrangements (“CFA”) and success fees", "1. General", "89. A successful party to litigation may only recover costs if and to the extent that a Court so orders and such questions are to be determined in accordance with the Civil Procedure Rules 1988 (“CPR”). The CPR referred to below are applicable to proceedings before the House of Lords. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ( Rule 44.3(2) of the CPR).", "90. Prior to 1995, the only means of funding litigation ( apart from legal aid ) was to agree an ordinary retainer with a lawyer. CFAs were introduced for a limited range of litigation by section 58 of the Courts and Legal Services Act 1990 (“the 1990 Act”). A CFA is an agreement between a client and a legal representative which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances (for example, if successful). Further secondary legislation was necessary to allow CFAs to be adopted. The Conditional Fee Agreements Order 1995 not only brought into force CFAs but it extended the range of proceedings for which CFAs could be concluded, that range being further extended to cover all litigation apart from criminal and family proceedings by the Conditional Fee Agreements Order 1998. This position was relatively unchanged by the Access to Justice Act (“the 1999 Act”).", "91. A CFA, even as initially introduced, could make provision for the payment of a percentage uplift in fees (“success fees”). A success fee provided that the amount of any fees to which it applied (base costs) could be increased by a percentage in specified circumstances (for example, if successful). Section 58(4) of the 1990 Act provides that a success fee must, inter alia, state the percentage by which the amount of the fees is to be increased and the Conditional Fee Agreements Order 2000 specified the maximum percentage uplift to be 100%.", "92. The 1999 Act then inserted section 58A into the 1990 Act. This provided that an order for costs made by a court could include the success fees payable under a CFA, so that the base costs, as well as the success fees, could be recovered against an unsuccessful party. The 1999 Act also made ATE (after the event) Insurance premiums recoverable against a losing party.", "93. The CPR regulate the making of costs orders and the assessment of such costs including success fees (Rule 43.2(1)(a) of the CPR).", "Rule 44.3 (1)-(9) sets out the general rules which govern the court's discretion to make an order for costs against a party.", "Rule 44.3A of the CPR provides that, at the conclusion of the proceedings to which the CFA relates, the court may make a summary assessment or order a detailed assessment of all or part of the costs ( including success fees ).", "Rule 44.4(2) provides that, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have, as to whether costs were reasonably incurred or reasonable and proportionate in amount, in favour of the paying party.", "Rule 44.5 provides that the court must have regard to all circumstances in deciding whether costs, assessed on a standard basis, were proportionately and reasonably incurred or were proportionate and reasonable in amount. Such circumstances must include the conduct of all the parties, the amount or value of any money or property involved; the importance of the matter to all the parties; the particular complexity of the matter or the difficulty or novelty of the questions raised; the skill, effort, specialised knowledge and responsibility involved; the time spent on the case; and the place where and the circumstances in which work or any part of it was done.", "94. Costs Practice Directions supplement the CPR.", "Paragraph 11.5 of the Direction provides that in deciding, on a standard basis of assessment, whether the costs are reasonable and proportionate, the court will consider the amount of any additional liability (including success fees) separately from the base costs.", "Paragraph 11.8 requires the Court to take into account, when deciding whether the percentage uplift by which the success fee is calculated is reasonable, all relevant factors and it provides examples of such factors: the circumstances in which the costs would be payable might or might not occur (including whether the case would win); the legal representative's liability for any disbursements; and any other methods of financing the costs available to the receiving party.", "Paragraph 11.9 provides as follows:", "“A percentage increase will not be reduced simply on the ground that, when added to the base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.”", "95. A party to litigation who instructs lawyers pursuant to a CFA may, but is under no obligation to, take out ATE Insurance.", "2. Relevant domestic case law on CFAs and success fees", "(a) Designers Guild Ltd v. Russell Williams (Textiles) Ltd. (2003] 2 Costs LR 204.", "96. Paragraph 27 of the Practice Directions Applicable to Judicial Taxations in the House of Lords (adopted in March 2007) provides that notification is to be given to the opposing parties and to the Judicial Office as soon as practicable after a CFA has been entered into, and that the Taxing Officers decide questions of percentage uplift in accordance with the principles set out in the above-cited case of Designers'Guild Limited.", "97. This case was the first assessment of costs for an appeal to the House of Lords involving CFAs. The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords. On 31 March 2003 the Taxing Officers held:", "“14. With regard to the solicitors'claim a success fee of 100% is sought. [ Counsel for the Appellant] produced to us the opinion of Leading Counsel prior to the CFA being entered into which put the chances of success at no more than evens. That opinion was given against a background in which the appellant company had been successful at first instance and lost in the Court of Appeal. It is quite clear that the issues were finely balanced. It is generally accepted that if the chances of success are no better than 50% the success fee should be 100%.", "The thinking behind this is that if a solicitor were to take two identical cases with a 60% chance of success in each it is likely that one would be lost and the other won. Accordingly the success fee (of 100%) in the winning case would enable the solicitor to bear the loss of running the other case and losing.", "15. There is an argument for saying that in any case which reached trial a success fee of 100% is easily justified because both sides presumably believed that they had an arguable and winnable case. In this case we have no doubt at all that the matter was finely balanced and that the appropriate success fee is therefore 100%”.", "(b) Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB)", "98. Eady J noted as follows:", "“6. The claimant ... seeks a large award of damages, including aggravated and exemplary damages, against the proprietors of The News of the World .... He is able to pursue his claim purely because [his legal representative] has been prepared to act on his behalf on the basis of a [CFA]. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [the legal representative] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant's solicitors including a substantial mark-up in respect of a success fee. The defendant's position is thus wholly unenviable.", "7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in [ King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282]. This is a situation which could not have arisen in the past and is very much a modern development.”", "(c) King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282", "99. This claimant was without financial means and had no ATE insurance. Brooke LJ noted the significant pre-action costs incurred by the claimant's solicitors which required, in turn, costs to be incurred by the defendant who also risked paying double the claimants'already significant costs. He continued:", "“What is in issue in this case, however, is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability, and will almost certainly have to bear his own costs (estimated in this case to be about £400,000) if he wins. The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression ... and to lead to the danger of self-imposed restraints on publication which he so much feared ....", "It is not for this court to thwart the wish of Parliament that litigants should be able to bring actions to vindicate their reputations under a CFA, and that they should not be obliged to obtain ATE cover before they do so. ... On the other hand, we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher's Article 10 Convention rights ....", "In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. It cannot be just to submit defendants in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win.", "If this means, ..., that it will not be open to a CFA-assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees, then his/her fate will be no different from that of a conventional legally aided litigant in modern times. It is rare these days for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay, and defamation litigation does not open the door to awards on that scale today. Similarly, if the introduction of this novel cost-capping regime means that a claimant's lawyers may be reluctant to accept instructions on a CFA basis unless they assess the chances of success as significantly greater than evens (so that the size of the success fee will be to that extent reduced), this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue.”", "3. Public consultation process on CFAs and success fees including the “Review of Civil Litigation Costs: Final Report”, of Jackson LJ, January 2010 (“the Jackson Review”)", "(a) Consultation prior to the Jackson Review", "100. In 2003 a Consultation Paper entitled “Simplifying CFAs” was completed by the Department of Constitutional Affairs (“DCA”, whose powers were transferred to the Ministry of Justice in May 2007). The use of CFAs in defamation proceedings emerged as a controversial issue during this consultation. Several national and regional media organisations took the opportunity to raise a number of concerns about the impact of the use of CFAs in defamation proceedings. Media organisations claimed that CFAs inhibited the right to freedom of expression and encouraged unmeritorious claims. Claimants'lawyers felt that the use of CFAs in defamation proceedings had greatly widened access to justice and placed claimants on an equal footing with their opponents.", "101. In the 2004 Consultation Paper “Making Simple CFAs a reality” of the DCA, media organisations reiterated the view that CFAs needed to be controlled in defamation proceedings. They stressed that funding these cases by CFAs (particularly where the claimant had significant personal wealth) impinged on the media's right to freedom of expression because the success fee could effectively double a claimant lawyer's cost. This resulted in the “ransom” or “chilling effect” that forced the media to settle claims they might otherwise fight due to excessive costs. The media also expressed concerns there was no true ATE insurance market (because the very small number of cases did not ensure a competitive market), and about the failure of the costs judges to effectively control CFA costs in defamation proceedings. While the focus of the Consultation Paper had been defamation proceedings, the same problems applied in other publication cases.", "The 2004 Paper also noted that claimants'lawyers, on the other hand, believed that CFAs provided access to justice for all in an area of law where many would otherwise not be able to afford to seek redress. They also made the point that CFAs played an important role in discouraging irresponsible journalism. The sharp decline in the number of claims issued in this area, after the introduction of CFAs in defamation proceedings, indicated that lawyers were being more cautious when advising clients who were considering litigation. They believed that CFAs should not be banned or restricted in this area of law, but that success fees should be staged – 100% for cases going to trial and less for cases that settled early.", "The DCA concluded that legislation to restrict the use of success fees in this area (publication proceedings) was not planned. The DCA supported the initiative launched by the Civil Justice Council (“ CJC ”) to mediate a general agreement on success fees in this area of law and considered that the existing powers of the courts were sufficient to control costs.", "102. The above-cited judgment in King and the 2004 consultation prompted media organisations and claimants'lawyer groups to try to reach an agreement on the way forward. Following the CFA round table hosted by the DCA in July 2004, both sides approached the CJC to mediate.", "103. In April 2005 a previous Lord Chancellor spoke about CFAs and costs at a media society event. He called for proper control and proportionality in the costs-risks attached to publication litigation and urged claimant and media lawyers to try to find a solution through discussion.", "104. In March 2006 the House of Commons Constitutional Affairs Select Committee considered the role of CFAs in defamation and privacy proceedings as part of its inquiry on the “Compensation Culture”. It felt that courts could address disproportionate costs through appropriate cost control measures such as cost - capping and that it might be appropriate for lawyers to re-assess risk (and therefore the amount of uplift) as the case progressed (staged success fees). No concrete action was taken.", "105. From 2006 to 2007 the CJC hosted a number of forums including representatives from the media, legal profession and insurance. This mediation, having been suspended pending the second appeal in the present case to the House of Lords, concluded with the production of a model agreement (“the Theobalds Park Plus Agreement”) which set out a range of solutions including a range of staged success fees.", "106. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus model agreement was workable and could help ensure that costs of litigation were proportionate and reasonable. The Ministry of Justice decided to consult on the issue. Through its Consultation Paper of August 2007 entitled “Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance”, the Ministry of Justice sought views on the implementation of the CJC's recommendations in publication proceedings and, notably, on a range of fixed staged recoverable success fees and on the recoverability of ATE insurance premiums. A slightly revised scheme was published with responses to the consultation in July 2008. Some responses to the consultation supported in principle the introduction of fixed recoverable staged success fees and ATE insurance premiums; however, there was no consensus on the details of the scheme. The media in particular did not support the scheme and strongly opposed its implementation and called for additional measures to address disproportionate and unreasonable costs in CFA cases. The scheme was not implemented.", "107. On 24 February 2009 the Ministry of Justice published further a Consultation Paper on “Controlling costs in defamation proceedings”. The high levels of legal costs in defamation and some other publication related proceedings had been the subject of criticism and debate in the courts and Parliament. “Excessive costs may force defendants to settle unmeritorious claims, which in turn threatens a more risk averse approach to reporting and some argue is a risk to freedom of expression”. While the Government had previously consulted on proposals for a scheme of staged recoverable success fees and after the event insurance (ATE) premiums in publication proceedings to reduce unreasonable and disproportionate costs, a number of media organisations suggested additional measures that they considered necessary if costs in this area were to be maintained at reasonable levels. The Consultation Paper therefore sought views on measures to better control costs notably through limiting recoverable hourly rates; costs - capping; and requiring the proportionality of total costs to be considered on costs assessments conducted by the court.", "108. As regards the question (no 6) of whether the courts should apply the proportionality test to total costs not just base costs, the Consultation Paper noted that the Government considered that “ a requirement to consider the proportionality of total costs would be a helpful tool in controlling costs in defamation proceedings ”. They would request the CPR Committee to consider amendments to the CPR and to the related practice direction.", "109. As to the scope of the proposals, the Consultation Paper assumed that as a minimum the provisions would be introduced for defamation disputes (libel and slander) because it was principally in these cases that the key problems were seen to arise. However, the Paper added that there were other causes of action (such as breach of privacy) where “it may be considered they should also apply”.", "110. The Consultation Paper with the responses and proposals received was published on 24 September 2009. The CPR Committee, requested to consider a number of measures to control costs in publication proceedings, proposed draft rules concerning, inter alia, additional information and control of ATE insurance. The Civil Procedure (Amendment) Rules 2009 came into force on 1 October 2009. The Government preferred to leave other matters open pending the Jackson Review.", "(b) The Jackson Review, January 2010", "111. In late 2008 Jackson LJ was appointed to conduct a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost.", "112. In January 2010 the Jackson Review was published, running to almost 600 pages plus appendices. In relation to CFAs, it noted that England and Wales differed from all other jurisdictions in having success fees payable not by the lawyer's own client but by the losing party. The benefits of CFAs had been achieved at massive cost especially in cases which were fully contested. That cost was borne by tax payers, insurance premium payers and by those defendants who had the misfortune of being neither insured nor a large, well-resourced organisation.", "113. While Jackson LJ concluded that CFAs were not objectionable in themselves, he considered that there were four flaws in allowing success fees to be recovered from the losing party:", "“4.7 The recoverability regime does not possess either of the two crucial features of the legal aid regime which it replaces. In my view these omissions are two of its flaws. The third flaw is that the burden placed upon opposing parties is simply too great. The fourth flaw is that it presents an opportunity for some lawyers to make excessive profits. The consequence of these four flaws is to generate disproportionate costs.", "(a) First flaw", "4.8 Any person, whether rich or poor and whether human or corporate, is entitled to enter into a CFA and take out ATE insurance. All that such a person needs to do is to find willing solicitors and willing insurers. This gives rise to anomalies and unintended consequences on a grand scale. I will give three examples in the next three paragraphs.", "4.9 The tree root claims. It is, in my view, absurd that insurance companies can bring claims against local authorities using CFAs ... thereby doubling the costs burden upon council tax payers. The insurance companies can well afford to fund such litigation themselves and should do so.", "4.10 Commercial claims. It is also, in my view, absurd that one party to commercial litigation can become a “super-claimant”... and thereby transfer most of the costs burden to the other party. Two arguments have been pressed upon me by defenders of recoverability in such cases: first, that recoverability enables [small and medium enterprises (“SMEs”)] to take on larger companies; secondly that the opposing party can avoid the crushing costs burden by settling early. As to the first argument, the recoverability provisions are of universal application. They are just as likely to be used by a large company against an SME as vice versa. As to the second argument ... some business disputes are evenly balanced. It is perfectly reasonable for the companies on both sides to decide to fight. It is quite wrong for one or other party to be pressurised into settling by a gross imbalance in the costs liabilities of the parties. If party A has a CFA... and party B does not, party A may be litigating at virtually no costs risk, whereas party B may face liability for quadruple costs if it loses.", "4.11 Consumer dispute. County court litigation sometimes involves disputes between suppliers of goods and customers or consumers. Where such litigation is above the level of the small claims track, it is not unknown for the supplier to have a CFA and for the individual on the other side not to have a CFA. It all depends upon the terms which each party manages to agree with its own solicitors. In some cases the recoverability regime will give the consumer a “free ride” against the supplier. In other cases it will have precisely the opposite effect. It is perfectly possible for the recoverability regime to give the supplier a free ride and to expose the consumer to a massively increased costs liability.", "4.12 The first flaw in the recoverability regime is that it is unfocused. There is no eligibility test for entering into a CFA, provided that a willing solicitor can be found.", "(b) Second flaw", "4.13 The second flaw is that the party with a CFA generally has no interest in the level of costs being incurred in his or her name. Whether the case is won or lost, the client will usually pay nothing. If the case is lost, the solicitors waive their costs and pay the disbursements, in so far as not covered by ATE insurance. If the case is won, the lawyers will recover whatever they can from the other side either (a) by detailed or summary assessment or (b) by negotiation based upon the likely outcome of such an assessment.", "4.14 This circumstance means that the client exerts no control (or, in the case of a no win, low fee agreement, little control) over costs when they are being incurred. The entire burden falls upon the judge who assesses costs retrospectively at the end of the case, when it is too late to “control” what is spent.", "(c) Third flaw", "4.15 The third flaw in the recoverability regime is that the costs burden placed upon opposing parties is excessive and sometimes amounts to a denial of justice. If one takes any large block of cases conducted on CFAs, the opposing parties will end up paying more than the total costs of both parties in every case, regardless of the outcome of any particular case.", "4.16 If the opposing party contests a case to trial (possibly quite reasonably) and then loses, its costs liability becomes grossly disproportionate. Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage, despite having good prospects of a successful defence. This effect is sometimes described as “blackmail”, even though the claimant is using the recoverability rules in a perfectly lawful way.", "(d) Fourth flaw", "4.17 If claimant solicitors and counsel are successful in only picking “winners”, they will substantially enlarge their earnings... As the Senior Costs Judge explained... it is not possible for costs judges effectively to control success fees retrospectively.", "4.18 Of course, not all lawyers are good at picking winners and some suffer losses on that account. Nevertheless, one repeated criticism of the recoverability regime which I have heard throughout the Costs Review, is that some claimant lawyers “cherry pick”. In other words they generally conduct winning cases on CFAs, they reject or drop at an early stage less promising cases and thus generate extremely healthy profits. Obviously the financial records of individual solicitors firms and barristers are confidential. Moreover, even if one such set of accounts were made public, that would tell us nothing about all the others. Nevertheless, the one point that can be made about the CFA regime is that it presents the opportunity to cherry pick. If lawyers succumb to that temptation, they will greatly increase their own earnings and they will do so in a manner which is entirely lawful.", "4.19 Having worked in the legal profession for 37 years, I have a high regard for my fellow lawyers, both solicitors and counsel. The fact remains, however, that lawyers are human. As Professor Adrian Zuckerman has forcefully pointed out both during the Woolf Inquiry and during the present Costs Review, work tends to follow the most remunerative path. In my view, it is a flaw of the recoverability regime that it presents an opportunity to lawyers substantially to increase their earnings by cherry picking. This is a feature which tends to demean the profession in the eyes of the public.”", "114. Specifically in relation to defamation and related claims, Jackson LJ considered that the present system was “the most bizarre and expensive system that it is possible to devise” for the following three reasons:", "“(i) Defendants pay a heavy price in order to ensure (a) that claimants within the CFA regime are protected against adverse costs liability and (b) that defendants can still recover costs if they win.", "(ii) Despite paying out large ATE insurance premiums in cases which they lose, the defendants'costs recovery in cases which they win may be only partial. This is because the defendants'costs recovery will be subject to the policy limits agreed by claimants in those cases.", "(iii) The present regime of recoverable ATE insurance premiums is indiscriminating. A wealthy celebrity suing a hard pressed regional newspaper publisher is fully entitled to take out ATE insurance, effectively at the expense of the defendant. The present regime provides protection against adverse costs, but it is in no way targeted upon those claimants who need such protection.”", "115. As to defamation and related proceedings, Jackson LJ noted that a principal concern that had been expressed in relation to the costs of defamation proceedings and privacy cases was the widespread use of CFAs with ATE insurance, which could impose a disproportionate costs burden on defendants. He had recommended, for all civil litigation, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position): those arrangements had not suffered from the above flaws but opened up access to justice for many individuals who formerly had no such access.", "If that recommendation were to be adopted, Jackson LJ considered that it should go a substantial distance to ensuring that unsuccessful defendants in such proceedings were not faced with a disproportionate costs liability. However, such a measure could also reduce access to justice for claimants of slender means. To overcome this latter potential problem, he recommended complementary measures for defamation and related proceedings including increasing the general level of damages in defamation and breach of privacy proceedings by 10% and introducing a regime of qualified one way costs shifting, under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings.", "(c) Consultation subsequent to the “Jackson Review”", "(i) Report of the House of Commons Culture, Media and Sport Committee entitled “Press standards, privacy and libel”, 24 February 2010", "116. In its introduction, the Report noted:", "“Throughout our inquiry we have been mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the'chilling effect'this may have on press freedom. The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including media defendants, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost.", "All the evidence which we have received points to the fact that the vast majority of cases brought under a Conditional Fee Agreement (CFA) are won. We therefore see no justification for lawyers to continue to demand 100% success fees which are chargeable to the losing party. We recommend that the recovery of success fees from the losing party should be limited to no more than 10%, leaving the balance to be agreed between solicitor and client. We further recommend that the Government should make After the Event Insurance premiums irrecoverable.”", "117. As regards, in particular, costs in defamation litigation, it commented:", "“ 263. We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court. It does not appear to us that this machinery effectively protects a defendant, who genuinely attempts to settle a claim at an early stage, against a determined and deep-pocketed litigant. This is another issue which needs to be addressed by the Ministry of Justice. ...", "292. Although some have suggested that CFAs should be means-tested, in practice, given the high costs involved, this would be likely to result in access to justice being limited to the extremely poor and the super rich. The complexities involved also do not lend themselves to a simple or proportionate solution. We therefore do not support the introduction of means-testing CFAs. ...", "294. In the matter of success fees, the argument is made that they need to be high to compensate for the risks run by lawyers .... This view is not, however, supported by the data available on the outcomes of cases of this kind. This data suggests that CFA-funded parties win the vast majority of their cases. ...", "295. This high success rate is no doubt in part the fruit of careful selection. Indeed common sense and the economic incentives would point to the inevitability of cherry-picking. ...", "307. All the evidence we have heard leads us to conclude that costs in CFA cases are too high. We also believe that CFA cases are rarely lost, thereby undermining the reasons for the introduction of the present scheme. However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved. We do not agree with the Ministry of Justice that the maximum level of success fees should be capped at 10%, nor do we believe that success fees should become wholly irrecoverable from the losing party. However we would support the recoverability of such fees from the losing party being limited to 10% of costs leaving the balance to be agreed between solicitor and client. This would address the key issue and seems to us to provide a reasonable balance, protecting access to justice, adequately compensating solicitors for the risks taken, giving claimants and their lawyers, in particular, a strong incentive to control costs and ensuring that costs to a losing party are proportionate. ...", "309. ... Just as the press must be accountable for what it writes, lawyers must be accountable for the way in which cases are run, and that includes costs. The current costs system, especially the operation of CFAs, offers little incentive for either lawyers or their clients to control costs, rather the contrary. It also leads to claims being settled where they lack merit. We hope that the combined effect of our recommendations, the Ministry of Justice consultations and the conclusions of Lord Justice Jackson, will provide the impetus for a fairer and more balanced approach to costs in publication proceedings.”", "( ii) “Controlling Costs in Defamation Proceedings – Reducing Conditional Fee Agreement Success Fees” (“The 2010 Consultation Paper”): CP 1 /2010", "118. In January 2010 the Ministry of Justice launched a further public consultation with the above-noted Paper. It considered only the option of reducing the maximum uplift in defamation cases to 10% pending consideration of the other recommendations of the Jackson Review (the reference here to defamation including other publication cases). The executive summary of the Consultation Paper reads as follows:", "“The Government has for some time been concerned about the impact of high legal costs in defamation proceedings, particularly the impact of 100% success fees, which can double the costs to unsuccessful defendants in cases funded under conditional fee agreements (CFAs).", "CFAs have increased access to justice for claimants in making it more possible to bring cases. However, the experience over the past decade suggests that - in defamation proceedings in particular - the balance has swung too far in favour of the interests of claimants, and against the interests of defendants. The current arrangements appear to permit lawyers acting under a CFA to charge a success fee that is out of proportion to the risks involved. Aside from the cost burden this places on the opposing side, this could encourage weaker and more speculative claims to be pursued.", "The Government does not believe that the present maximum success fee in defamation proceedings is justifiable in the public interest. This is particularly the case because the evidence shows that many more defamation claims win than would substantiate such a generous success fee. This view is supported by Sir Rupert Jackson's report ...", "This consultation paper seeks views on a proposal to reduce the maximum success fee which lawyers can currently charge from 100% to 10% of the base costs. This is an interim measure for dealing with disproportionate costs while the Government considers Sir Rupert's wider proposals which seek to radically change the existing arrangements for all cases where CFAs are used. The proposal in this consultation paper would help reduce the costs for media defendants further and limit the potential harmful effect very high legal costs appear to have on the publication decisions of the media and others.", "This proposed change is intended to complement changes already introduced on 1 October 2009 in respect of defamation proceedings which were designed to control the costs of individual cases.”", "119. The Ministry of Justice Consultation Paper of 3 March 2010 included the responses and its conclusions. It concluded as follows:", "“2. The Government has had particular concerns about the high costs in defamation cases. Defamation is a discrete area where we have already taken a number of steps to help control costs. Defamation proceedings are now part of a mandatory costs budgeting pilot, with Judges scrutinising costs as cases progress.", "3. Lord Justice Jackson in his report ... recommends the abolition of recoverability of success fees and after the event (ATE) insurance premiums across civil litigation. Sir Rupert's report is substantial with recommendations that are far reaching with potentially widespread impact on many areas. However, it sets out a clear case for CFA reform. Even those respondents who did not support our proposal of reducing defamation success fees to 10% agree that the status quo cannot be permitted to continue. The main flaw identified by Sir Rupert of the current regime is the costs burden placed upon the opposing side. He also points out that the CFA regime was working satisfactorily before recoverability of success fees and ATE was introduced – an assertion that is made by a large number of respondents to the consultation.", "4. Previous attempts to control the success fees have proved unfruitful. For example during 2007 the Department published a consultation paper, Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance, on a scheme of fixed recoverable staged success fees and ATE insurance premiums. However, there was no consensus on the details of the scheme and it could not be implemented. No new evidence was provided to Sir Rupert against his recommendation on abolishing recoverability of success fees and ATE.", "5. We carefully considered all the responses. More than half (53%) of those who responded agreed with our proposal to reduce the defamation success fees to 10%. The Government also considered the report from the Culture Media and Sport Committee on press freedom libel and privacy published on 25 February 2010. Although the Committee did not agree with our proposal it recommends that the recoverability of success fees should be capped to 10%.", "6. The Government is actively assessing the implications of Sir Rupert's proposals and will also consider the Committee's report and recommendations including those on costs. However, in the meantime we are minded to implement the proposal to reduce the maximum success fee in defamation cases to 10% immediately as an interim measure.", "7. We have therefore today laid the Conditional Fee Agreements (Amendment) Order before Parliament with a view to having the maximum success fee of Controlling Costs in Defamation Proceedings Summary of responses 10% in defamation cases in force as soon as possible subject to Parliamentary approval.", "8. In light of the comments received, the Order has been amended to make clear that the new requirements will only apply to CFAs entered into after the date on which the Order comes into force. Defamation proceedings for the purpose of the Order means publication proceedings (within the meaning of rule 44.12B of the [CPR]) which includes defamation, malicious falsehood or breach of confidence involving publication to the public at large.”", "120. The Conditional Fee Agreements (Amendment) Order was therefore laid before Parliament. However, that proposal was not maintained during the run-up to the general election in May 2010.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING BREACH OF CONFIDENCE", "121. The applicant complained under Article 10 of the Convention about the finding of breach of confidence against it as regards its publication of the relevant articles. Article 10 reads, insofar as relevant, as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, ... ”", "A. Admissibility of the complaint", "122. The Court finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground. It must therefore be declared admissible.", "B. The applicant's observations on the merits", "123. The applicant noted that Ms Campbell accepted that she could not complain about the publication of the facts of her drug addiction and treatment because she had chosen to put into the public domain an assertion that she did not take drugs. Every domestic judge therefore considered that it was therefore in the public interest to publish those matters.", "124. The core question in the domestic courts was whether the publication of three items of additional information (“the additional material”) was justified or not. The addition material impugned by the majority of the House of Lords comprised the fact that Ms Campbell was attending NA meetings, information about those NA meetings and two photographs of her outside her NA meetings.", "125. The applicant preferred and relied extensively upon the dissenting judgments of Lord Nicholls and Lord Hoffman.", "126. It mainly argued that the majority of the House of Lords failed to accord sufficient weight to the editor's assessment made in good faith as to how much detail to publish in order to ensure the credibility of the story, particularly in light of Ms Campbell's previous false denials of addiction and treatment, even if those details related to a medical condition. The difference between the majority and minority in the House of Lords was not a narrow point, as the Government suggested, but rather a fundamental dispute as to the circumstances warranting an interference with editorial judgment.", "127. If there was no objection to publishing the fact of her addiction and treatment, there could be no objection to the publication of the details of that treatment since treatment by attendance at NA meetings was well known treatment, widely used and much respected. The treatment details and photographs were anodyne once it was accepted that it was permissible to publish the fact of her addiction and the fact that she was receiving treatment for it. These details therefore constituted a limited intrusion into her private life which could not take priority over the newspapers entitlement to assess in good faith which details to publish to support the credibility of the matters it was reporting in the public interest. Equally, the photographs were taken to illustrate articles on a matter of agreed legitimate public interest and, in any event, contained no private information beyond that already legitimately contained in the article. Moreover, given that Ms Campbell lived by publicity, she could not insist upon too great a nicety of judgment as to the circumstantial detail with which the story was presented.", "128. Finally, it was impossible to see that Ms Campbell suffered any significant additional distress because of the publication of the additional material concerning her treatment. As Lord Hoffman pointed out, the impact of the publication on her continuing therapy was not pleaded domestically.", "129. It was for the Court to decide if the domestic courts made errors of principle and the applicant considered that they made the above-described errors. The applicant was not suggesting that a public figure who put aspects of her private life into the public domain forfeited the protection of Article 8: rather it maintained that its publication rights and rights of editorial discretion derived from Article 10 were weightier than the private life rights of the applicant on the facts of the present case.", "C. Observations of the Government", "130. The Government submitted that the law of England and Wales was Convention compliant as was the application of that law to the present facts.", "131. A claim for breach of confidence would only succeed if the court concluded that the publication of the private information was wrongful. The notion of wrongful publication was interpreted as importing the values contained in Articles 8 and 10 of the Convention. In practice, a court was required to weigh the public interest in maintaining the confidentiality of the information in question against the countervailing public interest in publication. The context for this exercise was provided by Articles 8 and 10 of the Convention, as explained by Lord Hope (paragraph 27 above).", "132. On matters of fine assessment of conflicting Convention rights and the application of settled principles to the facts of a particular case, Contracting States were entitled to a certain margin of appreciation.", "133. The domestic assessments demonstrated that the balance of the Articles 8 and 10 rights in the present case was correct and indeed a narrow point. The House of Lords relied on the correct Convention principles as to how to balance Articles 8 and 10 rights: indeed, there was no difference of principle between the majority and minority of the House of Lords. The narrow point at issue between them and, consequently, in the present case was the application of those principles to the facts of the case. The majority considered, for relevant and sufficient reasons given, that details of Ms Campbell's treatment went beyond justified publication. The Government underlined that there was a clear qualitative distinction to be made between the facts that Ms Campbell was a drug addict and in treatment and the publication of details of the treatment she was receiving. The non-medical therapy clearly constituted treatment close to the core of Article 8 of the Convention: the treatment was continuing, publication of those details risked affecting her willingness or ability to continue and the publication of these additional details had no public interest. Moreover, the same reasoning applied as regards the decision by the majority of the House of Lords as regards the photographs : the decision on photographs flowed from their decision that information about the treatment details of Ms Campbell was private and that there was no public interest in its publication.", "134. Accordingly, since the correct principles were identified and relevant and sufficient reasons given for their application, the House of Lords'conclusion fell within its permitted margin. The applicant simply requested this Court to ignore this margin of appreciation and to exercise a further appeal jurisdiction and to prefer the minority factual analysis over that of the majority.", "135. As to the applicant's suggestion that the House of Lords accorded insufficient respect to a journalist's right to decide how much to publish to ensure credibility, the majority of the House of Lords clearly recognised the need to afford the applicant a proper margin in that respect. Having regard also to the “duties and responsibilities” of journalists, the margin to be accorded was not an unlimited one, was not out-with the supervision of the national court and was appropriate on the facts.", "D. The Court's assessment", "136. The Court must determine whether the finding by the majority of the House of Lords of breach of confidence against the applicant constituted an interference with its right to freedom of expression. Any such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10 and, in that respect, the Court must determine whether an interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve that aim or aims.", "1. Was there an interference prescribed by law for a legitimate aim?", "137. The Court considers, and it was not disputed by the Government, that the finding of a breach of confidence against the applicant amounted to an interference with its right to freedom of expression.", "138. In addition, the applicant did not contest the lawfulness of the interference, which derived from the common law tort of breach of confidentiality, nor that its aim, protecting the rights of others, was legitimate. The Court accepts that the interference was prescribed by law (paragraphs 83-88 above) and pursued the legitimate aim of protecting “ the ... rights of others” namely, Ms Campbell's right to respect for her private life.", "2. Was the interference “ necessary in a democratic society”?", "139. The fundamental principles relating to this question are well established in the case-law and have been summarised by the Grand Chamber as follows (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI):", "“45. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... .”", "140. A number of additional factors are particularly relevant to the Court's supervisory role in the present case.", "141. In the first place, regard must be had to the pre-eminent role of the press in a State governed by the rule of law ( for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996 ‑ II). Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted ( Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of the reputation of ... others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004 ‑ XI with further references contained therein). Nevertheless it is incumbent on it to impart information and ideas on matters of public interest ( De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” ( Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239 Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010 ).", "142. In addition, when verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case, freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8, the Court must balance the public interest in the publication of a photograph and the need to protect private life ( Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007 ‑ VII. The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention ( Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III ).", "143. Finally, the Court considers that the publication of the photographs and articles, the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure's private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; as cited in Von Hannover v. Germany, no. 59320/00, § 65-66, ECHR 2004 ‑ VI ). Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution ( Von Hannover v. Germany, cited above, at § 59. See also Hachette Filipacchi Associés v. France, cited above, § 42 ).", "144. The Court has therefore examined whether the finding of a breach of confidence by the majority of the House of Lords disclosed relevant and sufficient reasons through an examination of whether the standards applied to the assessed facts were in conformity with the principles embodied in Article 10 of the Convention ( Lindon, Otchakovsky-Laurens and July v. France, cited above).", "145. The Court has set out the domestic judgments in some detail and, notably, those of the majority of the House of Lords impugned by the applicant (paragraphs 25-54 above ). It observes that the majority members of the House of Lords recorded the core Convention principles and case-law relevant to the case. In particular, they underlined in some detail the particular role of the press in a democratic society and, more especially, the importance of publishing matters of public interest. In addition, and contrary to the applicant's submission, each member of the majority specifically underlined the protection to be accorded to journalists as regards the techniques of reporting they adopt and as regards decisions taken about the content of published material to ensure credibility, as well as journalists'duties and responsibilities to act in good faith and on an accurate factual basis to provide “reliable and precise” information in accordance with the ethics of journalism (citing, in particular, Jersild v. Denmark, cited above, § 31 and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, see paragraphs 28-29, 35, 40 and 47 above ). Moreover, the majority recorded the need to balance the protection accorded under Articles 8 and 10 so that any infringement of the applicant's Article 10 rights with the aim of protecting Ms Campbell's privacy rights had to be no more than was necessary, neither Article having a pre-eminence over the other (citing, inter alia, Resolution 1165/98 entitled “Right to Privacy” of the Parliamentary Assembly of the Council of Europe and A v B plc [2003] QB 195). Finally, the majority explained the particularly private nature of information concerning a person's treatment for drug addiction and the potential detriment resulting from its disclosure.", "146. The Court further observes that all members of the House of Lords, both minority and majority, were in agreement as to these relevant principles. Lord Hope noted that the case did not raise any new issues of principle but was rather concerned with questions of “fact and degree” and Lord Hoffman emphasised that all members of the House of Lords were unanimous as to the applicable principles but were divided in their application to the narrow point related to the facts of the case (paragraphs 26 and 50 above).", "147. Indeed, there was agreement at all three instances (and among all members of the House of Lords) as to the application of those principles to the main part of the published articles. They considered Ms Campbell to be an internationally known model and celebrity. Given her prior public denials of drug use, the core facts of her drug addiction and the fact that she was in treatment were legitimately a matter of public interest and capable of being published. Ms Campbell accepted this before the domestic courts, as did the parties before this Court. In making this undisputed qualitative distinction between, on the one hand, private information which Ms Campbell had already made public and which was therefore legitimately the subject of a public debate and, on the other, the additional information which she had not made public, the Court considers that all three domestic courts which examined the case reflected the same distinction underlined by this Court in the above-cited Von Hannover case decided some days after the present judgment of the House of Lords.", "148. Accordingly, the difference of opinion between the judges in the national courts on which the present complaint turns, concerned only the application of relevant Convention principles to the question whether an interference with the editorial decision to publish the additional material ( the fact that she was attending NA, details about the nature of her NA treatment and covertly taken photographs outside her NA meetings ) was justified under Article 10.", "149. The High Court examined this issue over 5 days and, in a detailed and lengthy judgment, found the publication of the additional material unjustified. The Court of Appeal, following a hearing of 2 days and by another detailed judgment, allowed the applicant's appeal finding the publication of the additional material to be justified. Having heard the appeal over 2 days and, each of the five members giving detailed judgments, the House of Lords found by a majority (3 to 2) that the publication of the additional material exceeded the latitude accorded to editorial assessment and was not justified.", "150. Against this background, the Court considers that, having regard to the margin of appreciation accorded to decisions of national courts in this context, the Court would require strong reasons to substitute its view for that of the final decision of the House of Lords or, indeed, to prefer the decision of the minority to that of the majority of that court, as the applicant urged the Court to do.", "151. Indeed, the Court considers convincing the reasons for the decision of the majority of the House of Lords. The majority underlined, inter alia, the intimate and private nature of the additional information about Ms Campbell's physical and mental health and treatment and concluded that the publication of the additional material about that treatment had been harmful to Ms Campbell's continued treatment with NA in the United Kingdom and risked causing a significant setback to her recovery as well as being considerably distressing for her. The photographs had been taken covertly with a long range lens outside her place of treatment for drug addiction and would have been clearly distressing for a person of ordinary sensitivity in her position and faced with the same publicity; the photographs had been taken deliberately with a view to inclusion in the article and were accompanied with captions which made it clear she was coming from her NA meeting thereby connecting those photographs to the private information in the articles; and those photographs allowed the location of her NA meetings to be identified. On the other hand, the publication of the additional material was found not necessary to ensure the credibility of the story, the applicant itself accepting that it had sufficient information without the additional material to publish the articles on the front page of its newspaper. Nor was it considered that there was any compelling need for the public to have this additional material, the public interest being already satisfied by the publication of the core facts of her addiction and treatment.", "152. The applicant maintained that it was impossible to find that Ms Campbell suffered significant additional distress because of the publication of the additional material. However, that was precisely what the majority of the House of Lords considered to be established : whether or not the publication of that additional material prejudiced her continued treatment with NA (and see Lord Hoffman at paragraph 54 above), the majority of the House of Lords found that it had caused her some distress, Baroness Hale specifically relying on the evidence taken and findings of fact in this respect of the first instance court ( paragraph 41 above ). The relatively low award of damages of the first instance court ( restored by the majority of the House of Lords ) reflected the former court's assessment of the level of prejudice suffered.", "153. Finally, it was pointed out by the applicant that the Court of Appeal found that the photographs had not been, of themselves, relied upon by Ms Campbell as a ground of complaint. However, Lord Nicholls ( paragraph 49 above ) clarified that the applicant complained that the information conveyed in the photographs was private and, further, the majority members of the House of Lords (paragraphs 32, 39 and 43 above ) found that the captions and context in which the photographs were presented, which made it clear that Ms Campbell was coming from her NA meeting at an identifiable place, inextricably linked the photographs to the impugned private additional material. Accordingly, as the Government expressed it, the decision of the House of Lords on the photographs flowed from their decision that the additional material about Ms Campbell's treatment details was private and without public interest.", "154. It is indeed true that the minority of the House of Lords found that the additional material was anodyne and inconsequential, noting that it was unremarkable to add the details of Ms Campbell's treatment with NA and, further, that the photographs, of themselves, added little and were not demeaning or embarrassing, so that the publication of all of this additional material fell within the latitude to be accorded to journalists. The applicant urged the Court to prefer the opinion of the minority.", "155. However, the relevancy and sufficiency of the reasons of the majority as regards the limits on the latitude given to the editor's decision to publish the additional material is such that the Court does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords or to prefer the decision of the minority over that of the majority of the House of Lords, as the applicant urged the Court to do.", "156. In such circumstances, the Court considers that the finding by the House of Lords that the applicant had acted in breach of confidence did not violate Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES", "157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA.", "A. Admissibility of the complaint", "158. The Government relied on the fact that the applicant did not challenge the level of the base costs of the first appeal to the House of Lords and that it had, in the end, settled all of Ms Campbell's costs'claims against it. The only ground of inadmissibility invoked by the Government in these respects was that the case was manifestly ill-founded. The Court considers it appropriate to examine these submissions on the merits of the complaint.", "159. The Court therefore finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground. It must therefore be declared admissible.", "B. The applicant's observations", "160. The applicant did not contest the base costs before the first instance court, the Court of Appeal or the House of Lords. It did not contest the use of CFAs in publication cases or in the present case.", "161. The applicant's core complaint concerned, rather, the recoverability of success fees included in CFAs. In particular, it complained that the total costs order against it was excessive because it included success fees in both appeals to the House of Lords which amounted to double the amount of the base costs of those appeals in a situation where domestic courts were expressly precluded by the Costs Practice Directions ( paragraph 11.9) from controlling and reducing the total costs payable.", "162. The requirement to pay the success fees of Ms Campbell's lawyers was an interference with the applicant's freedom of expression. While it was prescribed by law, it did not pursue a legitimate aim and was not necessary in a democratic society.", "163. In the first place, the costs were excessive, amounting to disproportionate and punitive awards against media organisations.", "They were excessive by definition, being a multiple of already high base costs. Base costs in defamation and privacy cases were noticeably higher (GBP 400-500 per hour ) when compared to other equally complex civil and criminal cases before the House of Lords (GBP 140 per hour in a serious rape case). In addition, a success fee was applied which could double those already high base costs. In the present case, uplifts of 95% and 100% were accepted as appropriate and a 100% success fee in a CFA was regularly charged. Moreover, a second success fee of 95% was charged as regards the second appeal to the House of Lords challenging the first success fee, which left the applicant in an impossible position. It was, moreover, perverse that the greater the prospects of success of a defence (for example, if it was assessed at 50/50), the higher the success fee.", "In addition, the total costs, including success fees, were also excessive in that they bore no relationship of proportionality to the damages recovered by Ms Campbell (GBP 3,500), it being inconceivable that even wealthy claimants would pay that sum in costs for the small damages obtained.", "Moreover, they were excessive because the CFAs and success fee system meant that there was no incentive for a claimant's legal representatives to keep costs low.", "164. Secondly, the principle was no different from the requirement of proportionality between damages for defamation and the injury suffered which was set out in Tolstoy Miloslavsky v. the United Kingdom (13 July 1995, Series A no. 316 ‑ B, § 49). The costs award to which it was subjected was excessive and, even though domestic law required base costs and the percentage success fee rate to be reasonable, the control of the level of costs awards was deficient, a matter recognised by the domestic consultation process.", "165. Thirdly, this excessive burden constituted a chilling effect on the applicant as a media organisation. The financial impact of CFAs inevitably inhibited media organisations from defending claims that should be fought and put pressure on them to settle early valid claims and, further, deterred such organisations from publishing material, including material which it would be proper to publish. The applicant relied on, inter alia, statements made to the House of Commons Constitutional Affairs Select Committee (paragraph 104 above) by numerous well-known press and media organisations, which statements set out those organisations'experience of, and concerns about, success fees in publications cases.", "166. Fourthly, success fees did not achieve the aim of giving impecunious but deserving claimants access to justice because there were no obligations concerning, or mechanism controlling, a lawyer's use of success fees earned in one case to take on other poor claimants with deserving cases. The domestic consultation process confirmed that access to justice for impecunious clients had not increased. The impression of many media groups was that certain solicitors conducted weak cases on an ordinary retainer and strong cases on CFAs. Since, in addition, the media rarely win publication cases, a success fee was therefore a windfall profit for lawyers and a punitive award against the media. Indeed, since there was no means of ensuring that impecunious litigants benefited, the only result of the scheme was to shift the burden of funding civil litigation from the public purse to the private sector.", "167. Fifthly, allowing success fees to claimants such as Ms Campbell who could afford legal fees and were at no risk whatsoever of being denied access to justice was entirely unnecessary for the above-noted legitimate aim. Indeed, the House of Lords simply deferred to what it assumed was parliament's intention. The House of Lords failed to determine whether success fees (including for wealthy claimants) were necessary to contribute to access to litigation by impecunious litigants and, indeed, these were not factors which a judge assessing costs could take into account. The CFA system should therefore be amended to exclude wealthy claimants and means testing was possible to achieve this since the same financial eligibility for legal representation in criminal cases had been usefully employed in Magistrates Courts, which courts tried approximately 95% of criminal cases.", "168. Sixthly, publication cases were sufficiently distinguishable from other civil litigation, for the CFA scheme to exclude such cases. The applicant reiterated the reasons, also outlined by Lord Hoffman at paragraph 6 7 above, as to why the CFA/success fee system had a heavier impact in publication cases compared to other cases, such as traffic cases.", "C. The Government's observations", "169. The Government noted that the applicant did not contest the costs in the High Court and the Court of Appeal or the base costs in the House of Lords. Moreover, it did not object in the domestic courts to the use of CFAs, to costs following the event or to a costs order including a lower level success fee. The applicant's core case before this Court had become a complaint that the domestic courts were precluded from reducing the total costs payable by an unsuccessful defendant, even when they were disproportionate and excessive as a result of the success fees, given paragraph 11.9 of the Costs Practice Directions.", "170. The Government considered that the Court should examine only the underlying legislative provisions (sections 58 and 58A of the 199 0 Act) namely, the overall scheme which permitted a person to enter into a CFA in practically all types of litigation with a success fee which could be recovered against an unsuccessful defendant in order to fund litigation by other persons.", "171. As to whether those legislative provisions constituted an interference with the applicant's freedom of expression, the Government pointed out that the relevant provisions were permissive as to whether a CFA with success fee was concluded; as to the amount of that fee ( subject to a statutory maximum of 100% ); and, indeed, as to the making by a court of any specific form of costs order against an unsuccessful party. In any event, even if the interference of which the applicant appeared to complain may have been capable of amounting to an interference with its right to freedom of expression, it was one of a low order and was minimal.", "172. The applicant had not disputed that the interference was prescribed by law and the Government clarified that the impugned costs order with success fees was based on sections 58 and 58A of the 1990 Act (inserted by the 1999 Act) and on Rule 44 of the CPR and the Costs Practice Directions.", "173. The Government recalled that the purpose of allowing CFAs to be concluded was to achieve the widest public access to legal services funded by the private sector. In particular, CFAs provided a greater range of funding options to allow the widest possible range of people, including but not limited to claimants and defendants just above the means test for legal aid but not sufficiently wealthy to incur litigation costs, to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of litigation as possible. This was achieved through a fundamental re-balancing of the means of access to justice by resort to private sector funding (and hence funded indirectly by the public as a whole) rather than by the use of public (legal - aid) funds. It was intended to balance the rights of all litigants (claimants, defendants and successful or not), as well as the interests of lawyers who were expected to provide their services to the widest range of persons possible on a CFA. This allowed the State to re-allocate legal - aid resources by removing, for example, through the 1999 Act personal injuries claims from the legal - aid system, given the effectiveness of CFAs.", "174. Success fees enhanced the effectiveness of the CFA and were thus an integral part of the CFA scheme. It would ensure that lawyers would provide legal services on a CFA to the widest range of persons and not just to those whose claims were the strongest. Success fees were designed to broadly reflect the overall risk undertaken by a legal representative across his range of work and thus serve a purpose beyond a single piece of litigation. “Excessive” costs in a single case were justified by the general objective. In addition, the level of the success fee had to be high enough to provide a clear incentive to legal representatives to provide services under a CFA to those whose cases were less meritorious. The level also had to be sufficiently limited so as “to afford the client with the practical opportunity to pursue or defend legal proceedings”. The maximum uplift was therefore 100%. Moreover, it was also necessary for success fees to be recoverable from the unsuccessful party. Without this possibility, the CFA would not have been useful for claimants, unless the potential value of their cases would cover the success fee and other costs leaving sufficient damages to make the claim worthwhile, or for those seeking non-monetary remedies or for defendants.", "175. Promoting thereby access to justice, guaranteed by Article 6 of the Convention, was plainly a legitimate aim for the purposes of Article 10 § 2 of the Convention.", "176. The Government went on to argue in some detail that recoverable success fees did not amount to a disproportionate interference with the applicant's right to freedom of expression. Contracting States were entitled to adopt rules and schemes of general application in support of social policy objectives and, in conceiving of such schemes, were required to carry out a delicate balance of a range of relevant and competing social and public interests including, as in the present case, issues under Articles 6 and 10 of the Convention. Indeed, “excessive” costs in a single case would be justified by the general objective. In these respects, they were to be afforded a significant margin of appreciation for this exercise ( Blečić v. Croatia, no. 59532/00, § 64, 29 July 2004; and Evans v. the United Kingdom [GC], no. 6339/05, § 68, ECHR 2007 ‑ IV).", "177. The Government made lengthy submissions to the effect that the recovery of success fees was subject to a number of safeguards, the argument being that those safeguards struck a proper balance between the interests of unsuccessful litigants and the objective of expanding access to justice consonant with Article 6 of the Convention.", "178. The first safeguard was the fixing of the maximum uplift at 100%.", "179. The second safeguard was the requirement that the base costs and the success fees contained in a CFA were to be regulated by a court separately and on a case by case basis against the criterion that such amount should be no more than was reasonable and proportionate, any doubt to be resolved in favour of the paying party (Rule 44.4 of the CPR and paragraph 11 of the Costs Practice Directions ). In particular, the base costs had to be reasonable and proportionate (paragraph 11.6 of the Costs Practice Directions ) and thus were subject to assessment under Rule 44 of the CPR. A court was also required to consider whether there should be a success fee and, if so, whether the percentage uplift was reasonable (paragraph 11.7 of the Costs Practice Directions ) and paragraph 11.8 contained a non-exhaustive list of factors to which a court could have regard in so deciding. All the impugned paragraph 11.9 of the Costs Practice Directions did therefore was to acknowledge the above-described control which had already been applied to the base and success fee elements of the costs order so that a further reduction of the total costs was unnecessary. Indeed, it would be illogical to allow a double reduction of the total costs as it would imply that a court would, in the end, award base costs that were less than what was initially considered reasonable.", "180. As to the applicant's suggestion that “publication cases” be excluded from the system, there was no reason to suggest that those involved in publication cases should have less access to legal services; cases against newspapers concerned important and sensitive rights'issues for which CFAs should be available; and since legal aid was never available for defamation cases, those on modest incomes could not consider bringing or defending such actions without CFAs.", "181. The applicant's submission that persons such as Ms Campbell should not have access to CFAs was rejected by the House of Lords. It did not matter if her solicitors had indicated that they did little CFA work: when pursuing broad social policy objectives, a State was entitled to adopt provisions of general application so that the justification of the general scheme was not undermined by one example. As to whether entitlement to the CFA system should be means tested, the Government relied on Lord Hoffman's judgment in the second appeal and maintained that this was precisely the type of social and economic decision to which the margin of appreciation applied. There were no clear objective criteria by which one could regulate access to the CFA/recoverable success fee scheme according to the financial status of a claimant and, indeed, any attempt to draw such a line would undermine the objective of promoting wide access to legal services and would risk those falling just the wrong side of the line being significantly disadvantaged. It would also be unrealistic to expect the private sector to control financial qualifications.", "182. As to the consistency between the Government's submissions to the Court and those during the consultation process concerning paragraph 11.9 of the Costs Practice Directions in particular, the Government noted that the fact that it was considering reform of that specific provision did not mean that it was contrary to Article 10. If the Consultation Paper suggested that amending it might be an improvement (paragraph 108 above ), that did not amount to a statement that it was “necessary” under Article 10, the Convention requiring minimum standards and States being free to provide further protection ( Brecknell v. the United Kingdom, no. 32457/04, § 70, 27 November 2007). The maintenance of the current CFA/recoverable success fee system fell within its margin of appreciation and, indeed, the ongoing domestic consultation process underlined why, in such a complex area of social and economic policy, that margin should be respected.", "183. Nor was the application of these domestic provisions to the applicant's case a disproportionate interference. The only complaint made by the applicant before the domestic courts and this Court was the principle of recoverable success fees as regards both appeals to the House of Lords. However, it did not seek a determination by a court as to whether the level of those success fees was reasonable and proportionate. Equally, the applicant did not request a court to review the level of costs having regard to the low damages award made. Indeed, when the applicant did challenge the base costs in respect of Ms Campbell's lawyers in the second appeal, these were found to be disproportionate and reduced.", "D. The third parties'submissions and the Government's response", "184. Joint submissions were made by Open Society Justice Initiative, Media Legal Defence Initiative, Index on Censorship, the English PEN, Global Witness and by Human Rights Watch.", "185. They considered that the case raised an important issue as to the chilling effect of high costs in defamation proceedings on NGOs and small media organisations with small budgets, which organisations were often involved in investigative reporting and dissemination of information on issues of significant public interest.", "186. As to those high costs, they relied on a “ Comparative Study of Costs in Defamation Proceedings across Europe ”, as part of the “Programme in Comparative Media Law and Policy” of the Centre for Socio-Legal Studies at Oxford University, which had compared costs of defamation proceedings in 11 countries (Belgium, Bulgaria, Cyprus, France, Germany, Ireland, Italy, Malta, Romania, Spain and Sweden) as well as in England and Wales. Claimants with CFAs incurred substantially higher legal costs than defendants who had no CFA because of the lack of incentive of a client with a CFA to control the costs of legal work done on its behalf. In addition, the study estimated that, even in non-CFA cases, costs in the UK were 4 times higher than in the next most costly jurisdiction, Ireland. Ireland was, in turn, almost ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average. None of the comparator countries had CFA schemes, let alone success fees, a factor of itself demonstrative of its disproportion.", "187. While CFAs had an important role to play in supporting public interest litigation, the system had to be designed so as not to infringe those organisations'Article 10 rights. The availability of CFAs had made it more difficult for non-governmental organisations (“NGOs”) and small publications to publish information on matters of public interest.", "188. NGOs that investigated and exposed serious wrongdoing, which included many of the interveners, were increasingly assuming the traditional watchdog function of the media and, in seeking to expose unpopular truths, NGOs were particularly vulnerable to defamation actions. This was particularly so given libel tourism, the laws of England and Wales allowing organisations to be sued in that jurisdiction even if only a small proportion of the readership (print or internet) was located there. This was compounded by the difficulty in obtaining libel costs'insurance, given their risk profile, and by the CFA scheme.", "189. The chilling effect of the excessive costs caused by CFA schemes in England and Wales amounted to a restriction on the Article 10 rights of these publishers which bore no relationship of proportionality to the injury suffered by a claimant and the Government had fashioned no doctrine to prevent this.", "190. In response, the Government contended that these submissions were not directed to the costs matter at issue in the present case namely, recoverable success fees. As to the chilling effect of increased costs pursuant to CFAs, this was answered by the availability of defences to defamation actions under substantive law and by the role of the courts in controlling costs.", "191. As to the comparative research, the Government contended that insufficient information was known about the study so as to ensure that like was being compared with like. It was inaccurate, for example, in stating that domestic law in England and Wales did not control the reasonableness and proportionality of the costs awarded. The extent to which the differing costs were reflective of the differing legal procedures was not known. Any lack of incentive on the part of a client with a CFA to control costs incurred on its behalf was again answered by the control exercised by the courts over the reasonableness and proportionality of costs'awards. In any event, the applicant's complaints did not concern the general level of base costs in defamation proceedings.", "E. The Court's assessment", "1. Was there an interference?", "192. The applicant's complaint, as noted at paragraph 157 above, concerns the impact on it of a costs award which, under domestic law, included success fees calculated at almost twice most of the base costs of two appeals to the House of Lords. The Court considers, and it was not seriously disputed by the Government, that the requirement to pay these success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with the applicant's right to freedom of expression guaranteed by Article 10 of the Convention.", "193. The fact, as emphasised by the Government, that the underlying legal regime was “permissive”, in that it permitted a CFA including success fees to be concluded rather than requiring it, does not change the fact that the applicant was required, pursuant to a court order for costs, to pay costs including the impugned success fees to the claimant.", "2. Was the interference “ prescribed by law”?", "194. The provisions relating to CFAs, the calculation of success fees by a percentage uplift and their recoverability from an unsuccessful defendant are regulated by the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the CPR and the relevant Costs Practice Directions, as outlined at paragraphs 89-98 above. It is clear, and the parties did not dispute, that the interference was prescribed by law within the meaning of Article 10 of the Convention.", "3. Did the interference have a “ legitimate aim ”?", "195. The essential objective of CFAs, of which success fees recoverable from an unsuccessful defendant were an integral part, were broader than the individual case and were described by the Government at paragraphs 173-175 above. This system was designed to provide a greater range of funding options to allow the widest possible range of people to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of civil litigation as possible, and to do so via a fundamental re-balancing of the means of access to justice by resorting to private sector funding rather than use of public funds.", "196. The Court recalls that the right of effective access to a court is a right inherent in Article 6 of the Convention ( Golder v. the United Kingdom, 21 February 1975, Series A no. 18). While it does not require state assistance in all matters of civil litigation, it may compel the State to provide, for example, the assistance of a lawyer when such assistance proves indispensable for effective access to court, depending on the particular facts and circumstances, including the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself ( Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005 ‑ II and references contained therein).", "197. The Court therefore accepts that the CFA with recoverable success fees sought to achieve the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10 § 2 of the Convention.", "4. Was the interference “necessary in a democratic society ”?", "198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society ” to achieve that aim. In particular, it must consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant, but also to contribute to the funding of other litigation and general access to justice, by paying up to double those costs in the form of recoverable success fees. The applicant did not complain about having had to pay any ATE premiums of the claimant.", "199. This complaint also concerns the question of whether the authorities struck a fair balance between two values guaranteed by the Convention which may come into conflict with each other, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, an individual's right of access to court protected by Article 6 of the Convention. As noted at paragraph 1 4 2 above, this balancing of individual Convention interests attracts a broad margin of appreciation.", "200. Moreover, a wide margin of appreciation is available to a legislature in implementing social and economic policies and the Court will respect the legislature's judgment as to what is “ in the public interest ” unless that judgment is manifestly without reasonable foundation ( James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98 ). The Court later described this margin of appreciation as the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely ( Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII). However, if such general measures produce an individual and excessive burden, the requisite balance will not be found ( James and Others v. the United Kingdom, at § 50) : put otherwise, the Court may not regard as disproportionate every imbalance between the public interest and its effects on a particular individual but will do so in exceptional circumstances, when a certain “threshold of hardship” on the individual has been crossed ( Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 192, 15 March 2007 ).", "201. However, the Court has found the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern ( Jersild v. Denmark, cited above, § 35; and Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 64. It is, moreover, not necessary to consider, in any particular case, whether a damages award has a chilling effect on the press as a matter of fact so that, for example, unpredictably large damages awards in defamation cases are considered capable of having such an effect ( Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 114, ECHR 2005 ‑ V (extracts) ).", "202. The Court notes at the outset that the essential position of the Government was that any disproportionality visited on an individual case by the CFA/recoverable success fee regime was justified by the need to adopt provisions of general application when pursuing broad social and economic policy objectives. They referred to the reasoning of Lord Hoffman who had similarly responded to the applicant's argument based on the facts of its case namely, that Ms Campbell was wealthy so that a CFA/recoverable success fee was not necessary to ensure her access to court. Lord Hoffman found that the general policy objectives underlying the CFA/recoverable success fees scheme meant that the scheme could not be disallowed solely on the ground that liability of an individual applicant would be inconsistent with its rights under Article 10 of the Convention (relying on the above-cited James v. the United Kingdom case). He considered the scheme to be a rational legislative policy which the Government could adopt as a general scheme compatibly with Article 10 and which the courts had to accept ( Lord Hoffman at paragraph 63 above. See also Lord Carswell, paragraphs 72-73 above).", "203. However, one of the particularities of the present case is that this general scheme and its objectives have themselves been the subject of detailed and lengthy public consultation notably by the Ministry of Justice since 2003. While most of this process transpired after the House of Lords judgment in the second appeal in the present case (2005), it highlighted fundamental flaws underlying the recoverable success fee scheme, particularly in cases such as the present. The Court has therefore set out this public consultation process in some detail above (paragraphs 100-120 above) and has highlighted key elements below.", "204. By March 2006 the House of Commons Constitutional Affairs Select Committee considered that the courts should address the question of disproportionate costs in defamation and privacy proceedings and it made certain proposals including cost - capping. No legislative action was taken. The proposal of staged success fees (re-assessing the risk and the percentage of the success fee as the action progressed) was then included in the “ Theobalds Park Plus Agreement ” drafted by the CJC following mediation between media organisations and claimants'representatives. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus Agreement could help ensure that costs of litigation were proportionate and reasonable. As a result, in 2007 it sought views on the implementation of the CJC's recommendations including on a range of fixed staged recoverable success fees. A slightly revised scheme was published with responses to the consultation in July 2008. The media, in particular, did not support the proposals and the scheme was not implemented.", "205. The Ministry of Justice then published a further Consultation Paper in February 200 9. It noted that the high levels of legal costs incurred in publication proceedings had been the subject of criticism and debate in the courts and in Parliament; that excessive costs might force defendants to settle unmeritorious claims which in turn threatened a risk to reporting; and that some had argued that it was a risk to freedom of expression. It sought views on measures to better control costs. While certain minor proposals concerning, inter alia, additional information and control of ATE insurance were proposed and introduced (The Civil Procedure (Amendment) Rules 2009 ), other matters were left open pending the Jackson Review. Amending the prohibition on reviewing the proportionality of the total costs (paragraph 11.9 of the Costs Practice Directions ) was principally considered with respect to defamation disputes because it was mainly in those cases that the key problems addressed in the Paper were seen to arise.", "206. The Jackson Review, commissioned by the Ministry of Justice and published January 2010, was an extensive review of costs in civil litigation and it highlighted four flaws inherent in the recoverability of success fees in civil litigation.", "207. The first flaw of the recoverable success fee regime was the lack of focus of the regime and the lack of any qualifying requirements for claimants who would be allowed to enter into a CFA. He highlighted certain anomalies flowing from this.", "208. Secondly, Jackson LJ considered flawed the fact that there was no incentive on the part of a claimant to control the incurring of legal costs on his or her behalf and that judges assessed those costs only at the end of the case, when it was considered too late to control what had been spent.", "This concern was highlighted by the third party submissions to this Court by media organisations (paragraph 186 above). The consequent “costs race” and resulting rise in costs were particularly underlined by the judiciary ( the King case at paragraph 99 above and by Lord Hoffman in the costs'appeal in the present case at paragraph 6 5 above).", "209. The third flaw was the “blackmail” or “chilling” effect of the system of recoverable success fees. The costs burden on the opposing parties was so excessive that often a party was driven to settle early despite good prospects of a successful defence.", "This “ransom” effect of the scheme was highlighted during the earlier public consultation processes (see paragraphs 101 and 107 above), by the judiciary in other cases (the Turcu and King cases, at paragraphs 98 and 99 above), in the judgments of the House of Lords in the second appeal in the present case (Lords Hoffman and Carswell, paragraphs 64 and 72 above) and by the third parties (paragraphs 185 and 189 above).", "210. The fourth flaw was the fact that the regime provided, at the very least, the opportunity, it not being possible to verify the confidential financial records of solicitors and barristers, to “cherry pick” winning cases to conduct on CFAs with success fees. The Court considers it significant that this criticism by Jackson LJ would imply that recoverable success fees did not achieve the intended objective of extending access to justice to the broadest range of persons : instead of lawyers relying on success fees gained in successful cases to fund their representation of clients with arguably less clearly meritorious cases, lawyers had the opportunity to pursue meritorious cases only with CFAs /success fees and to avoid claimants whose claims were less meritorious but which were still deserving of being heard.", "211. Jackson LJ went on to point out that these flaws produced in defamation and privacy cases the “most bizarre and expensive system that it is possible to devise” for reasons which essentially concerned the excessive costs'burden imposed on defendants in such cases.", "212. Jackson LJ therefore recommended to the Ministry of Justice far-reaching reform. He recommended, for all civil litigation including privacy cases, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position), pointing out that the pre-1999 Act arrangements had not suffered from the above flaws and still extended access to justice for many individuals who formerly had none. If that recommendation were to be adopted, a further two recommendations (specifically concerning defamation and privacy actions) were made to ensure the objective of ensuring access to justice for claimants of slender means: increasing the general level of damages in defamation and breach of privacy cases by 10% and introducing a regime of qualified one - way costs shifting, so that the amount of costs an unsuccessful claimant might be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings.", "213. The subsequent report of the House of Commons of 2010 again recognised similar flaws of recoverable success fees (the “blackmail” effect on the press; “cherry picking” by lawyers so that CFA cases were rarely lost; and the lack of incentive on lawyers or their clients to control costs). It considered that those problems had to be addressed urgently and it proposed to limit the recoverability of success fees to 10% of the base costs with the balance to be agreed between the solicitor and client.", "214. The further Consultation Paper in January 2010 recorded the particular concern of the Ministry of Justice about the impact of 100% success fees in publication cases. It considered that experience over the past decade had shown that, in defamation proceedings in particular, “the balance had swung too far in favour of the interests of claimants and against the interests of defendants” and it noted that the Government did not believe that the “ present maximum success fee in defamation proceedings is justifiable in the public interest ”. Pending fuller consideration of Jackson LJ's proposals, the Ministry sought views on a proposal to reduce the maximum uplift from 100% to 10% of the base costs in defamation and privacy cases. In March 2010 the Ministry of Justice confirmed that legislation had been put to Parliament to reduce success fees. Pending a fuller assessment of the Jackson Review which set out a “clear case for CFA reform”, this was only an interim proposal. However, this interim solution was not maintained given the intervening general election in April 2010.", "215. In summary, within four years of the introduction by the 1999 Act of recoverable success fees to the existing CFA scheme, concerns expressed in the industry about consequent excessive costs orders, notably, in defamation and other publication including privacy cases, led to detailed public consultations by the Ministry of Justice and inquiries by Committees of the House of Commons, as well as a far- reaching review of costs in civil litigation commissioned by the Ministry.", "The Ministry of Justice acknowledged in that process that, as a result of recoverable success fees, the costs burden in civil litigation was excessive and, in particular, that the balance had swung too far in favour of claimants and against the interests of defendants. This was particularly so in defamation and privacy cases. Not only was the burden on defendants in publication cases recognised as excessive but one of the acknowledged flaws of the scheme - the opportunity for solicitors to “cherry pick” cases evidenced by the success of publication cases run on a CFA/success fee basis - would appear to indicate that the scheme has not achieved the espoused aim of ensuring access to justice of the broadest range of persons.", "Of equal importance, Jackson LJ considered that the pre-1999 Act position achieved that aim without overburdening defendants, a point with which a large number of respondents to the 2010 consultation of the Ministry had agreed (paragraph 119 above). Moreover, pending fuller consideration of the broader recommendations of Jackson LJ, the Ministry of Justice introduced legislation as a first step towards solving the acknowledged problems by drastically reducing the maximum success fee to 10%, precisely the core point impugned by the present applicant. However, the Government were unable to ensure the adoption of the legislation and have not indicated whether this or any other legislation has since been proposed for adoption.", "216. The Government relied on the domestic courts'ability to control costs in publication proceedings through the provisions of the CPR and the Costs Practice Directions. However, the second flaw highlighted in the Jackson Review indicates that those safeguards were undermined by a combination of an uncontrolled “costs race” provoked by the impugned scheme during an action and the difficulty of a court in effectively assessing those costs after the action. In addition, while those provisions addressed the reasonableness of base costs given matters such as the amount at stake, the interests of the parties and the complexity of the issues, Lord Hope underlined that the separate control of the reasonableness of success fees essentially concerned the review of the percentage uplift on the basis of the risk undertaken in the case and that, in an evenly balanced case such as the present, success fees were inevitably 100% (see also Designer's Guild Limited, cited at paragraph 97 above). Such safeguard provisions could not, therefore, as Lord Hoffman confirmed, address the applicant's rejection in principle of recoverable success fees calculated as a percentage of reasonable base costs. Moreover, these safeguards relied on by the Government were available throughout the period of public consultation at the end of which the Ministry of Justice accepted that costs were disproportionate, especially in publication cases, so that a drastic reduction in the maximum success fee was required.", "217. The Government did not address in detail the public consultation process, much of which had taken place after their observations were submitted in March 2009. It is also true that attempts by a State to improve a scheme does not mean, of itself, that the existing scheme is in violation of the Convention ( Brecknell v. the United Kingdom, cited above, at § 70).", "However, the Court considers that the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (the above-cited case of Tolstoy Miloslavsky v. the United Kingdom, at § 50 ).", "218. This conclusion is indeed borne out by the facts of the present case.", "On the one hand, the claimant was wealthy and not in the category of persons considered excluded from access to justice for financial reasons. Her representatives accepted in the domestic proceedings (paragraph 181 above) that they did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems. The applicant's case was not without merit, in that the Court of Appeal and a minority of the House of Lords considered that the impugned articles did not violate Ms Campbell's right to private life.", "On the other hand, and while accepting that the proceedings were lengthy and somewhat complex, the total costs billed by the claimant, as regards the two appeals to the House of Lords alone, amounted to GBP 850,000.00, of which GBP 365,077.13 represented success fees. It is true that the applicant, in the end, reached a settlement of the costs of both appeals paying the total sum of GBP 500,000.00 (base costs and success fees). However, given the findings of the House of Lords and of the Judicial Taxing Officers in the second appeal (paragraphs 70 and 80, respectively) as well as in the similar above-cited case of Designer's Guild Limited, success fees were clearly recoverable against the applicant and, further, at the rates of 95% and 100% in the first appeal and 95% for the solicitors'costs in the second appeal. Accordingly, even if it is not possible to quantify with certainty the precise amounts paid by the applicant which can be attributed to success fees, it is evident that the negotiated costs settlements reflected the obligation on the applicant to discharge substantial success fees.", "219. In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.", "220. Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "221. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "222. The applicant claimed reimbursement of the success fees paid to the claimant following both appeals to the House of Lords. Since the success fees claimed by her as regards the first appeal amounted to 47% of the total appeal costs billed, the applicant claimed reimbursement of GBP 164,500, being 47% of the total appeal costs actually paid in settlement by it. By the same reasoning, it claimed GBP 50,000 for the success fee for the second appeal, that being 33% of the total costs paid by it (the lower percentage reflecting the fact that only the solicitors'fees were subject to a CFA in the second appeal ). This amounted to a total claim of GBP 214,000 in pecuniary damages.", "223. The applicant also claimed GBP 100,000 (inclusive of interest and taxation costs) being the costs paid by it, using the above means of calculation, in settlement of the base costs claimed pursuant to the costs order against it as in the second appeal to the House of Lords.", "224. The applicant further claimed GBP 41,258.00 in respect of its costs in preparing a separate application on the costs issue for this Court. A further GBP 52,349.00 was claimed for work done on both the breach of confidence and costs issues since the communication of the cases. Vouchers were submitted for all costs claimed.", "225. The Government did not dispute the applicant's analysis as regards the success fees but disputed the amounts claimed. The costs'settlements between the applicant and the claimant did not specify an amount paid in respect of the success fees and, as a matter of principle, it should be assumed that the bulk of the costs paid were base costs, which would be consistent with the applicant's stance of opposition to payment of the success fees. The pecuniary loss for the first appeal should be GBP 35,511.00, the amount by which the sum paid in respect of the first appeal exceeded the base costs billed. The pecuniary loss as regards the second appeal should be zero since the sum paid by the applicant (GBP 150,000) was less than the claimed base costs (GBP 170,499.82). The Government did not address the applicant's request for reimbursement of the base costs of the second appeal to the House of Lords.", "226. The Government also made detailed submissions to the effect that the costs claimed in respect of the application to this Court were plainly excessive.", "227. The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Government and the applicants." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1940 and lives in Monaco.", "9. On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper ’ s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.", "10. Later that same day, the applicant ’ s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours ’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p. m. that day.", "11. The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.", "12. On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.", "13. On 6 April 2008 a second series of articles on the applicant ’ s sexual activities was published in the News of the World.", "14. On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet.", "15. In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression:", "“ 28 ... i ) No Convention right has, as such, precedence over another;", "ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘ intense focus ’ is necessary upon the comparative importance of the specific rights being claimed in the individual case;", "iii) The Court must take into account the justification for interfering with or restricting each right;", "iv) So too, the proportionality test must be applied to each. ”", "16. He continued:", "“ 29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication. ”", "17. Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant ’ s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing :", "“ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley ’ s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent ’ s website. ”", "18. However, as to the extent of the applicant ’ s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on :", "“ 33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘ in the public domain ’ that such an injunction would make no practical difference.", "34. As Mr Millar [for News Group Newspapers Limited ] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures .”", "19. He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting:", "“ 36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available. ”", "20. The edited video footage was restored to the News of the World website shortly afterwards.", "21. In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place:", "“Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not?", "A: That was a major concern, yes.", "Q: You were worried that the court might grant an injunction.", "A: It was a consideration, yes.", "...", "Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified?", "A: It is a risk all newspapers are faced with these days.", "Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there?", "A: No. It happens a lot.", "Q: But you were not prepared to risk that on this occasion?", "A: On this occasion.”", "22. On 24 July 2008 judgment was handed down in the privacy proceedings.", "23. Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “ hardly satisfactory ” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded:", "“ 170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘ in the round ’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘ mocking ’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism ’ ... [T] he judgment was made in a manner that could be characterised, at least, as ‘ casual ’ and ‘ cavalier ’ .”", "24. Eady J went on to consider the newspaper ’ s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant ’ s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted:", "“ 209. It is also clear that one of the main reasons for keeping the story ‘ under wraps ’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.”", "25. Eady J concluded that the newspaper articles and images constituted a breach of the applicant ’ s right to privacy. He found that there were no Nazi connotations in the applicant ’ s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images.", "26. On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression.", "27. Eady J recognised that the sum awarded would not constitute adequate redress, noting:", "“ 230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone ’ s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on.", "231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.”", "28. The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper.", "ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;", "...", "iv. economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy;", "...", "vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;", "viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. ”", "59. On 3 October 2008 Resolution 1636 (2008) on indicators for media in a democracy was adopted by the Parliamentary Assembly. It recalled the importance of freedom of expression of the press in a democracy and called on member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied.", "2. The Committee of Ministers", "60. At the Sixth European Ministerial Conference on Mass Media Policy in Cracow, 15-16 June 2000, the participating Ministers adopted a declaration on “A media policy for tomorrow”. In the declaration, the representatives of the Contracting States agreed on a programme of action at pan-European level, to be implemented by the Steering Committee on Mass Media (“CDMM”). The programme of action included the following provisions:", "“ I. Activities relating to the balance between freedom of expression and information and other rights and legitimate interests", "The CDMM should:", "- step up its work on the balance between freedom of expression and information and the right to privacy;", "- complete the work on the disclosure of information and the expression of opinions about political figures and public officials, the disclosure of information in the public interest, as well as media reporting on legal proceedings, so as to define common orientations for the whole of Europe as speedily as possible;", "- examine the problems caused by the dissemination of material casting doubt on individuals ’ dignity and integrity, even in the traditional media;", "- examine the implications of the on-line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct .”", "61. Following the adoption of the programme of action, the CDMM established a Group of Specialists on freedom of expression and other fundamental rights (“MM-S-FR”). The MM-S-FR prepared a draft declaration of the Committee of Ministers on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of 10 July 2003 and 21 January 2004. However, the CCDM did not invite the Committee of Ministers to adopt the declaration.", "B. Law and practice in Council of Europe member States", "62. According to the information provided by the parties or otherwise available to the Court, there is no pre-notification requirement as such in any of the legal systems of the Contracting Parties. However, some member States require the subject ’ s consent to publication of material relating to private life, in many cases subject to some form of “public interest” exception. Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication.", "63. A number of member States have adopted codes of practice, generally not binding, which also contain some form of consent requirement.", "C. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the EC Directive ” )", "64. The EC Directive was adopted in order to ensure adequate protection for personal data. It applies to the 27 Member States of the European Union. It was transposed in the United Kingdom through the Data Protection Act 1998 (see paragraphs 42 - 45 above). There is no reference in the EC Directive to the need to provide for a pre-notification requirement in privacy cases." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Press Complaints Commission", "29. The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence.", "30. On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors ’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted:", "“ The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context.", "The [PCC] was also aware of the newspaper ’ s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant ’ s comments was necessary to avoid breaching the Code.", "...", "It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld .”", "B. Codes of Practice", "1. The Editors ’ Code of Practice", "31. The PCC is responsible for ratifying and enforcing the Editors ’ Code of Practice (“the Editors ’ Code”). The Editors ’ Code is regularly reviewed and amended as required. Clause 1 of the Editors ’ Code provides, inter alia, that the press must take care not to publish inaccurate, misleading or distorted information, including pictures.", "32. Clause 3 of the Editors ’ Code deals with privacy. At the relevant time, it provided as follows:", "“3. *Privacy", "i ) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual ’ s private life without consent.", "ii) It is unacceptable to photograph individuals in a private place without their consent.", "Note - Private places are public or private property where there is a reasonable expectation of privacy.”", "33. Clause 10 of the Editors ’ Code sets out provisions on clandestine recordings:", "“10 *Clandestine devices and subterfuge", "i ) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.", "ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”", "34. At the relevant time, the “public interest” was explained in the Editors ’ Code as follows:", "“ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.", "1. The public interest includes, but is not confined to:", "i ) Detecting or exposing crime or serious impropriety.", "ii) Protecting public health and safety.", "iii) Preventing the public from being misled by an action or statement of an individual or organisation.", "2. There is a public interest in freedom of expression itself.", "3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.", "4. The PCC will consider the extent to which material is already in the public domain, or will become so.", "...”", "35. Paragraph 3 was amended in October 2009 to provide:", "“ Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest. ”", "36. The Editors ’ Codebook accompanies the Editors ’ Code and is intended to provide guidance as to compliance with the Code ’ s provisions. It underwent major revision in January 2011, providing updates on prior notification and “ public interest ”. As regards prior notification, it now explains:", "“ There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle:", "1. If there is no doubt about the story ’ s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy];", "2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘ other side of the story ’ before the article appears;", "... ”", "37. As to the “public interest” test, the Codebook notes:", "“ In judging publications ’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served. ”", "38. It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as:", "“ Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances.", "If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means?", "Is the information in the public domain, or likely to become so?", "If children are involved, is the public interest in publication exceptional? ”", "2. The Ofcom Broadcasting Code", "39. Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia :", "“7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that:", "...", "40. Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes.", "C. Remedies for publication of private information", "41. Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant ’ s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material.", "42. Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person ’ s sexual life.", "43. However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes :", "“ Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—", "(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,", "(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and", "(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes. ”", "44. Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest.", "45. Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data.", "D. Interim injunctions", "46. The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted.", "47. The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides:", "“ (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.", "(2) If the person against whom the application for relief is made ( ‘ the respondent ’ ) is neither present nor represented, no such relief is to be granted unless the court is satisfied—", "(a) that the applicant has taken all practicable steps to notify the respondent; or", "(b) that there are compelling reasons why the respondent should not be notified.", "(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.", "(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—", "(a) the extent to which—", "( i ) the material has, or is about to, become available to the public; or", "(ii) it is, or would be, in the public interest for the material to be published;", "(b) any relevant privacy code. ”", "48. The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that:", "“ 15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘ serious question to be tried ’ or a ‘ real prospect ’ of success at the trial.”", "49. He concluded that:", "“ 22. Section 12(3) makes the likelihood of success at the trial an essential element in the court ’ s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant ’ s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘ sufficiently favourable ’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not ’ ) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”", "50. Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595), the Court of Appeal noted:", "“ 258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998. ”", "E. The House of Commons Culture, Media and Sport Committee", "51. On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2 nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World. A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted:", "“82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World ’ s intention to publish. Mr Myler [the editor of the News of the World ] told us that he and his colleagues at the newspaper were conscious of this: ‘ we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction ’ .”", "52. According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted :", "“91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.”", "53. The Select Committee recommended that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors ’ Codebook.", "54. As to the need for a legally binding pre-notification requirement, the Select Committee concluded that:", "“93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘ public interest ’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Relevant Council of Europe texts", "1. The Parliamentary Assembly of the Council of Europe", "55. On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place :", "“ (a) professional training for journalists under the responsibility of editors and journalists;", "(b) a professional code of ethics for journalists; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights;", "(c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself. ”", "56. The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one ’ s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection", "57. On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people ’ s private lives had become a highly lucrative commodity for certain sectors of the media. It continued:", "“ 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.", "58. The resolution reaffirmed the importance of every person ’ s right to privacy and of the right to freedom of expression as fundamental to a democratic society. It noted that these rights were neither absolute nor in any hierarchical order, since they were of equal value. Further, the right to privacy afforded by Article 8 required protection against interference by private persons or institutions, including the mass media. The resolution also set out specific guidelines on the necessary content of national legislation:", "“ i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION", "65. The applicant complained that the United Kingdom had violated its positive obligations under Article 8 of the Convention, taken alone and taken together with Article 13, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The Government contested that argument", "66. In the Court ’ s view, the complaint under Article 13 as to the absence of an effective domestic remedy is a reformulation of the applicant ’ s complaint under Article 8 of the Convention that the respondent State did not ensure respect for the applicant ’ s private life, and is subsidiary to it (see Armonienė v. Lithuania, no. 36919/02, § 23, 25 November 2008; and Biriuk v. Lithuania, no. 23373/03, § 23, 25 November 2008 ). The Court accordingly considers it appropriate to analyse the applicant ’ s complaints solely under Article 8 of the Convention, which reads in so far as relevant as follows :", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. Victim status", "a. The parties ’ submissions", "67. The Government considered that the applicant was no longer a victim of any violation of the Convention. They noted that he had successfully pursued domestic proceedings and was awarded the sum of GBP 60,000 in damages and recovered GBP 420,000 in costs (see paragraph 28 above). They concluded that he had obtained a remedy before the domestic courts and considered that remedy to constitute adequate and proportionate reparation for the harm he had suffered. They emphasised that the damages awarded in his case were the highest to date in the United Kingdom for an invasion of privacy. The Government further noted that the applicant had recovered damages in other jurisdictions and that it seemed that he had outstanding proceedings in the United Kingdom and elsewhere in respect of the same or similar publications. These included proceedings in Germany, which settled for EUR 250,000, and civil and criminal proceedings in France and Italy regarding the publication which was the subject of the English proceedings.", "68. The Government also emphasised that since commencing his legal action against the News of the World, the applicant had sought and obtained a high profile in the United Kingdom as a champion of privacy rights and, in that context, had submitted evidence to Parliament and had participated in a number of press and media interviews. They questioned whether the effect of the publication was as detrimental to the applicant as he claimed.", "69. The applicant insisted that he remained a victim of a violation of the Convention notwithstanding the damages award in the domestic proceedings. He argued that damages were not an adequate remedy where private and embarrassing personal facts and intimate photographs were deliberately exposed to the public in print and on the internet. This information could never be expunged from the minds of the millions of people who had read or seen the material and privacy could not be restored to him by an award of damages. The only effective remedy in his case would have been an injunction, a remedy which he was denied by the failure of the newspaper to notify him in advance. Similarly, actions taken in other jurisdictions did not remove his victim status. Such actions were aimed at requiring media and internet websites to remove explicit or highly personal information repeated or taken from the original publication by the News of the World. Indeed, his efforts in this regard were evidence of how persistent and damaging the breach of his privacy had been.", "70. Finally, the applicant argued that any implication that he had not suffered from the breach of his privacy was both absurd and offensive. He pointed to the intimate nature of the material disclosed and the humiliation occasioned by its public disclosure, as well as to the impact of the publication on his family.", "b. The Court ’ s assessment", "71. The Court accepts that the publication of the articles, photographs and video images of the applicant participating in sexual acts had a significant impact on the applicant ’ s right to respect for his private life. The fact that, following the widespread dissemination of the material (see paragraph 11 above), the applicant has chosen to pursue what he perceives to be a necessary change in the law does not lessen the extent of any humiliation or injury suffered by him as a result of the original exposure of the material.", "72. The Court notes the unusual nature of the applicant ’ s complaint. Having won his case at domestic level and obtained damages, his argument before this Court is directed at the prevailing situation in the United Kingdom in which there is no legal requirement to pre-notify the subject of an article which discloses material related to his private life. Whether or not Article 8 requires, as the applicant has contended, the United Kingdom to put in place a legally binding pre-notification requirement is a matter to be considered in the context of the merits of the case. However, it is clear that no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant.", "73. In light of the above, the Court finds that the applicant can claim to be a victim in light of the specific nature of his complaint under Article 8 of the Convention.", "2. Exhaustion of domestic remedies", "a. The parties ’ submissions", "74. The Government argued that in so far as the applicant sought to claim that the damages awarded in the domestic proceedings were not adequate, he had failed to exhaust domestic remedies as he did not appeal the judge ’ s ruling on exemplary damages. They further relied on the fact that the applicant had elected to pursue a remedy in damages, rather than an account of profits. Finally, they noted that the applicant had failed to bring any proceedings under the Data Protection Act 1998 (see paragraphs 42 - 45 above), which would have allowed him to complain about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data.", "75. The applicant reiterated that he was not seeking further damages from the newspaper but was making a complaint about the absence of a law which would have prevented publication of the article which violated his right to respect for private life. Accordingly, the additional remedies proposed by the Government were, in his submission, irrelevant to his complaint.", "b. The Court ’ s assessment", "76. The Court reiterates the unusual nature of the applicant ’ s complaint in the present case (see paragraph 72 above). None of the remedies on which the Government rely could address his specific complaint regarding the absence of a law requiring pre-notification. They are therefore not to be considered remedies which the applicant was required to exhaust before lodging his complaint with this Court.", "77. The Government ’ s objection is accordingly dismissed.", "3. Conclusion", "78. The Court has dismissed the Government ’ s objections as to the applicant ’ s victim status and exhaustion of domestic remedies. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "a. The applicant", "79. The applicant argued that a positive obligation could arise under Article 8 of the Convention even in the sphere of the relations of individuals between themselves. In the present case, he contended, the respondent State had an obligation to enable him to apply for an injunction by requiring that he be notified prior to publication of an article which interfered with his private life. The applicant emphasised that in his case details of the most intimate parts of his private life were published on the front page, and in several inside pages, of a newspaper with an estimated readership of approximately ten million people in the United Kingdom. Highly intrusive images made by means of secret recordings were also posted on the newspaper ’ s website and inevitably reproduced elsewhere on the internet. The applicant considered that the judgment of Eady J made it clear that had he had an opportunity to apply for an injunction, an injunction would have been granted (see paragraphs 17 - 18 above).", "80. In support of his argument that the law should provide for an opportunity to seek an injunction, the applicant emphasised, first, that where a conflict arose between competing interests under Article 8 and Article 10, it was for the courts and not the newspapers to resolve it. He highlighted the dangers of allowing journalists to be the sole judges as to where the balance between the right to freedom of expression and the right to respect for private life lay, as, he claimed, the British press were largely hostile both to the need to protect private life and to the interpretation of that right by the judiciary. Further, he considered that as the law currently stood, editors were encouraged not to notify subjects as, once an article had been published, subjects often decided not to bring legal proceedings for fear of attracting further publicity in respect of the invariably embarrassing or damaging details about their private lives. Second, the applicant argued that where the resolution of the conflict between Articles 8 and 10 occurred only after publication, there was insufficient protection for private life because, once lost, privacy could not be regained. Referring to the judgment of Eady J (see paragraph 27 above), the applicant noted that in defamation cases, it was a complete defence to prove the truth of the published material and that, as a result, damage done to reputation could be removed by proving that the allegations were false. However, the same could not be said in relation to privacy, which was inherently perishable and therefore could not be restored to the victim of the interference. Further, he was of the view that section 12 of the Human Rights Act 1998 provided significant protection for newspapers ’ right to freedom of expression by setting a high threshold before an interim injunction would be granted (see paragraphs 47 - 50 above). He emphasised that pursuant to the Court ’ s jurisprudence on Article 10, there was a need for newspapers claiming protection to comply with the requirements of responsible journalism. In his view, these requirements included a pre-notification requirement.", "81. The applicant accepted that the respondent State had a margin of appreciation but contended that it related solely to the scope or efficacy of any pre-notification requirement. His complaint was not that he had received some warning but not enough; rather, he had received no warning at all. He considered that the absence of a uniform approach in other Contracting Parties requiring pre-notification was not decisive. He pointed to the fact that in a number of States, consent played an important role in the context of privacy law and contended that where consent was either required for disclosure or relevant to an assessment of whether the disclosure was lawful, there was no need for a separate pre-notification requirement. He further relied on what he called the “unique nature of the tabloid press” in the United Kingdom, highlighting the unlawful actions of some tabloid reporters and the criticisms made by the tabloid press of developing laws on privacy.", "82. While the applicant agreed that the precise mechanics and scope of any system of pre-notification was a matter for the discretion of the respondent State, he considered the difficulties which the Government claimed would arise, for example, in formulating a pre-notification obligation, to be illusory or at the very least exaggerated, given in particular that prior notification already occurred in the vast majority of cases (see paragraph 52 above). In his view, a pre-notification obligation in respect of an intended publication would arise, at the very least, where there were reasonable grounds to believe that the publication would infringe the right to respect for private life, having regard to all the circumstances of the case including any public interest defence. There was nothing unfamiliar about the legal concept of “reasonable belief”. He further pointed out that a form of pre-notification was already envisaged in the Ofcom Code, which imposed an obligation on broadcasters before broadcasting a factual programme to seek comments from anyone it would be unfair to exclude (see paragraph 39 above).", "83. The applicant accepted that any system would require exceptions in certain circumstances to allow for legitimate situations where it would be either impractical or contrary to the public interest for the media to notify an individual in advance. Thus where all practicable steps had been taken to notify or where there were compelling reasons not to notify, no sanction for a failure to notify would arise. He disputed that conceptual difficulties would arise in devising any public interest exception to the general requirement, pointing to the provision in the Human Rights Act 1998 that a party seeking an injunction should notify the media in advance of the application and to the exception for “ compelling reasons ” to that general rule set out in the same Act (see paragraph 47 above).", "84. As to sanctions, the applicant considered that criminal or regulatory sanctions were required to enforce the pre-notification requirement (citing K.U. v. Finland, no. 2872/02, 2 December 2008 ). He pointed out that criminal proceedings against newspapers and editors for alleged contempt of court, obscenity or breaches of the Official Secrets Acts were possible.", "b. The Government", "85. While the Government accepted that Article 8 could give rise to positive obligations, they contended that a high threshold had to be crossed before Article 8 would be engaged in this way. They distinguished between three types of cases. First, where an applicant had suffered directly from State inaction, such as non-recognition of transsexuals, the case for a positive obligation was strong. Second, where positive action by the State was called for by an applicant to prevent interference by non-State bodies, such as in environmental and media cases, positive obligations were less readily invoked. Third, where an applicant alleged that positive action by individuals was called for, the extent of any positive obligation under Article 8 was at its weakest. The Government argued that relevant factors in determining the extent of the positive duty were the extent to which fundamental and essential aspects of private life were in issue; the prejudice suffered by the applicant; the breadth and clarity of the positive obligation sought to be imposed; and the extent of consensus among Council of Europe member States or internationally. With reference to these factors, they argued that they had no positive obligation to protect the applicant ’ s privacy by providing for a legally binding pre- notification requirement.", "86. If there was a positive obligation in the circumstances of the case, the Government contended that there was a significant margin of appreciation available to them in deciding where in domestic law to strike the balance between the requirements of Article 8 and Article 10 and that the current position fell within that range. They argued that an inevitable consequence of a pre-notification requirement was that there would be an increase in the number of interim injunctions granted, which in themselves were a restriction on freedom of expression and for that reason should be approached with caution.", "87. The Government pointed out that there was a consistent pattern among Council of Europe member States against a system of pre ‑ notification and disputed in this regard that the tabloid press in the United Kingdom was unique in Europe. As to the role of consent in certain other States, the Government noted that it was not clear whether consent was a strict requirement in the cases mentioned by the applicant, nor was it clear whether there were exceptions. In any case, they considered it questionable whether this approach differed from the approach in the United Kingdom, where consent would be a complete defence to any action for invasion of privacy and failure to pre-notify would be taken into consideration in fixing any damages award. Further, the Government emphasised that an insistence on compulsory pre- notification would be to depart from internationally accepted standards as established by the Council of Europe (see paragraphs 55 - 59 above). In this regard, they noted in particular that the legal position in the United Kingdom complied with the guidelines set out in Resolution 1165 (see paragraph 58 above).", "88. The Government also referred to the important role of the PCC and the Editors ’ Code in the system for protection of privacy rights in the United Kingdom. In particular, they highlighted that the PCC had recently upheld a complaint where a newspaper had failed to seek the subject ’ s comments prior to publication (see paragraph 30 above). They also emphasised that the matter had recently been examined in the context of an inquiry by the House of Commons Culture, Media and Sport Committee (see paragraphs 51 - 54 above). After hearing evidence, the Select Committee had decided against recommending a legal requirement of pre-notification (see paragraph 54 above).", "89. Finally, the Government considered that the fact that pre-notification was carried out as a matter of good practice in most cases did not mean that there were no insuperable difficulties in imposing a legal requirement to do so. In their view, the introduction of a pre-notification requirement would give rise to a number of practical and principled objections. Difficulties arose regarding the formulation of the scope of any obligation, including the identification of the categories of press and media to which the obligation would apply and the extent of the notification requirement and the circumstances in which it would be engaged, as well as the operation of any “public interest” exception. In this regard, they disputed the applicant ’ s claim that the Ofcom Code provided an example of the kind of pre-notification duty called for, considering the obligation set out in Rule 7.9 of that code to be significantly different. The question of sanctions for a failure to comply with a pre-notification requirement was also problematic. The Government considered it clear that the applicant contemplated criminal sanctions and expressed concern about how to define and enforce any criminal offence. They also warned that an inadequately framed law could give rise to breaches of Article 10.", "90. In conclusion, the Government invited the Court to find that the framework of legal regulation in place in the United Kingdom concerning publications which might contravene the right to respect for private life was sufficient to comply with any positive obligations which arose.", "c. Third party submissions", "i. Guardian News & Media Ltd", "91. The Guardian News & Media Ltd (“ the Guardian”) argued that if the applicant ’ s complaint were to be upheld by the Court, it would seriously and disproportionately fetter the right of the press to publish, and the public to receive, information and opinions in the public interest. A pre-notification requirement would thus have a serious and unjustified chilling effect upon the practical enjoyment of the right to freedom of expression. It would, in their view, also be inconsistent with the concept of responsible journalistic freedom which the Court had consistently emphasised.", "92. The Guardian stressed that while the applicant had formulated the pre-notification duty by reference to the facts of his case, its repercussions would be felt far more widely. First, they argued, an alleged breach could involve not only the media but also public authorities, non-governmental organisations or even private individuals. Second, logic dictated that pre ‑ notification would be required not only in privacy cases but in all cases requiring a balancing exercise pursuant to Article 10 § 2.", "93. Referring to the wide margin of appreciation in this area, the Guardian considered that the appropriate balance had been struck in the United Kingdom. They highlighted the absence of any European consensus that a pre-notification duty was required. Further, although some countries required that consent be obtained before information regarding private life was disseminated, at least where the public interest was not implicated, a similar number of countries had no such provision. The Guardian also referred to the Data Protection Act 1998 and its parent EC Directive, which did not provide for any pre-notification requirement (see paragraphs 42 - 45 and 64 above). They further referred to the recent inquiry by a House of Commons Select Committee, which in its subsequent report rejected the argument that there was a need for a pre-notification requirement in the United Kingdom (see paragraphs 51 - 54 above).", "94. Finally, the Guardian contended that any pre-notification requirement would be unworkable in practice. They considered that it would not always be obvious when the pre-notification rule would be triggered, nor was it clear how the need for a “ public interest ” exception could be catered for.", "ii. The Media Lawyers ’ Association", "95. The Media Lawyers ’ Association (“ the MLA”) contended that a pre-notification requirement was wrong in principle, would be unworkable in practice and would constitute a breach of Article 10 of the Convention.", "96. The MLA emphasised the wide margin of appreciation in deciding what measures were required to satisfy any positive obligation in this field. They referred to the lack of any European consensus on the need for a pre-notification duty. They also pointed to the fact that a House of Commons Select Committee had recently rejected the suggestion that there should be a legal pre-notification requirement (see paragraph 54 above). The question whether there was a need to contact a subject prior to publication was, in their view, a matter to be addressed in the context of the ethics of journalism and the codes of practice governing the media. These codes had evolved over time and demonstrated that the media were well aware of the duty to respect each individual ’ s right to privacy. In particular, the MLA noted that the Editors ’ Code gave guidance as to what might be covered by “public interest” (see paragraphs 34 - 35 above).", "97. The MLA contended that the duty for which the applicant argued was vague and uncertain in scope. They pointed out that a pre-publication duty would have wide ramifications, potentially applying not just to the media and journalists but to a far broader group. A number of practical questions arose, for example, as to who would have to be contacted by the media in respect of any intended publication, whether the duty would arise in respect of photographs taken in the street of unknown persons, whether it would apply to images or text previously published and whether it would extend to notification of close family members of the subject, who might also be affected by the publication of the material. The MLA further referred to the need for exceptions to any general duty, for example, where there was a good reason not to contact the subject or where there was a public interest in publication.", "98. The MLA emphasised the importance of Article 10 and in particular the role of the press as “public watchdog”. They considered that the availability and operation of interim injunctions continued to be a matter of concern in this area and contended that prior restraints on publication constituted a serious interference with the right to freedom of expression. Accordingly, such restraints should only be granted where strictly necessary, and any order granted should be no wider than necessary. They emphasised that injunction proceedings in themselves inevitably led to delay and costs, even if no injunction was eventually granted, and any changes which would encourage the seeking of injunctions would therefore not be desirable. They argued that domestic law struck an appropriate balance between competing rights and interests.", "iii. The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers ’ Association, European Publishers ’ Council, The Mass Media Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to Information Programme (AIP) Foundation, Global Witness and Media Law Resource Centre", "99. In their joint written submissions, the interveners referred to the importance of the right to freedom of expression. There would, in their view, be significant consequences were a pre-notification requirement to be introduced. It would delay publication of important news, which was itself a perishable commodity, in a wide range of public interest situations wherever the public figure could claim that his psychological integrity was at stake from publication of the truth. The interveners disputed that any balance was required between rights arising under Articles 8 and 10, arguing that there was a presumption in favour of Article 10 and that reputation was a subsidiary right which had to be narrowly interpreted.", "100. The interveners further argued that there was a wide margin of appreciation in this area. They emphasised the tradition in common law countries against prior restraints on publication, arguing that a pre ‑ notification requirement would go against the long-standing approach in this area. Further, they pointed out, there was no Europe-wide consensus as to a need for a pre-notification rule. It was also noteworthy that questions of privacy protection had been regularly debated in the United Kingdom in recent years and had been the subject of various reports, including the recent Select Committee report (see paragraph 51 - 54 above). In that report, the applicant ’ s case for a pre-notification requirement had been rejected.", "101. The interveners also contended that privacy was inadequately defined to support a pre-notification requirement. However, they accepted that there might be an argument for a notice requirement relating to medical records and photographs taken without consent in private places, for example, but only if reputation were no part of Article 8 and private information were properly defined. In their view, as currently formulated, the requirement called for was so vague as to be unworkable.", "102. The interveners considered that any general duty would have to be subject to exceptions, notably to an exception where there was a “ public interest ” in publication. This being the case, it was relevant that in the applicant ’ s case, the editor of the News of the World would have published the story without notification even if there had been a legally binding pre ‑ notification requirement because he genuinely believed that there was a Nazi element to the activities which would have justified publication in the public interest (see paragraph 24 above).", "103. The interveners emphasised that even successfully defended injunction proceedings could cost a newspaper GBP 10,000; an unsuccessful newspaper could pay GBP 60,000. It was simply not viable for the media to contest every case where compulsory notification would be followed by a request for an injunction. This was the chilling effect of a pre ‑ notification requirement.", "2. The Court ’ s assessment", "104. The Court recalls that Eady J in the High Court upheld the applicant ’ s complaint against the News of the World (see paragraph 25 above). He found that there was no Nazi element to the applicant ’ s sexual activities. He further criticised the journalist and the editor for the casual and cavalier manner in which they had arrived at the conclusion that there was a Nazi theme. In the absence of any Nazi connotations, there was no public interest or justification in the publication of the articles or the images. Reflecting the grave nature of the violation of the applicant ’ s privacy in this case, Eady J awarded GBP 60,000 in damages. The newspaper did not appeal the judgment. In light of these facts the Court observes that the present case resulted in a flagrant and unjustified invasion of the applicant ’ s private life.", "105. The Court further notes that as far as the balancing act in the circumstances of the applicant ’ s particular case was concerned, the domestic court firmly found in favour of his right to respect for private life and ordered the payment to the applicant of substantial monetary compensation. The assessment which the Court must undertake in the present proceedings relates not to the specific facts of the applicant ’ s case but to the general framework for balancing rights of privacy and freedom of expression in the domestic legal order. The Court must therefore have regard to the general principles governing the application of Article 8 and Article 10, before examining whether there has been a violation of Article 8 as a result of the absence of a legally binding pre-notification requirement in the United Kingdom.", "a. General principles", "i Article 8", "106. It is clear that the words “ the right to respect for ... private ... life ” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31 ). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996 ‑ IV ).", "107. The Court emphasises the importance of a prudent approach to the State ’ s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect ( Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009 ). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States ’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III ). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI ).", "108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998 ‑ V ). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII; and Armonienė, cited above, § 38 ). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ).", "109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002 ‑ VI ). Thus, in cases concerning Article 8, where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ IV; and A, B and C v. Ireland [GC], cited above, § 232 ). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX ).", "110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation : where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 ‑ II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ XIII ). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ‑ ... ).", "111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142 ), rights which merit, in principle, equal respect ( Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30 ).", "ii. Article 10", "112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law ( see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141).", "113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of ... the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009 ‑ ...; and MGN Limited, cited above, § 141 ).", "114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual ’ s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person ’ s strictly private life ( Von Hannover, cited above, § 65; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143 ). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France ( dec .), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés ( ICI PARIS ), cited above, 40; and MGN Limited, cited above, § 143 ). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it.", "115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I ). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47; and MGN Limited, cited above, § 143 ). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ).", "116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009 ). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004 ‑ XI ).", "117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60 ). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.", "b. Application of the general principles to the facts of the case", "118. As noted above (see paragraph 106 ), it is clear that a positive obligation arises under Article 8 in order to ensure the effective protection of the right to respect for private life. The question for consideration in the present case is whether the specific measure called for by the applicant, namely a legally binding pre-notification rule, is required in order to discharge that obligation.", "119. The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors ’ Code and Codebook and oversight of journalists ’ and editors ’ conduct by the PCC (see paragraphs 29 - 38 above). This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58 - 59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant ’ s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant ’ s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly ’ s 1998 resolution (see paragraph 58 above). Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified (see paragraphs 42 - 45 above).", "120. The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court ’ s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In Armonienė, cited above, a complaint about the disclosure of the applicant ’ s husband ’ s HIV-positive status focused on the “derisory sum” of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance. Thus in X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, the Court insisted on the need for criminal law provisions to achieve deterrence in a case which involved forced sexual intercourse with a sixteen year old mentally handicapped girl. In K.U. v. Finland, no. 2872/02, § § 46-47, 2 December 2008, the availability of civil law damages from an Internet service provider was inadequate where there was no possibility of identifying the person who had posted an advert in the name of the applicant, at the time only twelve years old, on a dating website, thus putting him at risk of sexual abuse.", "121. In the present case the Court must consider whether, notwithstanding its past approach in cases concerning violations of the right to respect for private life by the press, Article 8 requires a pre-notification rule in order to ensure effective protection of the right to respect for private life. In doing so, the Court will have regard, first, to the margin of appreciation available to the respondent State in this field (see paragraphs 108 - 110 above) and, second, to the clarity and potential effectiveness of the rule called for by the applicant. While the specific facts of the applicant ’ s case provide a backdrop to the Court ’ s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant ’ s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny.", "i. The margin of appreciation", "122. The Court recalls, first, that the applicant ’ s claim relates to the positive obligation under Article 8 and that the State in principle enjoys a wide margin of appreciation (see paragraph 108 above). It is therefore relevant that the respondent State has chosen to put in place a system for balancing the competing rights and interests which excludes a pre ‑ notification requirement. It is also relevant that a parliamentary committee recently held an inquiry on privacy issues during which written and oral evidence was taken from a number of stakeholders, including the applicant and newspaper editors. In its subsequent report, the Select Committee rejected the argument that a pre-notification requirement was necessary in order to ensure effective protection of respect for private life (see paragraph 54 above).", "123. Second, the Court notes that the applicant ’ s case concerned the publication of intimate details of his sexual activities, which would normally result in a narrowing of the margin of appreciation (see paragraph 109 above). However, the highly personal nature of the information disclosed in the applicant ’ s case can have no significant bearing on the margin of appreciation afforded to the State in this area given that, as noted above (see paragraph 121 above), any pre-notification requirement would have an impact beyond the circumstances of the applicant ’ s own case.", "124. Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62 - 63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119 ), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56 - 59 above). The Court therefore concludes that the respondent State ’ s margin of appreciation in the present case is a wide one.", "ii. The clarity and effectiveness of a pre-notification requirement", "125. The applicant considered that the duty should be triggered where any aspect of private life was engaged. It would therefore not be limited to the intended disclosure of intimate or sexual details of private life. As such, the duty would be a relatively broad one. Notwithstanding the concerns expressed by the Government and the interveners (see paragraphs 89, 94, 97 and 101 above) the Court considers that the concept of “private life” is sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life. Specific considerations would arise, for example in the context of photographs of crowds, but suitable provisions could be included in any law. The Court is further of the view that a satisfactory definition of those who would be subject to the requirement could be found. It would appear possible, for example, to provide for a duty which would apply to those within the purview of the Editors ’ Code.", "126. However, the Court is persuaded that concerns regarding the effectiveness of a pre-notification duty in practice are not unjustified. Two considerations arise. First, it is generally accepted that any pre ‑ notification obligation would require some form of “public interest” exception (see paragraphs 83, 89, 94, 97 and 102 above). Thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a “public interest” at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such “public interest” arose. The parties ’ submissions appeared to differ on whether “public interest” should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material. The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty.", "127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23 - 24 above). Thus, in the applicant ’ s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication.", "128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant ’ s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.", "129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.", "iii. Conclusion", "130. As noted above, the conduct of the newspaper in the applicant ’ s case is open to severe criticism. Aside from publication of the articles detailing the applicant ’ s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant ’ s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World ’ s coverage merely to titillate the public and increase the embarrassment of the applicant.", "131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).", "132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1940 and lives in Monaco.", "9. On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper ’ s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.", "10. Later that same day, the applicant ’ s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours ’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p. m. that day.", "11. The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.", "12. On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.", "13. On 6 April 2008 a second series of articles on the applicant ’ s sexual activities was published in the News of the World.", "14. On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet.", "15. In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression:", "“ 28 ... i ) No Convention right has, as such, precedence over another;", "ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘ intense focus ’ is necessary upon the comparative importance of the specific rights being claimed in the individual case;", "iii) The Court must take into account the justification for interfering with or restricting each right;", "iv) So too, the proportionality test must be applied to each. ”", "16. He continued:", "“ 29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication. ”", "17. Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant ’ s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing :", "“ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley ’ s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent ’ s website. ”", "18. However, as to the extent of the applicant ’ s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on :", "“ 33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘ in the public domain ’ that such an injunction would make no practical difference.", "34. As Mr Millar [for News Group Newspapers Limited ] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures .”", "19. He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting:", "“ 36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available. ”", "20. The edited video footage was restored to the News of the World website shortly afterwards.", "21. In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place:", "“Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not?", "A: That was a major concern, yes.", "Q: You were worried that the court might grant an injunction.", "A: It was a consideration, yes.", "...", "Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified?", "A: It is a risk all newspapers are faced with these days.", "Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there?", "A: No. It happens a lot.", "Q: But you were not prepared to risk that on this occasion?", "A: On this occasion.”", "22. On 24 July 2008 judgment was handed down in the privacy proceedings.", "23. Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “ hardly satisfactory ” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded:", "“ 170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘ in the round ’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘ mocking ’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism ’ ... [T] he judgment was made in a manner that could be characterised, at least, as ‘ casual ’ and ‘ cavalier ’ .”", "24. Eady J went on to consider the newspaper ’ s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant ’ s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted:", "“ 209. It is also clear that one of the main reasons for keeping the story ‘ under wraps ’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.”", "25. Eady J concluded that the newspaper articles and images constituted a breach of the applicant ’ s right to privacy. He found that there were no Nazi connotations in the applicant ’ s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images.", "26. On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression.", "27. Eady J recognised that the sum awarded would not constitute adequate redress, noting:", "“ 230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone ’ s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on.", "231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.”", "28. The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper.", "ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel;", "...", "iv. economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy;", "...", "vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy;", "viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. ”", "59. On 3 October 2008 Resolution 1636 (2008) on indicators for media in a democracy was adopted by the Parliamentary Assembly. It recalled the importance of freedom of expression of the press in a democracy and called on member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied.", "2. The Committee of Ministers", "60. At the Sixth European Ministerial Conference on Mass Media Policy in Cracow, 15-16 June 2000, the participating Ministers adopted a declaration on “A media policy for tomorrow”. In the declaration, the representatives of the Contracting States agreed on a programme of action at pan-European level, to be implemented by the Steering Committee on Mass Media (“CDMM”). The programme of action included the following provisions:", "“ I. Activities relating to the balance between freedom of expression and information and other rights and legitimate interests", "The CDMM should:", "- step up its work on the balance between freedom of expression and information and the right to privacy;", "- complete the work on the disclosure of information and the expression of opinions about political figures and public officials, the disclosure of information in the public interest, as well as media reporting on legal proceedings, so as to define common orientations for the whole of Europe as speedily as possible;", "- examine the problems caused by the dissemination of material casting doubt on individuals ’ dignity and integrity, even in the traditional media;", "- examine the implications of the on-line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct .”", "61. Following the adoption of the programme of action, the CDMM established a Group of Specialists on freedom of expression and other fundamental rights (“MM-S-FR”). The MM-S-FR prepared a draft declaration of the Committee of Ministers on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of 10 July 2003 and 21 January 2004. However, the CCDM did not invite the Committee of Ministers to adopt the declaration.", "B. Law and practice in Council of Europe member States", "62. According to the information provided by the parties or otherwise available to the Court, there is no pre-notification requirement as such in any of the legal systems of the Contracting Parties. However, some member States require the subject ’ s consent to publication of material relating to private life, in many cases subject to some form of “public interest” exception. Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication.", "63. A number of member States have adopted codes of practice, generally not binding, which also contain some form of consent requirement.", "C. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the EC Directive ” )", "64. The EC Directive was adopted in order to ensure adequate protection for personal data. It applies to the 27 Member States of the European Union. It was transposed in the United Kingdom through the Data Protection Act 1998 (see paragraphs 42 - 45 above). There is no reference in the EC Directive to the need to provide for a pre-notification requirement in privacy cases." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Press Complaints Commission", "29. The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence.", "30. On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors ’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted:", "“ The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context.", "The [PCC] was also aware of the newspaper ’ s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant ’ s comments was necessary to avoid breaching the Code.", "...", "It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld .”", "B. Codes of Practice", "1. The Editors ’ Code of Practice", "31. The PCC is responsible for ratifying and enforcing the Editors ’ Code of Practice (“the Editors ’ Code”). The Editors ’ Code is regularly reviewed and amended as required. Clause 1 of the Editors ’ Code provides, inter alia, that the press must take care not to publish inaccurate, misleading or distorted information, including pictures.", "32. Clause 3 of the Editors ’ Code deals with privacy. At the relevant time, it provided as follows:", "“3. *Privacy", "i ) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual ’ s private life without consent.", "ii) It is unacceptable to photograph individuals in a private place without their consent.", "Note - Private places are public or private property where there is a reasonable expectation of privacy.”", "33. Clause 10 of the Editors ’ Code sets out provisions on clandestine recordings:", "“10 *Clandestine devices and subterfuge", "i ) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.", "ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”", "34. At the relevant time, the “public interest” was explained in the Editors ’ Code as follows:", "“ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.", "1. The public interest includes, but is not confined to:", "i ) Detecting or exposing crime or serious impropriety.", "ii) Protecting public health and safety.", "iii) Preventing the public from being misled by an action or statement of an individual or organisation.", "2. There is a public interest in freedom of expression itself.", "3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.", "4. The PCC will consider the extent to which material is already in the public domain, or will become so.", "...”", "35. Paragraph 3 was amended in October 2009 to provide:", "“ Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest. ”", "36. The Editors ’ Codebook accompanies the Editors ’ Code and is intended to provide guidance as to compliance with the Code ’ s provisions. It underwent major revision in January 2011, providing updates on prior notification and “ public interest ”. As regards prior notification, it now explains:", "“ There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle:", "1. If there is no doubt about the story ’ s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy];", "2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘ other side of the story ’ before the article appears;", "... ”", "37. As to the “public interest” test, the Codebook notes:", "“ In judging publications ’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served. ”", "38. It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as:", "“ Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances.", "If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means?", "Is the information in the public domain, or likely to become so?", "If children are involved, is the public interest in publication exceptional? ”", "2. The Ofcom Broadcasting Code", "39. Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia :", "“7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that:", "...", "40. Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes.", "C. Remedies for publication of private information", "41. Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant ’ s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material.", "42. Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person ’ s sexual life.", "43. However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes :", "“ Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—", "(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,", "(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and", "(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes. ”", "44. Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest.", "45. Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data.", "D. Interim injunctions", "46. The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted.", "47. The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides:", "“ (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.", "(2) If the person against whom the application for relief is made ( ‘ the respondent ’ ) is neither present nor represented, no such relief is to be granted unless the court is satisfied—", "(a) that the applicant has taken all practicable steps to notify the respondent; or", "(b) that there are compelling reasons why the respondent should not be notified.", "(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.", "(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—", "(a) the extent to which—", "( i ) the material has, or is about to, become available to the public; or", "(ii) it is, or would be, in the public interest for the material to be published;", "(b) any relevant privacy code. ”", "48. The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that:", "“ 15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘ serious question to be tried ’ or a ‘ real prospect ’ of success at the trial.”", "49. He concluded that:", "“ 22. Section 12(3) makes the likelihood of success at the trial an essential element in the court ’ s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant ’ s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘ sufficiently favourable ’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not ’ ) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”", "50. Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595), the Court of Appeal noted:", "“ 258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998. ”", "E. The House of Commons Culture, Media and Sport Committee", "51. On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2 nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World. A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted:", "“82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World ’ s intention to publish. Mr Myler [the editor of the News of the World ] told us that he and his colleagues at the newspaper were conscious of this: ‘ we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction ’ .”", "52. According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted :", "“91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.”", "53. The Select Committee recommended that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors ’ Codebook.", "54. As to the need for a legally binding pre-notification requirement, the Select Committee concluded that:", "“93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘ public interest ’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Relevant Council of Europe texts", "1. The Parliamentary Assembly of the Council of Europe", "55. On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place :", "“ (a) professional training for journalists under the responsibility of editors and journalists;", "(b) a professional code of ethics for journalists; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights;", "(c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself. ”", "56. The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one ’ s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection", "57. On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people ’ s private lives had become a highly lucrative commodity for certain sectors of the media. It continued:", "“ 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.", "58. The resolution reaffirmed the importance of every person ’ s right to privacy and of the right to freedom of expression as fundamental to a democratic society. It noted that these rights were neither absolute nor in any hierarchical order, since they were of equal value. Further, the right to privacy afforded by Article 8 required protection against interference by private persons or institutions, including the mass media. The resolution also set out specific guidelines on the necessary content of national legislation:", "“ i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy;", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION", "65. The applicant complained that the United Kingdom had violated its positive obligations under Article 8 of the Convention, taken alone and taken together with Article 13, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The Government contested that argument", "66. In the Court ’ s view, the complaint under Article 13 as to the absence of an effective domestic remedy is a reformulation of the applicant ’ s complaint under Article 8 of the Convention that the respondent State did not ensure respect for the applicant ’ s private life, and is subsidiary to it (see Armonienė v. Lithuania, no. 36919/02, § 23, 25 November 2008; and Biriuk v. Lithuania, no. 23373/03, § 23, 25 November 2008 ). The Court accordingly considers it appropriate to analyse the applicant ’ s complaints solely under Article 8 of the Convention, which reads in so far as relevant as follows :", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. Victim status", "a. The parties ’ submissions", "67. The Government considered that the applicant was no longer a victim of any violation of the Convention. They noted that he had successfully pursued domestic proceedings and was awarded the sum of GBP 60,000 in damages and recovered GBP 420,000 in costs (see paragraph 28 above). They concluded that he had obtained a remedy before the domestic courts and considered that remedy to constitute adequate and proportionate reparation for the harm he had suffered. They emphasised that the damages awarded in his case were the highest to date in the United Kingdom for an invasion of privacy. The Government further noted that the applicant had recovered damages in other jurisdictions and that it seemed that he had outstanding proceedings in the United Kingdom and elsewhere in respect of the same or similar publications. These included proceedings in Germany, which settled for EUR 250,000, and civil and criminal proceedings in France and Italy regarding the publication which was the subject of the English proceedings.", "68. The Government also emphasised that since commencing his legal action against the News of the World, the applicant had sought and obtained a high profile in the United Kingdom as a champion of privacy rights and, in that context, had submitted evidence to Parliament and had participated in a number of press and media interviews. They questioned whether the effect of the publication was as detrimental to the applicant as he claimed.", "69. The applicant insisted that he remained a victim of a violation of the Convention notwithstanding the damages award in the domestic proceedings. He argued that damages were not an adequate remedy where private and embarrassing personal facts and intimate photographs were deliberately exposed to the public in print and on the internet. This information could never be expunged from the minds of the millions of people who had read or seen the material and privacy could not be restored to him by an award of damages. The only effective remedy in his case would have been an injunction, a remedy which he was denied by the failure of the newspaper to notify him in advance. Similarly, actions taken in other jurisdictions did not remove his victim status. Such actions were aimed at requiring media and internet websites to remove explicit or highly personal information repeated or taken from the original publication by the News of the World. Indeed, his efforts in this regard were evidence of how persistent and damaging the breach of his privacy had been.", "70. Finally, the applicant argued that any implication that he had not suffered from the breach of his privacy was both absurd and offensive. He pointed to the intimate nature of the material disclosed and the humiliation occasioned by its public disclosure, as well as to the impact of the publication on his family.", "b. The Court ’ s assessment", "71. The Court accepts that the publication of the articles, photographs and video images of the applicant participating in sexual acts had a significant impact on the applicant ’ s right to respect for his private life. The fact that, following the widespread dissemination of the material (see paragraph 11 above), the applicant has chosen to pursue what he perceives to be a necessary change in the law does not lessen the extent of any humiliation or injury suffered by him as a result of the original exposure of the material.", "72. The Court notes the unusual nature of the applicant ’ s complaint. Having won his case at domestic level and obtained damages, his argument before this Court is directed at the prevailing situation in the United Kingdom in which there is no legal requirement to pre-notify the subject of an article which discloses material related to his private life. Whether or not Article 8 requires, as the applicant has contended, the United Kingdom to put in place a legally binding pre-notification requirement is a matter to be considered in the context of the merits of the case. However, it is clear that no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant.", "73. In light of the above, the Court finds that the applicant can claim to be a victim in light of the specific nature of his complaint under Article 8 of the Convention.", "2. Exhaustion of domestic remedies", "a. The parties ’ submissions", "74. The Government argued that in so far as the applicant sought to claim that the damages awarded in the domestic proceedings were not adequate, he had failed to exhaust domestic remedies as he did not appeal the judge ’ s ruling on exemplary damages. They further relied on the fact that the applicant had elected to pursue a remedy in damages, rather than an account of profits. Finally, they noted that the applicant had failed to bring any proceedings under the Data Protection Act 1998 (see paragraphs 42 - 45 above), which would have allowed him to complain about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data.", "75. The applicant reiterated that he was not seeking further damages from the newspaper but was making a complaint about the absence of a law which would have prevented publication of the article which violated his right to respect for private life. Accordingly, the additional remedies proposed by the Government were, in his submission, irrelevant to his complaint.", "b. The Court ’ s assessment", "76. The Court reiterates the unusual nature of the applicant ’ s complaint in the present case (see paragraph 72 above). None of the remedies on which the Government rely could address his specific complaint regarding the absence of a law requiring pre-notification. They are therefore not to be considered remedies which the applicant was required to exhaust before lodging his complaint with this Court.", "77. The Government ’ s objection is accordingly dismissed.", "3. Conclusion", "78. The Court has dismissed the Government ’ s objections as to the applicant ’ s victim status and exhaustion of domestic remedies. It notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "a. The applicant", "79. The applicant argued that a positive obligation could arise under Article 8 of the Convention even in the sphere of the relations of individuals between themselves. In the present case, he contended, the respondent State had an obligation to enable him to apply for an injunction by requiring that he be notified prior to publication of an article which interfered with his private life. The applicant emphasised that in his case details of the most intimate parts of his private life were published on the front page, and in several inside pages, of a newspaper with an estimated readership of approximately ten million people in the United Kingdom. Highly intrusive images made by means of secret recordings were also posted on the newspaper ’ s website and inevitably reproduced elsewhere on the internet. The applicant considered that the judgment of Eady J made it clear that had he had an opportunity to apply for an injunction, an injunction would have been granted (see paragraphs 17 - 18 above).", "80. In support of his argument that the law should provide for an opportunity to seek an injunction, the applicant emphasised, first, that where a conflict arose between competing interests under Article 8 and Article 10, it was for the courts and not the newspapers to resolve it. He highlighted the dangers of allowing journalists to be the sole judges as to where the balance between the right to freedom of expression and the right to respect for private life lay, as, he claimed, the British press were largely hostile both to the need to protect private life and to the interpretation of that right by the judiciary. Further, he considered that as the law currently stood, editors were encouraged not to notify subjects as, once an article had been published, subjects often decided not to bring legal proceedings for fear of attracting further publicity in respect of the invariably embarrassing or damaging details about their private lives. Second, the applicant argued that where the resolution of the conflict between Articles 8 and 10 occurred only after publication, there was insufficient protection for private life because, once lost, privacy could not be regained. Referring to the judgment of Eady J (see paragraph 27 above), the applicant noted that in defamation cases, it was a complete defence to prove the truth of the published material and that, as a result, damage done to reputation could be removed by proving that the allegations were false. However, the same could not be said in relation to privacy, which was inherently perishable and therefore could not be restored to the victim of the interference. Further, he was of the view that section 12 of the Human Rights Act 1998 provided significant protection for newspapers ’ right to freedom of expression by setting a high threshold before an interim injunction would be granted (see paragraphs 47 - 50 above). He emphasised that pursuant to the Court ’ s jurisprudence on Article 10, there was a need for newspapers claiming protection to comply with the requirements of responsible journalism. In his view, these requirements included a pre-notification requirement.", "81. The applicant accepted that the respondent State had a margin of appreciation but contended that it related solely to the scope or efficacy of any pre-notification requirement. His complaint was not that he had received some warning but not enough; rather, he had received no warning at all. He considered that the absence of a uniform approach in other Contracting Parties requiring pre-notification was not decisive. He pointed to the fact that in a number of States, consent played an important role in the context of privacy law and contended that where consent was either required for disclosure or relevant to an assessment of whether the disclosure was lawful, there was no need for a separate pre-notification requirement. He further relied on what he called the “unique nature of the tabloid press” in the United Kingdom, highlighting the unlawful actions of some tabloid reporters and the criticisms made by the tabloid press of developing laws on privacy.", "82. While the applicant agreed that the precise mechanics and scope of any system of pre-notification was a matter for the discretion of the respondent State, he considered the difficulties which the Government claimed would arise, for example, in formulating a pre-notification obligation, to be illusory or at the very least exaggerated, given in particular that prior notification already occurred in the vast majority of cases (see paragraph 52 above). In his view, a pre-notification obligation in respect of an intended publication would arise, at the very least, where there were reasonable grounds to believe that the publication would infringe the right to respect for private life, having regard to all the circumstances of the case including any public interest defence. There was nothing unfamiliar about the legal concept of “reasonable belief”. He further pointed out that a form of pre-notification was already envisaged in the Ofcom Code, which imposed an obligation on broadcasters before broadcasting a factual programme to seek comments from anyone it would be unfair to exclude (see paragraph 39 above).", "83. The applicant accepted that any system would require exceptions in certain circumstances to allow for legitimate situations where it would be either impractical or contrary to the public interest for the media to notify an individual in advance. Thus where all practicable steps had been taken to notify or where there were compelling reasons not to notify, no sanction for a failure to notify would arise. He disputed that conceptual difficulties would arise in devising any public interest exception to the general requirement, pointing to the provision in the Human Rights Act 1998 that a party seeking an injunction should notify the media in advance of the application and to the exception for “ compelling reasons ” to that general rule set out in the same Act (see paragraph 47 above).", "84. As to sanctions, the applicant considered that criminal or regulatory sanctions were required to enforce the pre-notification requirement (citing K.U. v. Finland, no. 2872/02, 2 December 2008 ). He pointed out that criminal proceedings against newspapers and editors for alleged contempt of court, obscenity or breaches of the Official Secrets Acts were possible.", "b. The Government", "85. While the Government accepted that Article 8 could give rise to positive obligations, they contended that a high threshold had to be crossed before Article 8 would be engaged in this way. They distinguished between three types of cases. First, where an applicant had suffered directly from State inaction, such as non-recognition of transsexuals, the case for a positive obligation was strong. Second, where positive action by the State was called for by an applicant to prevent interference by non-State bodies, such as in environmental and media cases, positive obligations were less readily invoked. Third, where an applicant alleged that positive action by individuals was called for, the extent of any positive obligation under Article 8 was at its weakest. The Government argued that relevant factors in determining the extent of the positive duty were the extent to which fundamental and essential aspects of private life were in issue; the prejudice suffered by the applicant; the breadth and clarity of the positive obligation sought to be imposed; and the extent of consensus among Council of Europe member States or internationally. With reference to these factors, they argued that they had no positive obligation to protect the applicant ’ s privacy by providing for a legally binding pre- notification requirement.", "86. If there was a positive obligation in the circumstances of the case, the Government contended that there was a significant margin of appreciation available to them in deciding where in domestic law to strike the balance between the requirements of Article 8 and Article 10 and that the current position fell within that range. They argued that an inevitable consequence of a pre-notification requirement was that there would be an increase in the number of interim injunctions granted, which in themselves were a restriction on freedom of expression and for that reason should be approached with caution.", "87. The Government pointed out that there was a consistent pattern among Council of Europe member States against a system of pre ‑ notification and disputed in this regard that the tabloid press in the United Kingdom was unique in Europe. As to the role of consent in certain other States, the Government noted that it was not clear whether consent was a strict requirement in the cases mentioned by the applicant, nor was it clear whether there were exceptions. In any case, they considered it questionable whether this approach differed from the approach in the United Kingdom, where consent would be a complete defence to any action for invasion of privacy and failure to pre-notify would be taken into consideration in fixing any damages award. Further, the Government emphasised that an insistence on compulsory pre- notification would be to depart from internationally accepted standards as established by the Council of Europe (see paragraphs 55 - 59 above). In this regard, they noted in particular that the legal position in the United Kingdom complied with the guidelines set out in Resolution 1165 (see paragraph 58 above).", "88. The Government also referred to the important role of the PCC and the Editors ’ Code in the system for protection of privacy rights in the United Kingdom. In particular, they highlighted that the PCC had recently upheld a complaint where a newspaper had failed to seek the subject ’ s comments prior to publication (see paragraph 30 above). They also emphasised that the matter had recently been examined in the context of an inquiry by the House of Commons Culture, Media and Sport Committee (see paragraphs 51 - 54 above). After hearing evidence, the Select Committee had decided against recommending a legal requirement of pre-notification (see paragraph 54 above).", "89. Finally, the Government considered that the fact that pre-notification was carried out as a matter of good practice in most cases did not mean that there were no insuperable difficulties in imposing a legal requirement to do so. In their view, the introduction of a pre-notification requirement would give rise to a number of practical and principled objections. Difficulties arose regarding the formulation of the scope of any obligation, including the identification of the categories of press and media to which the obligation would apply and the extent of the notification requirement and the circumstances in which it would be engaged, as well as the operation of any “public interest” exception. In this regard, they disputed the applicant ’ s claim that the Ofcom Code provided an example of the kind of pre-notification duty called for, considering the obligation set out in Rule 7.9 of that code to be significantly different. The question of sanctions for a failure to comply with a pre-notification requirement was also problematic. The Government considered it clear that the applicant contemplated criminal sanctions and expressed concern about how to define and enforce any criminal offence. They also warned that an inadequately framed law could give rise to breaches of Article 10.", "90. In conclusion, the Government invited the Court to find that the framework of legal regulation in place in the United Kingdom concerning publications which might contravene the right to respect for private life was sufficient to comply with any positive obligations which arose.", "c. Third party submissions", "i. Guardian News & Media Ltd", "91. The Guardian News & Media Ltd (“ the Guardian”) argued that if the applicant ’ s complaint were to be upheld by the Court, it would seriously and disproportionately fetter the right of the press to publish, and the public to receive, information and opinions in the public interest. A pre-notification requirement would thus have a serious and unjustified chilling effect upon the practical enjoyment of the right to freedom of expression. It would, in their view, also be inconsistent with the concept of responsible journalistic freedom which the Court had consistently emphasised.", "92. The Guardian stressed that while the applicant had formulated the pre-notification duty by reference to the facts of his case, its repercussions would be felt far more widely. First, they argued, an alleged breach could involve not only the media but also public authorities, non-governmental organisations or even private individuals. Second, logic dictated that pre ‑ notification would be required not only in privacy cases but in all cases requiring a balancing exercise pursuant to Article 10 § 2.", "93. Referring to the wide margin of appreciation in this area, the Guardian considered that the appropriate balance had been struck in the United Kingdom. They highlighted the absence of any European consensus that a pre-notification duty was required. Further, although some countries required that consent be obtained before information regarding private life was disseminated, at least where the public interest was not implicated, a similar number of countries had no such provision. The Guardian also referred to the Data Protection Act 1998 and its parent EC Directive, which did not provide for any pre-notification requirement (see paragraphs 42 - 45 and 64 above). They further referred to the recent inquiry by a House of Commons Select Committee, which in its subsequent report rejected the argument that there was a need for a pre-notification requirement in the United Kingdom (see paragraphs 51 - 54 above).", "94. Finally, the Guardian contended that any pre-notification requirement would be unworkable in practice. They considered that it would not always be obvious when the pre-notification rule would be triggered, nor was it clear how the need for a “ public interest ” exception could be catered for.", "ii. The Media Lawyers ’ Association", "95. The Media Lawyers ’ Association (“ the MLA”) contended that a pre-notification requirement was wrong in principle, would be unworkable in practice and would constitute a breach of Article 10 of the Convention.", "96. The MLA emphasised the wide margin of appreciation in deciding what measures were required to satisfy any positive obligation in this field. They referred to the lack of any European consensus on the need for a pre-notification duty. They also pointed to the fact that a House of Commons Select Committee had recently rejected the suggestion that there should be a legal pre-notification requirement (see paragraph 54 above). The question whether there was a need to contact a subject prior to publication was, in their view, a matter to be addressed in the context of the ethics of journalism and the codes of practice governing the media. These codes had evolved over time and demonstrated that the media were well aware of the duty to respect each individual ’ s right to privacy. In particular, the MLA noted that the Editors ’ Code gave guidance as to what might be covered by “public interest” (see paragraphs 34 - 35 above).", "97. The MLA contended that the duty for which the applicant argued was vague and uncertain in scope. They pointed out that a pre-publication duty would have wide ramifications, potentially applying not just to the media and journalists but to a far broader group. A number of practical questions arose, for example, as to who would have to be contacted by the media in respect of any intended publication, whether the duty would arise in respect of photographs taken in the street of unknown persons, whether it would apply to images or text previously published and whether it would extend to notification of close family members of the subject, who might also be affected by the publication of the material. The MLA further referred to the need for exceptions to any general duty, for example, where there was a good reason not to contact the subject or where there was a public interest in publication.", "98. The MLA emphasised the importance of Article 10 and in particular the role of the press as “public watchdog”. They considered that the availability and operation of interim injunctions continued to be a matter of concern in this area and contended that prior restraints on publication constituted a serious interference with the right to freedom of expression. Accordingly, such restraints should only be granted where strictly necessary, and any order granted should be no wider than necessary. They emphasised that injunction proceedings in themselves inevitably led to delay and costs, even if no injunction was eventually granted, and any changes which would encourage the seeking of injunctions would therefore not be desirable. They argued that domestic law struck an appropriate balance between competing rights and interests.", "iii. The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers ’ Association, European Publishers ’ Council, The Mass Media Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to Information Programme (AIP) Foundation, Global Witness and Media Law Resource Centre", "99. In their joint written submissions, the interveners referred to the importance of the right to freedom of expression. There would, in their view, be significant consequences were a pre-notification requirement to be introduced. It would delay publication of important news, which was itself a perishable commodity, in a wide range of public interest situations wherever the public figure could claim that his psychological integrity was at stake from publication of the truth. The interveners disputed that any balance was required between rights arising under Articles 8 and 10, arguing that there was a presumption in favour of Article 10 and that reputation was a subsidiary right which had to be narrowly interpreted.", "100. The interveners further argued that there was a wide margin of appreciation in this area. They emphasised the tradition in common law countries against prior restraints on publication, arguing that a pre ‑ notification requirement would go against the long-standing approach in this area. Further, they pointed out, there was no Europe-wide consensus as to a need for a pre-notification rule. It was also noteworthy that questions of privacy protection had been regularly debated in the United Kingdom in recent years and had been the subject of various reports, including the recent Select Committee report (see paragraph 51 - 54 above). In that report, the applicant ’ s case for a pre-notification requirement had been rejected.", "101. The interveners also contended that privacy was inadequately defined to support a pre-notification requirement. However, they accepted that there might be an argument for a notice requirement relating to medical records and photographs taken without consent in private places, for example, but only if reputation were no part of Article 8 and private information were properly defined. In their view, as currently formulated, the requirement called for was so vague as to be unworkable.", "102. The interveners considered that any general duty would have to be subject to exceptions, notably to an exception where there was a “ public interest ” in publication. This being the case, it was relevant that in the applicant ’ s case, the editor of the News of the World would have published the story without notification even if there had been a legally binding pre ‑ notification requirement because he genuinely believed that there was a Nazi element to the activities which would have justified publication in the public interest (see paragraph 24 above).", "103. The interveners emphasised that even successfully defended injunction proceedings could cost a newspaper GBP 10,000; an unsuccessful newspaper could pay GBP 60,000. It was simply not viable for the media to contest every case where compulsory notification would be followed by a request for an injunction. This was the chilling effect of a pre ‑ notification requirement.", "2. The Court ’ s assessment", "104. The Court recalls that Eady J in the High Court upheld the applicant ’ s complaint against the News of the World (see paragraph 25 above). He found that there was no Nazi element to the applicant ’ s sexual activities. He further criticised the journalist and the editor for the casual and cavalier manner in which they had arrived at the conclusion that there was a Nazi theme. In the absence of any Nazi connotations, there was no public interest or justification in the publication of the articles or the images. Reflecting the grave nature of the violation of the applicant ’ s privacy in this case, Eady J awarded GBP 60,000 in damages. The newspaper did not appeal the judgment. In light of these facts the Court observes that the present case resulted in a flagrant and unjustified invasion of the applicant ’ s private life.", "105. The Court further notes that as far as the balancing act in the circumstances of the applicant ’ s particular case was concerned, the domestic court firmly found in favour of his right to respect for private life and ordered the payment to the applicant of substantial monetary compensation. The assessment which the Court must undertake in the present proceedings relates not to the specific facts of the applicant ’ s case but to the general framework for balancing rights of privacy and freedom of expression in the domestic legal order. The Court must therefore have regard to the general principles governing the application of Article 8 and Article 10, before examining whether there has been a violation of Article 8 as a result of the absence of a legally binding pre-notification requirement in the United Kingdom.", "a. General principles", "i Article 8", "106. It is clear that the words “ the right to respect for ... private ... life ” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31 ). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996 ‑ IV ).", "107. The Court emphasises the importance of a prudent approach to the State ’ s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect ( Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009 ). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States ’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III ). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI ).", "108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998 ‑ V ). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII; and Armonienė, cited above, § 38 ). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ).", "109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002 ‑ VI ). Thus, in cases concerning Article 8, where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ IV; and A, B and C v. Ireland [GC], cited above, § 232 ). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX ).", "110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation : where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 ‑ II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ XIII ). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ‑ ... ).", "111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142 ), rights which merit, in principle, equal respect ( Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30 ).", "ii. Article 10", "112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law ( see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141).", "113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of ... the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009 ‑ ...; and MGN Limited, cited above, § 141 ).", "114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual ’ s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person ’ s strictly private life ( Von Hannover, cited above, § 65; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143 ). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France ( dec .), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés ( ICI PARIS ), cited above, 40; and MGN Limited, cited above, § 143 ). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it.", "115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I ). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47; and MGN Limited, cited above, § 143 ). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ).", "116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009 ). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004 ‑ XI ).", "117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60 ). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.", "b. Application of the general principles to the facts of the case", "118. As noted above (see paragraph 106 ), it is clear that a positive obligation arises under Article 8 in order to ensure the effective protection of the right to respect for private life. The question for consideration in the present case is whether the specific measure called for by the applicant, namely a legally binding pre-notification rule, is required in order to discharge that obligation.", "119. The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors ’ Code and Codebook and oversight of journalists ’ and editors ’ conduct by the PCC (see paragraphs 29 - 38 above). This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58 - 59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant ’ s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant ’ s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly ’ s 1998 resolution (see paragraph 58 above). Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified (see paragraphs 42 - 45 above).", "120. The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court ’ s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In Armonienė, cited above, a complaint about the disclosure of the applicant ’ s husband ’ s HIV-positive status focused on the “derisory sum” of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance. Thus in X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, the Court insisted on the need for criminal law provisions to achieve deterrence in a case which involved forced sexual intercourse with a sixteen year old mentally handicapped girl. In K.U. v. Finland, no. 2872/02, § § 46-47, 2 December 2008, the availability of civil law damages from an Internet service provider was inadequate where there was no possibility of identifying the person who had posted an advert in the name of the applicant, at the time only twelve years old, on a dating website, thus putting him at risk of sexual abuse.", "121. In the present case the Court must consider whether, notwithstanding its past approach in cases concerning violations of the right to respect for private life by the press, Article 8 requires a pre-notification rule in order to ensure effective protection of the right to respect for private life. In doing so, the Court will have regard, first, to the margin of appreciation available to the respondent State in this field (see paragraphs 108 - 110 above) and, second, to the clarity and potential effectiveness of the rule called for by the applicant. While the specific facts of the applicant ’ s case provide a backdrop to the Court ’ s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant ’ s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny.", "i. The margin of appreciation", "122. The Court recalls, first, that the applicant ’ s claim relates to the positive obligation under Article 8 and that the State in principle enjoys a wide margin of appreciation (see paragraph 108 above). It is therefore relevant that the respondent State has chosen to put in place a system for balancing the competing rights and interests which excludes a pre ‑ notification requirement. It is also relevant that a parliamentary committee recently held an inquiry on privacy issues during which written and oral evidence was taken from a number of stakeholders, including the applicant and newspaper editors. In its subsequent report, the Select Committee rejected the argument that a pre-notification requirement was necessary in order to ensure effective protection of respect for private life (see paragraph 54 above).", "123. Second, the Court notes that the applicant ’ s case concerned the publication of intimate details of his sexual activities, which would normally result in a narrowing of the margin of appreciation (see paragraph 109 above). However, the highly personal nature of the information disclosed in the applicant ’ s case can have no significant bearing on the margin of appreciation afforded to the State in this area given that, as noted above (see paragraph 121 above), any pre-notification requirement would have an impact beyond the circumstances of the applicant ’ s own case.", "124. Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62 - 63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119 ), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56 - 59 above). The Court therefore concludes that the respondent State ’ s margin of appreciation in the present case is a wide one.", "ii. The clarity and effectiveness of a pre-notification requirement", "125. The applicant considered that the duty should be triggered where any aspect of private life was engaged. It would therefore not be limited to the intended disclosure of intimate or sexual details of private life. As such, the duty would be a relatively broad one. Notwithstanding the concerns expressed by the Government and the interveners (see paragraphs 89, 94, 97 and 101 above) the Court considers that the concept of “private life” is sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life. Specific considerations would arise, for example in the context of photographs of crowds, but suitable provisions could be included in any law. The Court is further of the view that a satisfactory definition of those who would be subject to the requirement could be found. It would appear possible, for example, to provide for a duty which would apply to those within the purview of the Editors ’ Code.", "126. However, the Court is persuaded that concerns regarding the effectiveness of a pre-notification duty in practice are not unjustified. Two considerations arise. First, it is generally accepted that any pre ‑ notification obligation would require some form of “public interest” exception (see paragraphs 83, 89, 94, 97 and 102 above). Thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a “public interest” at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such “public interest” arose. The parties ’ submissions appeared to differ on whether “public interest” should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material. The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty.", "127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23 - 24 above). Thus, in the applicant ’ s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication.", "128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant ’ s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.", "129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.", "iii. Conclusion", "130. As noted above, the conduct of the newspaper in the applicant ’ s case is open to severe criticism. Aside from publication of the articles detailing the applicant ’ s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant ’ s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World ’ s coverage merely to titillate the public and increase the embarrassment of the applicant.", "131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).", "132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants are the publication director and the publishing company, respectively, of the weekly magazine Paris Match. Ms Anne-Marie Couderc was born in 1950 and lives in Levallois-Perret. The company Hachette Filipacchi Associés has its registered office in Levallois-Perret.", "A. Factual background to the case", "9. On 3 May 2005 the British newspaper the Daily Mail published an article headlined “ Is this boy the heir to Monaco? ”, describing the disclosures by a woman, Ms Coste, who claimed that her son ’ s father was Albert Grimaldi, who had become reigning prince of Monaco ( “the Prince ” ) following the death of his father on 6 April 2005. The article mentioned a forthcoming publication in Paris Match, and set out its core elements. It was accompanied by three photographs, one of which showed the Prince holding the child in his arms and was captioned “ His successor to the throne? Prince Albert with Alexandre ”.", "10. On the same day, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing it.", "11. On 4 May 2005 the German weekly magazine Bunte published the interview with Ms Coste. The front cover of the magazine was headlined “ Prinz Albert ist der Vater meines Kindes ” ( “ Prince Albert is the father of my child” ). It was illustrated by two photographs of the Prince : in one of them he was pictured alongside Ms Coste, and in the other he held the child in his arms.", "12. On the same day various Internet sites relayed the news. In France, information from the forthcoming Paris Match article was included in an article on the RTL radio station ’ s Internet site entitled “ Le prince Albert II aurait un fils, silence au Rocher ” ( “ Prince Albert II alleged to have a son, no comment from Monaco”). For its part, the LCI channel published an article headlined “ Albert : la rumeur d ’ un fils ” (“Albert: rumours about a son”) on its Internet site. The news also appeared on the Internet site of the MEDEF ( French Business Confederation), as follows : “ L ’ enfant caché du prince Albert de Monaco : selon certains journaux britanniques et allemands, Albert de Monaco serait le papa d ’ un petit garçon de 19 mois ” ( “ Prince Albert of Monaco ’ s secret son: according to certain British and German newspapers, Albert of Monaco is the father of a 19-month-old boy”).", "13. On 5 May 2005, in spite of the Prince ’ s notice to refrain, the weekly magazine Paris Match published an article in its edition no. 2920, referred to on the magazine ’ s front cover under the headline “Albert of Monaco: Alexandre, the secret child” (“ Albert de Monaco: Alexandre, l ’ enfant secret ”), and illustrated by a small photograph showing the Prince with the child in his arms. The article, published on pages 50 to 59 of the magazine, consisted of an interview with Ms Coste, who replied to questions put by a journalist and stated that the father of her son Alexandre, born on 24 August 2003, was the Prince. In particular, the interview described the circumstances in which Ms Coste had met the Prince, their intimate relationship, their feelings, and the manner in which the Prince had reacted to the news of Ms Coste ’ s pregnancy and had behaved towards the child at his birth and subsequently.", "14. The relevant passages of this interview were the following.", "“ Paris Match (P.M.) : When did you meet Albert of Monaco?", "Nicole Coste (N.C.) : Eight years ago, on a Nice to Paris flight ... Before landing he asked for my telephone number. Two weeks later I had a message on my mobile ...", "... He wanted to invite me to Monaco ... I went there the following weekend ... We spent a very tender night next to each other, it was very romantic! After that weekend he called me to say that he had had a very pleasant time and that he wanted to see me again.", "...", "As the months went by, I fell very much in love. I spent weekends in Monaco. He took me everywhere with him when he didn ’ t have official duties ...", "...", "I had the impression that something was happening. He didn ’ t speak about his feelings, but I heard his heart beating. There are signs that can ’ t be mistaken when you ’ re in someone ’ s arms ... He didn ’ t say anything to me and I didn ’ t ask him anything. But he had tender looks and gestures towards me, even in public, and even in front of other young women. I think that he appreciated my affection. He told his friends that I was very very loving, and that he liked my maternal side. For my part, I found him touching.", "P.M. Did you meet up often?", "N.C. For the first five years I went to Monaco about once a month ... Sometimes he took me along to official events, such as the World Music Awards or tennis tournaments ...", "P.M. Did you ever meet his father, Prince Rainier?", "N.C. Yes. At a dinner with about twenty guests; Albert told me that we couldn ’ t go along together, since his father [would be] there. In the afternoon, he indirectly made me his loveliest declaration of love, by saying to a friend in front of everyone ‘ Take good care of Nicole. I am very fond of her. ’ And he kissed me ...", "P.M. What did he tell you about his talk with his father?", "N.C. We spoke about it the next day. I found him strange. I became worried. ‘ I ’ ve been thinking ’, he said. ‘ I believe it ’ s better if we stay friends. ’", "P.M. How did you react?", "N.C. ... I was crying. I telephoned him to find out if it was really over. ‘ If you were in my situation, what would you do? ’ He answered ‘ I would wait. Not for long, but I would wait ... ” ...", "P.M. One has the feeling that Albert ’ s discussion with his father was a turning point in your relationship.", "N.C. It ’ s true, the relationship deteriorated after that. At the same time, however, he seemed to be afraid of taking a decision; he hesitated, taking one step forward and two steps back ...", "... Albert is not someone who expresses his feelings or who argues. He has a good sense of humour. I had the impression that he still had feelings. We saw each other with more or less the same frequency, but for less time, one day instead of three. I had the impression that he was afraid of becoming too attached. In December 2002 I wanted us to celebrate my ... birthday together. He suggested that I come to Monaco ... we went [out] for a drink. There were lots of young women coming up to him, and I let him know that I wasn ’ t happy about that. On returning to the flat, we became lovers again, something that I didn ’ t want that night. The evening had annoyed me.", "P.M. Was it then that you became pregnant?", "N.C. Yes. Neither he nor I had planned it. I was taking precautions ... When I saw Albert on 11 December I had sore breasts. I said to him ‘ If I ’ m pregnant, what are we going to do? ’ He replied ‘ If you ’ re pregnant, you must keep it ’. He said it from the heart. He immediately began thinking of boys ’ names, and I was coming up with girls ’ names, since I already had two boys. He said ‘ I ’ m trying to think of boys ’ names – that ’ s all you know how to make!” ...", "...", "Shortly afterwards, I had a positive pregnancy test ... I wanted him to take a decision very quickly ... I was well aware of what a child represented for Albert, given his position. In my opinion, it was for him to decide ... He said to me ‘ Keep it. I ’ ll look after things. You won ’ t lack for anything. I don ’ t promise to marry you, but keep him and don ’ t worry: I ’ ll bring him into the family little by little. I ’ d like us to keep the news to ourselves for the moment. The only person I must tell is my adviser and childhood friend, whom you know well. ’", "P.M. Did he contact you for news during your pregnancy?", "N.C. From time to time. He spoke to me very kindly. Then one day he came to see me in Paris with his adviser ... I was three months ’ pregnant. He seemed to have changed his mind, but as far as I was concerned it was too late. The adviser said to me ‘ Do you realise that if it ’ s a boy, they ’ ll use that to prevent Albert acceding to the throne, and the child will be able to claim the throne ’. I was surprised that he was going into things that were only details for me. I wasn ’ t even thinking about these questions ... it is clear to me that a child born outside marriage cannot accede to the throne.", "P.M. What happened next?", "N.C. I learned that I was expecting a boy. I was very worried ... I asked him if it would make things difficult if it was a boy ... ‘ No, no more than if it were a girl. ’ He put his hand on my stomach and we discussed names again ...", "...", "When I was five-and-a-half months ’ pregnant, I called him. He didn ’ t behave the way he usually did with me, I understood that something had happened and that he wanted to end the relationship. He said ‘ I ’ ve thought it through. I ’ ve asked for advice. The child is impossible ’.", "...", "I went to see a lawyer, who alerted Albert ’ s lawyer. Albert called me immediately, and was very annoyed: ‘ You ’ ve trapped me... ’ He spoke to me as though he had been brainwashed. I was eight months ’ pregnant, and had become pregnant six years after our first meeting. I would have had multiple opportunities to become pregnant.", "P.M. How was the birth?", "N.C. 24 August 2003 is not my happiest memory. I was very alone. On the day I left hospital ... I was visited by a French laboratory, approved by the Swiss Forensic Institute, for a DNA swab from my son. That was organised by his adviser.", "...", "My two older children still didn ’ t know who their little brother ’ s father was ... Alexandre was sleeping in my bedroom, in a crib ... He suffered from asthma and was hospitalised for six weeks ... I had to deal with this alone, with no one to confide in.", "...", "P.M. When did he see Alexandre for the first time?", "N.C. Two and a half months after his birth ... the most important thing for me was that Alexandre be recognised. It was out of the question that my child would not have a father. That is how I explained it to them. For me, non-recognition would have been the only basis for taking things to court. It was up to Albert to organise things so that this little baby had a more or less normal life, even if, at the very beginning, it had been necessary to hide him. But I didn ’ t want him to grow up like Mazarine, for example. I thought only about that, and not for a second about the fact that he represented a potential heir. Meanwhile, Albert was paying me a sum every three months that I still receive.", "P.M. What happened subsequently?", "N.C. As I didn ’ t really trust my lawyer any longer, I contacted another one, to whom I explained that the only thing that counted was that Albert recognise his son. In my opinion, non-recognition of a child amounts to denying him his roots ...", "...", "P.M. Did Albert realise how important it was for you that he recognise this child?", "N.C. Ultimately, yes, to my great joy: on 15 December 2003 he arranged to meet me at a notary ’ s office, with his adviser ...", "P.M. What happened during the meeting at the notary ’ s office?", "N.C. Albert signed the deed of recognition. He did it out of respect for me, while giving instructions that this deed was not to be transcribed in the official register until after his father ’ s death.", "P.M. Do you have a copy of this deed of recognition?", "N.C. I wasn ’ t given any papers, I only have the registration number of the deed. I asked the notary several times for a certificate stating that he had a document concerning my son. I was told ‘ Later ’. After Rainier ’ s funeral I contacted the notary again, asking that Albert ’ s undertaking be upheld, and that the official recognition of our son ’ s paternity be entered in the register of births and deaths. Again, the notary told me that it could wait ... I again asked for a copy of the deed. He refused. ..", "P.M. What about your flat? Did you finally move?", "N.C. ... I found a house in April 2004, and work is currently being carried out on it.", "P.M. To whom does it belong?", "N.C. To a property investment company (an SCI). 50% of the shares are in Alexandre ’ s name ...", "P.M. What contact have you had with Albert since seeing him at the notary ’ s office to sign the deed recognising your son?", "N.C. I wanted him to see his son regularly, and also to call for news of him. He has done that ... During one of his visits, I said ‘ Just because we ’ ve had a child, that doesn ’ t mean that everything has to end between us ’. He replied ‘ For the moment, I prefer that we end things, because if we continue we ’ ll end up with a second child! ’", "...", "P.M. Why have you decided to speak out?", "N.C. I ’ ve already given you some reasons. I want Alexandre to grow up normally, with a father. I want the lies to stop. For my part, I ’ m fed up with lying, hiding and passing for the mistress of his friends. On account of this silence, I no longer have an identity and I live almost like an outlaw. I ’ m afraid for my son ’ s psychological health. I should like to have him baptised as soon as possible, with a correctly drawn up birth certificate. In addition, I understand that there are rumours going around about this child, and I want the truth to be re-established, so that his two older brothers have a dignified image of their mother.", "... ”", "15. This interview was illustrated by five photographs of the Prince with the child and three of the Prince with Ms Coste. In particular, a double-page spread (pages 50 and 51) consisted in a photograph of the Prince holding the child in his arms, headlined “ Alexandre ‘ is Albert ’ s son ’ says his mother”, followed by this text:", "“A little boy who knows how to say only two words: daddy and mummy. A little boy who does not seem troubled by the huge gulf between the two cultures from which he comes. His name is Alexandre, a conqueror ’ s name, an emperor ’ s name. He was born in Paris on 24 August 2003. His mother asks that he does not grow up clandestinely, ‘ like Mazarine ’. For that reason, she is now disclosing his existence, which poses no threat to any republic or any dynasty. Because in Togo, the country of his maternal family, all children, whether or not they are born to lawfully married couples, are entitled to an official father. For the moment, the little boy with black curls isn ’ t interested in knowing whether he is a prince or not. His mother just has to lean towards him and he is happy. There ’ s already a king in the house... him.”", "The photograph was also accompanied by the following captions:", "“ The 47-year-old new sovereign of Monaco had not been known to have any long-term relationship. Today Nicole Coste, an air hostess whom he met eight years ago, claims that they have had a son. ”", "“He ’ s never been seen smiling like this before : Prince Albert succumbs to Alexandre ’ s charm. ”", "16. Four photographs of the Prince holding the child in his arms were published on pages 52, 53, 56 and 57, and were also accompanied by captions and/or subheadings. In particular, the caption on page 52 reads “Gentleness, tenderness and patience, key words for a prince who loves children”, and on page 53, “The Prince has always had a soft spot for children” and “Albert, President of the Monegasque Olympic Committee, wearing an Olympics shirt, with Alexandre in his arms”. The following subheading appeared on pages 56 and 57: “Alexandre at 6 months. He is already trying to stand up. This is one of his very first meetings with Albert. He sleeps in his mother ’ s bedroom. Nicole and her three sons have already moved into a flat in the 16th arrondissement of Paris. ”", "Lastly, three photographs of the Prince with Ms Coste were published on pages 58 and 59. The photograph on page 58 was captioned as follows :", "“They met on a Nice to Paris flight, Nicole was an air hostess. She had left Lomé, in Togo, eight years previously, aged 17. ‘ In my country, a father would have obliged his son to recognise his child ’ ”.", "The photographs on page 59 were subtitled as follows :", "“ Nicole also attended official events. In May 2001 she was on the Prince ’ s right as he received the singer Yannick at the Monte Carlo Music Awards. In 2002 (left) she can be seen in the Royal box at the Grand Prix. ”", "17. On 10 May 2005 Ms Coste issued a statement indicating that she had agreed to give an interview to Paris Match, for publication in the edition of 5 May 2005, had carefully reread its wording, and had herself handed over the photographs showing the Prince with Alexandre. She specified that she had taken those photographs, and that she had taken them with the Prince ’ s full consent. She issued a further statement indicating that she had handed these photographs over to the media for publication without charge. She added that her son had been recognised before a notary, that the notarial deed had been signed on 15 December 2003 and that it had been agreed on that date that the deed would be sent to the district hall of the 14 th arrondissement of Paris immediately after Prince Rainier ’ s death. She stated that she had attempted, by all amicable means, to find a compromise with the Prince ’ s lawyer, and that it was the fact that the Prince had failed to honour his undertaking which had induced her to bring the matter to the public ’ s attention. With regard to the media, she stated : “they have merely helped my son and myself to have Alexandre officially recognised. ”", "B. The proceedings before the French courts", "18. On 19 May 2005, considering that the publication of the article in Paris Match interfered with his rights to private life and to protection of his own image, the Prince brought fixed-date proceedings against the applicants, on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking damages from the publishing company and an order that it publish the court ’ s ruling on the front cover of the magazine, and requested that the court ’ s decision be immediately enforceable.", "19. On 29 June 2005 the Nanterre tribunal de grande instance ( “ the TGI”) ordered the company Hachette Filipacchi Associés to pay the Prince 50, 000 euros (EUR) in non-pecuniary damages. It also ordered that details of the judgment be printed on the magazine ’ s entire front cover, at the publishing company ’ s expense and on pain of a daily fine, under the headline “Court order against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable.", "20. The TGI noted, in particular, that from the front page onwards, the magazine had disclosed the Prince ’ s paternity outside marriage, under the headline “Albert of Monaco: Alexandre, the secret child”, accompanied by a photograph showing him holding the child. It also noted that the article dealt with the issue of the Prince having fathered the child over ten pages inside the magazine, by means of an interview in which the questions led Ms Coste to discuss her relationship with the Prince, the couple ’ s feelings, the Prince ’ s private life and reactions and the child ’ s recognition before a notary. It emphasised that the magazine had deliberately chosen numerous photographs, taken in the context of the intimacy of the protagonists ’ private life, to illustrate and lend support to the disclosure, and that these photographs were accompanied by the magazine ’ s own captions, which also referred to the Prince ’ s love life and the circumstances in which he met the interviewee, analysing his conduct and his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child.", "21. The TGI held that the entire article, including the accompanying photographs, fell within the most intimate sphere of love and family life and that it did not concern any debate of general interest. It added :", "“ ... the claimant ’ s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not in any event serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct, with a view to media coverage in the columns of a newspaper which cannot in all seriousness claim to take the place of the courtroom, which is where the rights of children are legally defended, without prejudice to those of women;", "The disputed article, which treats rumours in a sensational manner, both in its wording and through the accompanying pictures – which are completely irrelevant in that they contribute to the impugned interference with private life – amounts to a serious and wilful breach of the claimant ’ s fundamental personality rights, the latter having specifically served notice by extrajudicial process on the publishing company to respect those rights on 3 May 2005 ... ”", "22. The applicants appealed against that judgment.", "23. In a press release of 6 July 2005, the Prince publicly acknowledged that he was the father of Alexandre.", "24. On 13 July 2005 the Versailles Court of Appeal suspended the immediate enforcement of the TGI ’ s judgment with regard to the order to publish the court ’ s judgment.", "25. On 24 November 2005 the Versailles Court of Appeal gave judgment. It noted that, through the interview with Ms Coste, the impugned article focused on disclosing the birth of the child, who was presented as having been born from the intimate relationship between the interviewee and the Prince from 1997 onwards. It also noted that although the latter might already have made a statement recognising the child in a notary ’ s office – that is, in deliberately chosen conditions of confidentiality – by the time that the article was published, this statement had not given rise to a note in the margin of the child ’ s birth certificate, with the result that his birth and his father ’ s identity remained unknown to the public.", "26. The Court of Appeal also stated that a person ’ s affections, love life or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, and that those provisions made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions. It noted, however, that this principle allowed for an exception whenever the facts disclosed could give rise to a debate on account of their potential impact or consequences given the status or function of the persons concerned, in which case the duty to provide information took precedence over respect for private life.", "27. It reasoned as follows.", "“ Given that the fact of Albert Grimaldi ’ s fatherhood had never been publicly recognised, that the Monegasque Constitution makes it impossible for a child born out of wedlock to accede to the throne and that Albert Grimaldi had not consented to the disclosure of his possible paternity of Ms Coste ’ s child, since on 3 May 2005 he had indicated to Hachette Filippachi Associés his opposition to the publication of those facts, it follows that Hachette Filipacchi Associés deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the European Convention on Human Rights, without being able to justify this offence on the inexistent requirements of current - affairs reporting, the legitimacy of the information or its readers ’ right to information, which did not include Albert Grimaldi ’ s secret paternity, even if he had become the reigning Prince of the Principality on his father ’ s death in April 2005;", "This interference in his private sphere, in that the article did not merely disclose the existence of a ‘ secret ’ child but also contained numerous digressions derived from Ms Coste ’ s confessions concerning the circumstances of their meeting, the respondent ’ s feelings, his most intimate reactions in response to the news of Ms Coste ’ s pregnancy and his attitude towards the child during private encounters in her flat, could not be justified by the concomitant publication of these facts in the magazine Bunte, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure, given that the child had no official status which would have rendered his birth and the disclosure of the father ’ s identity a subject which the media and specifically the company Hachette Filipacchi Associés were required as part of their duty to provide information to bring to the public ’ s attention, or by the fact that Albert Grimaldi, faced – against his will – with the media impact of the disclosure of information about his private life that he had intended to keep secret if not confidential, has been obliged to provide a public explanation, or by the tone of the article, which, as Hachette Filipacchi Associés irrelevantly specifies, was intended to show the respondent in a particularly positive light;", "Although the photographs showing the child with the respondent which accompany the article were taken by Ms Coste with Albert Grimaldi ’ s consent, and although Ms Coste, the only person having parental responsibility for the child, handed them over to Paris Match for publication, it remains the case that Albert Grimaldi did not consent to their being published in support of an article which constitutes an invasion of his privacy, with the result that their publication is wrongful ... ”", "28. The Court of Appeal concluded that the publication in question had caused the Prince irreversible damage in that the fact of his paternity, which he had wished to keep secret and which had remained so from the child ’ s birth until publication of the impugned article, had suddenly, and against his will, become public knowledge. It considered that the non-pecuniary damage thus caused justified an order for publication of the court ruling as supplementary compensation, and that, in view of the nature of the breach and the seriousness of its consequences, such a measure was not disproportionate to the competing interests involved and, on the contrary, represented the most adequate redress in the particular circumstances of the case. It therefore upheld the judgment under appeal, except with regard to the conditions of publication of the court ruling, which was no longer to appear under a headline and was to take up only one third of the front cover. Thus, the Court of Appeal ordered that the lower third of the front cover of the first issue of Paris Match to be published in the week following service of the judgment was to display a white box containing the following text, printed in red letters, failing which the applicant company would be fined EUR 15,000 per issue after expiry of that deadline :", "“By a judgment of the Versailles Court of Appeal upholding the judgment delivered by the Nanterre tribunal de grande instance, the company Hachette Filipacchi Associés has been held liable for infringing the privacy and the right to his own image of Albert II of Monaco in issue no. 2920 of the Paris Match newspaper, dated 5 May 2005, in an article entitled ‘ Albert of Monaco: Alexandre. The secret child ’ .”", "29. This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under a photograph of the Prince. The cover bore the headline “ Albert of Monaco. The truth has been punished ”, which was accompanied by the following commentary :", "“ Paris Match disclosed the existence of his son, Alexandre. The courts have punished freedom to impart information. We have received support from the international press in reaction to this .”", "30. In addition, the applicants lodged an appeal on points of law against the Court of Appeal ’ s judgment. In their grounds of appeal, they developed the following arguments : the disclosure of a ruling sovereign prince ’ s paternity was a news event relating to public life, given the functions held by the individual in question and the hereditary nature of the transmission of power in the Principality of Monaco; disclosure of this information was necessary in order to inform the public; the publication of observations and digressions alongside the announcement of a news event such as the fact of a sovereign prince ’ s fatherhood was lawful, provided that these were innocuous and merely served to put the information into perspective; and the publication of photographs taken within the family, illustrating the news event described in the article, was not such as to interfere with respect for privacy and private life.", "31. Relying on Article 10 of the Convention and citing the Court ’ s case-law, the applicants also argued that the public had the right to be informed, and that this right extended to information concerning the private life of certain public figures. They considered, in particular, that the Court ’ s decision in Von Hannover v. Germany (no. 59320/00, §§ 62 and 76, ECHR 2004 ‑ VI) would have been the reverse had the relevant member of the royal family been, as in the present case, the Prince himself, Head of the State of Monaco. In support of this argument, they cited Krone Verlag GmbH & Co KG v. Austria (no. 34315/96, 26 February 2002) which, they submitted, showed that the fact of being a politician brought an individual exercising that role into the sphere of public life, with the attendant consequences. They further argued that the Court of Cassation also recognised the public ’ s right to information, including with regard to facts concerning private life, even where the individual concerned held no public office. Lastly, they submitted that the primacy of the right to inform and the right to be informed had been established in similar circumstances, even where a person ’ s right to their own image was in issue.", "32. The applicants argued, in particular, that in a hereditary monarchy the Prince ’ s lack of known issue was already a matter of discussion, and that the existence of a child was such as to contribute to that discussion. They also submitted that the child was a potential heir to the Monegasque throne, since his father could legitimise him at any time. They considered that, even if improbable, this scenario remained legally possible, and could therefore become the subject of a general debate regarding the future of the Monegasque monarchy, and that, in addition, the fact that the child was of Togolese origin could contribute to a debate of general interest which had the potential to change the image of a particularly conservative principality.", "33. The applicants also pleaded the very strong ties which, they alleged, bound the Principality of Monaco to France. They further submitted that the worldwide impact of the contested material, including in the most serious and most prestigious newspapers, proved that the information disclosed by Paris Match was such as to contribute to a debate of general interest, and that this was not simply an article written to provide entertainment.", "34. They further argued that the photographs accompanying the article, showing the Prince with the child or with Ms Coste, illustrated a news event, and that they entailed no breach of respect for human dignity, since the Prince was presented in a positive light. They asserted that these photographs had not been taken without the Prince ’ s knowledge, but by Ms Coste herself, and specified that she had handed them over to Paris Match for publication voluntarily and without charge.", "35. Lastly, they emphasised that the magazine Bunte had published an almost identical article in Germany on 4 May 2005, prior to publication of the impugned article, and that the German courts had dismissed the Prince ’ s action against that newspaper.", "36. By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on points of law on, inter alia, the following grounds.", "“ ... every person, whatever his rank, birth, fortune or present or future functions, is entitled to respect for his private life; ... the judgment notes firstly that, on the date on which the article was published, the child ’ s existence and his descent were unknown to the public, and secondly that the Principality ’ s Constitution rules out the possibility of his accession to the throne, since he was born out of wedlock, a situation that, moreover, the company ’ s pleadings did not claim to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms Coste and Prince Albert met and about their relationship, the Prince ’ s reactions to the news of the pregnancy and his subsequent attitude towards the child; ... in the light of these findings and considerations, the Court of Appeal correctly noted the lack of any topical news item or any debate on a matter of public interest which would have justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public; ... moreover, the publication of photographs of a person to illustrate subsequent content which amounts to an invasion of his privacy necessarily infringes his right to control of his own image ... ”", "C. The proceedings before the German courts", "37. On 12 May 2005, after publication of the initial article on 4 May 2005 ( see paragraph 11 above ), the weekly magazine Bunte published another article about the disclosure of the Prince ’ s paternity, this time accompanied by several photographs showing the Prince and the child.", "38. The Prince brought urgent proceedings against the magazine in order to prevent any further publication, but his case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court ( Landgericht ), upheld on 18 November 2005 by the Karlsruhe Court of Appeal ( Oberlandesgericht ).", "39. The Freiburg Regional Court noted, in particular, that, as a figure of contemporary history par excellence, the Prince had to tolerate the impugned encroachment on his private life, given the information value of the report. It noted that the veracity of the information published by the magazine with regard to the statements by the child ’ s mother and to the claimant ’ s paternity had not been disputed on any specific point. It considered that the publication was not unacceptable in terms of the protection of a person ’ s intimate sphere, since the disclosures did not relate to that sphere but to the sphere of private life, which was less protected. It held that the public ’ s right to information resulted from the claimant ’ s position in society, and that the pressure that he might have experienced as a result of those disclosures, aimed at obliging him to recognise his child, did not prohibit publication but was merely an inevitable consequence of it, which he was required to tolerate. It noted that the published photographs had been taken with the claimant ’ s agreement, in his private sphere, and had been made available to the press by a person who had just as much right to do so as the claimant. It held that the protection of the claimant ’ s private sphere and his right to his own image had to yield to the freedom of the press, on account of the importance of communicating to the public information concerning the claimant ’ s son born out of wedlock and about the child ’ s mother. Lastly, it considered that it was for the mother rather than for the Prince, who had not recognised the child, to decide whether the disclosure of the latter ’ s existence fell within the protected private sphere.", "40. Following the appeal by the Prince, the Court of Appeal ordered the magazine not to republish or allow to be published a photograph which had appeared in the 4 May 2005 issue of Bunte, showing the claimant in a moment of intimacy with Ms Coste. However, it considered that the issue of a male heir to the prince of Monaco – a constitutional hereditary monarchy – was of decisive importance, and that the interest taken in this question not only by the citizens of Monaco but also by many persons who lived outside the Principality deserved protection and ought not to be superseded by the claimant ’ s interest in securing protection of his private sphere, on the ground that the current legal situation allowed only legitimate children to accede to the throne." ]

[ "II. RELEVANT FRENCH AND MONEGASQUE LAW AND EUROPEAN TEXTS", "A. Relevant domestic law", "41. The relevant provisions of the Civil Code are worded as follows :", "Article 9", "“Everyone has the right to respect for his private life.", "Judges may, without prejudice to a right to compensation for the damage sustained, order any measures, such as seizure, attachment and others, capable of preventing or causing to cease an interference with a person ’ s privacy; in the event of urgency such measures may be ordered in urgent proceedings .”", "Article 1382", "“Any act that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”", "B. The Constitution of the Principality of Monaco", "42. The relevant passages of Article 10 of the Constitution of 17 December 1962 of the Principality of Monaco ( amended by Law no. 1.249 of 2 April 2002) provide :", "“The succession to the Throne, opened by death or abdication, takes place by the direct and legitimate issue of the reigning prince, by order of primogeniture, with priority given to males within the same degree of kinship.", "In the absence of direct legitimate issue, the succession passes to the brothers and sisters of the reigning prince and their direct legitimate descendants, by order of primogeniture, with priority given to males within the same degree of kinship.", "If the heir who would have acceded by virtue of the preceding paragraphs is deceased or renounced the Throne before the succession became open, the succession passes to His own direct legitimate descendants by order of primogeniture, with priority given to males within the same degree of kinship.", "If the application of the preceding paragraphs does not fill the vacancy of the Throne, the succession passes to a collateral heir appointed by the Crown Council upon same advice of the Regency Council. The powers of the prince are temporarily held by the Regency Council.", "The Throne can only pass to a person holding Monegasque citizenship on the day the succession opens.", "...”", "C. Relevant European texts", "1. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe", "43. The relevant passages of Resolution 1165 (1998) on the right to privacy, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows :", "“1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.", "2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.", "3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.", "4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘ the right to live one ’ s own life with a minimum of interference ’.", "5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one ’ s own data should be added to this definition.", "6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people ’ s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales.", "At the same time, public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.", "8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression.", "11. The Assembly reaffirms the importance of every person ’ s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value.", "12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.", "13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.", "14. ...”", "2. The Declaration of the Rights and Duties of Journalists", "44. The Declaration of the Rights and Duties of Journalists, adopted in Munich on 24 and 25 November 1971 by the trade unions of journalists from the Member States of the European Community, was endorsed by the International Federation of Journalists at the Istanbul Congress in 1972. It reads, inter alia, as follows :", "“Preamble", "The right to information, to freedom of expression and criticism is one of the fundamental rights of man.", "All rights and duties of a journalist originate from this right of the public to be informed on events and opinions.", "The journalist ’ s responsibility towards the public excels any other responsibility, particularly towards employers and public authorities.", "The mission of information necessarily includes restrictions which journalists spontaneously impose on themselves. This is the object of the declaration of duties formulated below.", "A journalist however, can respect these duties while exercising his profession only if conditions of independence and professional dignity effectively exist. This is the object of the following declaration of rights.", "Declaration of duties", "The essential obligations of a journalist engaged in gathering, editing and commenting news are:", "1. To respect truth whatever be the consequence to himself, because of the right of the public to know the truth;", "2. To defend freedom of information, comment and criticism;", "3. To report only on facts of which he knows the origin; not to suppress essential information nor alter texts and documents;", "4. Not to use unfair methods to obtain news, photographs or documents;", "5. To restrict himself to the respect of privacy;", "6. To rectify any published information which is found to be inaccurate;", "7. To observe professional secrecy and not to divulge the source of information obtained in confidence;", "8. To regard as grave professional offences the following: plagiarism, calumny, slander, libel and unfounded accusations, the acceptance of bribe in any form in consideration of either publication or suppression of news;", "9. Never to confuse the profession of a journalist with that of advertisements salesman or a propagandist and to refuse any direct or indirect orders from advertisers.", "10. To resist every pressure and to accept editorial orders only from the responsible persons of the editorial staff.", "Every journalist worthy of that name deems it his duty faithfully to observe the principles stated above. Within the general law of each country, the journalist recognises, in professional matters, the jurisdiction of his colleagues only; he excludes every kind of interference by governments or others.", "Declaration of rights", "1. Journalists claim free access to all information sources, and the right to freely inquire on all events conditioning public life. Therefore, secret of public or private affairs may be opposed only to journalists in exceptional cases and for clearly expressed motives;", "2. The journalist has the right to refuse subordination to anything contrary to the general policy of the information organ to which he collaborates such as it has been laid down by writing and incorporated in his contract of employment, as well as any subordination not clearly implicated by this general policy;", "3. A journalist cannot be compelled to perform a professional act or to express an opinion contrary to his convictions or his conscience;", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "45. The applicants alleged that the judgment against them amounted to unjustified interference in the exercise of their right to freedom of information. They relied on Article 10 of the Convention, which reads as follows :", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "46. The Chamber noted that the judgment against the applicants made no distinction between information which formed part of a debate on a matter of public interest and that which merely concerned details of the Prince ’ s private life. Accordingly, in spite of the margin of appreciation left to States in this matter, it held that there was no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the courts on the applicants ’ right to freedom of expression and, on the other, the legitimate aim pursued. It therefore concluded that there had been a violation of Article 10 of the Convention ( see the Chamber judgment, §§ 51 ‑ 75).", "B. The parties ’ submissions to the Grand Chamber", "1. The applicants ’ submissions", "47. The applicants submitted that the judgment against a news magazine for having published information that had already been disclosed in other media and for illustrating it with related photographs amounted to an interference in its freedom to impart information of public interest. They considered that this judgment was extremely serious and unprecedented, and that it had to be regarded as an excessive interference with its freedom of expression and information, with a clearly chilling effect.", "48. The applicants did not dispute that the interference in question had had a lawful basis, namely Article 9 of the Civil Code, nor that it pursued a legitimate aim, namely “protection of the rights of others” with regard to the Prince ’ s right to private life and to his own image. Nonetheless, they expressed a reservation in this respect, and alleged that the domestic courts had interpreted in too broad a manner the concept of private life within the meaning of Article 9 of the Civil Code and Article 8 of the Convention.", "49. The applicants considered that the right to respect for private life did admittedly have to be upheld, but that it was not absolute, especially when it clashed with the right to freedom of expression and information, and the rights of the other people concerned by the publication. They criticised the domestic courts for failing to balance the Prince ’ s rights against other rights which, they submitted, were of equal value: the rights of the mother, which they considered to be no less legitimate in a democratic society; the child ’ s right to be officially recognised; and the magazine ’ s right to impart information of public interest which was no longer confidential at the date of publication.", "50. The applicants also considered that the impugned decisions had failed to make any distinction between ordinary citizens and public figures ( a fortiori politicians and Heads of State, who were inevitably exposed to media interest ), thus going against the Court ’ s case-law and current French case-law. In support of this argument, they submitted that the case-law developed by the domestic courts acknowledged the public ’ s right to information about facts relating to private life, and they cited by way of example several cases in which the domestic courts had reached their decisions on that basis.", "51. The applicants further submitted, with regard to the necessity of the impugned interference, that any exception to a fundamental freedom must be interpreted restrictively, and that exceptions to freedom of expression could not therefore be punished disproportionately. They alleged that the right to respect for private life was not absolute, and argued that the decisions by the domestic courts in the present case did not correspond to a pressing social need, in that the courts had not carried out a thorough balancing exercise in respect of the conflicting rights in issue or taken account of the criteria established in the Court ’ s case-law.", "52. In this connection they argued, inter alia, that, in a hereditary monarchy, information about the existence of an heir, born out of wedlock, who had not yet been officially recognised by his father, was a matter of public interest with regard both to the future of the monarchy and to the attitude of the Prince, a public figure. The question of his paternity concerned not only his own civil status – it was not without importance to know whether or not he had an illegitimate son and if so whether he had recognised him – but also the order of heirs or even possible successors to the throne, in view of the hereditary nature of the monarchy in Monaco and in the absence, at the relevant time, of any known heir. The applicants emphasised in this regard that the provisions of the Monegasque Constitution had been amended shortly before Prince Rainier ’ s death and that further amendments could not be ruled out. The information in question was also likely to enlighten the Prince ’ s subjects regarding his ethical conduct and his personal respect for the fundamental rights which he claimed for himself and which he advocated publicly and politically.", "53. The applicants also argued that the Prince made use of public resources, some of which were allocated to providing for the future and the education of his son, which was a matter that directly affected Monegasque and French taxpayers. They also claimed that the German courts, called upon to examine a substantially similar dispute, had held that the information in question justified a debate on a matter of public interest. They further asserted that communication of the news to the public was all the more legitimate in that the Prince had ultimately recognised his son, in the context of a large-scale media operation. They added that by making a statement about the succession to the throne he had acknowledged that the news in issue was a matter of public concern.", "54. The applicants further stated that the public profile of the Prince, head of the Monegasque State, was beyond doubt. As to the content of the report, they considered that it went beyond the sphere of the Prince ’ s private life, and extended to the private life of the child ’ s mother, who was free to express herself, and that of the child, who was entitled to official recognition. In this connection, they submitted that in a democratic society the wishes of one person, even a sovereign, could not confer privileges to the extent that they trespassed on the rights of others and, in particular acted as a “ bar to the claims of his son seeking to assert his existence and have his identity recognised”.", "55. The applicants further emphasised that it was not contested that the article comprised information and photographs supplied by the child ’ s mother, who had herself contacted Paris Match with a view to obtaining official recognition for her son. They claimed that the impugned photographs had all been taken in a flat, with the full consent of the Prince, and they considered that they contained no intimate details or unflattering portrayals of any of the protagonists. The photographs showing the Prince in Ms Coste ’ s company had, they submitted, been taken in the context of official events, so the magazine could not be criticised for publishing them. Only photographs handed over by the child ’ s mother had been published, with a view to lending credence to her statements. Moreover, neither the veracity of the published information nor the conditions in which that information and the accompanying photographs had been given to the magazine had been challenged. The Nanterre TGI had therefore been wrong to describe the information as “mere rumours”.", "56. The applicants also claimed that the principle of the free choice of the means of imparting information – the corollary of freedom to impart information – could not be contested without emptying that freedom of its substance. In that connection, they alleged that they had been free to illustrate the impugned article with relevant photographs. This had indeed been the case for the published photographs. With regard to the consequences of the article, the applicants denied that it could have disclosed anything that had not already been revealed to the public by the British, American, German and French press and audio - visual media and on the Internet. They therefore urged that the impact of the article be placed in perspective. They also argued that after the contested publication the Prince had officially acknowledged his paternity in a large-scale media operation, at the same time acknowledging the existence of another child.", "57. The applicants thus argued that they had experienced an interference with their right to freedom of expression which, firstly, had not been “necessary”, in that it had not corresponded to a “pressing social need”, and which, secondly, had been disproportionate in its consequences to the legitimate aim pursued. They considered that only the Prince ’ s right to private life had been taken into account in assessing the alleged violation and the resulting damage. In addition, they considered that the penalties imposed had been very severe : in their view, a court-ordered publication was equivalent to expropriating a newspaper and eliminating a space used to exercise freedom of expression, and had the weight and effect of a public reprimand designed to discredit the magazine.", "58. Lastly, the applicants argued that when the Court of Appeal and the Court of Cassation ruled on the case, the Prince had already confirmed the existence of a son born outside marriage, by means of an official statement and numerous press interviews. They criticised the domestic courts for failing to take account of that fact in assessing the extent of the alleged damage. They concluded that the publication in issue had been manifestly legitimate and that, in consequence, there had been no reasonable relationship of proportionality between the severe court judgments against them, together with the insertion of a court-ordered statement on the front cover of the magazine, and the aim pursued.", "2. The Government ’ s submissions", "59. After recapitulating the Court of Cassation ’ s case-law with regard to the protection of private life, the Government submitted, firstly, that an individual ’ s personal or family relations or their love life, pregnancy, illness, surgical operations, religious convictions, home and also right to control his or her own image had been considered as falling within the scope of private life. They also specified that only information relevant to the public ’ s right to be informed could be disclosed. Where the alleged interference concerned persons whose life or status as public figures made them well known, the case-law made a distinction on the basis of the type of information in question.", "60. The Government emphasised in this respect that although the Court of Cassation had held that “ every person, whatever his rank, birth, fortune or present or future functions, [was] entitled to respect for his private life ”, it had nonetheless also validated the disclosure of information when this was necessary as a matter of public debate.", "61. Having set out this domestic legal context, the Government did not dispute that the court judgment against the applicants amounted to interference in the exercise of their right to freedom of expression. They claimed, however, that this interference had been prescribed by law – a fact that the applicants, as professionals in the press field, could not, in the Government ’ s view, have failed to be aware of – and that it pursued a legitimate aim, namely protection of the Prince ’ s right to privacy and to protection of his image.", "62. The Government also submitted that the domestic courts had complied with the Court ’ s case-law. In this connection, they argued that the impugned comments were to be examined in the light of the case as a whole and account taken of the content of the terms used and the context in which they were made. Referring to the margin of appreciation granted to the States in this area, they argued that in the area of freedom of expression, which implied a subjective approach, the national courts were best placed to classify the facts of a case, and that the Court ’ s supervision should not seek to substitute a new assessment of the facts for that of the national courts. In the present case, the domestic courts had carried out a careful analysis and sought to strike a balance between the protection of private life and that of freedom of expression. There was therefore nothing to justify a departure from the Court of Cassation ’ s assessment.", "63. Before the Grand Chamber, the Government also submitted that in assessing the circumstances of the case it was unnecessary to take account of Ms Coste ’ s wish to publicise the identity of her child ’ s father in order to have the child recognised. In their opinion, if Paris Match wished to use Ms Coste ’ s interests in its defence, it ought to have summoned her to appear in the case before the domestic courts. The present case thus concerned solely a classic conflict between the rights and interests of an organ of the press relying on its right of expression and those of a person who had been the subject of a news article and who complained of a violation of his right to respect for his private life.", "64. The Government considered that, in this case, there had been a pressing need to protect the Prince. They submitted that the impugned publication had not concerned a subject of public interest. They acknowledged that certain information concerning the Prince could be made public on account of his functions, but considered that the impugned disclosures, quite apart from the fact that they were particularly intimate, in no way affected the organisation of the Monegasque State.", "65. The Government also considered that the Chamber had wrongly interpreted the concept of a contribution to a debate of public interest, and had opened the way for considerable legal uncertainty. In this regard, they argued that too wide an interpretation of this concept would reduce to almost nothing the scope of the Convention principle of protection of the private and family lives of public figures, and would open the way to repeated invasions of privacy and infringements of the right of public figures to control their own image, for exclusively commercial purposes.", "66. Before the Grand Chamber, they submitted that the Court, in its judgment in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR 2012), had accepted a particularly wide definition of the concept of a debate of public interest. As legal commentators had also pointed out, that definition departed from the first Von Hannover judgment (cited above), and opened the way for publication of photographs and articles which breached the privacy of public figures, with a fleeting reference to a debate of public interest then appearing sufficient to justify such publications. In the Government ’ s opinion, were that interpretation to prevail, the concept of a debate of public interest, which, they argued, was intended to guarantee respect for the private life of public figures, would be reduced to an empty shell.", "67. The Government considered that the fact that the Chamber had found that the article contained elements which related to the Prince ’ s private, or even intimate, life ought to lead the Grand Chamber to consider that the court judgment against the applicants had been justified. They claimed that the elements of private life set out in the article ought to take precedence and that the main, if not exclusive, purpose of the publication had been to satisfy the curiosity of a particular readership regarding details of the Prince ’ s private life.", "68. Before the Grand Chamber, they also argued that the Chamber had wrongly held that the possible succession to the throne of the Principality of a son born outside marriage was “the core message of the article” : in fact, it had contained only two references to that matter, or eight lines out of the five hundred lines of text, covering four pages and accompanied by six pages of photographs, in addition to the photograph on the front cover. The Government reaffirmed that the fact that the Prince had a son born outside marriage, who had no official status, did not contribute to a debate of public interest.", "69. Furthermore, while acknowledging that the German courts had dismissed the Prince ’ s claim when he brought proceedings against the weekly magazine Bunte for an article comparable to that published in Paris Match, the Government argued that the States Parties had different traditions in the area of respect by the media for private life, especially with regard to the private life of public figures. Thus, in France, the legislation and case-law were, they submitted, more protective of private life than in Germany or the United Kingdom. That being noted, the purpose of the Convention was not to harmonise national laws. The French courts had therefore been entitled to find, in contrast to the German courts, that the birth of the Prince ’ s son did not contribute to a debate of public interest: this was a reasonable position in reconciling the competing interests at stake.", "70. The Government added that, even supposing that the Grand Chamber were to find that the birth in question involved a debate on a matter of public concern, the fact that the impugned article contained multiple intimate details of his life nonetheless justified that, in the instant case, protection of privacy took precedence over freedom of expression.", "71. They considered that the publication of the article and of several photographs showing the Prince with his son had been particularly intrusive with regard to the Prince ’ s private life. Moreover, the article had contained disclosures concerning the most intimate details of the Prince ’ s life. Furthermore, the Prince had consented to photographs being taken of him with his son for private use, and not for publication. In this regard, the Government criticised the applicants for failing to filter the information provided by Ms Coste in order to exclude the intimate details concerning the Prince, choosing instead to publish those intimate details and thus failing in their duties and responsibilities.", "72. The Government further stated that, in using the photographs and captions, the magazine had given this “scoop” a sensationalist spin. They added that the applicants could not rely on events which had occurred after publication, namely the Prince ’ s statement on the matter, in order to evade their responsibility.", "73. Lastly, they explained that Paris Match was a profit-making newspaper which frequently exploited individuals ’ private lives in order to satisfy the curiosity of its readers, and that this commercial exploitation was linked to the more or less scandalous nature of its disclosures. In the present case, more than a million copies of the issue of Paris Match in question had been printed. In consequence, the Government considered that the interference in issue in the present case had been necessary and complied with the obligation of proportionality arising from the Court ’ s case-law, and that the amount of damages awarded ought, in their view, to be set against the magazine ’ s revenues.", "C. Third - party observations", "1. Observations of the Government of Monaco", "74. The Government of Monaco considered that the Chamber judgment raised a serious issue regarding the interpretation and application of Articles 8 and 10 of the Convention. In this connection, they submitted that, in practice, the criterion of “contribution to a debate of public interest”, however pertinent, guaranteed the requisite balance between freedom of expression and the protection of private life only when it was correctly applied and not subverted. In the present case, the considerations relating to the paternity of a child who was clearly excluded from succession to the throne could not fall within the scope of a debate of public interest. According to the Monegasque Government, the main – if not the sole – purpose of the article had been to satisfy the curiosity of a certain readership with regard to the private life of public figures. Moreover, it was to be feared that the approach taken in the Chamber judgment would result in future in too broad an interpretation of the justification of a contribution to a debate of public interest, which would seriously undermine the protection of private life which public figures were legitimately entitled to expect, particularly those exercising political functions.", "75. The Government of Monaco also submitted that the category of “public figures” included a very particular sub - group of “political figures”, who were even more strongly exposed to media interest. They argued that it was important to ensure that press articles about “political figures” did not, in practice, come to enjoy the virtually irrebuttable presumption that they contributed per se to a debate of public interest. Yet the Chamber judgment created a grave risk in this regard, namely that the protection afforded to political figures ’ private lives would henceforth be severely restricted, or indeed reduced to nought. It was all the more important to address this problem in view of the fact that the interpretation proposed by the Court would be expected to serve as a reference for each High Contracting Party.", "2. Observations of Media Legal Defence Initiative ( “ MLDI ” )", "76. The NGO MLDI considered that the issue of succession to the throne in a hereditary monarchy was a matter of public concern. It subscribed to the Chamber ’ s interpretation of this concept. Noting that a broad approach to the concept of a debate of public interest already existed in Germany and Belgium, it argued that a degree of latitude ought to be awarded to journalists and editors in exercising their professional judgment with regard to the details to be included in putting forward the essence of a message, especially where it was clear that it dealt with a matter of public interest. Indeed, such latitude was recognised in the United Kingdom and in other member States of the Council of Europe.", "77. MLDI submitted that in a constitutional monarchy the Head of State carried out a fundamental representative role and exercised powers that could include making public comments or expressing views privately to politicians on a wide range of matters. Moreover, in a constitutional monarchy questions of succession were matters of legitimate public scrutiny, and this had implications for the latitude which must be afforded to the press to report on such matters and the right of the public to be informed, where appropriate, in respect of them.", "78. MLDI also considered that the sanction imposed in the present case had been particularly severe. In the NGO ’ s view, the obligation to publish a statement had the potential not only to harm the reputation of the magazine, but also to impact substantially on its future sales. Furthermore, and in the light of the Court ’ s case-law, it considered that the amount of damages awarded had to be regarded as a form of censure.", "D. The Court ’ s assessment", "79. The Court notes that it is common ground between the parties that the impugned court judgment constituted an interference with the applicants ’ exercise of their right to freedom of expression, protected by Article 10 of the Convention. Nor is it contested that the interference was prescribed by law, in that it was based on Articles 9 and 1382 of the Civil Code, and pursued a legitimate aim, namely, the protection of the rights of others within the meaning of Article 10 § 2 of the Convention – in the present case the Prince ’ s right to private life and to protection of his own image. The Court agrees with this assessment.", "80. However, the applicants expressed reservations concerning the lawfulness and legitimacy of the interference in question, considering that the national courts ’ interpretation of the concept of private life was too broad, and complained that there had been no thorough weighing up of the competing interests involved ( see paragraphs 48 - 50 above ). That being stated, the Court considers that these arguments concern the assessment of whether the interference was necessary, and are not such as to call into question its lawfulness or the legitimate aim.", "81. The dispute in the instant case therefore relates to the question whether the interference was “necessary in a democratic society”.", "1. The general principles established in the Court ’ s case-law", "82. Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life and the right to freedom of expression, the Court has developed abundant case-law in this area. Having regard to the circumstances of the present case, it considers it useful to reiterate the general principles relating to each of the rights in question, and then to set out the criteria for balancing those rights.", "( a ) General principles concerning the right to respect for private life", "83. The Court reiterates that the notion of private life is a broad concept, not susceptible to exhaustive definition. It extends to aspects relating to personal identity, such as a person ’ s name, photograph, or physical and moral integrity. This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX). The guarantee afforded by Article 8 of the Convention in this regard is primarily intended to ensure the development, without outside interference, of the personality of each individual in his or her relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.", "84. Moreover, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland ( dec. ), no. 14991/02, 14 June 2005). Nevertheless, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see, inter alia, Von Hannover (no. 2), cited above, § 97 ).", "85. Publication of a photograph may thus interfere with a person ’ s private life even where that person is a public figure ( ibid., § 95). The Court has held on numerous occasions that a photograph may contain very personal or even intimate “information” about an individual or his or her family ( ibid., § 103). It has therefore recognised every person ’ s right to protection of his or her own image, emphasising that a person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image, including the right to refuse publication thereof ( ibid., § 96).", "86. In determining whether or not the publication of a photograph interferes with an applicant ’ s right to respect for his or her private life, the Court takes account of the manner in which the information or photograph was obtained. In particular, it stresses the importance of obtaining the consent of the persons concerned, and the more or less strong sense of intrusion caused by a photograph (see Von Hannover v. Germany, no. 59320/00, ECHR 2004 ‑ VI, § 5 9; Gurgenidze v. Georgia, no. 71678/01, §§ 55-60, 17 October 2006; and Hachette Filipacchi Associés v. France, no. 71111/01, § 48, 14 June 2007). In this connection, the Court has had occasion to note that photographs appearing in the “sensationalist” press or in “romance” magazines, which generally aim to satisfy the public ’ s curiosity regarding the details of a person ’ s strictly private life (see Société Prisma Presse v. France ( dec. ), no. 66910/01, 1 July 2003; Société Prisma Presse v. France ( dec. ), no. 71612/01, 1 July 2003; and Hachette Filipacchi Associés v. France ( ICI PARIS ), no. 12268/03, § 40, 23 July 2009), are often obtained in a climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution (see Von Hannover, cited above, § 59). Another factor in the Court ’ s assessment is the purpose for which a photograph was used and how it could be used subsequently (see Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009, and Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 52).", "87. However, these considerations are not exhaustive. Other criteria may be taken into account depending on the particular circumstances of a given case. Here, the Court emphasises the importance of assessing the seriousness of the intrusion into private life and the consequences of publication of the photograph for the person concerned (see Gurgenidze, cited above, § 41).", "( b ) General principles concerning the right to freedom of expression", "88. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and, among other authorities, Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV, and Von Hannover (no. 2), cited above, § 101).", "89. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its task is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Thus, the task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Mater v. Turkey, no. 54997/08, § 55, 16 July 2013). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 ‑ III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI; and Von Hannover (no. 2), cited above, § 102). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, § 146, ECHR 2007 ‑ V). Freedom of expression includes the publication of photographs. This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual or his or her family ( see Von Hannover (no. 2), cited above, § 103). Lastly, although the publication of news about the private life of public figures is generally for the purposes of entertainment rather than education, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10 of the Convention. However, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination (see Mosley v. the United Kingdom, no. 48009/08, § 131, 10 May 2011).", "( c ) General principles concerning the margin of appreciation and balancing of rights", "90. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative (see Von Hannover (no. 2), cited above, § 104, with further references ). Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (ibid.). However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (ibid. , § 105, with further references ).", "91. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect ( ibid., § 106). Accordingly, the margin of appreciation should in theory be the same in both cases.", "92. According to the Court ’ s established case-law, the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). The margin of appreciation left to the national authorities in assessing whether such a “need” exists and what measures should be adopted to deal with it is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Von Hannover (no. 2), cited above, § 107).", "93. The Court has already had occasion to lay down the relevant principles which must guide its assessment in this area. It has thus identified a number of criteria in the context of balancing the competing rights (see Von Hannover (no. 2), cited above, §§ 109-13, and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90-95, 7 February 2012). The relevant criteria thus defined are: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers ( ibid.). The Court considers that the criteria thus defined may be transposed to the present case.", "2. Application of these principles to the present case", "94. The Court notes that the impugned article consisted of an interview with Ms Coste, who disclosed that the Prince was the father of her son. The article also provided details about the circumstances in which she had met the Prince, their intimate relationship, their mutual feelings, his reaction to the news of her pregnancy and the manner in which he behaved with the child. It was illustrated by photographs of the Prince holding the child or accompanied by Ms Coste, in both private and public contexts ( see paragraphs 14 ‑ 16 above ).", "95. In this regard and in view of the parties ’ submissions ( see paragraphs 53 and 69 above ) concerning the conclusions reached by the German courts in respect of substantially similar articles that had been published in Bunte, the Court finds it appropriate to make the preliminary observation that its role in this case consists primarily in verifying whether the domestic courts whose decisions are contested by the applicants struck a fair balance between the rights at stake and ruled in accordance with the criteria established by it for that purpose ( criteria which have been reiterated in paragraph 93 above ). Thus, its assessment of the circumstances of the present case cannot be based on a comparative examination of the decisions reached by the French and German courts respectively with regard to the information disclosed.", "( a ) The issue of the contribution to a debate of public interest", "96. The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression when a matter of public interest is at stake ( see, inter alia, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V). The margin of appreciation of States is reduced where a debate on a matter of public interest is concerned ( see Editions Plon v. France, no. 58148/00, § 44, ECHR 2004 ‑ IV). In the circumstances of the present case, it is therefore essential to determine at the outset whether the content of the interview disclosing the Prince ’ s fatherhood could be understood as constituting information such as to “contribute to a debate on a matter of public interest”.", "( i ) The concept of “contribution to a debate of public interest”", "97. The Government argued that too wide an interpretation of this concept would be liable to nullify any protection of the private life of public figures ( see paragraphs 65 - 66 above ). In this regard, the Court emphasises that the definition of what might constitute a subject of public interest will depend on the circumstances of each case ( see Von Hannover (no. 2), cited above, § 109, and Axel Springer AG, cited above, § 90).", "98. It also reiterates that it has already had occasion to rule on different situations and has concluded that, although related to private life, they could legitimately be brought to the public ’ s attention. In those cases, it took into account a number of factors in ascertaining whether a publication disclosing elements of private life also concerned a question of public interest. Relevant factors include the importance of the question for the public and the nature of the information disclosed ( see Von Hannover (no. 2), cited above, § 109, and, in the context of the right to reputation, Axel Springer AG, cited above, § 90, with further references ).", "99. In particular, it has accepted in the past that aspects of private life may be disclosed on account of the interest that the public may have in being informed about certain personality traits of the public figure concerned ( see Ojala and Etukeno Oy v. Finland, no. 69939/10, §§ 54 ‑ 55, 14 January 2014, and Ruusunen v. Finland, no. 73579/10, §§ 49 ‑ 50, 14 January 2014 in which the Court held that the date and the manner in which a former Finnish prime minister had entered a romantic relationship and the speed with which it had developed could be of public interest, in that it raised the question of whether he had been dishonest and lacked judgment in that regard ). It remains the case, however, that a person ’ s romantic relationships are, in principle, a strictly private matter. It follows that, in general, details concerning a couple ’ s sex life or intimate relations should only be permitted to be brought to the public ’ s knowledge without prior consent in exceptional circumstances.", "100. The Court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person ’ s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society ( see Von Hannover, cited above, § 65; MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011; and Alkaya v. Turkey, no. 42811/06, § 35, 9 October 2012).", "101. Thus, an article about the alleged extramarital relationships of high-profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership ( see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009). Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership ( see Von Hannover, cited above, § 65, with further references ). The Court reiterates in this connection that the public interest cannot be reduced to the public ’ s thirst for information about the private life of others, or to the reader ’ s wish for sensationalism or even voyeurism.", "102. In order to ascertain whether a publication concerning an individual ’ s private life is not intended purely to satisfy the curiosity of a certain readership, but also relates to a subject of general importance, it is necessary to assess the publication as a whole and to examine whether, having regard to the context in which it appears (see Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007; Björk Eiðsdóttir v. Iceland, no. 46443/09, § 67, 10 July 2012; and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 64, 10 July 2012), it relates to a question of public interest.", "103. In this connection, the Court specifies that the public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree ( see The Sunday Times, cited above, § 66), especially in that they affect the well-being of citizens or the life of the community ( see Barthold v. Germany, 25 March 1985, § 58, Series A no. 90). This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue ( see, for example, Erla Hlynsdόttir, cited above, § 64), or which involve a problem that the public would have an interest in being informed about ( see Tønsbergs Blad A.S. and Haukom, cited above, § 87).", "( ii ) Contribution of the impugned article to a debate of public interest", "104. In the present case, the domestic courts found a “lack of any topical news item” and “any debate on a matter of public interest” in the impugned publication, given that the child was barred from succession to the throne, a situation that “the company ’ s pleadings did not claim to be a subject of debate in French or Monegasque society or of examination in the article”. They thus held that the impugned article amounted to an invasion of the Prince ’ s private life, which could not in any way be justified by the “requirements of current - affairs reporting”, which they held to be “inexistent” ( see paragraphs 27 and 36 above ).", "105. For its part, the Court considers that, in order to determine whether the content of the interview disclosing the Prince ’ s fatherhood could be understood as constituting information on a question of public interest, it is necessary to assess the article as a whole, as well as the substance of the information that is disclosed in it. In this connection and having regard to the observations of the domestic courts (see paragraphs 20, 27 and 36 above) and of the Government (see paragraph 70 above), the Court accepts that the interview with Ms Coste contained numerous details about the Prince ’ s private life and his real or supposed feelings which, in the circumstances of the case, are not directly related to a debate of public interest.", "106. Nonetheless, the Court considers that the subject of the article cannot be regarded as disclosing only the relationship between Ms Coste and the Prince, unless the scope of the concept of public interest is greatly restricted. There is no doubt that the publication, taken as a whole and in context, and analysed in the light of the above-mentioned case-law precedents (see paragraphs 98 - 103 above), also concerned a matter of public interest.", "107. In this regard, the Court considers it useful at the outset to point out that although a birth is an event of an intimate nature, it does not come solely within the private sphere of the persons concerned by it, but also falls within the public sphere, since it is in principle accompanied by a public statement (the civil-status document) and the establishment of a legal parent-child relationship. Thus, the purely private and family interest represented by a person ’ s descent is supplemented by a public aspect, related to the social and legal structure of kinship. A news report about a birth cannot therefore be considered, in itself, as a disclosure concerning exclusively the details of the private life of others, intended merely to satisfy the public ’ s curiosity.", "108. Further, having regard to the specific features of the Principality of Monaco, in which “the links between the sovereign and the Monegasque Family are very close” and “the monarchy ... is based on the union between the Prince and the national community” [1], the Court considers that there is an undeniable public -interest value – at least for the subjects of the Principality – in the existence of a child (particularly a son) of the Prince, who was known at the relevant time as being single and childless. The fact that the Prince ’ s son was born out of wedlock is irrelevant in this regard. At the material time this child ’ s birth was not without possible dynastic and financial implications: the Prince was still unmarried and the question of legitimation by marriage could be raised, even if such an outcome was improbable.", "109. Indeed, the consequences of the birth on the succession were mentioned in the article, which related the warning attributed to the Prince ’ s adviser, who allegedly said: “ Do you realise that, if it ’ s a boy, they ’ ll use that to prevent Albert acceding to the throne, and the child will be able to claim the throne. ” They were also evident in Ms Coste ’ s remarks when she stated: “ I didn ’ t want him to grow up like Mazarine ... I thought only about that, and not for a second about the fact that he represented a potential heir. ” Thus, reference was also made to the reasons which may have incited the Prince to refuse to recognise his paternity officially and to prefer to keep it secret. In addition, through Ms Coste ’ s comments stating that she was “afraid for [her] son ’ s psychological health” and wished him “to grow up normally, with a father”, the article also touched on the child ’ s best interests in having the father-child relationship, an important aspect of his personal identity, officially established.", "110. At this stage, the Court reiterates, having regard to the Government ’ s argument that the article contained only a few lines on the issue of the child ’ s status as a potential heir ( see paragraph 68 above ), that the only decisive question is whether a news report is capable of contributing to a debate of public interest, and not whether it achieves this objective in full ( see Haldimann and Others v. Switzerland, no. 21830/09, § 57, ECHR 2015 ). It notes that, for an article to contribute to a debate of public interest, it is not necessary that it be devoted entirely to that; it may be enough for the article to be concerned with that debate and to contain one or several elements for that purpose ( see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 37, 16 January 2014; Ojala and Etukeno Oy, cited above, § 54; and Ruusunen, cited above, § 49).", "111. In the present case, the impugned information was not without political import, and could arouse the interest of the public with regard to the rules of succession in force in the Principality (which prevented children born outside marriage from succeeding to the throne). Likewise, the attitude of the Prince, who wished to keep his paternity a secret and refused to acknowledge it publicly (see paragraphs 25 and 27 above), could, in a hereditary monarchy whose future is intrinsically linked to the existence of descendants, also be of concern to the public. This was equally true with regard to his behaviour in respect of the child ’ s mother – who was unable to obtain either the notarial deed of recognition of her son, or its transcription into the register of births, marriages and deaths ( see paragraph 17 above ) – and the child himself: this information could provide insights into the Prince ’ s personality, particularly with regard to the way in which he approached and assumed his responsibilities.", "112. In this context, it is important to reiterate the symbolic role of a hereditary monarchy. In such a monarchy, the Prince embodies the unity of the nation. It follows that certain events affecting the members of the ruling family, while they are part of the latter ’ s private lives, are also part of contemporary history. This was the Court ’ s conclusion, in particular, with regard to the illness of Prince Rainier III (see Von Hannover (no. 2), cited above, §§ 38 and 117). In the Court ’ s opinion, this is also the case with regard to the birth of a child, even one born out of wedlock, especially since, at the date of the impugned events, the child in question appeared to be the Prince ’ s only descendant. In a constitutional hereditary monarchy, the person of the Prince and his direct line are also representative of the continuity of the State.", "113. Consequently, the Court considers that, although the impugned article admittedly contained numerous details which concerned solely private or even intimate details of the Prince ’ s life, it was also intended to contribute to a debate on a matter of public interest ( see paragraphs 105 - 12 above ), as submitted by the applicants both before the domestic courts and before the Court ( see paragraphs 30 - 33 and 52 - 53 above ).", "114. Having regard to the domestic courts ’ conclusions in this regard (see paragraph 104 above), the Court considers it useful to emphasise that the press ’ s contribution to a debate of public interest cannot be limited merely to current events or pre-existing debates. Admittedly, the press is a vector for disseminating debates on matters of public interest, but it also has the role of revealing and bringing to the public ’ s attention information capable of eliciting such interest and of giving rise to such a debate within society. Moreover, in view of the articles published in the Daily Mail and in Bunte ( see paragraphs 9 and 11 above ), the Court notes that the child ’ s status as a potential heir was already a matter of public discussion.", "115. Accordingly, it considers that the national courts ought to have assessed the publication as a whole in order to determine its subject matter accurately, rather than examining the remarks concerning the Prince ’ s private life out of their context. In the event, however, they refused to take into consideration the interest that the article ’ s central message – namely the existence of a child who had been fathered by the Prince – could have for the public, and instead concentrated on the details provided by Ms Coste about the couple ’ s intimate relationship. In so doing, they deprived the public -interest justification relied upon by the applicants of any effectiveness.", "116. In this case, however, having regard to the nature of the information in issue, the Court finds no reason to doubt that, in publishing Ms Coste ’ s account, the applicants could be understood as having contributed to the coverage of a subject of public interest.", "( b ) How well known is the person concerned and what is the subject of the news report?", "( i ) Consequences of the classification as a “public figure”", "117. The Court reiterates that the role or function of the person concerned and the nature of the activities that are the subject of the news report and/or photograph constitute another important criterion to be taken into consideration ( see Von Hannover (no. 2), cited above, § 110, and Axel Springer AG, cited above, § 91). The extent to which an individual has a public profile or is well known influences the protection that may be afforded to his or her private life. Thus, the Court has acknowledged on numerous occasions that the public was entitled to be informed about certain aspects of the private life of public figures (see, inter alia, Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004 ‑ X).", "118. It is therefore necessary to distinguish between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction needs to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example ( see Von Hannover, cited above, § 63, and Standard Verlags GmbH and Krawagna -Pfeifer v. Austria, no. 19710/02, § 47, 2 November 2006).", "119. Thus, depending on whether or not he or she is vested with official functions, an individual will enjoy a more or less restricted right to his or her intimacy : in this regard, the right of public figures to keep their private life secret is, in principle, wider where they do not hold any official functions (even if, as members of a ruling family, they represent that family at certain events; see Von Hannover, cited above, §§ 76-77) and is more restricted where they do hold such a function ( see, for example, Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Ojala and Etukeno Oy, cited above, § 52).", "120. The fact of exercising a public function or of aspiring to political office necessarily exposes an individual to the attention of his or her fellow citizens, including in areas that come within one ’ s private life. Accordingly, certain private actions by public figures cannot be regarded as such, given their potential impact in view of the role played by those persons on the political or social scene and the public ’ s resultant interest in being informed of them. The Court subscribes to the analysis of the Parliamentary Assembly of the Council of Europe, finding that “ public figures must recognise that the position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy” ( point 6 of Resolution 1165 (1998), see paragraph 43 above).", "121. Thus, the Court has found in particular that politicians inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large (see, inter alia, Lingens, cited above, § 42). Furthermore, this principle applies not only to politicians, but to every person who is part of the public sphere, whether through their actions (see, to this effect, Krone Verlag GmbH & Co KG v. Austria, no. 34315/96, § 37, 26 February 2002, and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000 ‑ I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).", "122. Nevertheless, in certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see, inter alia, Von Hannover (no. 2), cited above, § 97). Thus, the fact that an individual belongs to the category of public figures cannot in any way, even in the case of persons exercising official functions, authorise the media to violate the professional and ethical principles which must govern their actions, or legitimise intrusions into private life.", "123. It follows that an individual ’ s celebrity or functions cannot under any circumstances justify hounding by the media or the publication of photographs obtained through fraudulent or clandestine operations (see, with regard to photographs taken using a telephoto lens and without the knowledge of the persons concerned, Von Hannover, cited above, § 68) or those portraying details of an individual ’ s private life and representing an intrusion into their intimacy (see, with regard to the publication of photographs relating to an alleged adulterous relationship, Campmany and Lopez Galiacho Perona v. Spain ( dec. ), no. 54224/00, ECHR 2000 ‑ XII).", "124. In the present case, the Court notes that the Prince is a person who, through his birth as a member of a ruling family and his public functions, both political and representative, as Head of State, is undeniably a prominent public figure. The domestic courts ought therefore to have considered the extent to which this prominence and those public functions were capable of influencing the protection which could be afforded to his private life. Yet they refrained from including this circumstance in their assessment of the facts submitted for their examination. Thus, although it reiterated that an exception could be made to the principle of protection of private life whenever the facts disclosed could give rise to a debate on account of their impact given the status or function of the person concerned ( see paragraph 26 above ), the Versailles Court of Appeal drew no conclusion from that consideration in the present case. Equally, the Court of Cassation merely stated, in a general manner, that “every person, whatever his rank, birth, fortune or present or future functions, [was] entitled to respect for his private life” ( see paragraph 36 above ).", "125. Indeed, given that the expectation of protection of private life may be reduced on account of the public functions exercised, the Court considers that, in order to ensure a fair balancing of the interests at stake, the domestic courts, in assessing the facts submitted for their examination, ought to have taken into account the potential impact of the Prince ’ s status as Head of State, and to have attempted, in that context, to determine the parts of the impugned article that belonged to the strictly private domain and what fell within the public sphere.", "( ii ) The subject of the publication", "126. The Court observes at the outset that the impugned publication admittedly concerned the sphere of the Prince ’ s private life, in that it described his love life and his relationship with his son. Nonetheless, referring to its previous findings ( see paragraphs 106 - 14 above ), it considers that the essential element of the information contained in the article – the child ’ s existence – went beyond the private sphere, given the hereditary nature of the Prince ’ s functions as the Monegasque Head of State. Further, given that the Prince had appeared on several occasions in public alongside Ms Coste (see paragraphs 14 and 16 above), the Court considers that the existence of his relationship with her was no longer purely a matter concerning his private life.", "127. The Court would then emphasise that the Prince ’ s private life was not the sole subject of the article, but that it also concerned the private life of Ms Coste and her son, over whom Ms Coste alone had parental responsibility. Thus, it also contained details about the interviewee ’ s pregnancy, her own feelings, the birth of her son, a health problem suffered by the child and their life together ( see paragraph 14 above ). These were elements relating to Ms Coste ’ s private life, in respect of which she was certainly not bound to silence and was free to communicate. In this regard, the Court cannot ignore the fact that the disputed article was a means of expression for the interviewee and her son.", "128. In addition, in securing the impugned publication, Ms Coste was motivated by a personal interest, namely obtaining official recognition for her son, as is clearly reflected in the article ( see paragraphs 14 and 15 above ). The interview thus raised a question of public interest, but also concerned competing private interests : that of Ms Coste in securing recognition for her son, which was why she had contacted the media ( see paragraph 17 above ), that of the child in having his paternity established and that of the Prince in keeping that paternity secret.", "129. The Court nonetheless agrees that, as the Government have submitted ( see paragraph 63 above ), Ms Coste ’ s right to freedom of expression for herself and her son is not directly in issue in the present case, given that Ms Coste was not a party to the proceedings before the domestic courts and is not a party to the proceedings before the Court. It emphasises, however, that the combination of elements relating to Ms Coste ’ s private life and to that of the Prince had to be taken into account in assessing the protection due to him.", "( c ) Prior conduct of the person concerned", "130. The Court notes that neither the domestic courts nor the parties commented on the Prince ’ s prior conduct. In the circumstances of the case, it considers that, short of speculating, the material in the case file is not in itself sufficient to enable it to take cognisance of or examine the Prince ’ s previous conduct with regard to the media. Moreover, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving a person discussed in an article of all protection (see Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). An individual ’ s alleged or real previous tolerance or accommodation with regard to publications touching on his or her private life does not necessarily deprive the person concerned of the right to privacy.", "( d ) Method of obtaining the information and its veracity", "131. The Court emphasises at the outset the importance that it attaches to journalists ’ assumption of their duties and responsibilities, and to the ethical principles governing their profession. In this connection, it reiterates that Article 10 protects journalists ’ right to divulge information on issues of general interest subject to the proviso that they are acting in good faith and on an accurate factual basis and that they provide “reliable and precise” information in accordance with the ethics of journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I).", "132. The fairness of the means used to obtain information and reproduce it for the public and the respect shown for the person who is the subject of the news report ( see Egeland and Hanseid, cited above, § 61 ) are also essential criteria to be taken into account. The reductive and truncated nature of an article, where it is liable to mislead the reader, is therefore likely to detract considerably from the importance of the said article ’ s contribution to a debate of public interest ( see Stoll, cited above, § 152).", "133. Further, the Court would point out the particular circumstances of the present case compared with other cases examined by it in which the press had exposed the private life of public figures, including members of the Monegasque ruling family: in a decision which appears to have been personal, deliberate and informed, Ms Coste herself contacted Paris Match ( see paragraph 17 above ).", "134. The veracity of Ms Coste ’ s statements with regard to the Prince ’ s paternity has not been contested by him, and he himself publicly acknowledged it shortly after the impugned article was published. In this connection, the Court reiterates the essential nature of the veracity of the disseminated information: respect for this principle is fundamental to the protection of the reputation of others.", "135. As to the photographs which illustrate the interview, they were handed over voluntarily – as noted by the Versailles Court of Appeal ( see paragraph 27 above ) – and without charge to Paris Match by Ms Coste ( see paragraph 17 above ). In addition, the photographs showing the Prince with his child were not taken without his knowledge (contrast Von Hannover, cited above, § 68), or in circumstances showing him in an unfavourable light (compare Von Hannover (no. 2), cited above, §§ 121 ‑ 23). Admittedly, and in common with the domestic courts, the Court notes that the photographs showed the Prince in a private context and were published without his consent. However, they certainly did not present him in a light which might undermine his public standing from the reader ’ s perspective. Nor did they present a distorted image of him, and above all they lent support to the content of the interview, illustrating the veracity of the information contained in it.", "136. As to the photographs showing the Prince with Ms Coste, it is not disputed that these were taken in public places at events which were themselves public, so their publication raises no particular issues in the circumstances of the present case.", "( e ) Content, form and consequences of the impugned article", "137. The Government criticised the applicants for having given the published information a sensationalist spin and for failing to filter Ms Coste ’ s disclosures with a view to excluding those which concerned the intimate details of the Prince ’ s life ( see paragraphs 71 - 72 above ). For their part, the domestic courts noted that the impugned publication contained multiple digressions about the circumstances of Ms Coste ’ s meeting with the Prince, the Prince ’ s reaction to the announcement of Ms Coste ’ s pregnancy and his subsequent conduct towards the child ( see paragraphs 27 and 36 above ).", "138. In this regard, the Court notes firstly that, in exercising their profession, journalists make decisions on a daily basis through which they determine the dividing line between the public ’ s right to information and the rights of others to respect for their private lives. They thus have primary responsibility for protecting individuals, including public figures, from any intrusion into their private life. The choices that they make in this regard must be based on their profession ’ s ethical rules and codes of conduct.", "139. Secondly, the Court reiterates that the approach used to cover a subject is a matter of journalistic freedom. It is not for it, nor for the national courts, to substitute their own views for those of the press in this area (see Jersild, cited above, § 31). Article 10 of the Convention also leaves it for journalists to decide what details ought to be published to ensure an article ’ s credibility (see Fressoz and Roire, cited above, § 54). In addition, journalists enjoy the freedom to choose, from the news items that come to them, which they will deal with and how they will do so. This freedom, however, is not devoid of responsibilities (see paragraphs 131-32 above ).", "140. Wherever information bringing into play the private life of another person is in issue, journalists are required to take into account, in so far as possible, the impact of the information and pictures to be published prior to their dissemination. In particular, certain events relating to private and family life enjoy particularly attentive protection under Article 8 of the Convention and must therefore lead journalists to show prudence and caution when covering them ( see Editions Plon, cited above, §§ 47 and 53, and Hachette Filipacchi Associés, cited above, §§ 46 ‑ 49).", "141. In the present case, the impugned publication was presented as an interview made up of questions and answers, reproducing Ms Coste ’ s statements without any journalistic commentary. Moreover, the tone of the interview appeared to be measured and non-sensationalist. Ms Coste ’ s remarks are recognisable as quotations and her motives are also clearly set out for the readers. Equally, readers can easily distinguish between what is factual material and what concerns the interviewee ’ s perception of the events, her opinions or her personal feelings ( see paragraph 14 above ).", "142. The Court has already had occasion to state that punishing a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild, cited above, § 35, and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 47-48, 21 September 2010). It considers that the same approach should prevail in the circumstances of the present case, given that, over and above the Prince ’ s private life, the impugned publication concerned a matter of public interest, especially since the details provided by Ms Coste about her relationship with the Prince were not such as to undermine his reputation or arouse contempt towards him ( contrast Ojala and Etukeno Oy, cited above, § 56, and Ruusunen, cited above, § 51). Indeed, it is not disputed that Ms Coste ’ s account of her life and her personal relationship with the Prince was sincere and that it was faithfully reported by the applicants. In addition, there is no cause to doubt that, in publishing this account, the applicants ’ intention was to communicate to the public news that was of general interest ( see paragraph 116 above ).", "143. Moreover, it was for the domestic courts to assess the impugned interview in such a way as to differentiate and weigh up what, in Ms Coste ’ s personal remarks, was likely to fall within the core area of the Prince ’ s private life (compare Ojala and Etukeno Oy, cited above, § 56, and Ruusunen, cited above, § 51 ) and what could be of legitimate interest to the public. Yet they failed to do so, denying that there was any “topical” value to the news about the existence of the Prince ’ s son and finding that it did not form part of “any debate on a matter of public interest which would have justified its being reported ... on the grounds of legitimate imparting of information to the public” ( see paragraph 36 above ).", "144. Admittedly, the interview was placed in a narrative setting accompanied by graphic effects and headlines which were intended to attract the reader ’ s attention and provoke a reaction ( see paragraphs 15 ‑ 16 above ). Having regard to the Government ’ s criticisms on this point ( see paragraph 72 above ), the Court emphasises that the presentation of a press article and the style used in it are a matter of editorial decision, on which it is not in principle for it, or for the domestic courts, to pass judgment. Nonetheless, it also reiterates that journalistic freedom is not unlimited and that the press must not overstep certain bounds in this connection, in particular “the protection ... of the rights of others” ( see, inter alia, Mosley, cited above, § 113, and MGN Limited, cited above, § 141). In the present case, it considers that, viewed as a whole, this narrative presentation, created through the addition of headlines, photographs and captions, does not distort the content of the information and does not deform it, but must be considered as its transposition or illustration.", "145. Moreover, the use of certain expressions ( see paragraphs 15 ‑ 16 above ) which, to all intents and purposes, were designed to attract the public ’ s attention cannot in itself raise an issue under the Court ’ s case-law (see Tănăsoaica v. Romania, no. 3490/03, § 41, 19 June 2012) : the magazine cannot be criticised for enhancing the article and striving to present it attractively, provided that this does not distort or deform the information published and is not such as to mislead the reader.", "146. With regard to the photographs illustrating the article which show the Prince holding the child, the Court reiterates first of all that, in essence, Article 10 leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility (see, in particular, Fressoz and Roire, cited above, § 54, and Pinto Coelho v. Portugal, no. 28439/08, § 38, 28 June 2011 ).", "147. It further notes that the Court of Cassation held that “ the publication of photographs of a person to illustrate subsequent content which amount [ ed ] to an invasion of his privacy necessarily infringe[d] his right to control of his own image” ( see paragraph 36 above ).", "148. The Court considers that, while there is no doubt in the present case that these photographs fell within the realm of the Prince ’ s private life and that he had not consented to their publication, their link with the impugned article was not tenuous, artificial or arbitrary ( see Von Hannover v. Germany (no. 3), no. 8772/10, §§ 50 and 52, 19 September 2013). Their publication could be justified by the fact that they added credibility to the account of events. At the time of their publication, given that Ms Coste had been unable to obtain the notarial deed recognising her son ( see paragraphs 14 and 17 above ), she had at her disposal no other evidence which would have enabled her to substantiate her account and enable the applicants to forgo publication of the photographs. In consequence, although publication of these photographs had the effect of exposing the Prince ’ s private life to the public, the Court considers that they supported the account given in the article, which has already been found to have contributed to a debate of public interest ( see paragraph 113 above ).", "149. Furthermore, taken alone or in conjunction with the accompanying text ( be this the headlines, subheadings and captions, or the interview itself ), these photographs were not defamatory, pejorative or derogatory for the Prince ’ s image (contrast Egeland and Hanseid, cited above, § 61); indeed, the latter did not allege that there had been damage to his reputation.", "150. Lastly, with regard to the consequences of the disputed article, the Court notes that shortly after the article was published, the Prince publicly acknowledged his paternity. The Versailles Court of Appeal held in this connection that he had been “obliged” to provide a public explanation about a matter relating to his private life ( see paragraph 27 above ). For its part, the Court considers that the consequences of the publication must be put into perspective, in the light of the articles which had previously appeared in the Daily Mail and in Bunte. However, in the present case the domestic courts do not appear to have evaluated the consequences in the wider context of the international media coverage already given to the events described in the article. Thus, they attached no weight to the fact that the secrecy surrounding the Prince ’ s paternity had already been undermined by the previous articles in other media ( see paragraphs 9 and 11 above ).", "( f ) The severity of the sanction", "151. The Court reiterates that in the context of assessing proportionality, irrespective of whether or not the sanction imposed was a minor one, what matters is the very fact of judgment being given against the person concerned, including where such a ruling is solely civil in nature (see, mutatis mutandis, Roseiro Bento v. Portugal, no. 29288/02, § 45, 18 April 2006). Any undue restriction on freedom of expression effectively entails a risk of obstructing or paralysing future media coverage of similar questions.", "152. In the present case, the applicant company was ordered to pay EUR 50, 000 in damages and to publish a statement detailing the judgment. The Court cannot consider those penalties to be insignificant.", "( g ) Conclusion", "153. In the light of all of the above-mentioned considerations, the Court considers that the arguments advanced by the Government with regard to the protection of the Prince ’ s private life and of his right to his own image, although relevant, cannot be regarded as sufficient to justify the interference in issue. In assessing the circumstances submitted for their appreciation, the domestic courts did not give due consideration to the principles and criteria as laid down by the Court ’ s case-law for balancing the right to respect for private life and the right to freedom of expression ( see paragraphs 142 - 43 above ). They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicants ’ right to freedom of expression, imposed by them, and the legitimate aim pursued.", "The Court therefore concludes that there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "154. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "155. The applicants stated that they hoped to obtain just satisfaction which would compensate for the cost of the damages awarded and of the compulsory publication order imposed by the domestic courts. However, they did not quantify their claims under this head.", "156. The Government did not comment on those claims before the Grand Chamber.", "157. The Court reiterates that under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the claim may be rejected in whole or in part. In the present case, the applicants have not submitted particulars of their claims in respect of the damage sustained, nor provided the necessary supporting documents. It follows that the Court cannot allow their claim for compensation.", "B. Costs and expenses", "158. The applicants claimed the sum of EUR 38, 463. 61 as reimbursement of the costs incurred by them in the proceedings before the national courts. They submitted fee notes and invoices in support of their claim.", "159. The Government did not comment on those claims before the Grand Chamber.", "160. The Court reiterates that costs and expenses will not be reimbursed under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum. It also reiterates that it may award the applicant not only the costs and expenses incurred before it but also those incurred before the national courts for prevention and redress of the violation ( see Elsholz v. Germany [GC], no. 25735/94, § 7 3, ECHR 2000 ‑ VIII).", "161. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award the applicants jointly EUR 15,000 under this head.", "C. Default interest", "162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1973 and lives in Riga.", "3. The Government were represented by their Agent, Ms K. Līce.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background information", "5. The applicant is a lawyer. At the time of the impugned article her partner, J.N., was the chairman of a political party that did not have seats in Parliament. From 1995-2001 he had been the director-general of a State ‑ owned joint-stock company. He had also taken part in a nationwide advertising campaign in a weekly celebrity-focused magazine, Privātā Dzīve, that appeared in 76,000 copies with a readership of about 474,000.", "6. In 2003 Privātā Dzīve published an article about the dissolution of J.N.’s previous marriage. J.N. had commented on his new relationship with the applicant and had said that they would soon become parents. The article included two photographs of the applicant – one was a portrait and the other showed her sitting in a public location. In the autumn of 2003, the applicant’s and J.N.’s first child was born.", "Impugned article", "7. On 30 November 2004 Privātā Dzīve published an article about the birth of the applicant’s second child. A covertly taken photograph of the applicant was used on the magazine’s cover. It showed her leaving hospital carrying her newborn baby in a car-seat. Her partner J.N. could be seen walking behind her. The photograph had the caption: “One year on [J.N.] has another child.”", "8. On page four under the rubric “Children of celebrities” there was a short article with the headline “[J.N.] does not make it in time for the birth of his son”. The article was based on a telephone conversation with J.N., who had provided some information about the birth of his son, such as his weight, height and time of birth. The article was accompanied by nine covertly taken photographs, including the cover photograph, all showing the applicant and J.N. leaving hospital. In addition to the cover photograph, the applicant could be seen in three of them – standing at entrance to the hospital, standing together with J.N., and fixing the windscreen wiper of her car. The other photographs showed either J.N. or both of them leaving the hospital grounds in their cars. The photographs were supplemented with captions addressing the quantity and type of belongings the applicant had had while in hospital, the fact that the applicant and her partner had arrived and departed with their own cars, and that a windscreen wiper had been broken and the pair had tried to fix it.", "Civil proceedingsFirst-instance proceedings", "First-instance proceedings", "First-instance proceedings", "9. On 10 March 2006, relying on Articles 89 and 96 of the Constitution (protection of fundamental rights and right to private life), section 1635 of the Civil Law (right to compensation) and Article 8 of the Convention, the applicant brought a civil claim against the publisher, the editor-in-chief, and the journalist who had written the piece. She argued that by covertly taking photographs of an important and intimate moment of her life – leaving hospital with a newborn baby – and publishing them in a magazine without her consent and in the absence of any public interest, the defendants had infringed her right to respect for her private life.", "10. In a judgment of 10 January 2007 the Riga City Central District Court ruled in the applicant’s favour. It observed that it had not been contested that the photographs had been taken covertly and that they had been published without the applicant’s permission. Furthermore, it had not been argued that the applicant was a public figure. While the article primarily concerned J.N., it did not refer to him as a person carrying out any active political functions. Therefore, the interference in the applicant’s private life could not be justified by a reference to society’s right to be informed of the activities of a public person. Having found a violation of the applicant’s right to private life, the court ordered the editor-in-chief to publish an apology on pages one, four and five of the magazine, and to pay compensation for non-pecuniary damage in the amount of 700 Latvian lati (approximately 1,000 euros (EUR)).", "11. In response, on 30 January 2007 Privātā Dzīve republished the article of 30 November 2004 with the same photographs and captions, along with an editorial note expressing disagreement with the judgment.", "Appellate proceedings", "12. In a judgment of 11 December 2007 the Riga Regional Court overturned the first-instance court’s judgment and dismissed the applicant’s claim.", "13. On 10 September 2008 the Senate of the Supreme Court quashed the appellate court’s judgment. It pointed out that the applicant had relied on the Court’s 2004 judgment in the case of Von Hannover v. Germany (no. 59320/00, ECHR 2004 ‑ VI) and the appellate court had failed to provide reasons as to why this judgment had not been relevant for deciding the case.", "14. On 11 December 2008 the Riga Regional Court adopted a new judgment, again dismissing the applicant’s claim. It observed that the photographs featuring the applicant leaving hospital while holding her newborn baby had been taken covertly. However, relying on the Declaration on mass communication media and Human Rights (Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe, adopted on 23 January 1970), it noted that absolute privacy did not exist and a person had to come to terms with the fact that an interference with private life could take place at any time and place. The assessment of the seriousness of the interference had to be made by the domestic courts.", "15. The Riga Regional Court then noted that the interference had to be assessed in the light of the person’s role in society and attitude to publicity. The child’s father, J.N., was a public figure – he was known as the former chair of a State-owned company, the current chair of a political party, and as the advertising face of Privātā Dzīve. In August 2003 Privātā Dzīve had published an article about J.N.’s divorce and about the fact that J.N. and the applicant had been expecting a child. The impugned article had been a continuation of that initial article and had informed the readers that the child mentioned in the article of 2003 had been born (confer paragraph 65 below). That information had been accompanied by nine photographs that formed an essential part of the article. The photographs had been taken in a public place – in the street – and the applicant had not been depicted in a humiliating manner. They had been taken to illustrate a specific event and had not been connected with following the applicant’s everyday life and covertly photographing intimate moments of her private life.", "16. Furthermore, the impugned article had been written on the basis of the information provided by J.N. The applicant had had no grounds to believe that the information about the birth of her child would not be disseminated or that it would be relayed without mentioning her as the child’s mother. As a partner of a public person and a mother of his child, the applicant had to take into account that she could attract media attention and that articles might contain information about his family members, as had happened in the impugned “photo story”. The 2003 article had also featured the applicant’s photographs, to which she had not objected. The applicant’s attitude towards publicity had also been demonstrated in a subsequent interview, published in a different magazine in 2005, where she had given information about her private life, relationship with J.N., stance towards marriage, and her opinions as an activist for gender equality. In particular, the applicant had been quoted as having expressed awareness that the public had taken an interest in her owing to her being J.N.’s partner.", "17. With respect to the applicant’s reliance on the Court’s 2004 judgment in the case of Von Hannover (cited above) the Riga Regional Court noted, firstly, that photographing a person in a public place, albeit without his or her consent, did not constitute an interference with private life. Furthermore, the Court’s interpretation of the Convention could only be applied if the factual circumstances of the two cases were identical. However, there were fundamental differences between the two cases. The photographing of the applicant had only taken place to reflect one particular event – the birth of J.N.’s child – and had not been connected with tracking her daily life; J.N. was a public person who had given information about the birth of his child; the impugned article had depicted the private life of J.N. and the applicant had been featured there only because she had been his partner and they had had a child. Accordingly, the applicant’s right to private life had not been breached.", "Appeal-on-points-of-law proceedings", "18. In an appeal on points of law lodged by the applicant she argued that the appellate court had incorrectly applied the case-law of the Court. In particular, the Court’s case-law should be applied in a general manner, and not only in analogous factual circumstances. The appellate court had not analysed whether the interference in her private life had had a legitimate aim and whether it had been necessary in a democratic society, as required by Article 8 of the Convention.", "19. On 22 September 2010 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. It endorsed the appellate court’s findings and reasoning, having found no support for the applicant’s assertion that there had been systematic flaws in the application of the Court’s case-law. Contrary to the applicant’s allegation, the appellate court had applied the principles established by the Court in its 2004 judgment in case of Von Hannover (cited above).", "20. The Supreme Court considered the conclusion that the taking of photographs in a public place without the person’s consent did not constitute an interference with the right to private life to be in line with the Court’s case of Peck v. the United Kingdom (no. 44647/98, ECHR 2003 ‑ I). The appellate court had also rightly found that the photographs had not depicted the applicant in a humiliating manner and that they had been obtained to depict one particular event, and had not been the result of following her daily life or secretly photographing intimate moments of her life. As J.N. had informed the public about the pregnancy, the child’s birth and leaving hospital had been turned into a public event.", "21. The Senate of the Supreme Court disagreed with the applicant that the appellate court had failed to assess whether the article depicting her private life had contributed to a public debate. Firstly, J.N. was a public person. Secondly, some aspects of their private life had already been disclosed in the 2003 article in Privātā Dzīve, where J.N.’s divorce and the applicant’s pregnancy had been mentioned. Thirdly, the 2003 article had stirred a debate about J.N.’s private life and family values, as at that time he had still been married to another woman. The impugned photographs had shown that the awaited event described in the 2003 article – the birth of the child – had taken place (confer paragraph 65 below).", "22. The Senate of the Supreme Court also dismissed the applicant’s argument that her failure to challenge the 2003 article had not rendered future publication of her photographs lawful. As the applicant had not objected to the article in 2003, the journalist could have concluded that she would also have no objections against the publication of information and photographs about the birth of her child. The applicant had to take into account that articles about a public person might contain information about their family members. The “photo story” had depicted an event in J.N.’s private life and, in the absence of objections to the previous article, had also showed the applicant." ]

[ "RELEVANT LEGAL FRAMEWORK", "23. The relevant Articles of the Constitution provide:", "Article 89", "“The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.”", "Article 96", "“Everyone has the right to inviolability of his or her private life, home and correspondence.”", "24. Section 1635 of the Civil Law provides that any infringement of rights, that is to say every unlawful activity, gives the person who has suffered damage, including non-pecuniary damage, the right to claim compensation from the wrongdoer, to the extent that he or she may be held liable for such act.", "25. The domestic courts in their judgment relied on the Declaration on mass communication media and Human Rights, adopted by Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe on 23 January 1970. In its relevant part the declaration reads as follows:", "“C. Measures to protect the individual against interference with his right to privacy", "15. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.", "16. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially. Those who, by their own actions, have encouraged indiscreet revelations about which they complain later on, cannot avail themselves of the right to privacy.", "17. A particular problem arises as regards the privacy of persons in public life. The phrase \"where public life begins, private life ends\" is inadequate to cover this situation. The private lives of public figures are entitled to protection, save where they may have an impact upon public events. The fact that an individual figures in the news does not deprive him of a right to a private life.", "...", "21. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.”", "26. The Court in its 2004 Von Hannover judgment (cited above, § 42) cited Resolution 1165 (1998) on the right to privacy, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. The most pertinent parts of the Resolution read as follows:", "“6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.", "7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.", "8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.", "9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.", "10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "27. The applicant complained that the dismissal of her complaint about the publication of covertly taken photographs with captions that depicted her leaving hospital with her newborn baby had violated her rights to private and family life as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Submissions by the partiesThe Government", "The Government", "The Government", "28. According to the Government, the impugned article had contributed to a debate of general interest about a public person’s private life and family values. J.N. had previously disclosed details about his and the applicant’s private life, and the applicant had not objected.", "29. As to how known the person concerned had been, the Government noted that J.N. had been at that time a public person and the article had addressed the birth of his child. J.N. had raised no objections to the publication of that article. While cohabiting with a public person did not deprive the applicant of her rights, she had to be aware that articles about a public person could contain information about his or her family members.", "30. In relation to the applicant’s conduct vis-à-vis the media, the Government referred to the applicant’s interview in 2005 where she had acknowledged society’s interest in her as J.N.’s partner. They also pointed to the 2003 article in Privātā Dzīve where information about J.N.’s and the applicant’s expecting their first child had been published and which the applicant had not challenged.", "31. As to the content, form and consequences of the article, the Government noted that the photographs had been taken in a public place and had addressed one particular event in the applicant’s life. They had not been taken as a result of tracking and secretly photographing the applicant’s intimate life. The photographs had not shown the applicant in a humiliating manner. In the Governments view, from the standpoint of an unbiased observer, the photographs could never be perceived as intimate, provocative or offensive.", "32. With respect to the circumstances in which the photographs had been taken, the Government believed that the domestic courts had paid due regard to the fact that the photographs had been taken covertly and that the applicant had not consented to their publication. At the same time, the photographs had been taken in a lawful manner and not in circumstances harmful to the applicant or by illicit means.", "33. The Government argued that on the above-mentioned grounds the present case should be distinguished from the 2004 case of Von Hannover v. Germany (no. 59320/00, ECHR 2004 ‑ VI), and that the domestic courts had properly balanced the competing interests at stake.", "The applicant", "34. The applicant submitted that the State had failed in its positive obligation to ensure protection of her private and family life. The relevant domestic law did not regulate how to balance the right to private and family life with the right to freedom of expression, and the domestic courts had failed to apply the Convention correctly.", "35. In particular, they had failed to rule that photographs formed part of the concept of private life. Incorrectly referring to the Court’s case of Peck v. the United Kingdom (no. 44647/98, ECHR 2003 ‑ I), the domestic courts had noted that the taking of photographs in a public place had not breached private life. They had also failed to consider that the taking and the publishing of photographs concerned different aspects of the right to private life. With respect to the applicant’s case, they had disregarded the fact that most of the photographs had been taken in the hospital grounds or next to its entrance and that it had not been possible to leave the hospital without crossing those spaces.", "36. With respect to the necessity in a democratic society, the courts had merely found that the article as a whole had contributed to the general debate on family values of a public person. However, they had failed to analyse what contribution to that debate had been made by the photographs and their captions. The applicant emphasised that she had not contested the publication of the information about the birth of the child. Her grievance concerned the publication of the photographs and their captions, which had shown when and how the applicant, her partner and their newborn baby had left hospital. The captions had spoken about the belongings she had had with her and the issues they had been dealing with during that process. The domestic courts had failed to recognise that the contested photographs and their captions had been “tawdry allegations” about the applicant’s private life.", "37. The domestic courts had also not paid sufficient regard to the fact that the applicant had been a private person. They had only addressed her partner’s status as a public person. However, the majority of the photographs had depicted the applicant and not her partner, and all of the photographs had been accompanied by comments regarding the applicant, her belongings and her actions.", "38. With respect to her prior conduct the applicant noted that she had not provided any information to the press prior to the impugned article. Furthermore, even previous cooperation with the press could not deprive a person of protection of his or her right to private life and justify further publication of photographs and information about that private life. As to her interview of 2005, the applicant emphasised that it had been given subsequent to the impugned article and therefore could not be relied on to demonstrate her prior conduct. Besides, that interview had been given voluntarily and with a purpose of promoting the ideas of gender equality and addressing the importance of women’s participation in the labour market following childbirth.", "39. The applicant emphasised that the domestic courts had failed to analyse the case from the perspective of duties and responsibilities associated with the exercise of the freedom of expression. The impugned article had revealed information about very private details of her life, such as how she had looked when leaving hospital, the belongings she had taken to hospital, and her interactions with her partner at that moment. Those facts had had no relevance to any debate of general interest. The applicant also pointed to her obvious vulnerability at the moment when the photographs had been taken – she had given birth only a couple of days prior and had been breastfeeding her newborn baby. While the domestic courts had considered that the photographs had not been taken as a result of following her daily activities, they had nonetheless been taken by following her – only after leaving the hospital grounds had the applicant noticed that she had been covertly filmed from a car with tinted windows. The car had followed them to their home and had continued observing them from outside their garden. The applicant highlighted the stress experienced due to the covert filming, the feeling of helplessness caused by the article, and her vulnerable post-partum state.", "Admissibility", "40. The Court reiterates that the concept of “private life” extends to aspects relating to personal identity, such as person’s image. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. Whilst in most cases it entails the possibility to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019)", "41. As to whether a person’s private life is concerned by measures effected outside a person’s home or private premises, the Court has held that since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment. In order to determine whether Article 8 applies, the Court also finds it relevant to address whether the individual in question was targeted by the monitoring measure or whether personal data was processed, used or made public in a manner or to a degree surpassing what those concerned could reasonably have foreseen (ibid., §§ 89-90).", "42. The Court emphasises that the domestic courts’ conclusion that the taking of photographs in a public place without the person’s consent did not constitute an interference with the right to private life finds no support in the case of Peck (cited above). In that case the Court’s finding that the monitoring of the actions and movements of an individual in a public place did not, as such, give rise to an interference with the individual’s private life concerned the use of photographic equipment which did not record visual data. The Court did, however, add that the recording of the data and the systematic or permanent nature of the record may give rise to such considerations (see Peck, cited above, § 59, see also López Ribalda and Others, cited above, § 89).", "43. In the present case, the applicant was photographed leaving hospital after childbirth. While the hospital’s entrance is a public place, it had to be traversed for the child to be brought home. The applicant was unaware that she was being recorded. Furthermore, she was individually targeted by the photographer and the photographs with captions were published in a magazine nationwide. Accordingly, the applicant’s exposure when leaving hospital in order to bring her newborn home far exceeded any exposure to a passer-by she could have anticipated (contrast Vučina v. Croatia (dec.), no. 58955/13, §§ 35-36, 24 September 2019, where the applicant was openly photographed in a public concert).", "44. Accordingly, the Court considers that the publication of the covertly taken photographs without the applicant’s consent encroached on the applicant’s private life and Article 8 is therefore applicable in the present case.", "45. The Court further observes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsGeneral principles", "General principles", "General principles", "46. The Court starts from the premise that the present case requires an examination of the fair balance that has to be struck between the applicants’ right to the protection of their private life under Article 8 of the Convention and the publisher’s, editor’s and journalist’s right to freedom of expression as guaranteed by Article 10 (see, for example, Lillo-Stenberg and Sæther v Norway, no. 13258/09, § 25, 16 January 2014). The principles with respect to the State’s positive obligations and the criteria for balancing the protection of private life against freedom of expression were set out in the Court’s 2004 judgment in the case of Von Hannover (cited above, §§ 57-60) and have subsequently been elaborated in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012); Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012); and Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)), amongst other authorities. As identified in those cases, the main criteria of assessment are: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photos were taken.", "47. The Court has frequently emphasised that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment (see, amongst other authorities, Von Hannover, cited above, § 101). While freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Lillo-Stenberg and Sæther cited above, § 30, and Rothe v. Austria, no. 6490/07, § 47, 4 December 2012). The task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously. Wherever information bringing into play the private life of another person is in issue, journalists are required to take into account, in so far as possible, the impact of the information and pictures to be published prior to their dissemination. Certain events relating to private and family life enjoy particularly attentive protection under Article 8 of the Convention and therefore merit particular prudence and caution when covering them (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 140).", "48. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest. In its 2004 judgment in the case of Von Hannover the Court made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by imparting information and ideas on matters of public interest, it does not do so in the latter case. Where the situation does not come within the sphere of any political or public debate and published photos and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose to satisfy the curiosity of a particular readership freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, §§ 60-66, see also Couderc and Hachette Filipacchi Associés, cited above, §§ 100-03).", "Application", "49. The issue in the present case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the opposing party to freedom of expression. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions the domestic courts have taken pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law. Accordingly, the Court will analyse in turn the elements identified as relevant in this regard in its case-law (see paragraph 46 above) and the domestic courts’ assessment thereof.", "(a) Contribution to a debate of general interest", "50. The Court reiterates that in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photos or articles in the press is an essential criterion (see Von Hannover, cited above, § 109, with further references). While the applicant argued that the impugned article had made no contribution to a debate of public interest, the domestic courts and the Government contended that it had made such a contribution by addressing the private life and family values of a public person – the applicant’s partner.", "51. The Court has previously held that, although the publication of news about the private life of public figures is generally for the purposes of entertainment, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10 of the Convention. However, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. Articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 100, see also Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 52, 4 June 2009.) Additionally, the Court reiterates that, although the birth of a child is an event of an intimate nature, it also falls within the public sphere, since it is in principle accompanied by a public statement (the civil-status document) and the establishment of a legal parent-child relationship. A news report about a birth cannot be considered, in itself, a disclosure concerning exclusively the details of the private life of others intended merely to satisfy the public’s curiosity (see Couderc and Hachette Filipacchi Associés, cited above, § 107).", "52. The impugned article concerned an inherently private and intimate event in the lives of the applicant and J.N. – the birth of their second child and their coming home from hospital. Neither the impugned article, nor other material in the case file demonstrate that the information about the applicant’s and her partner’s private life was a matter of a general importance (contrast Éditions Plon v. France, no. 58148/00, § 53, ECHR 2004 ‑ IV, concerning the state of health of the former President during his time in office; Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004 ‑ X, concerning the conviction of a politician’s spouse; and Couderc and Hachette Filipacchi Associés, cited above, §§ 105 ‑ 16, concerning the existence of an heir, born out of wedlock, in a hereditary monarchy). While J.N. did hold a post in a political party, at the time of the impugned article that party held no seats in Parliament and J.N. did not exercise any official functions. Furthermore, at the time of the impugned article, in November 2004, time had passed since the events covered by the press in 2003, such as the dissolution of J.N.’s marriage and the fact that he had the first child with the applicant (see paragraph 6 above). Accordingly, it has not been substantiated that J.N.’s private life as such was among the issues that affected the public in November 2004 (compare Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001 ‑ I).", "53. At the same time, the Court considers that in so far as the impugned article addressed the birth of J.N.’s second child, it did touch on a matter that had a public side. The Court notes, however, that the contribution such an article makes to matters of general importance is lower compared to the articles that advance political or other public debate, for example, relating to politicians in the exercise of their functions, with respect to which the press exercises its vital role of “public watchdog” (compare Von Hannover, cited above, §§ 63 ‑ 65).", "(b) How well known is the person concerned", "54. The Court has previously stated that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially in cases where he or she is known primarily at national level (see Axel Springer AG, cited above, § 98). The domestic courts considered that J.N. was a public figure. Such status was not attributed to the applicant. They further noted that as a partner of a public person and a mother of his child, the applicant had to take into account that she could attract media attention and that she had no grounds to believe that the information about the birth of J.N.’s child would be disseminated without mentioning her as the child’s mother (see paragraphs 16 and 22 above).", "55. The Court has previously accepted that, with respect to shared events, the degree to which an applicant is considered well known in relation to that specific occasion could be derived from the public status of the partner (see Sihler-Jauch and Jauch v. Germany (dec.), nos. 6823/10 and 34194/11, § 35, 24 May 2016). Similarly, the Court has considered that a private person can enter the public domain with his or her conduct and association with a public person (see Flinkkilä and Others v. Finland, no. 25576/04, §§ 82-83, 6 April 2010). However, in those cases the Court also assessed whether the information disclosed primarily concerned the public figure and did not touch the core of the private person’s privacy (see Sihler-Jauch and Jauch, § 38, and Flinkkilä and Others, §§ 84 ‑ 85, both cited above). Accordingly, while a private person may become susceptible to public exposure, the Court pays due regard to the extent of the information made public.", "56. In the present case, the birth of the applicant’s and J.N.’s child did make the applicant, herself a private person, susceptible to certain exposure with respect to that shared event. The domestic courts were right to consider that the applicant could have anticipated that she would be mentioned as the child’s mother and that articles about the birth of her son might contain information about her (see paragraphs 16 and 22 above). However, in view of the type and extent of the material disclosed and its focus on the applicant, the Court considers that the impugned publication went well beyond any notoriety the applicant may have derived from the public status of her partner or that was merited by the particular shared event.", "57. Additionally, the Court is of the view that the domestic courts should exercise a degree of caution when assessing the person’s public status and notoriety in situations, such as the present one, where a partner of a public person attracts media attention merely on account of his or her private or family life relations.", "(c) What is the subject of the report", "58. The applicant did not complain, neither domestically, nor before this Court, about the fact that the article contained information about the birth of her son or that she was mentioned as the child’s mother. Her complaint was directed at the publication of the covertly taken photographs showing her leaving hospital after the labour and their captions.", "59. As the Court has previously held, the “duties and responsibilities” linked with the exercise of the freedom of expression are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Egeland and Hanseid v. Norway, no. 34438/04, § 59, 16 April 2009). Certain events in the life of a family must be given particularly careful protection and must therefore lead journalists to show prudence and caution when covering them (see Couderc and Hachette Filipacchi Associés, cited above, § 140, see also Hachette Filipacchi Associés v. France, no. 71111/01, § 46, 14 June 2007).", "60. The Court has already had an opportunity to observe that giving birth is a unique and delicate moment in a woman’s life that encompasses issues of physical and moral integrity, health-related information and the choice of the place of birth, amongst others (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 163, 15 November 2016). The bringing home of the newborn child shortly after the labour forms part of that experience and takes place in the sensitive postpartum period. Any assessment of how such events were reported, in the Court’s view, must bear that in mind.", "61. In that regard the Court observes that the domestic courts did not make a distinction between the information about the birth of the child, which the child’s father had been willing to disclose, and the publication of the covertly taken photographs depicting the applicant at the private moment of leaving hospital after her labour (contrast MGN Limited v. the United Kingdom, no. 39401/04, §§ 147-51, 18 January 2011, where the domestic courts made a distinction between the private information that had already been disclosed and had been legitimately the subject of a public debate on the one hand, and the publication of additional private information and covertly taken photographs on the other; see also Rothe, cited above, § 73). The Court emphasises that even where the article makes a contribution to the public debate, the disclosure of private information must not exceed the latitude accorded to editorial assessment and has to be justified (see MGN Limited, cited above, §§ 147-51; compare also Alkaya v. Turkey, no. 42811/06, §§ 34 ‑ 36, 9 October 2012). Particular regard has to be had to situations of vulnerability (see Egeland and Hanseid, cited above, § 61).", "62. The Court observes that nothing in the domestic courts’ reasoning suggests that the publication of the applicant’s photographs depicting her after the labour would have been necessary to ensure the credibility of the story about the birth of her child or that there would have been a compelling need for the public to have this additional material disclosed (compare MGN Limited, § 151, and contrast Couderc and Hachette Filipacchi Associés, § 148, both cited above). The Court is also of the view of that the domestic courts did not provide sufficient explanation for their finding that J.N.’s having informed the public about the applicant’s pregnancy turned bringing the newborn baby home into a public event. While the journalists could indeed legitimately consider that they could publish information about the birth of the child, the childbirth and the bringing home of the child did not lose their inherently private character merely from the disclosure of such fact.", "(d) Prior conduct of the person concerned", "63. The Court observes that the domestic courts held against the applicant the fact that she had not challenged the article of August 2003 where information concerning her first pregnancy had been disclosed, as they regarded the impugned article to be its narrative continuation. Furthermore, the fact that the applicant had subsequently given an interview one year later where she had acknowledged society’s interest in her, due to the relationship with a public figure, was viewed as her acceptance of the publicity (see paragraph 16 above).", "64. The Court has already held that the mere fact of having cooperated with the press on previous occasions or an alleged or real previous tolerance or accommodation with regard to articles touching on private life cannot serve as an argument for depriving the person of the right to privacy (see Couderc and Hachette Filipacchi Associés, § 130, and Lillo-Stenberg and Sæther, § 38, both cited above). A fortiori, a failure to challenge a less intrusive article cannot be relied on to justify more invasive articles in future (see Egeland and Hanseid, cited above, §§ 61-62). Furthermore, even when persons have made public some private information about themselves, the manner in which it is subsequently portrayed has to be justified in the circumstances of the case (see Tammer, cited above, § 66). The person having given interviews does not dispense the State from its positive obligation to protect the person’s privacy, as seeking to avail of media to share information in a setting the person has selected cannot, in principle, be held against him or her (compare Peck v. the United Kingdom, no. 44647/98, § 86, ECHR 2003 ‑ I, where the applicant made media appearances to expose and complain about a wrongdoing against him).", "65. The Court observes that the 2003 article mentioned the applicant’s first pregnancy and featured two photographs of her, neither of which appeared to have been taken covertly or depicted her in private circumstances. Moreover, these were not photographs of the applicant with her baby but of her alone (see paragraph 6 above). Noting particularly the differing levels of intrusion, the Court considers that the failure to challenge that article could not have been relied on in the impugned proceedings concerning the covertly taken photographs that depicted a very private moment in the applicant’s life with her second baby. The Court also observes the narrative and temporal gap between the two articles: the impugned article addressed the birth of the applicant’s second child and could not have been viewed as showing that the awaited event mentioned in the 2003 article, which concerned the applicant’s pregnancy with the first child, had taken place (contrast the domestic courts’ reasoning in paragraphs 15 and 21 above). Lastly, the applicant’s subsequent interview in a different magazine approximately a year after the impugned article did not change the nature of the interference caused by the publication of that article and could not have been relied on to justify the prior disclosure of private information (compare Peck, cited above, § 86). Also the applicant’s acknowledgment that the public took an interest in her owing to the public-person status of her partner could in no way be viewed as a posterior consent to the publication of the covertly taken photographs.", "66. Accordingly, the Court considers that no elements of the applicant’s prior conduct referred to in the domestic proceedings could have been invoked in order to limit the protection of her right to privacy.", "(e) Content, form and consequences of the article", "67. The impugned article consisted of a short text informing the public of the birth of the applicant’s and J.N.’s child and nine covertly taken photographs with captions depicting the moment when the applicant and J.N. were leaving hospital with their newborn baby. The applicant’s photograph was also put on the magazine’s cover. The Court considers that while the impugned article did contain some factual information, the emphasis was on the photographs and their captions, leading the domestic courts to characterise it as a “photo story” (see paragraphs 16 and 22 above).", "68. While the Court agrees that the impugned photographs did not show the applicant in a humiliating manner, this fact cannot be considered decisive in view of the private nature of the event they depicted (see paragraphs 60-62 above). Furthermore, the Court observes that the accompanying captions did not meaningfully supplement the main news about the birth of the child and could not be seen as contributing to any matter of public interest.", "69. With respect to the consequences of the article the Court observes that Privātā Dzīve was a celebrity-focused magazine with a nationwide reach read by a significant portion of the population. Furthermore, the same article was subsequently republished in full in January 2007, again accompanied by the covertly taken photographs (see paragraph 11 above). The potential subsequent use of the photographs is one of the factors the Court takes into account in assessing the level of intrusion (see Couderc and Hachette Filipacchi Associés, cited above, § 148, and Reklos and Davourlis v. Greece, no. 1234/05, § 42, 15 January 2009).", "(f) Circumstances in which photos were taken", "70. It is not contested that the photographs of the applicant leaving hospital were taken covertly without her knowledge or consent. Nonetheless, the domestic courts attributed great importance to the fact that they had been taken in a public place – on the street. The courts also considered that these photographs had been taken to illustrate a specific event and “had not been connected with following the applicant’s everyday life and covertly photographing intimate moments of her private life” (see paragraphs 15 and 20 above).", "71. The Court reiterates that the fairness of the means used to obtain the information and reproduce it for the public is an essential criterion to be taken into account (see Von Hannover, § 68, and Couderc and Hachette Filipacchi Associés, § 132, both cited above). With respect to the present case the Court considers that the applicant did not lay herself open to the possibility of having her photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. The domestic courts did not take into account that the applicant needed to traverse the public space between the hospital’s entrance and her car in order to bring her newborn child home. This inherently private event was not an activity with respect to which the applicant should have anticipated publicity. In such circumstances an effective protection of a person’s image presupposes obtaining the consent of the person concerned at the time the picture is taken and not only if and when it is published. Otherwise an essential attribute of personality is retained in the hands of a third party and the person concerned has no control over any subsequent use of the image (see Reklos and Davourlis (cited above), §§ 37 and 40).", "72. With respect to the domestic courts’ conclusion that the photographs were taken to illustrate a specific event and were not connected with following the applicant’s everyday life the Court notes that there is nothing in its case-law to suggest that a violation of the right to private life could only occur if the person had been followed systematically (for examples of cases were the violation emanated from a single incident see Peck, cited above; Egeland and Hanseid, cited above; and Gurgenidze v. Georgia, no. 71678/01, 17 October 2006).", "73. Furthermore, the conclusion that the impugned photographs were not connected with covert photographing of intimate moments of the applicant’s private life was manifestly incompatible with the facts of the case. The Court draws attention to the applicant’s submissions, which were not contested by the Government, that after leaving the hospital grounds she had noticed that they had been covertly filmed from a car with tinted windows, which had followed them to their home and had continued observing them in their garden. The Court observes that the domestic courts did not address the fact that such an experience, particularly so soon after childbirth, could have caused feelings of anguish and helplessness. Similarly, they did not analyse whether such conduct was compatible with the duties and responsibilities associated with the exercise of the freedom of expression, triggering the State’s positive obligation to adopt measures securing respect for private life.", "(g) Conclusion", "74. The Court considers that while the domestic courts did engage in the balancing exercise between the right to private life and freedom of expression, this exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. Most importantly, sufficient attention was not paid to the limited contribution the article had made to issues of public importance and the sensitive nature of the subject matter shown in the photographs. No distinction was made between factual information partially falling within the public sphere and the publication of covertly taken photographs depicting an essentially private moment of the applicant’s life. The assessment of the applicant’s prior conduct was flawed and the intrusive manner of taking the photographs – which had been the focus of the article – was not taken into account.", "75. In these circumstances, and notwithstanding the margin of appreciation which the domestic courts enjoy when balancing the conflicting interests of the right to private life with freedom of expression, the Court concludes that the State has failed to fulfil its positive obligations under Article 8 of the Convention.", "76. There has accordingly been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "77. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "78. The applicant claimed 9,114 euros (EUR) in respect of non ‑ pecuniary damage.", "79. The Government considered that the applicant had not substantiated this claim.", "80. The Court accepts that the applicant must have suffered non ‑ pecuniary damage. Ruling on an equitable basis, it awards the applicant EUR 7,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "81. The applicant also claimed EUR 532 for the costs and expenses incurred before the domestic courts.", "82. The Government agreed that the compensation award should be limited to this sum.", "83. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 532 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant.", "Default interest", "84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic, I. Immediately after birth the baby was placed in a sterile unit under the constant supervision of the clinic ’ s staff. Only its doctors and nurses had access to this unit.", "7. On 1 April 1997 two photographs of the new-born baby, taken face on, were presented to the second applicant. The photographs had been taken inside the sterile unit by a professional photographer located on the first floor of the clinic. The clinic informed its clients that photography services were available.", "8. The applicants complained to the clinic ’ s management about the photographer ’ s intrusion into a unit to which only the clinic ’ s staff should have had access, adding that the new-born baby was likely to have been upset by the taking of photographs face on and, most importantly, that they had not given their prior consent.", "9. Faced with the clinic ’ s indifference to their protests and refusal to hand over to them the negatives of the photographs, on 25 August 1997 the applicants brought an action for damages before the Athens Court of First Instance, under Articles 57, 59 and 932 of the Civil Code. Acting on behalf of their child, they claimed the sum of 4,000,000 drachmas (about 11,739 euros) in respect of non-pecuniary damage for the alleged infringement of their child ’ s personality rights.", "10. On 24 June 1998 the Athens Court of First Instance dismissed their action as unfounded. It found as follows:", "“ ... it has not been possible to establish, from the circumstances in which the offending photographs were taken, that the photographer ’ s conduct was unlawful. In any event, the personality rights of the new-born baby cannot have been affected because, just after birth, his psychological and emotional environment had not yet been formed and the recording of his face on a photograph cannot have had any negative consequences for his subsequent development.” (decision no. 3049/1998)", "11. On 22 September 1998 the applicants appealed. On 14 September 1999 the Athens Court of Appeal upheld the judgment of the court below. It found in particular as follows:", "“ ... according to the conclusions drawn from common practice, the personality, emotional environment and mental maturity of a new-born baby, only one day old, are not sufficiently developed for it to perceive an infringement of its personality rights, as has been alleged, or for its inner balance to be upset ...”. (decision no. 7758/1999).", "12. On 28 August 2002 the applicants, represented by the first applicant, lodged an appeal with the Court of Cassation. In their notice of appeal they pointed out their child ’ s age at the material time and referred to all the considerations that had led the court below to dismiss their appeal. Their single ground of appeal on points of law concerned the Court of Appeal ’ s interpretation of Articles 57 and 932 of the Civil Code. In their view, that interpretation ran counter to Article 2 of the Greek Constitution and to Article 8 of the Convention. In particular, the applicants claimed that the criterion used by the domestic courts in determining whether the image and, a fortiori, the personality of an individual, could be protected, had been incompatible with the rights to “dignity” and to “the protection of private life”. In addition, the applicants argued that the criterion in question was also potentially dangerous, especially if it were to be applied to disabled children, as they might never reach the requisite level of “mental maturity” with the result that their image and, a fortiori, personality would not be protected.", "13. On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it lacked precision. Relying on Articles 118 and 566 § 1 of the Code of Civil Procedure, the court found that the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” (judgment no. 990/2004)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "14. Article 2 of the Greek Constitution provides as follows:", "“1. Respect for and protection of the value of the human being constitute the primary duty of the State.", "2. Greece, adhering to the generally recognised rules of international law, pursues the furtherance of peace and justice and the fostering of friendly relations between peoples and States.”", "15. The relevant Articles of the Civil Code read as follows:", "Article 34", "“Everyone shall have the capacity to enjoy rights and assume duties.”", "Article 35", "“The person shall begin to exist at birth and cease to exist on death.”", "Article 57", "“Anyone whose personality is the object of unlawful interference shall be entitled to demand that such interference cease and also not be repeated in the future ...", "In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.”", "Article 59", "“In the cases provided for in the two preceding Articles, the court may, in the judgment it gives upon the application of the injured party, and regard being had to the nature of the interference, also order the liable party to make reparation for non-pecuniary damage. Such reparation may consist in the payment of a sum of money, publication of the court ’ s decision and any other measure that is deemed appropriate in the circumstances of the case.”", "Article 914", "“Any person who, contrary to the law, causes damage to another person by his or her fault, shall make reparation for such damage”.", "Article 919", "“Any person who intentionally causes damage to another person by acting contrary to moral standards shall make reparation for such damage”.", "Article 932", "“Independently of any compensation due as a result of pecuniary damage caused by an unlawful act, the court may award reasonable monetary reparation, as it sees fit, for non-pecuniary damage. This provision shall enure in particular to the benefit of anyone who has sustained unlawful interference with health, honour or decency, or who has been deprived of liberty. In the event of death, the reparation may be awarded to the victim ’ s family by way of damages for pain and suffering”.", "16. The relevant provisions of the Code of Civil Procedure provide as follows:", "Article 118", "“Notices of appeal served between parties or filed in the court shall indicate: ....", "(4) the subject-matter of the appeal, stated clearly, precisely and succinctly ...”", "Article 566 § 1", "“Appeals on points of law shall contain the information required by Articles 118 to 120, cite the judgment appealed against, state the grounds of appeal, whether the appeal is against all or part of the impugned decision, and include a submission on the merits of the case.”", "17. According to the case-law of the Court of Cassation, appeals on points of law must indicate the substantive rule that has been breached, must show how there has been a mistake of law, in other words where the breach can be found in the construction or application of the rule in question, and must also include a statement of the facts on which the Court of Appeal based its decision dismissing the appeal (Court of Cassation, nos. 372/2002 and 388/2002).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "18. The applicants complained that the dismissal by the Court of Cassation of their appeal on points of law on the ground that it was imprecise had breached their right of access to a court, as guaranteed by Article 6 § 1 of the Convention, of which the relevant part reads:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”", "A. The parties ’ submissions", "1. The Government", "19. The Government alleged, first, that the appeal on points of law had been declared inadmissible on account of its imprecise nature. If the applicants had submitted their complaint in compliance with the admissibility rules governing the lodging of appeals on points of law, it would not have been dismissed. The Government thus claimed that the applicants had not validly exhausted the domestic remedies.", "20. On the merits, the Government argued that the task of the Court of Cassation was not to re-examine the facts of the case but to assess the lawfulness of the decision appealed against. The Government added that the question whether or not the admissibility rule applied by the Court of Cassation was severe was purely theoretical. The important thing in the present case was that the Court of Cassation had simply applied its settled case-law as regards the conditions of admissibility of an appeal on points of law. In particular, according to that case-law, when an ordinary appeal had been dismissed as unfounded, that is to say after the gathering of evidence by the lower court, the Court of Cassation required the appellant to state in his appeal on points of law the facts of the case as admitted by the court below. In the Government ’ s view, such a statement was indispensable so that the Court of Cassation could subsequently exercise its right to review the construction of legal rules by the lower court. The Government considered that it was reasonable to expect the appellant on points of law to present the facts of the case as established by the Court of Appeal after the gathering of evidence. Otherwise it would be for the Court of Cassation itself to ascertain the facts that had led to an erroneous interpretation of domestic law by the Court of Appeal.", "2. The applicants", "21. The applicants replied that the rule applied by the Court of Cassation derived purely from case-law and not from any provision of domestic or international law. They added that their ground of appeal on points of law had been a legal ground that rendered superfluous any restatement of the facts of the case. They further alleged that all the requisite documents, namely those concerning their action and appeal before the domestic courts, together with copies of the corresponding judgments, had been included in the case file at the disposal of the Court of Cassation.", "B. The Court ’ s assessment", "22. The Court points out that, in its decision on the admissibility of the application, it joined to the merits the objection concerning the exhaustion of domestic remedies that had been raised by the Government in respect of the present complaint.", "23. The Court considers that its task, in the present case, is to ascertain whether the manner in which the Court of Cassation dismissed the single ground of appeal on points of law submitted by the applicants deprived them de facto of their right to have their appeal examined on the merits. For that purpose the Court will look at the proportionality of the limitation imposed in relation to the requirements of legal certainty and the proper administration of justice.", "24. The Court observes that the Greek Court of Cassation has judicially laid down a condition of admissibility based on the degree of precision of the grounds of appeal on points of law. That rule complies, in general terms, with the requirements of legal certainty and the proper administration of justice. When the appellant before the Court of Cassation alleges that the Court of Appeal made a mistake in its assessment of the facts of the case in relation to the legal rule applied, it would seem reasonable to require the appellant to set out in his appeal the relevant facts that constitute the subject-matter of his submissions. Otherwise the Court of Cassation would not be in a position to exercise its right of review in respect of the judgment appealed against. It would be required to re-establish the relevant facts of the case and to interpret them itself in relation to the legal rule applied by the Court of Appeal. Such a hypothesis cannot be envisaged because it would mean requiring the Court of Cassation itself to formulate the grounds of appeal on points of law – grounds that it will then have to examine. In sum, the principle at issue is consonant with the specific role of the Court of Cassation, whose right of review is limited to the observance of the law (see, to that effect, Brechos v. Greece (dec.), no. 7632/04, 11 April 2006).", "25. In the present case, however, the Court does not find that the applicants ’ appeal on points of law imposed on the Court of Cassation the burden of re-establishing the facts of the case. In the Court ’ s view, three factors must be taken into account in this connection. First, the single ground of appeal on points of law related exclusively to the Court of Appeal ’ s construction of the provisions applied in the case. Consequently, the simultaneous submission of the facts of the case, as established by the Court of Appeal, was not indispensable for the exercise by the Court of Cassation of its right of review (see Efstathiou and Others v. Greece, no. 36998/02, § 31, 27 July 2006).", "26. Secondly, the crucial facts of the case for the Court of Cassation ’ s examination were not particularly complex. Only one element was of real importance, namely the age of the baby at the time the offending photographs were taken, and that element was clear from the considerations of the Court of Appeal reproduced in the appeal on points of law (see Zouboulidis v. Greece, no. 77574/01, § 29, 14 December 2006 ).", "27. Lastly, the impugned decision of the Court of Appeal had been appended to the appeal on points of law. It was thus easy for the Court of Cassation to consult the text of the judgment appealed against and to verify the accuracy of one simple fact already referred to in the appeal on points of law (see Efstathiou and Others, cited above, § 31).", "28. In these circumstances, the Court takes the view that the Court of Cassation was apprised of the facts as established by the Court of Appeal. To declare the single ground of appeal inadmissible because the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” amounted to excessive formalism and prevented the applicants from having the merits of their allegations examined by the Court of Cassation (see, to this effect, Běleš and Others v. the Czech Republic, no. 47273/99, § 69, ECHR 2002 ‑ IX, and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002 ‑ IX ).", "Accordingly, the Court dismisses the Government ’ s preliminary objection that domestic remedies had not been exhausted and finds that there has been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "29. The applicants further complained that there had been an unlawful interference with their child ’ s right to respect for his private life in view of the dismissal of their action for damages by the lower domestic courts. In particular, they disputed the reasoning given by those courts, namely that the mental maturity of their son, who was only one day old, was not sufficiently developed for him to perceive the alleged infringement of his personality rights. The applicants relied on Article 8 of the Convention, of which the relevant part reads as follows:", "“1. Everyone has the right to respect for his private ... life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The Government", "30. The Government argued at the outset that the applicants had not relied on a violation of Article 8, either expressly or in substance, during the proceedings before the domestic courts. They had not therefore given the national authorities an opportunity to remedy the alleged violation. The Government moreover contested the applicability of Article 8 in the present case, arguing that since the offending photographs had not been published the “private life” of the applicants ’ son was not at issue.", "31. On the merits, the Government alleged that the photographer ’ s intention was solely to sell the photographs of the new-born baby to its parents, without releasing them to the general public. In the present case there had thus been no commercial exploitation of the baby ’ s image. The Government concluded that, in these circumstances, there had been no interference with the applicants ’ son ’ s right to respect for his private life. They added in this connection that it was self-evident that the mental maturity of the baby, at the age of only one day, was not sufficiently developed for it to sense any such infringement of its personality rights.", "2. The applicants", "32. The applicants argued that the approach taken by the domestic courts as regards the protection of their child ’ s personality was dangerous. In particular, they argued that if the perception by an individual of a potential interference with his image and, a fortiori, his personality were to be a prerequisite for his judicial protection, then the dignity and integrity of certain categories of persons could be at risk.", "B. The Court ’ s assessment", "1. Preliminary objections", "33. The Court reiterates its previous finding, in its decision of 6 September 2007 on the admissibility of the application, that the applicants did invoke the right to protection of private life before the domestic courts and that they exhausted domestic remedies in respect of their complaint under Article 8 of the Convention. The Court also found that Article 8 was engaged in the present case. It does not therefore find it necessary to examine the Government ’ s objections a second time.", "The objections in question should accordingly be dismissed.", "2. Merits", "(a) Scope of the case", "34. The Court finds that it is necessary first to circumscribe the scope of the present case. It cannot address the general question raised by the applicants as to whether the recognition of a potential interference with the right to the protection of one ’ s image depends on the awareness of such interference by the individual concerned. The Court ’ s task is to ascertain whether the taking of the photographs in question without the parents ’ prior consent, together with the retention of the negatives, was capable of interfering with the baby ’ s right to respect for its private life as guaranteed by Article 8 of the Convention. Consequently, the issue in the present case is whether the domestic courts afforded sufficient protection to the private life of the applicants ’ son.", "35. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. That also applies to the protection of a person ’ s picture against abuse by others (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI ).", "36. The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (ibid.).", "37. Moreover, the Court would emphasise that in the present case the applicants ’ son did not knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. On the contrary, the photographs were taken in a place that was accessible only to the doctors and nurses of the clinic I. and the baby ’ s image, recorded by a deliberate act of the photographer, was the sole subject of the offending photographs.", "(b) General principles", "38. The Court notes that the Government focussed their arguments on the fact that in the present case the images in question were not published but simply reproduced with a view to being sold to the baby ’ s parents. The Government thus alleged that, as there had been no publication of the offending images, there could not have been any infringement of the baby ’ s personality rights. The Court must therefore ascertain whether, although the offending images were not published, there was nevertheless interference with the applicants ’ son ’ s right to the protection of his private life. For that purpose it is necessary to examine the substance of the right to the protection of one ’ s image, especially as in previous cases the Court has dealt with issues specifically involving the publication of photographs, whether of politicians or public figures (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover, cited above, § 50, respectively) or even of private persons (see Sciacca v. Italy, no. 50774/99, § 28, ECHR 2005 ‑ I ).", "39. In general terms, the Court observes that according to its case-law “private life” is a broad concept not susceptible to exhaustive definition. The notion encompasses the right to identity (see Wisse v. France, no. 71611/01, § 24, 20 December 2005 ) and the right to personal development, whether in terms of personality (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI ) or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ ..., and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ).", "40. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual ’ s right to object to the recording, conservation and reproduction of the image by another person. As a person ’ s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case (see paragraph 37 above), obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image.", "(c) Application of these general principles in the present case", "41. In the present case the Court first observes that, as regards the conditions in which the offending pictures were taken, the applicants did not at any time give their consent, either to the management of the clinic or to the photographer himself. In this connection it should be noted that the applicants ’ son, not being a public or newsworthy figure, did not fall within a category which in certain circumstances may justify, on public-interest grounds, the recording of a person ’ s image without his knowledge or consent (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ). On the contrary, the person concerned was a minor and the exercise of the right to protection of his image was overseen by his parents. Accordingly, the applicants ’ prior consent to the taking of their son ’ s picture was indispensable in order to establish the context of its use. The management of the clinic I. did not, however, seek the applicants ’ consent and even allowed the photographer to enter the sterile unit, access to which was restricted to the clinic ’ s doctors and nurses, in order to take the pictures in question.", "42. In addition, the Court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face-on portrait of the baby and did not show the applicants ’ son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants ’ son ’ s representation on the offending photographs, but the fact that the photographer kept them without the applicants ’ consent. The baby ’ s image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 ‑ IX ).", "43. The Court notes that, during the examination of the case at issue, the domestic courts failed to take into account the fact that the applicants had not given their consent to the taking of their son ’ s photograph or to the retention by the photographer of the corresponding negatives. In view of the foregoing, the Court finds that the Greek courts did not, in the present case, sufficiently guarantee the applicants ’ son ’ s right to the protection of his private life.", "There has therefore been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "44. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "45. The applicants claimed 36,000 euros (EUR) jointly in respect of the non-pecuniary damage they considered they had sustained in the present case.", "46. The Government requested the Court to dismiss this claim and moreover submitted that any award should not exceed EUR 5,000.", "47. The Court considers that the applicants certainly sustained non-pecuniary damage on account of the interference with their right of access to a court and with their child ’ s private life, and that the finding of violations of the Convention does not constitute sufficient just satisfaction for such damage. Deciding on an equitable basis, the Court awards the applicants EUR 8,000 jointly under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "29. As the applicants did not submit any claim for costs and expenses, the Court considers that no award should be made to them under this head.", "C. Default interest", "30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant company is the owner and publisher of the daily newspaper Kurier.", "A. The background of the case", "6. In 1999 E.R. and U.W., the parents of Christian W., dissolved their common household and concluded a provisional agreement on the custody of Christian under which sole custody was granted to E.R., while his brother stayed with U.W. On 13 February 2001 U.W. asked for custody to be withdrawn from E.R. and transferred to him.", "7. On 22 February 2001 E.R. and U.W. agreed that pending the outcome of an expert report custody be provisionally transferred to U.W. ( vorläufige Obsorge ) and that for the time being Christian should live with U.W., his father.", "8. It appears that subsequently U.W. hindered contact between Christian and E.R. and, in June 2002, moved to Sweden. Thereupon, by an interlocutory decision ( einstweilige Verfügung ) of 26 July 2002, custody of Christian was transferred back to E.R.", "9. U.W. was ordered to hand Christian over to E.R. immediately or to take him back to Austria before 5 August 2002. That order was confirmed on appeal on 12 September 2002 and became final.", "10. Thereupon E.R. travelled to Sweden to have that decision enforced. U.W. proposed to E.R. that they enter into an agreement on custody of Christian, and E.R. also agreed to staying in Sweden. However, no such agreement was finally reached. After E.R. had settled in Sweden and found employment there, U.W., together with Christian, left Sweden for Austria.", "11. On 4 November 2002, pending the outcome of the custody proceedings, custody was temporarily transferred to the Salzburg Youth Welfare Office. On 23 December 2003 the court dismissed U.W. ’ s request for custody to be withdrawn from E.R. and transferred to him. The decision was declared immediately enforceable.", "12. Subsequently, various attempts to enforce that decision were undertaken. The Austrian newspapers reported on these events because U.W. kept them regularly informed and sought publicity.", "13. The first attempt at enforcement, on 23 December 2003, failed because U.W. and Christian went into hiding. U.W. had informed the media of this step in advance. Some time later they returned. In order to enforce the custody decision the competent court scheduled a hearing for 15 January 2004 in the course of which Christian was to be handed over to E.R. U.W. failed to appear at the hearing.", "14. Thereupon the judge ordered that Christian be brought before the court by force ( zwangsweise Vorführung ).", "15. When that decision had to be enforced by court officers Christian barricaded himself in his elementary school and, since the police officers who intervened decided not to use physical force on the premises of the school, this attempt also failed. These events were also widely covered by the media because U.W. had informed them in advance.", "16. After further unsuccessful attempts the rural police ( Gendarmerie ) were informed on 26 January 2004 that Christian was at his father ’ s house. Court officers sent to the house noted, however, that Christian was not in the house but, together with a babysitter, in a car in front of it. The officers tried to take hold of Christian but he cried and resisted. These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists, who had been informed and had hurried to the spot.", "17. In order to establish whether Christian had suffered injuries during the attempt to enforce the court order, U.W. took him to the Salzburg hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W. and Christian were separated and on the same day Christian was handed over to his mother, E.R., on the premises of the hospital. E.R. and Christian have been living in Sweden since that time. This final phase of the events was widely reported on in the media.", "B. The articles which appeared in Kurier", "18. On 29 January 2004 an article was published in the applicant company ’ s newspaper under the title “ Mother flees hospital with Christian ” (“ Mutter flüchtete mit Christian aus Spital ”), which read as follows.", "“ On Wednesday evening the child-care proceedings concerning 8-year-old Christian from Salzburg took a very surprising turn: Whilst father, mother and son where still talking together over the sick bed in the afternoon, the mother suddenly snatched the boy ..., left the hospital via an underground passage, took a car that had been left at her disposal and disappeared. “She is being taken care of on neutral ground and the boy is getting psychological support” said Hadmar Hufnagel from the Salzburg District Court. The father suspects the whole affair of being rigged.", "At lunch-time 33-year-old mother E.R. had arrived at the hospital, hidden from the public. “The boy was not afraid of his mother” says children ’ s advocate Andrea Holz-Dahrenstaedt. Whereas the father claims that Christian clung to him and tried to defend himself against his mother.", "PLANNED After talks lasting an hour, the bombshell : E.R. snatched her son when he was left unattended for a moment, and fled the hospital. “The operation was authorised by the family judge” explained Hufnagel. Beforehand the older son, Christoffer, had been taken to a psychologist and afterwards to the partner of the children ’ s father.", "U.W. suspects the operation of being a conspiracy: “It was planned. They were only waiting for a good opportunity.” He claims to have heard his son crying and then there had been a sudden silence. The father had sat for minutes next to Christian ’ s empty sickbed.", "Friends and relatives of the father have announced a demonstration for today in front of the justice buildings in Salzburg.", "The whole country is now shocked about this family dispute. It was triggered by an attempt to take Christian away from his father on Monday. Two bailiffs tried to pull the boy into a car. However, he defended himself, screamed, bit and clung to the car. Since this incident Christian has remained in the children ’ s hospital.", "Opinions in this dispute are very divergent. The Salzburg District Court tries to justify the conduct of the officers. “In this case the Court has acted in the interest of the child”, explained the President of the Regional Court, Walter Grafinger. The bailiffs had been ordered to seize the child without bodily harming him. This order was carried out accordingly.", "However, the Linz Court of Appeal has a different view on the matter. ‘ The conduct of the officers was unacceptable and excessive ’, declares press officer Günther Wiensauer. ‘ This was practically ill-treatment of a child ’, said the Vienna child and juvenile advocate Monika Pinterits.", "SPECIAL TRAINING The president of the Judges ’ Association, Barbara Helige, suggests special training for bailiffs. She is a family judge and has never in her 20-year career seen such a case. Helige does not consider it helpful for a judge to be present when children are taken away from their parents: “This would even reinforce the impression of State intervention.”", "A report from the Ministry of Justice will be handed over to the disciplinary commission. The Minister of Justice, Dieter Böhmdorfer (FP), announced that an expert commission would be established in order to avoid escalations. And in the future he wants a judge to be present when compulsory measures are carried out.", "According to the Minister, the Court in Salzburg acted in an appropriate manner; however, the father had breached his obligation of discretion. Disputes in childcare proceedings should not be fought on the backs of the children .”", "19. A second article was published in the applicant company ’ s newspaper under the title “ A dispute might now arise about Christian ’ s brother ” ( Nun droht Streit um Christians Bruder ) on 30 January 2004. It read as follows.", "“After the tumultuous events on Friday the dispute over 8-year-old Christian from Salzburg has for the time being calmed down. According to information from the Court, the mother and the boy are at present accommodated and looked after in municipal housing in Salzburg.", "However, the future of little Christian, and whether and when he will leave with his mother for Sweden, is still unclear. A tug of war might also take place over the older brother Christoffer: The Youth Welfare Office has custody over him for the time being in view of the current child-care proceedings initiated by the father. An investigation procedure is planned for the summer.", "U.W. had applied for custody of all three children. In December 2003 his custody applications for Alexander, 11, and Christian were refused. The decision concerning Christoffer had been postponed. Christoffer is for the time being staying with his father.", "U.W. is, however, still at loss about the fact that his ex-wife fled the hospital with Christian. ‘ I cannot talk about it ’, he stuttered on Thursday, his voice trembling with tears.", "Eva Weissenbacher, a friend of the family who was present when the father and mother met at the hospital, said: ‘ I saw the mother slap the boy in the face ’.", "IGNORED The fact that bothered the lady from Salzburg most was that the mother was only focussing on Christian: ‘ She has cold-shouldered Christoffer. I don ’ t know why she is behaving like that and what her goal is. ’", "Neither the mother nor her lawyer want to answer Kurier ’ s queries about this incident. Hadmar Hufnagel, Chairman of the Salzburg District Court, considers the ‘ Christian case ’ closed as far as the courts are concerned: ‘ The judicial authorities are no longer involved. It does not concern the judge anymore. It is the parents ’ responsibility to take the next steps. The court has issued a decision and fulfilled its obligations. ’", "In the evening friends of the father started demonstrating in front of the Salzburg Regional Court. ‘ Without wanting to get involved in the case in question, we would like to point out that children have a right to be heard and have their wishes and opinions respected ’, says Anita Gerhardter.”", "20. Finally, the applicant company published a third article in its newspaper under the title “ The Christian case : ‘ Judicial authorities have to become more sensitive ’ ( Fall Christian: Die Justiz muss sensibler werden ) on 13 February 2004. It read as follows.", "“A Salzburg judge has given the order to use ‘ force ’. ‘ Appropriate force ’ in order to take a child away from his father and to take him to his mother in Sweden. 8-year old Christian from G. The boy had fought against two bailiffs on 26 January. Alarming pictures show the end of the child-care proceedings.", "As reported, the results of the investigations of the Linz Court of Appeal are now available. Court of Appeal President Helmut Hubner says: ‘ This case is also a wake-up call for the judicial authorities. We have to become more sensitive. ’", "FORCE In his interview with KURIER Hubner defends the judge who ordered the officers, who are bound by his instructions, ‘ to summon the minor with due tact, but without considering his wishes, and if necessary with due force ’. He says: ‘ That is the wording of the law ’.", "This is not quite true. The word ‘ force ’ is not to be found in the non-contentious act. ‘ Means of coercion ’ are allowed by the law; however, they have to be directed against the parent not respecting the judgment.", "But Hubner also says: ‘ This matter should never have been dealt with in such a way ’. He wants the officers to be trained how to deal with children and how to talk to them. A disciplinary procedure against the District Court judge is going to be initiated: the bailiffs contacted him four times during that mission, should he have ended it earlier?", "Judges are discussing the matter. Judge Barbara Helige: ‘ This case brings us to the limits of judicial activities, it is a tightrope walk ’.", "Means of coercion have to be allowed for at least in cases where severely mistreated children have to be saved from an abusing parent ‘ even when they still love their parents and don ’ t want to be taken away ’. However, Christian was definitely not in such a situation.", "Linz University professor Astrid Deixler-Hübner (Institute for Civil Law) says that this law will be changed, taking effect from 1 January 2005, and she further states: ‘ The well-being of the child is the top priority. The new ruling stipulates that the judge has to discontinue the execution of his orders when the well-being of the child is in danger ’.", "President Huber thinks, on the other hand, that this is already the case today. ‘ Even if this is not clearly written in the text of the law, there is such a thing as common sense! ’", "He does not only hope that the judicial authorities will act with common sense but the parents as well. They can fight their wars of the roses anywhere, but not on the back of their children.", "He considers that Christian ’ s development is positive: ‘ He was examined by a psychologist before leaving with his mother for Sweden. The child has calmed down. He was curious about Sweden and he was not unhappy ’. ”", "21. All articles were accompanied by photos of Christian. The first article was accompanied by a picture of Christian showing him with a distressed expression, clinging to his brother, and a similar picture accompanied the third article.", "C. The proceedings under the Media Act", "22. With regard to the articles published by the applicant company on 29 and 30 January and 13 February 2004, and the above events, Christian W., represented by his mother, brought proceedings under Section 7 and 8a of the Media Act against the applicant company, seeking damages and publication of the ensuing judgment. He argued that the reporting on him had interfered with the intimate sphere of his life in a manner which was likely to expose and compromise him in public. Moreover, the articles constituted a breach of section 7a of the Media Act, which prohibited reporting on the victim of crime in a manner which made him or her recognisable in public, which was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant interest of the public in the information. Both applications were filed with the Vienna Regional Court for Criminal Affairs ( Landesgericht für Strafsachen Wien ).", "23. On 19 October 2004 the Regional Court allowed the action and ordered the applicant company to pay damages in the amount of 20,000 euros (EUR), to publish the judgment in its periodical, and to bear the costs of the proceedings. The court found that the publishing of the above articles containing details of the custody dispute over eight-year old Christian W. had caused the intimate sphere of his personal life to be exposed in a manner likely to compromise him in public, in breach of section 7 of the Media Act. Moreover, the article published on 29 January 2004 had made the full name of Christian W. public and had been accompanied by a photograph of him. Thereby the identity of a person who had been the victim of a criminal offence had been disclosed to a large and not directly informed circle of people without any justification. This was in breach of Section 7a of the Media Act. The Regional Court observed further that all the articles had been accompanied by pictures of Christian W. in which he, with a highly perturbed facial expression, was seen clinging to his brother.", "24. The Regional Court accepted that there existed a direct link between the events reported on and the public interest because of the harsh criticism voiced of the conduct of the court officials who had attempted to enforce the custody order. However, the person having custody of Christian had not agreed to the publication and the public interest in the events could have been satisfied without giving the child ’ s full name and publishing pictures of him.", "25. On 25 February 2005 the applicant company appealed. Relying on Article 10 of the Convention it argued, inter alia, that the Regional Court had failed to take into account that on the issue of enforcement of custody orders there was an ongoing discussion in which presidents of various courts and the President of the Association of Judges were participating. Moreover, the Federal Minister of Justice had set up a working group of experts to draw up a report on the events of 26 January 2004. The press had been addressed not only by Christian ’ s father but also by representatives of the Federal Ministry of Justice, the courts and the Linz Court of Appeal, which had even held a press conference. In such circumstances it had been necessary to inform the public of the identity of the persons involved, and against the background of the public discussion the custody dispute and the preliminary events leading to the incident on 26 January 2004 had also been of legitimate interest to the public.", "26. On 5 April 2005 the plaintiff commented on the appeal. He argued that the applicant company could not rely in its defence on the fact that organs of the judiciary had also commented in public on the events, because they had neither made public the full name of the victim and details from his intimate life nor published photos of him. Had the applicant company acted in the same way, its reporting would have been fully acceptable.", "27. On 22 June 2005 the Vienna Court of Appeal partly allowed the appeal. It found that there was no breach of Section 7a of the Media Act, because under that provision a compensation claim only existed if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’ s protected interests. In the present case, however, it was not the description of a criminal act that had breached Christian ’ s protected interests. It reduced the compensation to EUR 3,00 0 per article, altogether EUR 9,000.", "28. The Court of Appeal dismissed the applicant company ’ s criticism that the Regional Court had not taken sufficiently into account that representatives of the judiciary themselves had made public statements. The Regional Court had accepted that there was a direct link between the events reported on and the public interest. However, giving details from the plaintiff ’ s intimate family life, giving his full name, and adding pictures of the plaintiff had transgressed into his intimate sphere as these details had been given merely in order to satisfy the lust for sensation and the curiosity of its readers.", "29. Even if there was a link to public life, the media could only report on a person ’ s intimate sphere to the extent necessary for adequately satisfying the need for information relating to those elements which were of relevance to the public interest. Reporting on events within the intimate sphere of a person must therefore be adequate to the occasion and proportional. In the present case it had not been necessary for the purpose of informing the public on alleged shortcomings within the judiciary, and it had not been necessary to expose in such an intense and striking way the severe strain being suffered by the juvenile plaintiff through the insertion of photographs showing his distress and despair, through mentioning his full name, and through setting out the details of his seizure." ]

[ "II. RELEVANT DOMESTIC LAW", "30. Section 7 of the Media Act, which has the title “ Interference with a person ’ s most intimate personal sphere” ( Verletzung des höchst ­ persönlichen Lebens ­ bereiches ), reads as follows:", "“ (1) If a person ’ s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...", "(2) No compensation claim under paragraph 1 exists if", "1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;", "2. the publication is true and has a direct connection to public life;", "3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;", "4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;", "5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence. ”", "31. Section 7a of the Media Act which has the title “ Protection against divulging a person ’ s identity in special cases ” ( Schutz vor Bekanntgabe der Identität in besonderen Fällen ), reads as follows:", "“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "1. has been the victim of an offence punishable by the courts, or", "2. is suspected of having committed, or has been convicted of, a punishable offence,", "and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’ s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.", "(2) Legitimate interests of the victim shall in any event be injured if the publication", "1. in the case of subsection (1)1, is such as to give rise to an interference with the victim ’ s strictly private life or to his or her exposure,", "2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence ( Vergehen ) or may disproportionately prejudice the advancement of the person concerned.", "(3) No compensation claim under paragraph 1 exists if", "1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;", "2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security;", "3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media;", "4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;", "5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”", "32. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows:", "“The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.”", "33. Section 8a of the Media Act which has the title “ Separate compensation proceedings” ( Selbständiges Entschädigungs ­ verfahren ), insofar as relevant, reads as follows:", "“ In a judgment by which compensation under Section 6, 7, 7b or 7c has been awarded on the basis of a separate compensation request, the court must also order the publication of the judgment if the person concerned so requests so ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "34. The applicant company complained under Article 10 of the Convention that the judgments of the Austrian courts violated its right to freedom of expression. Article 10 reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "35. The Government contested that argument.", "A. Admissibility", "36. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "37. The Court notes that it is common ground between the parties that the Vienna Regional Court ’ s judgment of 19 October 2004, upheld by the Court of Appeal, which awarded damages to Christian, constituted an interference with the applicant company ’ s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "38. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2, and is “necessary in a democratic society” for achieving such an aim or aims.", "39. The Court considers, and this was acknowledged by the parties, that the interference was prescribed by law, namely by sections 7 and 7a of the Media Act. The Court further finds, and this was likewise not disputed between the parties, that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.", "40. The parties ’ argument concentrated on the question whether the interference had been “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "1. The parties ’ submissions", "41. The applicant company maintained that the interference with its right to impart information had not been necessary in a democratic society. There was no doubt that the event on which the applicant company had reported had involved questions which were a subject of public importance, namely the conduct of the courts and authorities when enforcing the Family Court ’ s decision to hand Christian over to his mother, and contributed to the public discussion which had been triggered by the questionable conduct of the enforcement officers.", "42. In reporting on the matter the press could not, as suggested by the Austrian courts, have done so in a merely neutral and sober way. It was also a corporate necessity to attract the attention of the public by incorporating entertaining components, as otherwise it would be practically impossible to reach the public. Otherwise the press would loose its audience and would no longer be able to fulfil its protection and warning role. In fulfilling this role the press was entitled to resort to exaggeration and provocation in their reporting and this right was not restricted to textual reporting but also extended to images illustrating the articles. It was true that the applicant company had published one picture of Christian which could be considered as showing his suffering and despair while clinging to his brother, but that picture had been published only for the purpose of rousing the public from apathy. The essential question was therefore whether the importance of the events on which the applicant company was reporting justified the publication of pictures which also showed the pain and suffering of the persons concerned by the events. For the above reasons the answer must be in the affirmative.", "43. The applicant company also argued that the amount of compensation granted to Christian had been excessive, because the impugned articles had not been published on the front page of the newspaper but merely towards the back, and the main reason for the granting of compensation was the publication of one single picture showing the suffering and despair of Christian, while the other pictures were merely neutral images of him.", "44. The Government, while acknowledging the essential role played by the press as a “public watchdog”, asserted that in the present case the interference with the applicant company ’ s freedom of expression had been necessary within the meaning of Article 10 § 2 of the Convention. They argued in particular that the domestic courts had had to weigh the applicant company ’ s interest in imparting information on an issue of public interest against the right to protection of the most intimate sphere of life of the person on whom it reported, which was equally protected by the Convention, namely the right to respect for his or her identity, protected by Article 8 as part of a person ’ s private life. The necessity to carry out such a weighing of interests was laid down in section 7 of the Media Act.", "45. The Austrian courts had found that that the articles published by the applicant company constituted an intrusion into the strictly private life of Christian, a minor. In its judgment of 19 October 2004 the Regional Court had explained in detail that even though it was clearly permissible to publish an article on the events surrounding the handing over of Christian to his mother, and the conduct of the courts and authorities in this respect, this did not mean that in doing so the applicant company had the right to reveal the identity of Christian and publish pictures showing him in a state of despair. The disclosure of the identity of Christian was irrelevant for understanding the details of the events of which he had been the victim and this specific detail was also unnecessary in raising public awareness concerning the conduct of the authorities. In such cases the State had a positive obligation to ensure effective protection against breaches of the personal integrity of children, as a particularly vulnerable group.", "46. Lastly the Government argued that the amount of compensation awarded to Christian, namely EUR 9 ,000 was not disproportionate, given that this figure was well below the maximum amount of compensation possible, and taking into account the wide dissemination of the information by the applicant company and the influence it had had on public opinion.", "2. The Court ’ s assessment", "(a) General principles", "47. According to the Court ’ s well-established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III).", "48. An important factor for the Court ’ s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas, cited above, § 59, and as a recent authority, Flinkkilä and Others v. Finland, no. 25576/04, § 73, 6 April 2010 ). By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and providing reliable and precise information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, and, as a recent authority, Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009).", "49. Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted ( Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010).", "50. The Court has always stressed the contribution made by photographs or articles in the press to a debate of general interest (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009, with further references). However, the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure ’ s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011, and Von Hannover v. Germany, no. 59320/00, § 65-66, ECHR 2004-VI ). Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution ( see Von Hannover v. Germany, cited above, at § 59, and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007 ).", "51. The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing court proceedings and on the manner in which decisions by the courts are enforced and, on the other, to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of persons, in particular minors, to whom such proceedings relate. When verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case – freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8 – the Court must balance the public interest in the publication of the information and the need to protect private life ( see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007-VII ). The balancing of individual interests which may well be contradictory is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention ( see MGN Limited, cited above, § 142, and Egeland and Hanseid v. Norway, cited above, § 55).", "(b) Application of these principles to the present case", "52. In the present case the applicant company published in its newspaper Kurier, between 29 January 2004 and 1 3 February 2004, three articles about a dispute between parents over custody of their child, Christian. In the custody proceedings the competent courts did not accept to transfer custody of Christian to the father, who had refused to comply with that decision. Various attempts at enforcement were unsuccessful because Christian and his father had gone into hiding, and in January 2004 the competent court ordered that Christian be brought before the court by force. On 26 January 2004 court officers went to the house of Christian ’ s father and tried to seize the child, who cried and resisted. These scenes were again the subject of wide media coverage, notably by the applicant company ’ s newspaper, because they were observed and photographed by several journalists, who had been informed and had hurried to the spot. The applicant company ’ s newspaper reported on this case and the articles published disclosed Christian ’ s identity and details of his family life and of the custody dispute. They were accompanied by photographs of Christian that had not been rendered anonymous and, in particular, one which showed him in a state of pain and despair on the occasion of the intervention of the court officers on 26 January 2004.", "53. Thereupon, Christian brought proceedings under the Media Act against the applicant company, claiming compensation in respect of reporting constituting an intrusion into his strictly private life ( section 7 of the Media Act) and reporting on the victim of a crime in a manner rendering that person recognisable by the public (Section 7a of the Media Act). On 19 October 2004 the Vienna Regional Criminal Court found against the applicant company, ordering it to pay compensation and to publish the judgment in its newspaper. On appeal the Court of Appeal found on 21 September 2005 that the reporting at issue had been in breach of the obligation not to interfere with a person ’ s strictly private life, but rejected the other ground for compensation, namely, reporting on the victim of a crime in an identifiable manner, and awarded compensation at EUR 3,000 per Article, altogether EUR 9,000. The Regional Court and the Court of Appeal considered that the reporting at issue had breached Christian ’ s right to respect for his strictly private life, and found that there had existed no predominant public interest in the revealing of his identity and giving details of his family life, his health and his emotional state, or the publishing of photographs taken at the time of the unsuccessful attempt to enforce the court ’ s order to hand him over to his mother showing him in a state of pain and despair.", "54. In the Court ’ s view the reasons given by the Regional Court and upheld by the Court of Appeal were undoubtedly “relevant” reasons for the purposes of the necessity test to be applied under Article 10 § 2. It will next examine whether they were also “sufficient”.", "55. The Court agrees with the domestic courts that the case concerned a balancing of the applicant company ’ s right to freedom of expression under Article 10 against Christian ’ s right to protection of his strictly private life. In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” (see, for instance, Flinkkilä and Others, cited above, § 83, and Eerikäinen and Others, cited above, § 66). Another important factor is whether the articles or photographs in the press contributed to a debate of general interest (see Flinkkilä and Others, cited above, § 76, and Eerikäinen, cited above, § 66).", "56. In the present case, Christian is not a public figure, nor does the Court consider that he has entered the public scene by becoming the victim of a custody dispute between his parents which attracted considerable public attention.", "57. The Court further considers that the articles at issue dealt with a matter of public concern, namely the appropriate enforcement of custody decisions and whether and to what extent force may or should be used in this context. Such a matter could, and in the present case did, give rise to a public debate. However, given that neither Christian himself nor his parents were public figures or had previously entered the public sphere, it cannot be considered that the disclosure of his identity was essential for understanding the particulars of the case (see “Wirtschafts-Trend” Zeitschriften-Verlags ­ gesellschaft mbH (no. 2) v. Austria (dec.), no. 6274 6 /00, 14 November 2002). In this connection, the Court notes that it was acceptable for the applicant company to report on all relevant details concerning the case of Christian, in particular as regards the problematic attempt to enforce the decision taken in the custody proceedings by the court officers on 26 January 2004, but not to reveal the identity of Christian while publishing the most intimate details about him, or publish a picture of him from which he could be recognised.", "58. The applicant company also argued that it had been necessary to publish the picture of Christian showing his suffering and despair while clinging to his brother for the purpose of rousing the public from apathy and attracting their attention, as otherwise the press would not have been able to fulfil its protection and warning role. However, the Court has found in the past that the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure ’ s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited, cited above, § 143, with further references). The Court considers that such considerations also apply to persons, like Christian, who are not public figures.", "59. On the other hand, there is no doubt that the preservation of the most intimate sphere of life of a juvenile who had become the victim of a custody dispute and had not himself stepped into the public sphere deserved particular protection on account of his or her vulnerable position.", "60. Lastly the Court considers that the interference with the applicant company ’ s right to impart information was proportionate. The applicant company was not subject to a fine imposed in criminal proceedings but was ordered to pay compensation for the injury caused to the person with whose right to respect for his strictly private life it had interfered. The amount of compensation, EUR 9,000, relates to three published articles. The amounts appear reasonable taking into account the length of the articles, their contents, which, on account of the details given and the photographs published, constituted a serious interference given the vulnerable situation of Christian as the victim of the custody dispute and the particularly wide circulation of the applicant company ’ s media.", "61. In sum, the Court finds that in awarding compensation for the interference with Christian ’ s strictly private life by the applicant company, the respondent State acted within its margin of appreciation in assessing the need to protect his privacy. It is satisfied that the restriction on the applicant company ’ s right to freedom of expression resulting from the judgments of the Regional Court and the Court of Appeal was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed.", "62. There has accordingly been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1967 and lives in Strathfield in Australia.", "8. At the material time he had been a correspondent with an Australian newspaper in Turkey. He had also been working voluntarily for a bookshop specialising in books on Christianity.", "9. On 24 June 1997 he appeared in a television documentary broadcast in the framework of the programme Son çare ( “ Last Resort ” ), hosted by Ms Hülya Koçyiğit.", "A. The content of the report", "10. During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in Turkey by “ foreign pedlars of religion ” ( yabancı din tüccarları ).", "The ensuing documentary was along the following lines :", "Over footage of mosques and then Christian religious ceremonies, a voice stated that everyone, whether a member of the Muslim majority or a religious minority, had the right to belong to the religion of his or her own choosing and the freedom to practise that religion. According to the voice-over, it was strange that some proselytising activities were being carried out in a covert manner, despite the freedom of conscience and religion.", "Against a background of images of a dhikr ceremony performed by a Muslim brotherhood, showing followers in a state of trance, the voiceover asked whether, “in order to combat such instances of bigotry ( yobazlık ), an attempt was being made to set up groups of Christian converts, plunging the country into chaos”.", "The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs, the pedlars of religion all used the same methods.", "11. The voiceover explained that the programme producers had been contacted by a certain A.N., who lived in Samsun. This person had been intrigued by an advertisement asking “would you like to read books free of charge ?”, and had replied. In return, he had received a number of books by mail, all of them concerning Christianity. He had written back and had once again received books on the same subject. The second dispatch had been accompanied by a letter thanking him for his interest in the subject.", "12. There had subsequently been a telephone exchange between A.N. and the sender, who had proved to be the applicant.", "13. After that exchange it had been agreed that the applicant would travel to Samsun to meet A.N.", "14. It was at that point that A.N. had decided to inform the programme producers and to invite them to make a documentary on the subject.", "15. On 17 June 1997 the applicant had travelled to Samsun to meet A.N. and some of his “ friends [purportedly] interested in Christianity ” for the first time, in a restaurant. The conversation had been filmed by a hidden camera.", "16. According to the voiceover, the applicant had then presented the teachings of the Bible. He had continued by comparing Christianity with other religions, emphasising his own beliefs. However, that sequence was not shown, on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used.", "17. A.N. and the applicant had arranged to meet up again the next day in an apartment, again accompanied by a group of A.N. ’ s friends purportedly desirous of learning about the Christian religion.", "18. During that second meeting the applicant had explained that he was not alone but was part of a group working throughout Turkey. He had said that premises could be rented in Samsun for the converts, but that he would have to talk to his “ boss ” about that. The question of where the money would come from was difficult, but an open, intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction.", "19. The documentary then showed the following dialogue between the applicant and one of the participants :", "“ Participant :", "- Have you read the Koran?", "Applicant :", "– Yes.", "Participant :", "– What did you think of it?", "Applicant :", "– I liked it. Some of the verses are good, but...", "Participant :", "– ... but there is also some nonsense?", "Applicant :", "– No, I wouldn ’ t say that, but it cannot save me, because I know I am a sinner.", "...", "Applicant :", "– The knowledge which God has sent us is set out in the Bible, the Torah and the Book of the Psalms of David. [ That knowledge] is complete in itself. We need no other prophet, because Jesus is divine in essence ... ”", "20. Just as the applicant was apparently preparing, with the help of a bowl of water, to explain to the participants the ritual of baptism, the person hosting the programme, Hülya Koçyiğit, burst into the room with a camera and a microphone.", "21. She told the applicant that she had heard about the meeting and had come to make his acquaintance. She asked him who he was and where he came from.", "22. The applicant replied that he was Australian and held an identity card up to the camera. He added that he was a journalist, and was involved in explaining the Christian faith on a voluntary basis.", "23. Asked why the latter activity was covert, he answered that it was not covert, and that he had come to Samsun with full trust in the person who had contacted him.", "24. The documentary then presented an interview between Ms Koçyigit and an academic from the Istanbul Faculty of ( Islamic) Theology. The latter explained that Muslims were duty-bound to respect and believe in the divine nature of the holy books of all the monotheistic religions, pointing out that Islam was a religion of tolerance. However, he voiced his surprise at the covert nature of the activities shown in the documentary.", "25. At the end of the programme the applicant was shown walking along carrying a bag. The voiceover described him as “ Dion, the pedlar of religion, on his way to the police station to give a statement ”.", "B. Criminal proceedings", "26. According to the applicant, the hostess of the TV programme had been accompanied by police officers when she had burst into the room, and the officers had remanded him in custody after the discussions.", "27. He had been released the following day, after having given his statement.", "28. On 25 June 1997 the Samsun prosecutor ’ s office brought criminal proceedings against the applicant for insulting Allah and Islam.", "29. On 28 April 1998 Samsun Criminal Court found the applicant innocent given that no evidence had been provided of a criminal offence.", "C. Civil proceedings", "30. On 24 June 1998 the applicant filed an action for damages against the programme presenter and producers.", "31. Istanbul Regional Court ( “ IRC ” ) dismissed that action by judgment of 18 March 2003 on the grounds of the public interest of dissemination of information.", "32. By judgment of 15 June 2004 the 4 th Civil Chamber of the Court of Cassation set aside the latter judgment, by four votes to one.", "In its reasoning the Chamber noted that the case concerned a conflict of rights between freedom of expression, on the one hand, and personality rights on the other. Having reiterated the fundamental importance of freedom of the press, it pointed out that that freedom nevertheless had its limits. It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience, which two rights were secured under both the Constitution and the European Convention on Human Rights. That being the case, the claimant ’ s right to respect for his private life had suffered a twofold violation, first of all when he had been filmed by a hidden camera, and secondly when the images had been broadcast, accompanied by such expressions as “ pedlar of religion ” and “ bigotry ”.", "33. On 18 March 2003, ruling on the case referred back to it, the TGI decided not to follow the reasoning of the 4 th Civil Chamber and instead to maintain its previous judgment.", "34. In the face of such resistance from the IRC, the case was referred ex officio to the Assembly of Civil Chambers of the Court of Cassation. By judgment of 7 December 2005, that Assembly upheld the finding of the first- instance court by thirty-five votes to eleven.", "In their reasoning, the judges of the superior court held that the impugned images had not concerned details of the applicant ’ s private life, but had been part of a documentary on a topical issue of interest to the general public. They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary -makers had struck a fair balance between the merits and the formal aspects of the subject.", "35. According to the case file that judgment was served on the applicant on 28 February 2006.", "D. Other allegations submitted by the applicant", "36. The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons.", "37. He added that he had been expelled to Bulgaria.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant complained that the transmission of the documentary and the judicial authorities ’ dismissal of his claim for damages had infringed his right to respect for this private life as provided for in Article 8 of the Convention, which reads as follows :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "45. The Government contested that argument.", "A. Admissibility", "46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "47. The applicant complained about the content of the programme broadcast on 24 June 1997 and the courts ’ dismissal of his claim for damages. He considered that the making of a video recording without his consent during a meeting organised without his knowledge by the journalists and the transmission of that video recording had amounted to a violation of Article 8 of the Convention", "48. The Government observed that there had been no interference by the authorities. They accepted that the State had a positive obligation, but considered that the latter had been honoured, given that the Turkish judicial system provided a remedy which had facilitated the examination of the applicant ’ s complaints. The fact that the courts had ultimately dismissed the applicant ’ s claims could not be deemed to have rendered the remedy ineffective.", "49. The Government submitted that the courts had had to deal with a conflict between, on the one hand, freedom of the press and, on the other, the applicant ’ s right to respect for his private life.", "50. They considered that the programme had covered a general -interest topic, a sphere in which journalistic freedom benefited from broader protection ( see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 39, ECHR 1999-III). Furthermore, journalistic freedom also allowed for the possibility of some degree of exaggeration, or indeed provocation.", "51. The Government took the view that the expressions “ bigotry ” and “ pedlar of religion ” were value judgments whose veracity was not susceptible of proof, rather than constituting a gratuitous personal attack. In that regard, they cited the case of Unabhängige Initiative Informationsvielfalt v. Austria (no. 28525/95, ECHR 2002 ‑ I), in which the Court, they maintained, had come to the same conclusion with regard to the expression “fascist [ sic ] agitation ” as used by a journalist.", "52. The Government pointed out that in addition to the substance of the ideas and information expressed, Article 10 also protected the form in which they were conveyed ( see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001 ‑ III). Since the activities covered by the documentary had been conducted covertly, the journalists had considered that making a secret recording during the meeting was the optimum solution.", "53. The Government added that the limits of acceptable criticism were wider in respect of public figures, targeted in the latter capacity, than for an ordinary individual : unlike the latter, the former inevitably and knowingly laid themselves open to close scrutiny of their every word and deed by both journalists and the public at large. They cited, in that connection, the cases of Katamadze v. Georgia ((dec.), no. 69857/01, 14 February 2006), and Krutil v. Germany ((dec.), no. 71750/01, 20 March 2003). They noted that in the present case the applicant had not been an ordinary individual but a journalist who had also been engaging in missionary work.", "54. The Government observed that in its Aydın Tatlav v. Turkey judgment (no. 50692/99, § 27, 2 May 2006) the Court had stated that “ those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism; [ they ] must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith ”.", "55. Finally, the Government submitted that there was nothing to suggest that the journalists had acted in bad faith or had had an aim other than that of providing information on issues which they considered should be brought to the attention of the public. They considered that in the instant case the domestic courts had been quite right to prioritise the general public ’ s right to receive information on a subject of general interest over the applicant ’ s right to respect for his private life.", "56. The applicant, for his part, repeated his complaint and submitted that the infringement by the journalists of his private life had been unlawful and had exposed him to a risk of assault. His landlord had invited him to leave his apartment for fear of reprisals. He cited a number of cases of attacks, sometimes fatal, against Christians in Turkey since 2006, which he claimed had occurred in the wake of television programmes similar to the one at issue.", "57. He affirmed that the transmission of the documentary had affected his relations with his Turkish and foreign colleagues.", "58. The Government ’ s explanations concerning freedom of the press might have been relevant if the impugned documentary had been made honestly and in good faith. The applicant submitted that that had not been the situation in the present case, given that the journalists had actually entrapped him.", "2. The Court ’ s assessment", "a) General principles", "59. The Court notes that the applicant did not complain about an act committed by the State, but about the lack of adequate State protection of his private life from interference by third parties.", "60. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ( see Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 ( extracts )).", "61. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (ibid. ).", "62. The concept of “private life” is a broad term which is not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person and can therefore embrace multiple aspects of the person ’ s identity, such as his or her name and elements relating to his or her image. The notion covers personal information which individuals can legitimately expect not to be published without their consent. Publication of a photo may thus intrude upon a person ’ s private life. The same applies to a video recording ( see De La Flor Cabrera v. Spain, no. 10764/09, § 30, 27 May 2014).", "63. In cases such as the present one, which require the right to freedom of expression to be balanced against the right to respect for private life as safeguarded by Article 10 of the Convention, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the documentary, or under Article 10 by the publisher ( see Hachette Filipacchi Associés (ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Axel Springer AG v. Germany (no. 2), no. 48311/10, § 56, 10 July 2014), because those rights deserve equal respect, as a matter of principle. The margin of appreciation should therefore, in principle, be the same in both cases. If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for theirs (see Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).", "64. The Court consequently considers it useful also to reiterate its case-law on freedom of expression.", "65. That freedom constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broad - mindedness, without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly ( see, among other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).", "66. Furthermore, the Court has repeatedly emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. And not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role as a “public watchdog” ( see Bladet Tromsø and Stensaas, cited above, §§ 59 and 62, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI).", "67. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest ( see Morice v. France [GC], no. 29369/10, § 125, 2 3 April 2015).", "68. Journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation ( see Stoll v. Switzerland [GC], no. 69698/01, § 148, ECHR 2007 ‑ V). It is not for this Court, or for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists in any given case ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009).", "69. In its Grand Chamber judgments in the cases of Axel Springer and Von Hannover, cited above, the Court summarised the relevant criteria for balancing the right to freedom of expression against the right to respect for private life, including the contribution to a debate of general interest, the degree to which the person affected was well known, the subject of the report, the form and consequences of the publication and the severity of the sanction imposed.", "70. Finally, the Court reiterates that the way in which a report or photograph is published and the manner in which the person concerned is portrayed in it may also be factors to be taken into consideration ( see Haldimann and Others v. Switzerland, no. 21830/09, §§ 63 and 65, ECHR 2015, and the references therein ).", "b) Application of those principles to the present case", "71. The Court notes that the issue of the respondent State ’ s positive obligations arises in connection with the decisions taken by the domestic courts – which the applicant contended had not provided him with protection against the journalists ’ interference with his private life. It is therefore with regard to the manner in which the domestic courts balanced the right set out in Article 8 with the right of the journalists in question to freedom of expression under Article 10 that the Court must assess whether or not the protection provided to the applicant was satisfactory ( see Von Hannover, cited above, § 58).", "72. The Court observes that the documentary concerned religious proselytism, which is, clearly, a public-interest topic, a sphere in which freedom of the press benefits from enhanced protection.", "73. It notes that the documentary was critical and that it used offensive expressions such as “pedlar of religion ” to describe the applicant. As regards the word “bigotry”, although it is hardly flattering, the Court notes that it was not used in connection with the applicant but in relation to the practices of certain Muslim brotherhoods.", "74. The Court considers that the use of the phrase “ pedlar of religion ” pointed to a value judgment. However, the veracity of such judgments cannot be demonstrated. Moreover, the Court reiterates that freedom of the press also covers possible recourse to a degree of exaggeration, or even provocation.", "75. It considers that the impugned documentary did not comprise any gratuitous personal attack on the applicant ( see Oberschlick v. Austria (no. 2), 1 July 1997, §§ 9 and 30, Reports of judgments and decisions 1997 ‑ IV, regarding the use of the word “idiot”, and, to converse effect, Pakdemirli v. Turkey, no. 35839/97, § 46, 22 February 2005). Furthermore, the Court holds that it was also not a case of hate speech, since it did not incite to hatred or violence against a religious group or denigrate such a group ’ s convictions and beliefs (cf. Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).", "76. As regards the method used for producing the documentary, the Court considered that the use of hidden cameras should be restricted as a matter of principle, since that technique is highly intrusive and flouts the right to respect for private life. Nevertheless, the Court is aware of the importance of covert investigative methods for the production of certain types of documentaries. In some cases journalists are obliged to use hidden cameras, for instance where information is difficult to obtain by any other means (cf. De La Flor Cabrera, cited above, § 40, which concerned a video recording which had been made without the filmed person ’ s consent in order to gather evidence in judicial proceedings ). However, this facility must be used as a last resort, sparingly, and in compliance with the relevant codes of ethics.", "77. As regards the balancing of competing rights, the Court reiterates the criteria mentioned in paragraph 69 above, and in particular the contribution to a debate of general interest, the degree to which the person affected was well known, the subject of the report, and the form and consequences of the publication.", "78. In that framework, it first of all observes that the applicant had not himself sought any public exposure beyond placing an advertisement in a newspaper. He could not have suspected that by talking to the person who had contacted him and to that person ’ s friends he was running a risk of public criticism. He quite legitimately thought he was dealing with private individuals who were merely interested in Christianity.", "79. On that point, the Government ’ s argument that the applicant was himself a journalist and that the limits of freedom of expression with regard to the latter were wider that in the case of a private individual must be rejected. Although the applicant was indeed the Turkey correspondent for an Australian newspaper, he was completely unknown to the Turkish general public and was not acting in his capacity as a journalist.", "80. As regards the potential contribution to a public-interest debate of broadcasting images of the applicant, the Court sees nothing in the impugned documentary or in the parties ’ observations to substantiate any general-interest reasons for the journalists ’ decision to transmit the images of the applicant without taking any particular precautions, such as masking his face (see, in that regard, Peck v. the United Kingdom, no. 44647/98, § 80, ECHR 2003 ‑ I). As regards, in particular, the fact that the applicant was not well known, there is nothing to suggest that the said transmission had any inherent informative value or had been properly and adequately used ( see, mutatis mutandis, Gurgenidze v. Georgia, no. 71678/01, §§ 59 and 60, 17 October 2006)", "81. Under those conditions, broadcasting the images of the applicant without taking any precautions cannot be regarded as contributing to any debate of general interest to society, however great the social interest in the issue of religious proselytism.", "82. In that connection, the Court reiterates that in the case of Haldimann, cited above, which concerned sanctions imposed on journalists for broadcasting a hidden-camera recording of an alleged negotiation between an insurance broker and a journalist, the Court found a violation of the applicants ’ right to freedom of expression. In order to reach that finding it had considered decisive the fact that the applicants had pixellated the broker ’ s face and distorted his voice ( see paragraph 65 of the judgment in question).", "83. Moreover, the Court notes that none of the domestic courts would appear to have assessed this latter point, that is to say the contribution to the public- interest debate of broadcasting images of the applicant without blurring them.", "84. Having regard to all the foregoing considerations and despite the State ’ s margin of appreciation in this sphere, the Court considers that, as regards the transmission of unpixellated and unblurred images of the applicant, the Turkish courts had failed to strike a fair balance between the competing interests. Their manner of dealing with the case had therefore failed to provide the applicant with adequate and effective protection for his image rights and therefore his private life.", "85. There was accordingly a violation of Article 8 of the Convention.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "93. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "94. The applicant claimed 43,200 US dollars (USD) in respect of the pecuniary damage which he had sustained, which amount he itemised as follows:", "- USD 250 in respect of hotel accommodation expenses for his wife and children immediately following the transmission of the documentary;", "- USD 200 in respect of a month ’ s rent for his apartment, which had been paid in advance to no avail;", "- USD 1, 500 for a deposit on the lease of a new apartment;", "- USD 2, 000 in legal fees;", "- USD 400 for settlement in Bulgaria following his expulsion;", "- USD 4, 300 for resettlement in Australia;", "- USD 12, 000 in respect of loss of earnings during his stay in Bulgaria;", "- USD 22, 000 in respect of loss of earnings for the year 2000.", "95. Furthermore, he claimed 100, 000 euros (EUR) in respect of non- pecuniary damage and EUR 5, 000 in respect of his legal representation before the Court.", "96. The Government contested all those claims. They considered that there was no causal link between the violation and the alleged pecuniary damage. As regards non-pecuniary damage, they considered that the finding of a violation was sufficient just satisfaction. As regards costs and expenses, they invited the Court to dismiss the claim as unsubstantiated.", "97. The Court sees no causal link between the violation and the alleged pecuniary damage and dismisses that claim. On the other hand, it holds that the applicant should be awarded EUR 7, 500 in respect of non-pecuniary damage.", "98. As regards costs and expenses, the Court observes that in order for the latter to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum ( see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may dismiss the claim in whole or in part ( see Zubani v. Italy ( just satisfaction), no. 14025/88, § 23, 16 June 1999).", "99. In the present case, the Court notes that the applicant ’ s claim is not accompanied by any voucher. It therefore cannot accept it.", "100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1967 and lives in Strathfield in Australia.", "8. At the material time he had been a correspondent with an Australian newspaper in Turkey. He had also been working voluntarily for a bookshop specialising in books on Christianity.", "9. On 24 June 1997 he appeared in a television documentary broadcast in the framework of the programme Son çare ( “ Last Resort ” ), hosted by Ms Hülya Koçyiğit.", "A. The content of the report", "10. During the programme the hostess introduced the documentary by pointing out that it concerned covert activities conducted in Turkey by “ foreign pedlars of religion ” ( yabancı din tüccarları ).", "The ensuing documentary was along the following lines :", "Over footage of mosques and then Christian religious ceremonies, a voice stated that everyone, whether a member of the Muslim majority or a religious minority, had the right to belong to the religion of his or her own choosing and the freedom to practise that religion. According to the voice-over, it was strange that some proselytising activities were being carried out in a covert manner, despite the freedom of conscience and religion.", "Against a background of images of a dhikr ceremony performed by a Muslim brotherhood, showing followers in a state of trance, the voiceover asked whether, “in order to combat such instances of bigotry ( yobazlık ), an attempt was being made to set up groups of Christian converts, plunging the country into chaos”.", "The voiceover explained that the aim of the programme was not to judge any specific religion but to show that whatever their nationalities or religious beliefs, the pedlars of religion all used the same methods.", "11. The voiceover explained that the programme producers had been contacted by a certain A.N., who lived in Samsun. This person had been intrigued by an advertisement asking “would you like to read books free of charge ?”, and had replied. In return, he had received a number of books by mail, all of them concerning Christianity. He had written back and had once again received books on the same subject. The second dispatch had been accompanied by a letter thanking him for his interest in the subject.", "12. There had subsequently been a telephone exchange between A.N. and the sender, who had proved to be the applicant.", "13. After that exchange it had been agreed that the applicant would travel to Samsun to meet A.N.", "14. It was at that point that A.N. had decided to inform the programme producers and to invite them to make a documentary on the subject.", "15. On 17 June 1997 the applicant had travelled to Samsun to meet A.N. and some of his “ friends [purportedly] interested in Christianity ” for the first time, in a restaurant. The conversation had been filmed by a hidden camera.", "16. According to the voiceover, the applicant had then presented the teachings of the Bible. He had continued by comparing Christianity with other religions, emphasising his own beliefs. However, that sequence was not shown, on the grounds that the aim of the documentary was not to discuss the merits of specific beliefs but to expose the methods used.", "17. A.N. and the applicant had arranged to meet up again the next day in an apartment, again accompanied by a group of A.N. ’ s friends purportedly desirous of learning about the Christian religion.", "18. During that second meeting the applicant had explained that he was not alone but was part of a group working throughout Turkey. He had said that premises could be rented in Samsun for the converts, but that he would have to talk to his “ boss ” about that. The question of where the money would come from was difficult, but an open, intelligent attitude had to be adopted to such matters because converts could be accused of having changed religions thanks to pecuniary considerations rather than conviction.", "19. The documentary then showed the following dialogue between the applicant and one of the participants :", "“ Participant :", "- Have you read the Koran?", "Applicant :", "– Yes.", "Participant :", "– What did you think of it?", "Applicant :", "– I liked it. Some of the verses are good, but...", "Participant :", "– ... but there is also some nonsense?", "Applicant :", "– No, I wouldn ’ t say that, but it cannot save me, because I know I am a sinner.", "...", "Applicant :", "– The knowledge which God has sent us is set out in the Bible, the Torah and the Book of the Psalms of David. [ That knowledge] is complete in itself. We need no other prophet, because Jesus is divine in essence ... ”", "20. Just as the applicant was apparently preparing, with the help of a bowl of water, to explain to the participants the ritual of baptism, the person hosting the programme, Hülya Koçyiğit, burst into the room with a camera and a microphone.", "21. She told the applicant that she had heard about the meeting and had come to make his acquaintance. She asked him who he was and where he came from.", "22. The applicant replied that he was Australian and held an identity card up to the camera. He added that he was a journalist, and was involved in explaining the Christian faith on a voluntary basis.", "23. Asked why the latter activity was covert, he answered that it was not covert, and that he had come to Samsun with full trust in the person who had contacted him.", "24. The documentary then presented an interview between Ms Koçyigit and an academic from the Istanbul Faculty of ( Islamic) Theology. The latter explained that Muslims were duty-bound to respect and believe in the divine nature of the holy books of all the monotheistic religions, pointing out that Islam was a religion of tolerance. However, he voiced his surprise at the covert nature of the activities shown in the documentary.", "25. At the end of the programme the applicant was shown walking along carrying a bag. The voiceover described him as “ Dion, the pedlar of religion, on his way to the police station to give a statement ”.", "B. Criminal proceedings", "26. According to the applicant, the hostess of the TV programme had been accompanied by police officers when she had burst into the room, and the officers had remanded him in custody after the discussions.", "27. He had been released the following day, after having given his statement.", "28. On 25 June 1997 the Samsun prosecutor ’ s office brought criminal proceedings against the applicant for insulting Allah and Islam.", "29. On 28 April 1998 Samsun Criminal Court found the applicant innocent given that no evidence had been provided of a criminal offence.", "C. Civil proceedings", "30. On 24 June 1998 the applicant filed an action for damages against the programme presenter and producers.", "31. Istanbul Regional Court ( “ IRC ” ) dismissed that action by judgment of 18 March 2003 on the grounds of the public interest of dissemination of information.", "32. By judgment of 15 June 2004 the 4 th Civil Chamber of the Court of Cassation set aside the latter judgment, by four votes to one.", "In its reasoning the Chamber noted that the case concerned a conflict of rights between freedom of expression, on the one hand, and personality rights on the other. Having reiterated the fundamental importance of freedom of the press, it pointed out that that freedom nevertheless had its limits. It considered that the claimant had not committed any unlawful act but had merely exercised his rights to freedom of expression and freedom of conscience, which two rights were secured under both the Constitution and the European Convention on Human Rights. That being the case, the claimant ’ s right to respect for his private life had suffered a twofold violation, first of all when he had been filmed by a hidden camera, and secondly when the images had been broadcast, accompanied by such expressions as “ pedlar of religion ” and “ bigotry ”.", "33. On 18 March 2003, ruling on the case referred back to it, the TGI decided not to follow the reasoning of the 4 th Civil Chamber and instead to maintain its previous judgment.", "34. In the face of such resistance from the IRC, the case was referred ex officio to the Assembly of Civil Chambers of the Court of Cassation. By judgment of 7 December 2005, that Assembly upheld the finding of the first- instance court by thirty-five votes to eleven.", "In their reasoning, the judges of the superior court held that the impugned images had not concerned details of the applicant ’ s private life, but had been part of a documentary on a topical issue of interest to the general public. They considered that there had been a major public interest in broadcasting the documentary at issue and that the documentary -makers had struck a fair balance between the merits and the formal aspects of the subject.", "35. According to the case file that judgment was served on the applicant on 28 February 2006.", "D. Other allegations submitted by the applicant", "36. The applicant submitted that the owner of the apartment which he had rented had ended his lease following the transmission of the documentary for security reasons.", "37. He added that he had been expelled to Bulgaria.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant complained that the transmission of the documentary and the judicial authorities ’ dismissal of his claim for damages had infringed his right to respect for this private life as provided for in Article 8 of the Convention, which reads as follows :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "45. The Government contested that argument.", "A. Admissibility", "46. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "47. The applicant complained about the content of the programme broadcast on 24 June 1997 and the courts ’ dismissal of his claim for damages. He considered that the making of a video recording without his consent during a meeting organised without his knowledge by the journalists and the transmission of that video recording had amounted to a violation of Article 8 of the Convention", "48. The Government observed that there had been no interference by the authorities. They accepted that the State had a positive obligation, but considered that the latter had been honoured, given that the Turkish judicial system provided a remedy which had facilitated the examination of the applicant ’ s complaints. The fact that the courts had ultimately dismissed the applicant ’ s claims could not be deemed to have rendered the remedy ineffective.", "49. The Government submitted that the courts had had to deal with a conflict between, on the one hand, freedom of the press and, on the other, the applicant ’ s right to respect for his private life.", "50. They considered that the programme had covered a general -interest topic, a sphere in which journalistic freedom benefited from broader protection ( see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 39, ECHR 1999-III). Furthermore, journalistic freedom also allowed for the possibility of some degree of exaggeration, or indeed provocation.", "51. The Government took the view that the expressions “ bigotry ” and “ pedlar of religion ” were value judgments whose veracity was not susceptible of proof, rather than constituting a gratuitous personal attack. In that regard, they cited the case of Unabhängige Initiative Informationsvielfalt v. Austria (no. 28525/95, ECHR 2002 ‑ I), in which the Court, they maintained, had come to the same conclusion with regard to the expression “fascist [ sic ] agitation ” as used by a journalist.", "52. The Government pointed out that in addition to the substance of the ideas and information expressed, Article 10 also protected the form in which they were conveyed ( see Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001 ‑ III). Since the activities covered by the documentary had been conducted covertly, the journalists had considered that making a secret recording during the meeting was the optimum solution.", "53. The Government added that the limits of acceptable criticism were wider in respect of public figures, targeted in the latter capacity, than for an ordinary individual : unlike the latter, the former inevitably and knowingly laid themselves open to close scrutiny of their every word and deed by both journalists and the public at large. They cited, in that connection, the cases of Katamadze v. Georgia ((dec.), no. 69857/01, 14 February 2006), and Krutil v. Germany ((dec.), no. 71750/01, 20 March 2003). They noted that in the present case the applicant had not been an ordinary individual but a journalist who had also been engaging in missionary work.", "54. The Government observed that in its Aydın Tatlav v. Turkey judgment (no. 50692/99, § 27, 2 May 2006) the Court had stated that “ those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism; [ they ] must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith ”.", "55. Finally, the Government submitted that there was nothing to suggest that the journalists had acted in bad faith or had had an aim other than that of providing information on issues which they considered should be brought to the attention of the public. They considered that in the instant case the domestic courts had been quite right to prioritise the general public ’ s right to receive information on a subject of general interest over the applicant ’ s right to respect for his private life.", "56. The applicant, for his part, repeated his complaint and submitted that the infringement by the journalists of his private life had been unlawful and had exposed him to a risk of assault. His landlord had invited him to leave his apartment for fear of reprisals. He cited a number of cases of attacks, sometimes fatal, against Christians in Turkey since 2006, which he claimed had occurred in the wake of television programmes similar to the one at issue.", "57. He affirmed that the transmission of the documentary had affected his relations with his Turkish and foreign colleagues.", "58. The Government ’ s explanations concerning freedom of the press might have been relevant if the impugned documentary had been made honestly and in good faith. The applicant submitted that that had not been the situation in the present case, given that the journalists had actually entrapped him.", "2. The Court ’ s assessment", "a) General principles", "59. The Court notes that the applicant did not complain about an act committed by the State, but about the lack of adequate State protection of his private life from interference by third parties.", "60. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ( see Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 ( extracts )).", "61. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (ibid. ).", "62. The concept of “private life” is a broad term which is not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person and can therefore embrace multiple aspects of the person ’ s identity, such as his or her name and elements relating to his or her image. The notion covers personal information which individuals can legitimately expect not to be published without their consent. Publication of a photo may thus intrude upon a person ’ s private life. The same applies to a video recording ( see De La Flor Cabrera v. Spain, no. 10764/09, § 30, 27 May 2014).", "63. In cases such as the present one, which require the right to freedom of expression to be balanced against the right to respect for private life as safeguarded by Article 10 of the Convention, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the documentary, or under Article 10 by the publisher ( see Hachette Filipacchi Associés (ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Axel Springer AG v. Germany (no. 2), no. 48311/10, § 56, 10 July 2014), because those rights deserve equal respect, as a matter of principle. The margin of appreciation should therefore, in principle, be the same in both cases. If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for theirs (see Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).", "64. The Court consequently considers it useful also to reiterate its case-law on freedom of expression.", "65. That freedom constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broad - mindedness, without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly ( see, among other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004 ‑ IV; and Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).", "66. Furthermore, the Court has repeatedly emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. And not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role as a “public watchdog” ( see Bladet Tromsø and Stensaas, cited above, §§ 59 and 62, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004 ‑ XI).", "67. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest ( see Morice v. France [GC], no. 29369/10, § 125, 2 3 April 2015).", "68. Journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation ( see Stoll v. Switzerland [GC], no. 69698/01, § 148, ECHR 2007 ‑ V). It is not for this Court, or for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists in any given case ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Eerikäinen and Others v. Finland, no. 3514/02, § 65, 10 February 2009).", "69. In its Grand Chamber judgments in the cases of Axel Springer and Von Hannover, cited above, the Court summarised the relevant criteria for balancing the right to freedom of expression against the right to respect for private life, including the contribution to a debate of general interest, the degree to which the person affected was well known, the subject of the report, the form and consequences of the publication and the severity of the sanction imposed.", "70. Finally, the Court reiterates that the way in which a report or photograph is published and the manner in which the person concerned is portrayed in it may also be factors to be taken into consideration ( see Haldimann and Others v. Switzerland, no. 21830/09, §§ 63 and 65, ECHR 2015, and the references therein ).", "b) Application of those principles to the present case", "71. The Court notes that the issue of the respondent State ’ s positive obligations arises in connection with the decisions taken by the domestic courts – which the applicant contended had not provided him with protection against the journalists ’ interference with his private life. It is therefore with regard to the manner in which the domestic courts balanced the right set out in Article 8 with the right of the journalists in question to freedom of expression under Article 10 that the Court must assess whether or not the protection provided to the applicant was satisfactory ( see Von Hannover, cited above, § 58).", "72. The Court observes that the documentary concerned religious proselytism, which is, clearly, a public-interest topic, a sphere in which freedom of the press benefits from enhanced protection.", "73. It notes that the documentary was critical and that it used offensive expressions such as “pedlar of religion ” to describe the applicant. As regards the word “bigotry”, although it is hardly flattering, the Court notes that it was not used in connection with the applicant but in relation to the practices of certain Muslim brotherhoods.", "74. The Court considers that the use of the phrase “ pedlar of religion ” pointed to a value judgment. However, the veracity of such judgments cannot be demonstrated. Moreover, the Court reiterates that freedom of the press also covers possible recourse to a degree of exaggeration, or even provocation.", "75. It considers that the impugned documentary did not comprise any gratuitous personal attack on the applicant ( see Oberschlick v. Austria (no. 2), 1 July 1997, §§ 9 and 30, Reports of judgments and decisions 1997 ‑ IV, regarding the use of the word “idiot”, and, to converse effect, Pakdemirli v. Turkey, no. 35839/97, § 46, 22 February 2005). Furthermore, the Court holds that it was also not a case of hate speech, since it did not incite to hatred or violence against a religious group or denigrate such a group ’ s convictions and beliefs (cf. Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).", "76. As regards the method used for producing the documentary, the Court considered that the use of hidden cameras should be restricted as a matter of principle, since that technique is highly intrusive and flouts the right to respect for private life. Nevertheless, the Court is aware of the importance of covert investigative methods for the production of certain types of documentaries. In some cases journalists are obliged to use hidden cameras, for instance where information is difficult to obtain by any other means (cf. De La Flor Cabrera, cited above, § 40, which concerned a video recording which had been made without the filmed person ’ s consent in order to gather evidence in judicial proceedings ). However, this facility must be used as a last resort, sparingly, and in compliance with the relevant codes of ethics.", "77. As regards the balancing of competing rights, the Court reiterates the criteria mentioned in paragraph 69 above, and in particular the contribution to a debate of general interest, the degree to which the person affected was well known, the subject of the report, and the form and consequences of the publication.", "78. In that framework, it first of all observes that the applicant had not himself sought any public exposure beyond placing an advertisement in a newspaper. He could not have suspected that by talking to the person who had contacted him and to that person ’ s friends he was running a risk of public criticism. He quite legitimately thought he was dealing with private individuals who were merely interested in Christianity.", "79. On that point, the Government ’ s argument that the applicant was himself a journalist and that the limits of freedom of expression with regard to the latter were wider that in the case of a private individual must be rejected. Although the applicant was indeed the Turkey correspondent for an Australian newspaper, he was completely unknown to the Turkish general public and was not acting in his capacity as a journalist.", "80. As regards the potential contribution to a public-interest debate of broadcasting images of the applicant, the Court sees nothing in the impugned documentary or in the parties ’ observations to substantiate any general-interest reasons for the journalists ’ decision to transmit the images of the applicant without taking any particular precautions, such as masking his face (see, in that regard, Peck v. the United Kingdom, no. 44647/98, § 80, ECHR 2003 ‑ I). As regards, in particular, the fact that the applicant was not well known, there is nothing to suggest that the said transmission had any inherent informative value or had been properly and adequately used ( see, mutatis mutandis, Gurgenidze v. Georgia, no. 71678/01, §§ 59 and 60, 17 October 2006)", "81. Under those conditions, broadcasting the images of the applicant without taking any precautions cannot be regarded as contributing to any debate of general interest to society, however great the social interest in the issue of religious proselytism.", "82. In that connection, the Court reiterates that in the case of Haldimann, cited above, which concerned sanctions imposed on journalists for broadcasting a hidden-camera recording of an alleged negotiation between an insurance broker and a journalist, the Court found a violation of the applicants ’ right to freedom of expression. In order to reach that finding it had considered decisive the fact that the applicants had pixellated the broker ’ s face and distorted his voice ( see paragraph 65 of the judgment in question).", "83. Moreover, the Court notes that none of the domestic courts would appear to have assessed this latter point, that is to say the contribution to the public- interest debate of broadcasting images of the applicant without blurring them.", "84. Having regard to all the foregoing considerations and despite the State ’ s margin of appreciation in this sphere, the Court considers that, as regards the transmission of unpixellated and unblurred images of the applicant, the Turkish courts had failed to strike a fair balance between the competing interests. Their manner of dealing with the case had therefore failed to provide the applicant with adequate and effective protection for his image rights and therefore his private life.", "85. There was accordingly a violation of Article 8 of the Convention.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "93. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "94. The applicant claimed 43,200 US dollars (USD) in respect of the pecuniary damage which he had sustained, which amount he itemised as follows:", "- USD 250 in respect of hotel accommodation expenses for his wife and children immediately following the transmission of the documentary;", "- USD 200 in respect of a month ’ s rent for his apartment, which had been paid in advance to no avail;", "- USD 1, 500 for a deposit on the lease of a new apartment;", "- USD 2, 000 in legal fees;", "- USD 400 for settlement in Bulgaria following his expulsion;", "- USD 4, 300 for resettlement in Australia;", "- USD 12, 000 in respect of loss of earnings during his stay in Bulgaria;", "- USD 22, 000 in respect of loss of earnings for the year 2000.", "95. Furthermore, he claimed 100, 000 euros (EUR) in respect of non- pecuniary damage and EUR 5, 000 in respect of his legal representation before the Court.", "96. The Government contested all those claims. They considered that there was no causal link between the violation and the alleged pecuniary damage. As regards non-pecuniary damage, they considered that the finding of a violation was sufficient just satisfaction. As regards costs and expenses, they invited the Court to dismiss the claim as unsubstantiated.", "97. The Court sees no causal link between the violation and the alleged pecuniary damage and dismisses that claim. On the other hand, it holds that the applicant should be awarded EUR 7, 500 in respect of non-pecuniary damage.", "98. As regards costs and expenses, the Court observes that in order for the latter to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum ( see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may dismiss the claim in whole or in part ( see Zubani v. Italy ( just satisfaction), no. 14025/88, § 23, 16 June 1999).", "99. In the present case, the Court notes that the applicant ’ s claim is not accompanied by any voucher. It therefore cannot accept it.", "100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1978 and lives in Berezniki, Perm region, together with her son, born in 2001. She is a single mother.", "A. Publication of a photograph of the applicant ’ s son", "6. At the material time the applicant was teaching physical education in a secondary school in Berenzniki.", "7. In November 2007 the applicant learnt that a photograph of her son had been published on the cover page of a booklet prepared by the Centre for Psychological, Medical and Social Support of the Usolskiy District, Perm region (“the Centre”), entitled “ Children need a family ”.", "8. The booklet consisted of six pages, including the cover page. The boy ’ s photograph occupied the major part of the cover page and showed his face. Above the photograph there was a slogan “Children need a family”. At the bottom of the cover page, just under the photograph were the words : “Centre for Psychological, Medical and Social Support, town of Usoliye”. The second page contained two more photographs of other children, with citations from the Convention on the Rights of the Child and the Russian Family Code. The third page was headed “Forms of replacing family care” and presented the various arrangements : adoptive family, tutorial family, foster home and others. The remaining pages informed the readers about the creation in the district of the Municipal Centre for Psychological, Medical and Social Support, the role of which was to protect orphans and assist families in adopting them. They explained what kind of support and advice families could seek in the Centre and how they could help orphans. On the last page the following was written:", "“If you wish to save a child from loneliness and give him a hearth and home, come to us!”", "9. The applicant alleged that she had not been informed about the booklet, let alone asked for authorisation for a photograph of her son to be published.", "B. Proceedings brought by the applicant", "1. The applicant ’ s attempts to institute criminal proceedings", "10. In November 2007 the applicant asked the local department of the interior and the prosecutor ’ s office to carry out an investigation into the unauthorised publication of her son ’ s photograph on the booklet.", "11. In December 2007 the department of the interior replied that there were no grounds to institute criminal proceedings.", "12. On 9 January 2008 the district prosecutor informed the applicant that the booklet had been prepared and published by a publishing company, A., at the request of the Centre. In total, 200 copies of the booklet had been published. The photograph of the child had been placed on the booklet by Mr P., who had been engaged by that company to prepare the layout of the booklet and who had found the photograph of the applicant ’ s son on the Internet. It was impossible to establish from which website the photograph of the child had been taken. The prosecutor advised the applicant to bring court proceedings to protect her rights.", "13. The applicant did not lodge any judicial appeal against those replies.", "2. Civil proceedings brought by the applicant", "14. In March 2008 the applicant instituted civil proceedings against the Centre before the Usolskiy District Court, Perm Region (“the District Court”) on her own behalf and on behalf of her minor son.", "15. In her statement of claim the applicant complained that her and her son ’ s honour, dignity and reputation had been damaged by the unlawful publication of her son ’ s photograph in a booklet calling for adoption. In particular, the photograph had been published without her authorisation and knowledge. The booklet had been distributed in various organisations in the town of Usoliye and in the Usolskiy District, Perm region (libraries, hospitals, police departments) and had provoked a negative attitude towards her and her son on the part of her colleagues, neighbours and those close to her. People thought that she had abandoned her son. The boy had become a victim of mockery in the kindergarten. The publication of the photograph had also affected her honour and dignity and her reputation as a schoolteacher. She requested that the court, with reference to Articles 151 and 152 of the Russian Civil Code (see Relevant domestic law and practice below), award her non-pecuniary damages and order the publishing company to apologise for the publication of the photograph.", "16. On 23 April 2008 the District Court held, with the applicant ’ s consent, that the Centre was not a proper respondent in the case and that the claim should have been made against the publishing company and Mr P. The Centre was invited to take part in the proceedings as a third party.", "17. The publishing company contested the applicant ’ s claims. It submitted that the material which had been presented to the court showed that a certain Mr Sh. had taken the photograph of the applicant ’ s son with the knowledge of the applicant. Mr Sh. had not informed the applicant of his intentions or the ways in which the photograph might be further used. Nor had he received any written authorisation from the applicant for its use. Mr P., who had been engaged by the company for the preparation of the layout of the booklet, had found the photograph on the Internet and placed it on the cover page of the booklet.", "18. The publishing company considered that it had not been obliged to verify whether prior consent had been received for publication of the photograph in the booklet for two reasons. First, it was not responsible for the actions of Mr P., who had been working for the company on a contractual basis. Secondly, under Article 152.1 of the Civil Code (see Relevant domestic law below), consent to the use of a photograph was not required when the image was being used in the interests of the State, or in social or other public interests. By ordering the booklet, the Centre had been pursuing social and public interests and calling for mercy to be shown to orphans. The company concluded that the damage had been caused to the applicant by Mr Sh. and, therefore, the company should be exempted from liability for damage.", "19. Mr P. submitted to the court that in 2004 he had gone travelling together with his friend Sh. , who was a photographer. Sh. had openly taken photographs of other tourists, including a photograph of the applicant ’ s son. After their return, Sh. had sent him electronic copies of those photographs and since that time they had been saved in his computer. In 2007 he (Mr P. ) had been temporarily working for the publishing company and had been asked to prepare the layout of the booklet. The text and some photographs had been provided by the Centre. He searched in his computer for more photographs to be placed in the booklet and saw the picture of the applicant ’ s son, which seemed to fit the booklet well. He therefore placed it on the cover page. He did not know who the boy on the photograph was.", "20. The representative of the Centre, acting as a third party, submitted that the use of the photograph of the applicant ’ s son had not been agreed with the Centre. He also submitted that the booklet did not call for adoption; it was intended to provide information about the Centre. He replied to a question put by the court that after publication of the booklet, a number of people had called the Centre and asked whether it was possible to adopt the child whose photograph was on the cover page of the booklet.", "21. It appears from the record of the court hearings that the applicant ’ s representative, G., submitted to the court that it had been established that the photograph of the applicant ’ s son had been used on the booklet without his parent ’ s consent, contrary to the requirements of Article 152.1 of the Civil Code. That provision was concordant with the provisions of the European Convention on Human Rights (“the Convention”) protecting private and family life. The publication of the photograph in the booklet constituted unlawful interference with the applicant ’ s private life and therefore the publishing company was under an obligation to pay compensation for non ‑ pecuniary damage sustained by the applicant.", "22. The publishing company contested the application of Article 152.1 of the Civil Code in the case and considered that the applicant ’ s consent to the publication of her son ’ s photograph had not been required.", "23. On 20 June 2008 the District Court examined and dismissed the applicant ’ s claims. The judgment consisted of a summary of the submissions of the parties and the third party, a summary of the relevant domestic law, a summary of the witnesses ’ submissions and other evidence examined by the court, and several paragraphs of conclusions. In particular, the District Court held as follows:", "“ ... The court has established that the honour, dignity and professional reputation of the plaintiff were not affected by the publication of the booklet with the photograph of the plaintiff ’ s son. Thus, all witnesses submitted that they did not have any hostile feelings towards Mrs Bogomolova, the attitude [towards Mrs Bogomolova] of all those questioned [in the court hearing] remained the same: friendly, amicable; they were not aware of any instances of insults, reproaches in respect of the plaintiff. In the subjective view of the witnesses, the booklet in itself had a positive scope. The plaintiff ’ s professional reputation was not affected by the publication of the booklet in any way, since the plaintiff had provided the court with positive references from her workplace, where her pedagogical competences were highly appreciated.", "The content of the booklet had a positive scope aimed at providing information, did not contain any defamatory details; the photograph on the booklet did not have any defects, and the text in the booklet did not contain any defamatory details either. None of the information in the booklet indicated that defamatory information had been disseminated; it did not diminish the honour, dignity and reputation of Mrs Bogomolova or of her minor son.", "Therefore, the evidence submitted [to the court] has demonstrated [that the booklet had] a strictly value character, and did not contain any defamatory details, diminishing the plaintiff ’ s and her son ’ s honour, dignity and reputation in the public ’ s opinion and the opinion of certain individuals.", "To make negative assumptions in respect of the booklet with the photograph of the plaintiff ’ s son on the front page amounts to an individual value judgment, which has not been included in the content and meaning of that information booklet. The court takes into account that on several occasions in 2004 the plaintiff authorised Mr Sh. , a photographer familiar to her, to take photographs of her son. Sh. then forwarded the photographs to painter Mr P., who [in his turn] then placed [one of] the photograph [s] in the booklet. Mrs Bogomolova did not place any restrictions or conditions on the use of those photographs, did not seek to find out what had happened to those photographs. In addition, it follows from witness statements that after publication of the booklet, the plaintiff showed it to persons around her and at her workplace and annotated it in an emotionally skewed way, and thus disseminated false information about herself and her son with reference to the photograph [on the booklet].", "...", "Taking into account that it has not been established in the court hearing that there was any information discrediting the honour, dignity and reputation of the plaintiff and her minor son, her claims of compensation for non-pecuniary damage should be dismissed. The court also considers that the plaintiff ’ s claims concerning the imposition of an obligation on the defendant to provide public apologies in the SMI [mass media] ... should be dismissed ... ”", "24. On 25 June 2008 the applicant resigned from her job.", "25. In an appeal against the judgment of 20 June 2008 the applicant submitted, in particular, that in taking its decision the District Court had not applied the provisions of Article 152.1 of the Civil Code of the Russian Federation concerning the protection of one ’ s image or the provisions of Article 8 of the Convention. She argued that in the absence of parental consent to the use of her son ’ s photograph, her claim should have been granted in accordance with the above provisions. She expanded on her position with the following arguments.", "26. The booklet had been distributed in several towns in the Perm region, including Usoliye, where her parents lived, and Berezniki, where she and her son lived. She had worked for a long time in those towns and a lot of people knew her and her family. After seeing her son ’ s photograph on the booklet, people who knew her, including the parents of her pupils, thought that she could no longer take care of her son because she had been deprived of her parental rights. She had had to explain to her neighbours, friends and colleagues that her family was doing well and that her son was living with her. Since the publication of the booklet, children in the kindergarten had started calling her son “little vagrant” and “poor orphan”. She had been obliged to quit her job because of comments made by the parents of her pupils. The booklet provoked a feeling of pity towards children abandoned by their parents and at the same time it aroused feelings of indignation towards their parents.", "27. On 19 August 2008 the Regional Court upheld the decision of 20 June 2008, finding it lawful and duly reasoned. Regarding the applicant ’ s argument about the District Court ’ s failure to examine her claims under Article 152.1 of the Civil Code, the Regional Court held that the court had taken a decision on the claims as they had been submitted by the applicant, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law and practice below). The applicant ’ s claims were based on the infringement by the defendants of her right to honour, dignity and reputation. She had not raised any claims on the grounds contained in Article 152.1 of the Civil Code.", "28. By a judgment of 20 January 2009 the Justice of Peace of the Bereznikovskiy Circuit granted the Centre ’ s claim for recovery from the applicant of the legal costs it had incurred when it had taken part in the libel proceedings as a third party, in the amount of 5,200 Russian roubles." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Procedural law and relevant practice", "1. Russian Code of Civil Procedure of 14 November 2002", "29. Following the acceptance of a statement of claim for examination, the judge makes a ruling on preparation of the case for a court hearing (Article 147). One of the tasks involved in preparing a case for a court hearing is to determine the law which should be applied in order to decide the case (Article 1 48).", "30. When rendering a judgment, the court must evaluate the evidence and determine which of the facts important for the examination of the case have been established and which have not been established. It must also determine the legal relations between the parties and decide which law should be applied to the given case and whether the claim should be granted (Article 196 § 1). The court must then decide on the claims as submitted by the plaintiff. However, the court may go beyond those claims in instances provided for by the federal law (Article 196 § 3).", "2. Practice of the Supreme Court of the Russian Federation", "31. In its ruling of 24 June 2008 “ on the preparation of civil cases for a court hearing”, the Plenary of the Supreme Court of the Russian Federation held as follows:", "“ ...", "The courts ’ attention should be drawn to the fact that the preparation of cases for a court hearing is an independent and mandatory stage of the civil procedure which aims to provide for correct and prompt examination of cases.", "...", "Courts should also bear in mind that each and every task involved in preparing a case for a court hearing as enumerated in Article 148 GPK RF [Code of Civil Procedure of the Russian Federation] is a mandatory element of this stage of civil procedure. Non-execution of any of those tasks might result in undue delays in the proceedings and to a judicial mistake.", "...", "When determining the law and any other legal act which should be applied in order to decide the case and when determining the legal relations between the parties, it should be borne in mind that they should be determined on the basis of the totality of data: the subject of and grounds for the action, the defendant ’ s answer to the statement of claim, and other circumstances which have legal importance for taking a right decision on the case ... ”", "B. Material law", "Russian Civil Code of 1994, First Part, as worded at the material time", "Article 152. Protection of Honour, Dignity and Professional Reputation", "“1. Every citizen shall have the right to claim through a court that material discrediting his honour, dignity or professional reputation be rebutted, unless the person who has disseminated such information can prove that it has a connection with reality.", "...", "If the said material is contained in a document issued by an organisation, that document shall be liable to exchange or recall.", "In other cases, the procedure for rebuttal or correction shall be ruled on by the court.", "...", "5. Every citizen with respect to whom material discrediting his honour, dignity or professional reputation has been disseminated shall have the right, in addition to rebuttal or correction of the given information, also to claim compensation for loss and for non-pecuniary damage caused by the dissemination of that material ... ”", "Article 152.1. Protection of the Citizen ’ s Image", "“The publication and further use of a citizen ’ s image (including his photographs, audio records or works of fine art in which he is depicted) are admissible only with his consent. ... Such consent is not required in cases where :", "1) the image is used in the interests of the State, or in social or other public interests;", "2) the citizen ’ s image is obtained when shooting a film in a place open to the public or during a public event (meeting, congress, conference, concert, performance, sports competition and similar event), with the exception of cases where such an image is the principal object of use;", "3) the citizen has posed in return for payment.”", "THE LAW", "I. THE APPLICANT ’ S STANDING TO ACT ON BEHALF OF HER SON IN THE PROCEEDINGS BEFORE THE COURT", "32. The Government did not dispute that the applicant had standing to lodge the present application not only on her own behalf but also on behalf of her son. The Court sees no reason to find otherwise and therefore accepts that the applicant has standing to lodge the present application on her own behalf and also on behalf of her minor son.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained under Article 8 of the Convention, on her behalf and on behalf of her minor son, that the unauthorised publication of her son ’ s photograph in a booklet produced for the Municipal Child Protection Centre had infringed their private and family life. She further complained that the domestic courts had failed to protect her and her son ’ s rights to respect for their private and family life.", "Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The parties ’ submissions", "34. The Government raised two objections as to the admissibility of the application.", "35. First, the application was incompatible ratione personae with the provisions of the Convention, since it had been directed against private parties. In particular, the boy ’ s photograph had been taken by a private photographer and published by a private company. The applicant brought court proceedings against those private parties and not against State authorities. The Centre, which had ordered the booklet, took part in those proceedings as a third party.", "36. Secondly, the applicant had not exhausted domestic remedies available to her in respect of her complaint of a violation of her son ’ s right to respect for his family and private life. In particular, in her claim lodged before the domestic courts the applicant complained that her honour and reputation had been discredited by the publication of her son ’ s photograph in the booklet. However, as was pointed out by the appeal court, the applicant had not raised any claim under Article 152.1 of the Civil Code (see Relevant domestic law above) about the allegedly unlawful use of her son ’ s photograph. The domestic courts examined the applicant ’ s claims as they had been presented in her statement of claim, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law above).", "37. The applicant did not comment.", "2. The Court ’ s assessment", "(a) Compatibility ratione personae", "38. In accordance with Article 3 4 of the Convention, the Court can only deal with applications alleging that State bodies have committed a violation of the rights guaranteed by the Convention. The Court has no jurisdiction to consider applications directed against private individuals or businesses (see, among other authorities, Reynbakh v. Russia, no. 23405/03, § 18, 29 September 2005).", "39. In the present case, the applicant ’ s complaint is twofold. First, she complained that the publication of her minor son ’ s photograph in the booklet had infringed their private and family life. Secondly, she complained that the domestic authorities had failed to protect her and her son ’ s right to respect for their private and family life.", "40. Regarding the first part of the applicant ’ s complaint, the Court notes that it has been established in the domestic proceedings that the booklet had been prepared and published by a private publishing company at the request of the Centre, a State body. The photograph had been put on the front page of the booklet by Mr P., who had been contracted to work for the publishing company. The applicant initially brought civil proceedings against the Centre, but subsequently she agreed with the domestic court that the Centre was not a proper defendant in the case and had to be replaced by the publishing company and Mr P. Therefore, even assuming that the Centre might have had a share of responsibility in that the boy ’ s photograph had appeared on the front page of its booklet, the applicant did not pursue her claims against it. As for the publishing company, it was not owned by the State, did not exercise any public functions and the State does not appear to have had effective control of it. It follows that in so far as the applicant complains of the actions of that company, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "41. However, the second limb of the applicant ’ s complaint was directed against the domestic authorities, who had dealt with her complaints concerning the alleged violation of her and her son ’ s right to respect for their private and family life, and is therefore compatible ratione personae with the provisions of the Convention. It follows that the Government ’ s objection to this effect in respect of that part of the application must be dismissed.", "(b) Exhaustion of domestic remedies", "42. The purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, §142, ECHR 2010).", "43. The Court observes that in her statement of claim submitted to the District Court on 20 March 2008, the applicant complained that her honour, dignity and professional reputation had been damaged by the unlawful publication of her minor son ’ s photograph in the booklet. In particular, she submitted that the photograph of her son had been published in the booklet without her knowledge and consent, and had subsequently been widely distributed (see paragraph 15 above). It is true that the applicant did not explicitly rely on Article 152.1 of the Civil Code. However, it was for the District Court, during the preparation of the case for a court hearing, to determine which law to apply in order to decide the case on the basis of the totality of the data at its disposal (see paragraphs 29 and 30 in Relevant domestic law above). Furthermore, it appears from the records of the court hearings that the applicant ’ s representative, G., had expressly complained to the District Court that the photograph had been published without the applicant ’ s consent, in breach of Article 152.1. of the Civil Code (see paragraph 21 above). The Court further notes that in her grounds of appeal against the judgment of 20 June 2008, the applicant also complained that the District Court had not examined the case from the standpoint of Article 152.1. of the Civil Code (see paragraph 25 above). Having regard to the above, the Court considers that the applicant raised her complaint of unlawful publication and dissemination of her son ’ s photograph before the domestic courts and therefore provided them with an opportunity to put right the alleged violation of her and her son ’ s rights under Article 8 of the Convention.", "44. Accordingly, the Court dismisses the Government ’ s objection as to non-exhaustion of domestic remedies.", "(c ) Conclusion", "45. Having regard to its findings in paragraph 40 above, the Court considers that the applicant ’ s complaint about the actions of the publishing company is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "46. Having regard to its findings in paragraphs 41 and 44 above, the Court considers that the applicant ’ s complaint about the domestic authorities ’ failure to protect her and her son ’ s rights to respect for their private and family life is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "47. The Government considered that there had been no violation of the rights of the applicant and her son to respect for their private and family life.", "48. They submitted that in the case of Peck v. the United Kingdom (no. 44647/98, §§ 61-63, ECHR 2003 ‑ I) the Court had identified the following criteria to be applied in order to decide whether the publication of a photograph should be regarded as an interference with private life: whether the photograph related to private or public matters, and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. Applying those criteria to the present case, the Government submitted that the photograph did not relate to any private matter concerning the applicant – it did not show any scene from her private and everyday life and it had been taken in a public place with the applicant ’ s permission. Moreover, it had not been widely disseminated and its publication had had no impact on the applicant ’ s relationship with others. Referring to the case of Friedl v. Austria ( 31 January 1995, §§ 50-51, Series A no. 305 ‑ B ), the Government also pointed out that the booklet did not contain any information as to the identity of the applicant ’ s son and no action had been taken to identify the boy from the photograph. The publication of the photograph also served a noble purpose, namely to find adoptive families for orphans.", "49. The Government further submitted that even assuming that the State ’ s positive obligations in respect of the private and family life of the applicant and her son were engaged in the present case, Russia had complied with its positive obligations. The domestic courts had examined the applicant ’ s claims under Article 152 of the Civil Code and had come to the conclusion that the information contained in the booklet had not adversely affected the applicant ’ s honour, dignity and reputation.", "50. The applicant maintained her complaint.", "2. The Court ’ s assessment", "(a) General principles", "51. The “notion” of private life within the meaning of Article 8 of the Convention is a broad concept which extends to a number aspects relating to personal identity, such as a person ’ s name or image, and furthermore includes a person ’ s physical and psychological integrity; (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012, with further references). The Court has also accepted that a person ’ s reputation (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007) and honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) form part of his or her personal identity and psychological integrity and therefore also fall within the scope of his or her “private” life. In order for Article 8 to come into play, the attack on personal reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009 and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012 ).", "52. Regarding photographs, the Court has stated that a person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. It mainly presupposes the individual ’ s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009).", "53. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. That also applies to the protection of a person ’ s picture against abuse by others (see Von Hannover (no. 2), cited above, § 98, with further references).", "(b) Application of those principles to the present case", "54. It is common ground between the parties that the photograph published in the booklet was a photograph of the applicant ’ s son taken when the boy had been on holiday, and that 200 copies of the booklet with the photograph of the boy were published and a number of them were distributed in the Usolskiy District of the Perm region. Furthermore, it was not disputed that the publication of the photograph was not accompanied by any information or comments concerning the applicant herself. Nevertheless, the Court considers that the effect of the publication of the photograph on the applicant ’ s reputation can be accepted to have attained a certain level of seriousness and prejudiced the applicant ’ s enjoyment of her right to respect for her private life. Having regard to the above, the Court considers that the publication of the photograph falls within the scope of the applicant ’ s and her son ’ s “private life” within the meaning of Article 8 of the Convention.", "55. The main issue in the present case is whether the domestic courts afforded the applicant and her son sufficient protection of their private life.", "56. The Court observes that in taking their decision to dismiss the applicant ’ s claims, the domestic courts established that the photograph had been taken with the applicant ’ s authorisation and that the applicant had not placed any restrictions or conditions on its use. However, they failed to examine whether she had given her consent to the publication of the photograph.", "57. The Court further notes that the present case concerns the publication of a photograph which, at least by inference, can be seen to suggest that the applicant ’ s son was an orphan. Consequently, the impugned publication could have given its readers the false impression that the applicant ’ s son had no parents or that his parents had abandoned him. Any of these or other similar false impressions could prejudice the public perception of the family bond and relations between the applicant and her son.", "58. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "59. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "60. The applicant claimed 5, 200 Russian roubles (RUB) in compensation for the sums recovered from her in favour of the Centre by the decision of 20 January 2009. She also claimed RUB 300,000 in respect of non-pecuniary damage.", "61. The Government contested those claims.", "62. The Court awards the applicant 130 euros (EUR) in respect of pecuniary damage and EUR 7,5 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "63. The applicant also claimed RUB 11, 200 for the costs and expenses incurred before the domestic courts.", "64. The Government submitted that the applicant had not provided any documents to confirm that those expenses had been incurred.", "65. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads.", "C. Default interest", "66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1941 and lives in Bratislava. He was represented by Mr M. Kaľavský, a lawyer practising in Bratislava.", "3. The Government were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant wished to become a biological father through surrogacy, a practice that was not regulated by Slovak law. In March 2005, he and his alleged partner published a short advertisement in a nationwide daily newspaper seeking a woman who was willing and able to give birth to ‘their’ child, while offering a financial reward in return. The advertisement did not reveal the applicant’s identity and promised to keep any negotiations confidential. An investigative television reporter, pretending to be a potential surrogate mother, used a hidden camera to secretly record her meetings with the applicant in which arrangements for the surrogate pregnancy were discussed. On 27 June 2005, her report about the applicant’s intention to ‘buy’ a child, which included video recordings of the applicant, was broadcast on Slovak television. According to the applicant, the report contained unfounded assumptions which were intended to cause a sensation, and suggested that he was a member of an organised group selling children abroad.", "6. On 29 June 2005, a popular daily newspaper with national coverage published an article entitled “Trade in unborn children”, describing the applicant’s story as depicted by the television report, and displaying, without the applicant’s consent, his pictures taken from that report. With regard to details of the applicant’s private life, the article stated that the applicant had made his sister impersonate his wife and that, having lived for a long time in the United States, the applicant had only recently acquired Slovak citizenship. The article also mentioned the role of doctors who were allegedly ready to help with the assisted reproduction and the falsification of documents. The article ended by stating that although trafficking of unborn children was illegal in Slovakia, the applicant and his fake partner would probably escape justice and would not be punished because there was no legislation which would enable their actions to be prosecuted.", "The article was also published in the online version of the newspaper, where it was still available in June 2020.", "7. The applicant subsequently brought two actions for the protection of his personal integrity on the basis of Articles 11-13 of the Civil Code, one against Slovak television and the other against the publisher of the newspaper. In January 2007, he won the case against Slovak television before the first-instance court and was awarded more than 16,500 euros in damages; that decision was upheld by the appellate court’s judgment of 26 October 2011 (which became final on 3 February 2012). The courts found that Slovak television had violated the applicant’s rights by criminalising him, as well as by broadcasting, in breach of the law, video and audio recordings of him which had been obtained illegally, without enabling him to express his views on the facts presented in the report.", "8. The applicant’s action against the newspaper publisher was subsequently dismissed by courts at two levels of jurisdiction, on the grounds that the article aimed to inform readers about questions of public interest, the issue of assisted reproduction being extremely sensitive and somewhat controversial; that the applicant had himself attracted public and media attention by publishing his advertisement, thus excluding the relevant facts from his private sphere; and that the article in question contained only true information which had already been broadcast on public television. The Bratislava Regional Court, acting on appeal, also considered that Article 12 § 3 of the Civil Code allowed the photographs of the applicant to be used for news reporting without his previous consent, and that the applicant’s actions were legally unacceptable and morally reprehensible.", "9. The applicant lodged a constitutional complaint in which he argued, inter alia, that the publication of the pictures of him amounted to an abuse by the defendant of its right to freedom of expression. The Constitutional Court quashed the Regional Court’s judgment on 15 January 2014. In the Constitutional Court’s view, the Regional Court had not given an appropriate answer to all of the relevant arguments raised by the applicant and had thereby breached his rights under Article 6 § 1 and Article 8 of the Convention. Namely, it had failed to provide sufficient reasons for its conclusion that the article and the applicant’s pictures qualified as “news reporting by the press” within the meaning of Article 12 § 3 of the Civil Code; to duly assess the requirement of proportionality when analysing whether the pictures identifying the applicant had contributed to a discussion on matters of public interest; and to explain the factual basis supporting what was considered to be a value judgment on the manner in which the applicant had acted, that is a criticism ad personam.", "10. The case was thus remitted to the Regional Court and the parties were invited to submit additional comments.", "11. By a judgment of 17 July 2014, the Regional Court upheld the dismissal of the applicant’s action by the first-instance court. It considered, firstly, that although the applicant was not a publicly known figure, he had decided to enter the public sphere by publishing his advertisement, and should thus have expected a greater amount of attention from the public, all the more so given that his identity had already been revealed by the television report. Consequently, he could not be treated as an “ordinary citizen” and the level of protection for his private sphere was therefore partially reduced.", "As to the admissibility of critical value judgments of the applicant’s actions, the court pointed out that Slovak law did not allow surrogacy, and that any contract conflicting with the principle that a child’s mother is the woman who gave birth to that child, would be invalid as being contrary to good morals. Moreover, the commercial aspect of the surrogacy raised serious ethical questions, which was undoubtedly one of the reasons why the applicant’s advertisement had aroused so much interest in the media and among the public; and the issue of surrogacy was a matter of legitimate public interest upon which the press was called to inform the public. In the court’s view, the article in question did not contain any harsh or vulgar expressions, and was not only critical about the manner in which the applicant had tried to obtain a child but also about the actions of other people who were to have been involved in the process of assisted reproduction. There was no doubt that the article and the criticisms contained therein had a factual basis and relied on true and uncontested facts. In view of those considerations, the appellate court concluded that the publication of the article did not amount to an unjustified interference with the applicant’s rights, which were in that case overridden by the defendant’s right to freedom of expression.", "Concerning the publication of the applicant’s pictures, to which he had not consented, the appellate court referred to the legal exemption provided by Article 12 § 3 of the Civil Code, enabling pictures to be used, without the consent of the person concerned, for the purposes of news reporting. The term “news reporting” covered not only informing about facts of public interest but also assessing those facts in a critical manner. Although the article containing the applicant’s pictures concerned his private life, his private life was touched upon as a secondary issue (to illustrate the applicant’s motives), the core theme – and a matter of public interest ‑ being the manner in which the applicant had tried to obtain a child by offering a financial reward, that is through surrogacy, which was not allowed under Slovak law. The publication of the article with the pictures was also considered topical, given that it had occurred two days after the television broadcast and thus covered the subject at a time when the public were hearing information about the applicant’s actions. The pictures served the purpose of confirming the trustworthiness of the information published, all the more so because the subject of the article was unusual. The fact that it was published in the so-called tabloid press did not as such exclude it from the news reporting exemption, since the decisive factor was the manner in which the topic had been approached; in the present case, neither the content of the article nor the pictures were intended to create scandal about or ridicule the applicant. Consequently, the publication of the applicant’s pictures was covered by Article 12 § 3 of the Civil Code.", "Lastly, the appellate court observed that the author of the article had assessed the trafficking of unborn children in Slovakia as being illegal, while quoting the statement of a third party that the trafficking of unborn children could not be prosecuted because of the absence of relevant legislation. This amounted to a contradiction since an action which was not regulated by the criminal law could neither be contrary to that law nor subject to punishment; nevertheless, a surrogacy contract would be invalid from the perspective of family law. According to the court, it was necessary to take into account the fact that the article had been written by a journalist and published in a newspaper designed for a wide public, which required the acceptance of even simplified or distorted allegations; in the present case, the above-mentioned contradiction amounted to a lack of precision which did not have any impact on the applicant’s personality rights, given that the substance of the information relied upon in the article was true.", "12. The applicant challenged the Regional Court’s judgment by a constitutional complaint, arguing that its reasoning was still not compliant with his rights guaranteed under Article 6 § 1 and Article 8 of the Convention. As to the application of Article 12 § 3 of the Civil Code, he argued that the newspaper article had not been topical since the events covered had dated to more than two months back (when the pictures had also been taken), and contained a subjective assessment; thus, it could not be considered as “news reporting” and his consent to the publication of the pictures should have been sought. Moreover, the appellate court had failed to examine the manner and the extent to which the pictures – which formed three quarters of the article – had been used, which suggested that the main aim had not been to report about surrogacy but to reveal his identity; the use of the pictures was contrary to his legitimate interests. In the applicant’s view, there was no legitimate interest requiring the publication of his non ‑ pixelated pictures, which were not capable of contributing to a debate on a matter of public interest. The applicant emphasised in this context that the article had been based on a television report which had used illegally obtained material and which had been broadcast in breach of the law, as had been held in the proceedings against Slovak television, and that the publisher had not acted in good faith but only with the aim of causing a sensation. While the publisher could have had a legitimate interest in covering the public-interest issue of surrogacy, it had had the obligation to do so in an objective and sober manner, without focusing on one particular case and without revealing his identity and criminalising him. Furthermore, the article contained untrue and inadmissible critical value judgments, namely that he was considered to have trafficked unborn children even though no child had ever existed in this case.", "13. By decision no. II. ÚS 424/2015 of 1 July 2015 (served on 14 September 2015), the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. It considered that the Regional Court, having sufficiently reasoned its judgment and given a clear and comprehensive response to all of the questions raised, had complied with the requirements stemming from the rights to judicial protection and to a fair trial, and from the Constitutional Court’s previous judgment. It further observed that the right to respect for private life was not absolute and that the criteria to be taken into account when balancing that right and the journalist’s freedom of expression were the status of the person whose personality rights had been interfered with; the content and form of the article; the status of the author of the article; and the article’s purpose, aim and motive. In this connection, it was considered essential that the applicant had himself, through his advertisement, drawn attention to his intention to have recourse to surrogacy even though that practice was not in accordance with Slovak law. In so far as the article revealed circumstances of the applicant’s private life, even if it had done so in expressive and critical terms, it had not done so without purpose. The article had contributed to the public debate which had followed the television report, and the publication of the applicant’s pictures was allowed by the news reporting exemption. The author was a journalist, who was obliged to inform the public about matters of public interest, and it had not been proved that the defendant had acted in bad faith or tried to defame the applicant. Thus, according to the Constitutional Court, the Regional Court’s assessment of the proportionality of the interference had not overstepped the constitutionally acceptable limits." ]

[ "RELEVANT LEGAL FRAMEWORK", "14. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended).", "15. Pursuant to Article 11, natural persons have the right to protection of their personal integrity, in particular their life and health, civil and human dignity, privacy, name and personal characteristics.", "16. Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons, or their statements of a personal nature, may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purposes in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner, without the consent of the person concerned, for scientific and artistic purposes and also for news reporting by the press, film, radio and television. Such use cannot, however, be contrary to the legitimate interests of the person concerned.", "17. Pursuant to Article 13 § 1, all natural persons have the right to apply for an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference, and an award of appropriate compensation. Article 13 § 2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "18. The applicant complained that the dismissal of his action against the newspaper publisher amounted to a violation of his right to respect for his private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”", "Admissibility", "19. It is clear from the Court’s case-law, and the Government accepted, that Article 8 is applicable in the circumstances of the present case. The applicant’s allegation that his right to protection of his private life was infringed as a result of the publication of the article in question and the photographs raises serious issues of law and fact which require examination on the merits.", "20. The Court accordingly concludes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "21. The applicant was convinced that the domestic courts, by underestimating the importance of his right to respect for his private life and not having it as a central focus, and by considering the case only from the perspective of the publisher’s freedom of expression, had failed to reach a fair balance between the competing rights at stake.", "22. While the applicant did not contest that the publisher could legitimately publish an article about surrogacy in order to initiate a public debate, he argued that there had been no pressing social need to illustrate that topic using his own story, which disclosed his identity and private aspects of his life. The publication of his pictures had not, in any manner, contributed to a discussion about surrogacy; its only goal had been to create a scandal about him, cause a sensation and increase the number of readers.", "23. Referring to the Court’s case-law, the applicant contended that the duties and responsibilities stemming from Article 10 § 2 of the Convention require that journalists act in good faith in order to provide accurate and verified information in accordance with the ethics of journalism. However, in the instant case, the courts had stated in rulings on his claim against Slovak television that the recordings which had been broadcast in the television report (and subsequently used in the relevant newspaper article) had been acquired unlawfully, and that the television report itself (which had provided a basis for the article) had been broadcast in breach of the law (see paragraph 7 above). That unlawful disclosure of his identity in the initial report could not give anyone permission to publish his pictures, all the more so because such use was contrary to his legitimate interests, but the courts had failed to recognise that argument. The applicant further asserted that, although the publisher must have been aware of the unlawful origin of the material it had intended to publish, it had not tried to ascertain his position or to seek his consent to its publication.", "24. Lastly, the applicant emphasised that he had not committed any unlawful actions, therefore the journalist’s accusatory statements calling for his punishment could not be considered as value judgments based on true facts, as submitted by the Government.", "25. The Government referred to the Court’s case-law on Article 8 of the Convention but also to the principles established in the field of freedom of expression (citing Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, §§ 94-100, 26 July 2011, with further references), from which it followed that expression protected by Article 10 of the Convention did not amount to an unjustified interference under Article 8.", "26. As to the question whether the State had met its positive obligation to protect the applicant’s privacy from interference by a private publishing company, the existence of which interference was not contested, the Government shared the opinion expressed by the domestic courts after having duly assessed all the relevant circumstances of the case. The courts had correctly held that the applicant had brought himself within the public sphere and had attracted public and media attention by publishing the advertisement in which he had announced his private intentions. It was to be emphasised that the newspaper article in question had been published two days after the television report had been broadcast, which report had already revealed the applicant’s identity, and had caused a “public storm”. The Government further concurred with the courts’ conclusions that surrogacy was an issue of public interest which had a moral and ethical dimension.", "27. The Government was convinced that, in exercising its freedom of expression, the publisher had complied with its duties and responsibilities within the meaning of the Court’s case-law, since it had acted in good faith and in accordance with the ethics of journalism, with the aim of providing accurate and reliable information. All of the facts mentioned in the article had been based on the applicant’s own advertisement, and the terms used could not be considered as defaming or ridiculing him. The applicant’s assertion that the value judgments expressed in the article had not been based on the truth (see paragraph 24 above) had been refuted by the domestic courts, which had held that they had had a sufficient factual basis (see paragraph 11 above). Moreover, the applicant’s pictures had already been previously revealed in the television report; thus, the publisher had not had any reason to further protect the applicant’s identity and could publish the pictures without the applicant’s consent, with a view to reporting on questions of public interest.", "28. The Government therefore contested the argument that the domestic courts had failed to apply standards stemming from the principles established in the Court’s case-law or that they had failed to base their conclusions on an acceptable assessment of the relevant facts. They maintained that the courts had sufficiently reasoned why the protection of the publisher’s freedom of expression outweighed the applicant’s right to respect for privacy, and that they had reached the necessary fair balance between those competing interests.", "The Court’s assessment", "(a) General principles", "29. The Court observes that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity (see, for instance, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, ECHR 2017). This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX).", "A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. While in most cases it entails the possibility to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019).", "30. Proceeding from the assumption that the present case requires an examination of the fair balance that has to be struck between the applicant’s right to the protection of his private life under Article 8 and the publisher’s right to freedom of expression as guaranteed by Article 10, the Court notes that the principles with respect to the State’s positive obligations and the criteria for balancing the protection of private life against freedom of expression were set out in the Court’s judgment in Von Hannover (cited above, §§ 57-60) and have subsequently been elaborated in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012); Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012); and Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)). As identified in those cases, the main criteria of assessment are contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photographs were taken.", "31. Although freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 30, 16 January 2014, and Dupate v. Latvia, no. 18068/11, § 47, 19 November 2020). In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photographs or articles in the press to a debate of general interest. In its 2004 judgment in Von Hannover (cited above, §§ 60-66) the Court made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions. While in the former case the press exercises its vital role of a “watchdog” in a democracy by imparting information and ideas on matters of public interest, it does not do so in the latter case. Where the situation does not come within the sphere of any political or public debate and published photographs and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose to satisfy the curiosity of a particular readership, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, §§ 60-66, and Couderc and Hachette Filipacchi Associés, cited above, §§ 100-103).", "(b) Application to the present case", "32. The issue in the instant case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the defendant to freedom of expression. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law.", "33. In the circumstances of the present case, the Court considers it appropriate to examine the applicable criteria (see paragraph 30 above) in this specific order: how well-known is the person concerned; the prior conduct of the person concerned and the subject matter of the article; the content, form and consequences of the publication; the contribution to a debate of general interest; the method of obtaining the photographs.", "(i) How well-known was the applicant, the applicant’s conduct prior to the publication of the article in question and the subject matter", "34. The present case differs from the above-cited ones in that the applicant was not a public or newsworthy figure within the meaning of the Court’s case-law (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002, and Reklos and Davourlis v. Greece, no. 1234/05, § 41, 15 January 2009). Nonetheless, the domestic courts pointed in this respect to the applicant’s prior conduct, emphasising the fact that he had decided to enter the public arena by publishing an advertisement aimed at finding a surrogate mother. In their view, he should thus have expected a greater amount of attention from the public, all the more so because his identity had already been revealed in the television report (see paragraphs 11 and 13 above).", "35. In that connection, the Court observes, however, that the applicant had not himself sought any public exposure beyond placing an anonymous advertisement in a newspaper. He could not have suspected that by talking to the person who had contacted him as a potential surrogate mother, he was running a risk of being recorded and having his intentions and identity revealed in the media (see, mutatis mutandis, Bremner v. Turkey, no. 37428/06, § 78, 13 October 2015). Thus, the sole fact that the applicant, as an ordinary person, had made use of a newspaper advertisement, which only revealed his readiness to have recourse to commercial surrogacy while promising confidentiality, cannot, in the Court’s view, serve as an argument for reducing the level of the protection that should have been afforded to him under Article 8.", "36. Concerning the subject matter, the Court admits that the article, entitled “Trade in unborn children” (see paragraph 6 above), which mainly focused on the applicant’s plan to find a surrogate mother, his reasons for doing so and his meetings with the pretend candidate, also revealed some details of his private life. However, in so far as the article mentioned the involvement of (unnamed) doctors who were to have helped with the assisted reproduction and the falsification of documents, and the lack of legislation regulating that practice, the Court is ready to accept the domestic courts’ conclusion – which was shared by the Government – that the article was aimed at informing people about the controversial public-interest issue of surrogacy.", "(ii) The content, form and consequences of the article", "37. As far as the content and form of the published article are concerned, the Court reiterates that the newspaper published some information about the applicant’s background, his intentions and the content about his negotiations with the pretend surrogate mother. It conveyed a message of indignation about the fact that although trafficking of unborn children was illegal in Slovakia, the applicant could not be punished for his action; the applicant considered that to be an unacceptable accusatory statement.", "38. The domestic courts were of the view that the article did not contain any harsh or vulgar expressions which were intended to defame or create scandal about the applicant, and that the critical value judgments contained therein relied on the information which, although not sufficiently precise, was true in substance.", "39. The Court observes that the article portrayed the applicant rather in a negative light and that its general tone was not favourable to him. In the circumstances of the present case, and viewed in the light of the previous television report, it does not consider however that this in itself gave rise to a breach of the applicant’s right to respect for his private life.", "(iii) Contribution to a debate of general interest", "40. The Court reiterates that the definition of what constitutes a subject of general interest will depend on the circumstances of the case. Articles intended solely to satisfy the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 100, and Standard Verlags GmbH v. Austria (no. 2 ), no. 21277/05, § 52, 4 June 2009.) Furthermore, in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photographs or articles in the press is an essential criterion (see Von Hannover, cited above, § 109, with further references).", "41. In the instant case, while the domestic courts and the Government contended that the publication in question concerned surrogacy as a matter of public interest having a moral and ethical dimension, the applicant argued that there had been no pressing social need to illustrate that topic by his own story, disclosing his identity and private aspects of his life, and that publication of his photographs had made no contribution to a debate about surrogacy.", "42. Assessing the publication as a whole, in the actual context and situation, the Court notes that the article was published two days after the broadcast of a television report of similar content which, according to the Government, had caused a “public storm” (see paragraph 26 above). The article was thus closely linked in time to those events. Although the journalist had added little about the phenomenon of surrogacy in general, the Court is of the view that the article can be considered as having been written as part of a debate which was likely to be of significant interest to the general public.", "43. As regards, however, the potential contribution of publishing photographs of the applicant to a public-interest debate, the Court sees nothing in the article in question or in the materials in the case file to substantiate any general interest reasons for the journalist’s decision to include the pictures of the applicant without taking any particular precautions, such as masking his face (see, in that regard, Peck v. the United Kingdom, no. 44647/98, § 80, ECHR 2003 ‑ I). Given, in particular, the fact that the applicant was not known to the public (apart from the previous television report), there is nothing to suggest that the publication in question had any inherent informative value or had been properly and adequately used (see, mutatis mutandis, Gurgenidze v. Georgia, no. 71678/01, §§ 59 and 60, 17 October 2006, and Bremner, cited above, § 80). Nor was the domestic courts’ conclusion that the publication of the photographs was necessary for the purposes of news reporting within the meaning of Article 12 § 3 of the Civil Code substantiated by any relevant and convincing arguments.", "44. In that connection, the Court observes that in the case of Haldimann and Others v. Switzerland (no. 21830/09, § 65, ECHR 2015), which concerned sanctions imposed on journalists for broadcasting a hidden ‑ camera recording of an alleged negotiation between an insurance broker and a journalist, the Court found a violation of the applicants’ right to freedom of expression. In order to reach that finding it had considered decisive the fact that the applicants had pixelated the broker’s face and distorted his voice.", "45. Thus, while the Court accepts in the present case that the article addressed a matter of public interest (see also paragraphs 36 in fine and 42 in fine above), it considers that the method used for producing the article, notably the publication of large-size photographs of the applicant, can hardly be said to be capable of contributing to any debate on such a matter (see further below).", "(iv) Circumstances in which the photographs were taken", "46. It is not in dispute between the parties that the applicant did not consent to the publication of the photographs and that they had been obtained covertly by a television reporter using a hidden camera. However, although the applicant argued in the domestic proceedings that the photographs had been obtained illegally, for which Slovak television had been convicted, and that the publisher had not acted in good faith but only with the aim of causing a sensation (see paragraph 12 above), it appears from the materials in the case file that this factor was not duly taken into consideration by the domestic courts.", "47. In this context, the Court reiterates that the task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Couderc and Hachette Filipacchi Associés, cited above, § 89, and Dupate, cited above, § 47).", "48. In the present case, the courts appear to have attached particular importance to the fact that the applicant’s identity had already been revealed in the television report (see paragraph 11 above). The Court admits that the fact that someone’s picture has already appeared in an earlier publication might be considered in the balancing process (see Axel Springer AG, cited above, § 92) and lead to the conclusion that there was no need to restrict the disclosure of an identity (see Egeland and Hanseid v. Norway, no. 34438/04, § 60, 16 April 2009). However, the fact that information is already in the public domain does not necessarily remove the protection of Article 8 of the Convention, especially if the person concerned neither revealed the information nor consented to its disclosure (see, mutatis mutandis, Egeland and Hanseid, cited above, §§ 62-63, 16 April 2009, and N.Š. v. Croatia, no. 36908/13, § 100, 10 September 2020). Indeed, even with respect to a further dissemination of “public information”, the Court has found that the interest in publication of that information had to be weighed against privacy considerations (see Von Hannover, cited above, §§ 74-75 and 77). This is so because privacy is also about preventing intrusion. Thus, notwithstanding that the information in question was already known to the public, a further dissemination of such “public information” had still to be weighed against the applicant’s right to privacy (see, mutatis mutandis, N.Š., cited above, §§ 100 and 111).", "49. It has to be emphasised in the case at hand that the applicant could not have expected to be recorded or reported on in a public manner (see paragraph 35 above) and did not voluntarily cooperate with the media; thus, his reasonable expectations as to privacy are a significant, although not necessarily conclusive, factor (see Shabanov and Tren v. Russia, no. 5433/02, § 46, 14 December 2006, with further references). Furthermore, although it had been established in 2007 by the first-instance court and in 2011 by the appellate court that the material concerning the applicant had been obtained illegally by the television reporter, and broadcast in breach of the law (see paragraph 7), the domestic courts did not take that factor into account. Nor did they assess whether the journalist had acted in good faith and with necessary rigour and taking necessary precautions when disseminating material emanating from another source (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 65-66, ECHR 1999 ‑ III; Mihaiu v. Romania, no. 42512/02, § 67, 4 November 2008; and Ringier Axel Springer, cited above, § 106). In the Court’s view, it was indeed clear from the television report that the reporter had contacted the applicant, pretending to be interested in his advertisement, and that she had made the recordings with a hidden camera without the applicant being aware of it or having consented to it. This should have alerted the journalist and the newspaper publisher to the need to use that material with caution and not to disseminate it without masking or blurring the applicant’s face (see also paragraph 43 above).", "(c) Conclusion", "50. Having regard to the foregoing, the Court considers that while the domestic courts did engage in a balancing exercise between the right to private life and freedom of expression, that exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. The assessment of the applicant’s prior conduct was flawed (see Dupate, cited above, § 74) and the manner in which the photographs had been taken was not taken into account (see, conversely, Bild GmbH & Co. KG and Axel Springer AG (dec.), nos. 62721/13 and 62741/13, § 35, 4 December 2018). Most importantly, none of the domestic courts would appear to have assessed the contribution to the public-interest debate of broadcasting images of the applicant without blurring them (see Bremner, cited above, § 83).", "51. In these circumstances, and notwithstanding the margin of appreciation allowed to the domestic courts in this field, the Court concludes that the State has failed to fulfil its positive obligations under Article 8 of the Convention.", "52. There has accordingly been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "53. Relying on Article 6 § 1 of the Convention, the applicant complained of insufficient reasoning of the domestic courts’ decisions.", "54. Having regard to the grounds on which it has found a violation of Article 8 of the Convention (see paragraphs 50-51 above), the Court considers that, while this complaint is admissible, no separate issue arises under Article 6 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "55. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "56. The applicant claimed 16,596.95 euros (EUR) in respect of non ‑ pecuniary damage, which corresponded to the amount awarded to him by the domestic courts in similar proceedings (see paragraph 7 above).", "57. The Government contested the claim as being overstated and requested that, should the Court find any violation of the applicant’s Convention rights, any just satisfaction be awarded in an adequate amount.", "58. The Court considers that, in the particular circumstances of the present case, the finding of a violation of Article 8 of the Convention constitutes sufficient just satisfaction for the applicant.", "Costs and expenses", "59. The applicant also claimed EUR 10,572 for the costs and expenses incurred before the domestic courts, including the costs which he had to reimburse to the defendant, and EUR 419 for those incurred before the Court.", "60. The Government objected that the applicant had only proved the payment of the court fees amounting to EUR 1,559 and had not substantiated the rest of his claim with any relevant documents.", "61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum claimed for the fees incurred before the domestic courts, and for the costs paid to the defendant, that is to say EUR 6,030. It also considers it reasonable to award the sum claimed for the representation of the applicant before the Court, namely EUR 419.", "Default interest", "62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1949 and lives in Syracuse.", "7. She was a teacher at a private school in Lentini ( Syracuse ). The school was owned by a limited liability company, G., of which the applicant and three other teachers were members and Mr G. the manager.", "8. In July 1998 Mrs C. lodged a criminal complaint with the Revenue Police ( Guardia di Finanza ) about irregularities in the management of the school's affairs. She stated that she was a de facto member of G.", "9. The Syracuse public prosecutor's office opened an investigation in respect of the members and manager. On 20 July 1998 the Revenue Police searched the company's head office and the members'homes. At that time the applicant received official notification that she was under investigation.", "On an unspecified date the public prosecutor's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion, fraud and forgery. On 12 August 1998 the Revenue Police questioned the applicant.", "10. On 17 November 1998 the public prosecutor's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association, tax evasion and forgery of official documents.", "On 28 November 1998 the investigating judge ordered Mrs Sciacca and the other persons charged to be placed under house arrest.", "11. On 4 December 1998 the applicant was served with the judge's decision. Like anyone placed under house arrest, she avoided being remanded in custody. However, the Revenue Police compiled a file on her; photographs and fingerprints were included in it. On the same day the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference.", "12. Two newspapers published articles about the investigation.", "13. The first daily, Giornale di Sicilia, published two articles, on 5 and 6 December 1998. In the first one it referred to “ alleged formal and substantive illegalities in the management of a private school”. After stating that the applicant and three others, who had been placed under house arrest, had been charged with very serious offences ( criminal association, extortion, forgery, fraud and tax evasion ), the newspaper indicated that other persons charged “were allegedly also” victims of acts of extortion committed by the four people who had been arrested. After outlining the measures taken by the investigators, the newspaper stated that the four people who had been placed under house arrest “were allegedly” the de facto managers of the school. The newspaper went on to explain what the extortion had consisted of. It added that “ unofficial accounts had been found at the home of the four people concerned ” and that “ the investigators had found that the pupils enrolled” in two classes “were in fact the husbands and cousins of the women who had been arrested ”. The only passage reporting the investigators'statements concerned someone other than the applicant.", "14. The other article – published on the following day together with a photograph of the four arrested women – was similar in content to the first one.", "15. On 5 December 1998 the second daily, La Sicilia, published on the front page a photograph (identity format) of the four people who had been placed under house arrest and stated that they “had set up a bogus school”. The contents of the article were comparable to those of the articles published in the first daily.", "16. The applicant's photograph, together with that of the three other women who had been arrested, was published four times on 5 and 6 December 1998. Each time it was an identity photograph that had been taken by the Revenue Police when the file was compiled, at the time of the applicant's arrest, and released by them to the press.", "17. On 12 December 1998 the applicant challenged the order placing her under house arrest in the tribunale della libertà (a court with jurisdiction to examine preventive measures ) of Catania.", "On 28 December 1998 the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest.", "18. On 1 March 1999 the public prosecutor's office requested the applicant to be committed for trial. The case was listed for hearing before the investigating judge on 26 May 19 99. However, the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure.", "The case was therefore set down for hearing before the Syracuse Court on 6 June 2000.", "19. On 8 March 2002 the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution (Article 444 of the Code of Criminal Procedure – “ the CCP ” ( applicazione della pena su richiesta delle parti ) ), namely, one year and ten months'imprisonment and a fine of 300 euros." ]

[ "II. RELEVANT DOMESTIC LAW", "20. The parties did not provide the Court with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press.", "Presidential Decree no. 431 of 29 April 1976 sets forth the implementing regulations in respect of Law no. 354 of 26 July 1975 on the administration of prisons.", "With regard to persons charged who have been arrested and imprisoned, paragraphs 1 and 2 of Regulation 26 of the implementing regulations provide as follows :", "“ A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned. The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her. The ministry shall be informed that the file is being stored.", "The references of this personal file shall include civil-status particulars, fingerprints, photographs and any other item necessary for the exact identification of the person. ”", "It is clear from paragraph 5 of that regulation that the compilation of a personal file also concerns persons placed in pre-trial detention.", "21. Law no. 121 of 1 April 1981 concerns the new rules relating to public safety. The relevant provisions of this Law read as follows :", "Section 6 – Coordination and direction of the police forces", "“ With a view to implementing the guidelines issued by the Minister of the Interior on exercising the functions of coordination and unitary direction in respect of order and public safety, the Department of Public Safety shall carry out the following tasks :", "( a) classification, analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime, and distribution to the operational services of the above-mentioned police forces;", "... ”", "Section 7 – Nature and quantity of the data and information collected", "“The information and data referred to in section 6, paragraph (a ), must relate to information taken either from documents which are stored in one way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with Article 165 ter of the Code of Criminal Procedure or from police inquiries.", "In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race, religion, political opinions or adherence to the principles of a trade union, cooperative, charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in one of the above-mentioned spheres.", "... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "22. The applicant complained that the release of her photograph at the press conference organised by the public prosecutor's office and the Revenue Police had infringed her right to respect for her private life. She relied on Article 8 of the Convention, which is worded as follows :", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "23. The applicant's original complaint also concerned the divulgation of information about her during the press conference ( part of the complaint which the Court declared inadmissible on 4 September 2003 – paragraph 5 above ). The Government had submitted observations without making a distinction between the information divulged and the release of the photograph. Those observations may be summarised as follows, even if they do not specifically concern the release of the photograph.", "The Government observed that the applicant's right to respect for her private life was limited by the public's right to be informed and by the aim of preventing further criminal offences. They pointed out that Article 10 of the Convention guaranteed the freedom of opinion and of the press. The only limit on those freedoms was where the accused underwent “ trial by newspaper ” ( see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, pp. 38-39, § 63). As regards the second aspect, the Government submitted that in the present case account had to be taken of the nature of the offences of which the applicant had been accused – and subsequently convicted – offences which related, inter alia, to the management of a school, and harmed the interests of the community. Accordingly, the facts which had given rise to the prosecution – and did not strictly concern the applicant's private life – were matters that the community had an interest in knowing.", "In conclusion, in the Government's submission there had not been a violation of the provision in question.", "24. The applicant contested the Government's submission. She argued that the interference had been neither in accordance with the law nor necessary for one of the aims referred to in paragraph 2 of Article 8. Indeed, as the public had been unaware of the offence they had not had any interest in learning of it or knowing how the investigation was progressing. In any event, handing the press her photograph, which had been taken from her file, had not in any way been justified in her view. The claim that there had been no formal finding of guilt by a judicial authority had been contradicted by the contents of the articles written after the press conference.", "25. With regard to the elements disclosed at the press conference, the applicant denied that the public had an interest in learning of them, and asserted that they were private. Despite the serious nature of the offences, the information relating to the criminal proceedings – and above all the photograph taken by the investigators at the time of the arrest – should have remained secret. The applicant pointed out to the Court that the Government had not given any explanation regarding the release of the photograph to the press.", "26. The Court notes that the Government have not denied that the published photograph had been taken when the file was compiled, at the time of the applicant's arrest, and handed to the press by the Revenue Police.", "27. The Court has already examined the question of the publication of photographs of public figures ( see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI ) or politicians ( see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002 ). After concluding that the publication of photographs fell within the scope of private life, it examined the question of the respondent State's compliance with the positive obligations incumbent on it when the publication was not the result of action or co-operation on the part of State bodies.", "28. The present case differs from previous ones in that the applicant was not someone who featured in a public context (public figure or politician ) but the subject of criminal proceedings. Furthermore, the published photograph, which had been taken for the purposes of an official file, had been given to the press by the Revenue Police ( see paragraphs 16 and 26 above ).", "That being so, in accordance with its case-law the Court must determine whether the respondent State complied with its obligation not to interfere with the applicant's right to respect for her private life. It must verify whether there has been an interference with that right in the present case and, if so, whether that interference satisfied the conditions laid down in the second paragraph of Article 8 : was it “ in accordance with the law”, did it pursue one or more legitimate aims under paragraph 2 of that Article and was it “necessary in a democratic society” to achieve them?", "29. Regarding whether there has been an interference, the Court reiterates that the concept of private life includes elements relating to a person's right to their image and that the publication of a photograph falls within the scope of private life ( see Von Hannover, cited above, §§ 50-53). It has also given guidelines regarding the scope of private life and found that there is “a zone of interaction of a person with others, even in a public context, which may fall within the scope of'private life'” (ibid. ). In the instant case the applicant's status as an “ ordinary person ” enlarges the zone of interaction which may fall within the scope of private life, and the fact that the applicant was the subject of criminal proceedings cannot curtail the scope of such protection.", "Accordingly, the Court concludes that there has been interference.", "30. As regards compliance with the condition that the interference must be “ in accordance with the law ”, the Court notes that the applicant argued that this condition had not been complied with and that her submission was not disputed by the Government.", "According to the information available to it, the Court considers that the subject matter was not governed by a “law” that satisfied the criteria laid down by the Court's case-law, but rather by practice. The Court also notes that the exception to the secrecy rule regarding measures taken during preliminary investigations, provided for in Article 329 § 2 of the CCP, concerns only cases where an investigative document is published for the purposes of continuing the investigation. That was not the case here, however.", "The Court therefore concludes that the interference has not been shown to have been in accordance with the law.", "That finding is sufficient for the Court to conclude that there has been a breach of Article 8. Accordingly, it is not necessary to determine whether the interference in question pursued a “legitimate aim” or was “necessary in a democratic society” to achieve that aim ( see M. v. the Netherlands, no. 39339/97, § 46, 8 April 2003 ).", "31. In conclusion, there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "32. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "33. The applicant claimed 25, 000 euros (EUR) for pecuniary damage. She supported her claim by arguing that the publication of her photograph had prevented her from finding work and that the compensation should offset that loss of opportunity. She also claimed EUR 15, 000 for non-pecuniary damage.", "34. The Government did not comment.", "35. The Court notes that the applicant has neither proved the existence of any pecuniary damage nor, a fortiori, any causal connection with the alleged violation. Accordingly, this claim must be rejected.", "In respect of non-pecuniary damage, the Court considers that, in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction.", "B. Costs and expenses", "36. The applicant claimed EUR 14 ,932. 80 for costs and expenses. That amount included value-added tax and the contribution to the lawyers'insurance fund.", "37. The Government did not comment.", "38. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum ( see Iatridis v. Greece ( just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000- XI ). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 21, § 66).", "The Court notes that the violation found concerns only one complaint among others that have been declared inadmissible.", "39. According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the instant case, having regard to the information before it and to the above-mentioned criteria, the Court considers the amount of EUR 3, 500 to be reasonable for the proceedings before the Court and awards it to the applicant.", "C. Default interest", "40. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant is the Austrian Broadcasting Corporation ( ORF ), a public law foundation ( Stiftung öffentlichen Rechts ) with its seat in Vienna.", "5. On 13 July 1999 the applicant broadcast information on the evening news of its regional television channel about the release on parole of K., head of a neo-Nazi organisation called Extra-Parliamentary Opposition True to the People ( Volkstreue Ausserparlamentarische Opposition – “VAPO”) who had been sentenced under the National Socialist Prohibition Act ( Verbotsgesetz, “the Prohibition Act ” ). This news item also mentioned his deputy S., who had been convicted under the Prohibition Act in 1995 and had been released on parole five weeks earlier. Its text ran as follows:", "“For years G. K. [full name] was known as the head of the Austrian neo-Nazi scene. But it was only after the strengthening of the Prohibition Act in 1992 that he was charged and sentenced to eleven years'imprisonment. Many other members of the VAPO were put behind bars along with him, among them H.-J. S.[full name] – who has also recently been released. K.[family name], now aged 41, made the headlines even while in prison in Krems, for instance at the first letter bomb trial. His release today, however, took place without much ado. Waiting journalists saw nothing but his belongings packed in boxes.”", "6. While the third sentence of this text was broadcast, a picture showing S. at his trial in 1995 was broadcast for a couple of seconds.", "7. The news item was followed by a brief statement of the commentator. He stated that K. had served seven and a half years of his sentence. The Public Prosecutor had opposed his release on parole, but the Vienna Court of Appeal had granted K.'s request, having refused his first request for early release in 1997.", "8. On 23 September 1999 S. brought proceedings under Section 78 of the Copyright Act ( Urheberrechtsgesetz ), requesting that the applicant be prohibited from publishing his picture without his consent accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or once he had been released on parole. In addition he requested a preliminary injunction to that effect.", "9. In its submissions in reply ( Klagebeantwortung ) the applicant asserted that it had reported on true facts. As regards the publication of the applicant's picture the applicant referred to the Supreme Court's established case-law that Section 78 of the Copyright Act had to be interpreted in the light of Section 7a of the Media Act (see below). Given that S. was an adult who had been convicted of a crime, it followed from Section 7a (2) of the Media Act that the publication of his picture only violated his legitimate interests if it substantially prejudiced his economic advancement. Even if the claimant's legitimate interests were affected, they had to be weighed against the public interest in the publication. In the present case, the public interest was predominant, given that VAPO was an organisation which aimed at destroying the Austrian constitutional order and that two of its leading members, namely K. and the claimant, had been released from prison within a short period. Other media including two leading daily newspapers had also mentioned S.'s release in the context of reports on K.'s release. Finally, the applicant emphasised that under the relevant broadcasting laws it even had an obligation to impart information on political issues.", "10. On 11 November 1999 the Vienna Commercial Court ( Handelsgericht ) granted the preliminary injunction.", "11. The Commercial Court noted that the following facts were undisputed: The claimant, who had been convicted under the Prohibition Act in 1995 and had been sentenced to eight years'imprisonment, had been one of the leading members of VAPO which aimed at fighting against democratic order in Austria. He had participated in training camps organised by VAPO which were destined to train to kill. He had been released on 7 June and K. five weeks later on 13 July 1999. On the latter date the applicant had broadcast the report at issue.", "12. As to the interpretation of Section 78 of the Copyright Act in conjunction with Section 7a of the Media Act, the Commercial Court agreed that the legitimate interests of an adult who had been convicted of a crime were only violated if the publication of his name or picture disproportionately prejudiced his economic advancement.", "13. Applying this case-law to the facts of the present case, the Commercial Court noted that the report in the present case dealt mainly with K.'s release on parole. In its view there was an evident interest of S. not to have broadcast his picture taken in the course of criminal proceedings dating years back, even if the fact that he had meanwhile been released on parole was mentioned. S.'s picture had been widely broadcast at the time of the criminal proceedings against him. However, its broadcasting at the present stage did not add any relevant information to the report at issue, even if the criminal proceedings against him had been among the most important ones conducted under the Prohibition Act.", "14. On 21 June 2000 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant's appeal.", "The Court of Appeal confirmed the Commercial Court's assessment that the publication of S.'s picture had violated his legitimate interests within the meaning of Section 78 of the Copyright Act read in conjunction with Section 7a of the Media Act. Like the Commercial Court it stressed in particular that S.'s picture had been broadcast in the context of a report on the release of another person, K., and found that S. had an evident interest not to have his picture published in that context even if his own release dating some weeks back had also been mentioned. Even taking into account that S. had a certain degree of notoriety, his advancement within the meaning of Section 7a of the Media Act had been hampered disproportionately by the new publication of a picture taken at his trial.", "15. The Supreme Court ( Oberster Gerichtshof ) rejected the applicant's extraordinary appeal on points of law on 13 September 2000.", "In the subsequent main proceedings, the Vienna Commercial Court gave judgment on 31 December 2000. It ordered the applicant to refrain from publishing S.'s picture without his consent if it was accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or he had been released on parole. In its reasoning it repeated the arguments which had been developed in the preliminary injunction proceedings.", "16. On 29 November 2001 the Vienna Court of Appeal dismissed the applicant's appeal. It repeated the arguments set out in its judgment of 21 June 2000. Moreover, it referred to the Supreme Court's judgment of 13 September 2000.", "17. On 12 February 2002 the Supreme Court rejected the applicant's extraordinary appeal on points of law.", "18. The decision was served on the applicant's counsel on 8 April 2002." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Regulations concerning the ORF and broadcasting", "19. The general framework for broadcasting is set out in the Constitutional Act concerning the Safeguarding of the Independence of Broadcasting of 10 July 1974 ( “the Constitutional Broadcasting Act”, BVG über die Sicherung der Unabhängigkeit des Rundfunks, Federal Law Gazette no. 396/1974). Article 1 of the Constitutional Broadcasting Act, as far as material, reads as follows:", "“2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1 .”", "20. With effect of 31 December 2001 the ORF, which had been a public law corporation before, was transformed into a public law foundation, a legal entity without an owner by the Act on the Austrian Broadcasting ( “the 2001 Act”, Bundesgesetz über den Österreichischen Rundfunk, Federal Law Gazette no. 83/2001). Those provisions of the law relating to the setting up of the ORF's organs entered into force on 1 August 2001, the law in its entirety came into force on 1 January 2002.", "21. The foundation has to fulfil a public law mandate which comprises operating at least two national television programmes plus three national and nine regional radio programmes (Section 3 § 1 ).", "22. In accordance with Section 4 § 1 the ORF has to provide comprehensive news coverage of major political, social, economic, cultural and sporting events. In its broadcasts it has to observe the requirements of objectivity and diversity of views and has to preserve its independence from the State, parties, other media or lobbying groups (Section 4 §§ 5 and 6).", "23. Pursuant to Section 19 § 1 the ORF's bodies are the Foundation Council ( Stifungsrat ), the Director General ( Generaldirektor ), the Audience Council ( Publikumsrat ) and the Auditing Commission ( Prüfungskommission ). In the exercise of their functions, all members of these bodies are only subject to the law and are not bound by any instructions (Section 19 § 2).", "24. Section 20 regulates the appointment of the Foundation Council. It consists of 35 members who are appointed as follows: six by the Federal Government upon proposals of the political parties represented in the National Assembly ( Nationalrat ), nine by the Länder, nine by the Federal Government, six by the Audience Council and five by the Central Works Council ( Zentralbetriebsrat ). Pursuant to Section 21 § 1, the Foundation Council is in charge of monitoring the management and of appointing the Director General.", "25. The Director General is appointed for five years. The Foundation Council can only remove him from office with a two thirds majority (Section 22 §§ 1 and 5). The Director General runs the ORF's activitites. He is not bound by any instructions (Section 22 § 3).", "26. The Audience Council is composed of 35 members representing different sectors of society. Its task is to represent the interests of the audience (Section 28).", "27. The programme fees are fixed by the Foundation Council and are subject to approval by the Audience Council (Section 31 §§ 1 and 2).", "28. Pursuant to Section 32 § 1 the ORF has to guarantee the independence of all editorial and journalistic members of its staff. To safeguard the latter's independence the ORF has to conclude an Editor's Statute ( Redakteursstatut ) with the staff representatives elected by secret ballot.", "29. Section 35 provides that the Federal Communication Panel ( Bundeskommunikationssenat ) decides on alleged violations of the 2001 Act, unless the issue falls within the competence of the courts or administrative authorities.", "30. The ORF does not have a broadcasting monopoly. Private broadcasters may obtain licences under the Private Radio Act ( Regionalradiogesetz ) and the Private Television Act ( Privatfernsehgesetz ).", "31. The Federal Communication Panel, established by the Act on the Communication Authority Austria (Federal Law Gazette no. 32/2001) consists of five members, who are appointed for a term of six years. Three members have to be judges one of whom is elected by the Panel as its Chairperson. All members of the Panel are independent in the exercise of their functions and are not bound by any instructions. The Federal Communication Panel is competent to monitor the ORF's compliance with the 2001 Act (see paragraph 29 above) and to supervise the KommAustria, the authority competent for all matters of broadcasting regulation, including the granting of licences to private broadcasters and the supervision of private broadcasters'compliance with the provisions of the Private Radio Act and the Private Television Act. The decisions of the Federal Communication Panel are subject to an appeal to the Administrative Court.", "B. The Copyright Act", "32. Section 78 of the Copyright Act reads as follows:", "“(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured... ”", "33. Starting with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302) the Supreme Court has consistently held that Section 78 of the Copyright Act has to be interpreted in the light of Section 7a of the Media Act.", "C. The Media Act", "34. Section 7a of the Media Act reads as follows:", "“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who", "1. has been the victim of an offence punishable by the courts, or", "2. is suspected of having committed, or has been convicted of, a punishable offence,", "and where the legitimate interests of that person are thereby harmed and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6(1), second sentence, shall apply.", "(2) The legitimate interests of the victim shall in any event be harmed if the publication", "1. in the case of subsection (1)1, is such as to give rise to an interference with the victim's strictly private life or to his or her exposure,", "2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence or may disproportionately prejudice the victim's advancement.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "35. The applicant complained that the courts'decisions violated its right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "1. The parties'submissions", "36. The Government contested the applicant's locus standi within the meaning of Article 34 of the Convention.", "37. Referring to the Convention case-law concerning territorial authorities and to the case of The Holy Monasteries v. Greece ( judgment of 9 December 1994, Series A no. 301 ‑ A), they argued that the applicant did not qualify as a “non-governmental organisation”.", "38. The Government asserted that the applicant was, since 2001, a public law foundation without an owner. Nevertheless, it was under State control: the majority of the members of the Foundation Council, namely 18 out of 35, were appointed by the Federal Government and the Länder. Consequently, the public authorities were in a position to exercise a direct or indirect dominant influence on the applicant company, which therefore qualified as a public undertaking under EU-law (Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings directive).", "39. Furthermore the applicant had a public service mandate defined by law obliging it to provide regularly and permanently one region-wide and two nation-wide radio programmes and two nation-wide television programmes.", "40. It financed its activities from programme fees fixed unilaterally by its organs, namely the Foundation Council and the Audience Council. A company of which the applicant was the sole owner was empowered by law, namely the Collection of Broadcasting Fees Act ( Rundfunkgebührengesetz ), to collect these fees. Private broadcasters did not have such a system of financing at their disposal.", "41. Finally, the applicant's activities were subject to State supervision in two respects. Firstly, the Federal Communication Panel supervised the applicant company's compliance with its obligations under the 2001 Broadcasting Act. Secondly, the Audit Office ( Rechnungshof ) controlled its financial management.", "42. The applicant contested the Government's view. Although it was a legal person established by public law and provided a public service, it did not exercise any sovereign powers comparable to that of an administrative authority. Relying on a decision of the Constitutional Court (of 27 June 1975, G 24, 27/74) the applicant company argued that its bodies were neither state organs nor did they exercise governmental powers.", "43. Moreover, the applicant asserted that it was not acting under Government control. It argued that the 2001 Act, apart from transforming it from a public law corporation into a public law foundation, did not affect other aspects of its legal status, in particular its institutional independence. Its organs were established as independent bodies which did not receive any instructions in the exercise of their functions.", "44. The applicant's public service mandate consisted of the duties defined in the Constitutional Broadcasting Act, and was designed to secure the enjoyment of the right to freedom of information by all citizens. Moreover, the Constitutional Broadcasting Act was also applicable to private broadcasting companies with which the applicant company competed on the media market, just like public broadcasting companies in other European countries did.", "45. Finally, if one followed the Government's argument, public law broadcasting companies would not be able to rely on the provisions of the Convention, whereas their private competitors could, which would not be in conformity with the concept of the Convention.", "2. The Court's assessment", "46. The Court observes that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set fourth in the Convention and the Protocols thereto” may submit an application to it provided that it is a “non-governmental organisation ” within the meaning of Article 34 of the Convention. The Government's line of argument was that the ORF was a governmental rather than a non-governmental organisation.", "47. In its Radio France and Others v. France decision ( no. 5 3984/00, ECHR 2003 ‑ X (extracts)), the Court summarised the Convention case-law relating to the question whether territorial authorities and other public law entities qualified as “governmental organisations”:", "“ It follows from the above-mentioned decisions and judgment that the category of'governmental organisation'includes legal entities which participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities .”", "48. The Court notes at the outset that the parties'submissions refer to the legal situation as described in the 2001 Act on the Austrian Broadcasting, which had entered into force on 1 January 2002 before the final decision in the present case was given and the application lodged. It follows that the question of the ORF's locus standi is to be assessed in the light of the provisions contained in the 2001 Act.", "49. Applying the criteria set out in the Radio France decision (cited above) to the present case, the Court observes that the applicant undisputedly does not exercise governmental powers. It provides a public service and it therefore remains to be examined whether it does so under government control.", "50. The Court observes that the basic rules for broadcasting in Austria are laid down by the 1974 Constitutional Law concerning the Safeguarding of the Independence of Broadcasting, which stipulates that any law governing broadcasting has to contain provisions to ensure the objectivity and independence of reporting. The applicant which, since 1974, was a public law corporation was transformed into a public law foundation without an owner by the 2001 Act. Its capital, though stemming from public means, is therefore no longer held by the State. The applicant finances its activities from programme fees which it can fix itself. Its mandate is set out in the 2001 Act as are the rules relating to the establishment of its organs, namely the Foundation Council, the Director General, the Audience Council and the Auditing Commission.", "51. The Foundation Council monitors the applicant's management and appoints the Director General for a period of five years. The latter is responsible for running of the applicant's activities and can only be removed by the Foundation Council acting with a two-thirds majority. The Government argued in particular that the public authorities exercise control since the Federal Government and the Länder appoint a majority of the members of the Foundation Council, namely 18 out of 35. However, the Court notes a number of features which are designed to guarantee the ORF's independence. Firstly, its mandate laid down in Section 4 § 1 of the 2001 Act oblige it to observe the requirements of objectivity and diversity of reporting and to preserve its independence inter alia from the State and the parties. Secondly, Section 19 § 2 provides that the members of the Foundation Council are only bound by law in the exercise of their functions and do not receive any instructions. Section 22 § 3 contains the same provision for the Director General. Thirdly, a number of provisions of the said Act guarantee the editorial and journalistic independence of the applicant's staff members. Finally, the Federal Communication Panel which monitors the ORF's compliance with the 2001 Act is an independent body consisting of a majority of judges. Having regard to all these elements, the Court is not convinced that the applicant is placed under “government control.”", "52. Moreover, the Austrian Broadcasting does not hold a broadcasting monopoly, but operates in a sector open to competition. Private broadcasters can obtain licences under the Private Radio Act and the Private Television Act. As to the Government's argument that the applicant could rely on a method of financing which was not at the disposal of private broadcasters and was subject to the financial control of the Audit Office, the Court recalls that, even where a public broadcaster is largely dependent on public resources for the financing of its activities this it not considered to be a decisive criterion, while the fact that a public broadcaster is placed in a competitive environment is an important factor (see Radio France and Others, cited above).", "53. In conclusion, the Court finds that the Austrian legislator has devised a framework which ensures the Austrian Broadcasting's editorial independence and its institutional autonomy. Consequently, the Austrian Broadcasting qualifies as a “non-governmental organisation” within the meaning of Article 34 of the Convention and is therefore entitled to lodge an application.", "54. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "55. The applicant, while conceding that the interference at issue had a legal basis and served a legitimate aim, contested its necessity. It argued in particular that the prohibition to publish Mr S.'s picture in the context of any reports about his conviction under the Prohibition Act limited its choice of the form and means of imparting information, while other media remained free to publish Mr S.'s picture in the said context.", "56. In the applicant's assertion the Austrian courts had failed to duly weigh the competing interests, since they prohibited the publication of Mr S.'s picture although the accompanying text reported true facts, namely S.'s conviction under the Prohibition Act and his release from prison. Moreover, the news item at issue reported on a subject of great public interest which the applicant, given its broadcasting mandate, was obliged to cover, namely the release on parole of Mr K., a well-known neo-Nazi and leader of VAPO, an organisation which aimed at destroying the democratic order in Austria. There was an equally important public interest in reporting that only a few weeks earlier Mr K.'s deputy, Mr S., had also been released on parole.", "57. The Government's observations also concentrated on the necessity of the interference. They conceded that the news item broadcast by the applicant concerned an issue of public interest, namely the release on parole of Mr K., a leading neo-Nazi. Mr S. was only mentioned as an example of another convict in proceedings against VAPO members. Furthermore, his own release on parole a few weeks earlier was mentioned. The publication of a picture showing him at his trial years back did not add any information of public interest to the report.", "58. Even if Mr S. enjoyed certain notoriety, the courts had rightly found that his interest not to have his picture broadcast many years after his trial prevailed over the applicant's interest to use that picture for purely illustrative purposes. This was all the more so, since Mr S. had been released a few weeks earlier and was thus just beginning to re-integrate into society. He therefore had an important interest not to have his picture shown again in the context of criminal acts the penalty of which he had already served. In any case, the applicant remained free to report about the events at issue without showing Mr S.'s picture. In sum, the interference with the applicant's right to freedom of expression was proportionate.", "2. The Court's assessment", "59. The present case concerns proceedings under the Copyright Act brought by Mr S. against the applicant in respect of a news item in which his picture was shown. The courts prohibited the applicant from showing Mr S.'s picture in connection with any report stating that he had been convicted under the Prohibition Act one the sentence had been executed or once he had been released on parole. It is undisputed that the courts'judgments in these proceedings constituted an interference with the applicant's right to freedom of expression.", "60. It is not in dispute either that the interference was “prescribed by law” and served a legitimate aim, namely the protection of rights and reputation of others.", "61. The parties'argument concentrated on the necessity of the interference. As regards the general principles relating to freedom of expression of the media in the context of reporting on issues of public interest and the question of assessing the necessity of an interference with that freedom, the Court refers to its established case-law in the cases of Feldek v. Slovakia ( no. 29032/95, § § 72-76, ECHR 2001 ‑ VIII) and Scharsach and News Verlagsgesellschaft v. Austria ( no. 39394/98, § 30, ECHR 2003 ‑ XI).", "62. In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts'margin of appreciation.", "63. As it did in comparable cases, the Court will take the following elements into account: the position of the applicant, the position of Mr S. who brought the proceedings and the nature and subject matter of the report at issue ( see, for instance, Scharsach and News Verlagsgesellschaft, cited above, § 31, and Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001 ‑ II).", "64. The applicant is the Austrian public broadcaster. The Court notes that Section 4 § 1 of the 2001 Act obliges it to cover any major new item in the field of politics. In this connection the Court's reiterates its view that the press and more generally the media have a duty to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997 ‑ I, pp. 233-34, § 37).", "65. Mr S. who brought the proceedings at issue, is a well-known member of the neo-Nazi scene in Austria. The Court has already held in a similar case that a person expressing extremist views lays himself open to public scrutiny (see, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I). Moreover, Mr. S. was convicted of crimes under the Prohibition Act in 1995 and was sentenced to a lengthy prison term for being a leading member of VAPO, an organisation aimed at destroying the Austrian constitutional order. In the domestic courts'assessment the proceedings against Mr S. were among the most important ones under the Prohibition Act. At the time of his trial his picture was widely published.", "66. Turning to the nature and subject matter of the news item broadcast by the applicant, the Court notes that it was a brief report dealing mainly with the release on parole of Mr. K. the leader of VAPO and the neo-Nazi scene in Austria. Mr S. was mentioned as another convicted member of VAPO who had also been released on parole a few weeks earlier. It is not contested by the Government that the news item concerned an issue of public interest. Consequently, it related to a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the media from taking part in the discussion of matters of public interest (see for instance Thoma v. Luxembourg, no. 38432/97, § 58, ECHR 2001 ‑ III, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 25-26, § 35).", "67. The Court notes that the injunction granted by the domestic courts was phrased in broad terms. It prohibited the applicant from showing Mr S.'s picture in connection with any text mentioning his conviction under the Prohibition Act once the sentence has been executed or once he had been released on parole.", "68. While the court agrees that there may be good reasons to prohibit the publication of a picture of a convicted person after his release on parole a number of elements are to be taken into account when weighing the individual's interest not to have his physical appearance disclosed against the public's interest in the publication of his picture. Elements that will be relevant are the degree of notoriety of the person concerned, the lapse of time since the conviction and the release, the nature of the crime, the connection between the contents of the report and the picture shown and the completeness and correctness of the accompanying text.", "69. The domestic courts attached great weight to the time-element, in particular to the long lapse of time since Mr S .'s conviction, but did not pay any particular attention to the fact that only a few weeks had elapsed since his release. They did not take into account his notoriety and the political nature of the crime of which he had been convicted. Nor did they have regard to other important elements, namely that the facts mentioned in the news items were correct and complete and that the picture shown was related to the content of the report.", "70. The latter elements distinguish the present case from a comparable case ( Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004 ) which was declared inadmissible. In that case, the Court found no indication of a violation of Article 10 as regards the prohibition to publish a convict's picture after his release on parole. It had regard to the fact that the picture of B. who had been convicted under the Prohibition Act had been shown in a different context, namely in connection with the investigations in respect of a spectacular series of letter bomb attacks without mentioning that B. had been acquitted of any involvement in these attacks and without mentioning that he had served his sentence under the Prohibition Act and had been released on parole.", "71. Another element which is of relevance is that the other media remained free to publish Mr S.'s picture in the said context. This has not been contested by the Government.", "72. In sum the Court finds that the reasons adduced by the domestic courts were not “relevant and sufficient” to justify the interference. It follows that the interference was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "73. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10", "74. The applicant complained of a violation of Article 14 taken in conjunction with Article 10, in that the contested injunction prohibited it from publishing Mr S.'s picture while other media remained free to do so.", "75. The Government contested that argument.", "76. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "77. Having regard to the finding relating to Article 10 (see paragraph 71 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 14 taken in conjunction with Article 10 (see, among other authorities, News Verlags GmbH & Co.KG, cited above, §§ 61-62 ).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant claimed 6,711.63 euros (EUR) as compensation for pecuniary damage, namely the costs the courts had ordered it to reimburse to Mr. S. This sum includes value-added tax (VAT) which the applicant asserts it cannot recover.", "80. The Government commented in general terms that there must be a causal link between the damage claimed and the violation found.", "81. The Court finds that there is a causal link between the violation found and the pecuniary damage claimed; it awards the sum in full, that is EUR 6,711.63.", "B. Costs and expenses", "82. The applicant also claimed EUR 13,190.67 for the costs and expenses incurred before the domestic courts. It accepted that the amount of VAT included in this sum, namely EUR 1,892.74, have to be deducted. Moreover, the applicant claimed EUR 7,019.28 for costs and expenses incurred before the Court.", "83. The Government accepted the amounts claimed, but submitted that 20% VAT, i.e. EUR 1,169.88, had to be deducted from the costs incurred before the Court.", "84. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "85. In the present case, regard being had to the information in its possession and the above criteria, the Court awards EUR 11,297.93 in respect of costs and expenses incurred before the domestic court and EUR 5,849.40 for the proceedings before the Court. The total amount, which does not include VAT, is EUR 17,147.33.", "C. Default interest", "86. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant company is the owner and publisher of the weekly magazine News and has its registered seat in Vienna.", "A. Background of the case", "8. In June 2000 the Vienna City Counsel for Cultural Affairs ( Kulturstadtrat ), Mr Marboe, authorised the performance of Mr Schlingensief's “Container Action” during the Vienna International Festival ( Wiener Festwochen ). The staging took place in a container where actors figured as asylum seekers in Austria who were successively voted out for expulsion by the public. This container action met severe criticism by the public, inter alia, by members of the Austrian Freedom Party ( FPÖ ).", "9. On 30 June 2000 the newspaper Kurier published an open letter to Mr Marboe written by the Austrian artist André Heller, in which he thanked and congratulated Mr Marboe for having allowed Mr Schlingensief's performance. One passage of the open letter read as follows:", "“ ... It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess -Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. ...", "(German)", "... Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. ... ”", "10. Subsequently the FPÖ politicians quoted in this letter, except for Mr Mölzer, filed private prosecution proceedings for defamation against Mr Heller, which they withdrew later on.", "11. On 7 September 2000 the applicant company published the following article on page 46 of its issue no. 36/00:", "“ Lawsuit against André Heller", "FPÖ grandees sue critical artist André Heller. They are not'spiritually depraved', they maintain.", "Böhmdorfer is suing Heller. He is not alone, though: Jörg Haider, Peter Westenthaler and Susanne Riess -Passer have all launched a powerful attack on André Heller with the assistance of the law firm Böhmdorfer-Gheneff Rechtsanwälte KEG.", "The reason is that the artist André Heller, a critic of the Government, wrote an'open letter'in the Kurier lavishing praise on the Vienna city councillor for cultural affairs, Peter Marboe (ÖVP). Shortly before this, however, Peter Marboe had allowed Schlingensief's provocative container to be installed outside the Vienna State Opera House as a spectacle for the International Festival – despite bitter opposition from the Kronen Zeitung, a furious Vienna FPÖ and the Minister of Justice, Dieter Böhmdorfer, who threatened prosecution.", "André Heller wrote in the Kurier at the time:'It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess -Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are'(end of quotation). Böhmdorfer & Co. will not stand for this humiliation. They have instructed Böhmdorfer-Gheneff KEG, with which the Minister of Justice severed ties in March, to file a peppery lawsuit against Mr Heller.", "' Dastardly'. In the private lawsuit it was stated that the allegations made in Mr Heller's letter were'untrue'and that the'unsubstantiated accusation'that Böhmdorfer & Co. were “ dastardly ” amounted to'what would appear to be an absolutely classic case of defamation within the meaning of the Criminal Code'. The same applied to the expression'spiritually depraved political upstarts'.", "Huberta Gheneff-Fürst, now the sole partner of the law firm to which the current Minister of Justice Mr Böhmdorfer still belonged six months ago, has called for André Heller to be given'punishment commensurate with his guilt'as the person responsible for the deceitful smear.", "Last stop Maurer. As has happened in a number of similar cases, André Heller could be acquitted of defamation at first instance, since an artist really should have the right to express strong criticism. But at final instance Judge Ernest Maurer, known to be FPÖ-friendly, could come into the frame. Ernest Maurer was appointed to the Austrian Broadcasting Corporation's board of governors by the FPÖ, and that creates at least an appearance of bias.", "Suspicion. Even the President of the Judges'Association, Barbara Helige, is somewhat astonished at Ms Gheneff-Fürst, especially as the lawyer persists in retaining'Böhmdorfer'in the law firm's name:'If a former partner of the current Minister of Justice is stressing how important it is for Böhmdorfer's name to appear on the law firm's notepaper, the uninformed observer will suspect there is something political behind it.'", "Indeed. ”", "Above the article a photo showing Mr Westenthaler standing between Mr Haider and Mr Böhmdorfer was published.", "B. Proceedings for forfeiture", "12. Mr Westenthaler, one of the FPÖ politicians concerned, filed a request for forfeiture of the applicant company's issue no. 36/00 of 7 September 2000.", "13. On 9 October 2000 the St. Pölten Regional Court ( Landesgericht ), after having held a hearing, granted this request pursuant to section 33 § 2 of the Media Act and ordered the applicant company to pay the costs of the proceedings.", "14. The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff within the meaning of Article 115 of the Criminal Code ( Strafgesetzbuch ). The fact that the article merely quoted the impugned statements and had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under section 33 of the Media Act. In the light of Article 10 of the Convention, the court nevertheless expressed doubts as to the constitutionality of section 33 of the Media Act as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings. Thus, in the court's view, comprehensive reporting and criticism about pending defamation proceedings would be rendered practically impossible.", "15. The applicant company appealed, arguing that the forfeiture infringed its right to freedom of expression under Article 10 of the Convention.", "16. On 4 April 2001 the Vienna Court of Appeal ( Oberlandesgericht ) upheld the Regional Court's decision in essence. The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting. The court referred in this regard to the repeated hints to Mr Böhmdorfer, the allusions to the political motivations and misuse of the law-suits and the passage concerning the outcome of the defamation proceedings before the Court of Appeal, which in particular expressed that an artist should have the right to sharp criticism. The court further noted that the passage at issue had to be assessed in the light of the article as a whole. In this regard, the court found that the reporting style used was typical for News, namely the use of special layout, highlighting certain words in bold or italics and adding pictures etc., which aimed at influencing the reader unconsciously. The first part of the article, including the passage at issue, might still be regarded as objective reporting when being assessed isolated. Furthermore, however, the subtitle of the subsequent passage, namely the word “dastardly” written in bold, caught the reader's eye and focused his mind in an unambiguous direction, incriminating the plaintiff. Even though the subsequent passage merely dealt with the contents of the law-suits, it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance. The court concluded that the article had not limited itself in objective citation. The first instance court had falsely classified the article as reporting on court proceedings as such reporting presumed the existence of court trials whereas in the present case there had only been a private prosecutors'action. When balancing the interests involved, i.e., the right to freedom of expression of the applicant company on the one hand, and the interest of the plaintiff not to be defamed, on the other, the court found in favour of the latter. It noted that even accepting that there was a public interest in the subject matter at issue, the allegation against the plaintiff, namely that he had a dastardly character without having provided any factual basis for this assertion, defamed him within the meaning of Article 111 of the Criminal Code and was worthless information for public debate. Therefore, it exceeded the limits of lawful criticism under Article 10 of the Convention. Thus, the interference with the applicant company's right to freedom of expression, namely the forfeiture of the above issue, was necessary and also proportionate to the aim pursued. This all the more as forfeiture concerned in general only older issues with no relation to the present actuality and with merely historical interest.", "17. Finally, the Court of Appeal did not share the Regional Court's concern as regards a possible unconstitutionality of section 33 of the Media Act. The court noted that, in any way, the criteria set up under Article 10 of the Convention had to be considered when assessing whether or not a statement concerned established an offence within the meaning of Article 111 of the Criminal Code.", "18. This decision was served on the applicant company's lawyer on 26 April 2001." ]

[ "II. RELEVANT DOMESTIC LAW", "19. Article 111 of the Criminal Code ( Strafgesetzbuch ) provides:", "“ 1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine...", "2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine. ..”", "20. Article 115 of the Criminal Code provides:", "“ 1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ”", "21. A specific sanction provided for by the Media Act is forfeiture ( Einziehung ) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (section 33 § 1).", "22. Forfeiture can also be ordered in separate so-called “objective” proceedings for the suppression of a publication, as provided for under section 33 § 2 of the Media Act, by virtue of which:", "“Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "23. The applicant company complained under Article 10 of the Convention that the Austrian courts'decision ordering the forfeiture of its issue no. 36/00 of 7 September 2000 infringed its right to freedom of expression.", "Article 10, as far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The parties'submissions", "24. The applicant company argued that the open letter of Mr Heller fell under the protection of Article 10 of the Convention. It was part of a debate in the media concerning cultural and educational policy which included fundamental political aspects, included true statements of fact and value-judgments based on a factual basis and addressed, inter alia, Mr Westenthaler as leading politician of the FPÖ party. Consequently, the quotation of parts of this letter also enjoyed the protection of Article 10. In addition, the applicant company did not make the objectionable statements itself but restricted itself to a careful quotation. As criminal proceedings against Mr Heller were at that time pending, this information was of public interest. The structure and wording of the article at issue were neutral. Reporting about pending court proceedings could only be informative if also the subject of these proceedings was mentioned. The domestic courts had interpreted the article at issue and the applicant company's possibility of justifying the quotation of the impugned statements narrowly and in breach with Article 10 of the Convention. The mere fact that a statement had to be considered as an offence within the meaning of the relevant legislation did not imply that a report about such a statement amounted ipso iure to an offence against a person's honour. The wording of section 33 of the Media Act was not in conformity with the requirements of Article 10 of the Convention as it did not provide for protection of a correct quotation. The measure at issue constituted a punishment which nature remained unchanged irrespective of the severity of its consequences. It had suffered material damage from the order of forfeiture.", "25. The Government argued that according to the “quotation case-law” of the Austrian courts, the publication of a statement which satisfies the definition of an offence may lead to sanctions against the medium concerned unless there is any objective reason, such as e.g. the protection by a basic right, justifying such statement. In the present case, having carefully weighed the freedom of expression against the protection of the reputation of others, the second instance court set out comprehensively the arguments in favour of the application of section 33 of the Media Act. It rightly considered that the statement “ spiritually depraved ” amounted to an offence and violated the concerned person's right to reputation. Referring to case -law of the Court of Appeal, the Government asserted that the correct quotation of an insult of one person by another person was protected by Article 10 of the Convention and did not justify forfeiture. In the present case, however, the applicant company had not reported about the pending defamation proceedings in a neutral way but had identified itself with the content of the quoted statements. The Government referred in this regard to the Court of Appeal's findings as regards the structure and style of the article and, furthermore, to the article's subtitle which wording between the lines in their opinion called the rejection of the reproach of being “spiritually depraved” into question. A victim's right would be almost completely void without an adequate protection against abuse of quotations, if a medium was free to publish and add to defamation by third persons. The applicant company had not been deprived of the possibility to inform the public about the fact that criminal proceedings against Mr Heller were pending. Finally, the forfeiture was principally a safeguarding measure containing elements of minor punishment. It appeared proportionate as most of the issues of the weekly magazine had, in any way, already been published. The applicant company had not sufficiently substantiated the alleged damage resulting from the forfeiture.", "B. The Court's assessment", "26. The Court recalls at the outset that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 49, ECHR 2004 ‑ X, with further references ). In order to assess whether there has been a violation of Article 10 of the Convention, the Court will therefore examine the standpoint of reasoning adopted by the second instance court which ordered forfeiture as it found that the interests of Mr Westenthaler overweighed those of the applicant company in its right to freedom of expression.", "27. The Court finds, and this was common ground between the parties, that there was an interference with the applicant company's right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The interference at issue had its legal basis under section 33 of the Media Act and pursued the legitimate aim of protecting the reputation and rights of others.", "28. The parties'arguments concentrated on the necessity of the interference. The Court refers to the general principles relating to the freedom of the press and the question of assessing the necessity of an interference with that freedom, as set out in the summary of its established case-law in the case of Fressoz and Roire v. France ( [GC], no. 29183/95, § 45, ECHR 1999 ‑ I ). In accordance with its case-law, the Court will examine whether the reasons adduced by the domestic courts were “relevant and sufficient” and whether the interference was proportionate to the legitimate aim pursued. In so doing the Court will have regard to the domestic courts'margin of appreciation.", "29. In the present case, the article at issue included extracts of Mr Heller's letter calling several FPÖ politicians, among them Mr Westenthaler, “spiritually depraved political upstarts” who “have [not] the slightest awareness of how embarrassing, dastardly and frequently absurd they are”. The domestic courts ordered the forfeiture as they considered that these statements amounted to insults and defamation. The second instance court, unlike the first instance court, further argued that the forfeiture was necessary because the article had adopted, at least in part, the content of the quotation.", "30. The Court notes at the outset that the statements concerning inter alia Mr Westenthaler might certainly be considered as polemical. The Court finds, however, that it is of particular relevance in the present case that the article did not make the objectionable statements itself but assisted in their further dissemination by quoting them. At this time the impugned statements had in fact already been widely disseminated as another newspaper had published Mr Heller's open letter some months ago. The applicant company quoted this letter in the context of its reportage about the then pending defamation proceedings against Mr Heller which, involving several FPÖ politicians on the one hand and a well-known artist criticising them publicly on the other hand, was certainly a subject of public interest. The Court further recalls that the press'duty to impart information and ideas on all matters of public interest extends to the reporting and commenting on court proceedings (see, mutatis mutandis, News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 56, ECHR 2000 ‑ I, with further references). Not only do the media have the task of imparting such information and ideas: the public has a right to receive them. This is all the more so where, like in the present case, the persons involved i.e. well-known politicians, have laid themselves open to public scrutiny (see mutatis mutandis Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 38, ECHR 2003 ‑ XI ). The Court endorses the applicant company's and the first instance court's argument, that comprehensive reporting about the defamation proceedings at issue would have been considerably restricted without the possibility to inform the readers about the very subject of these proceedings.", "31. In these circumstances, the Court cannot find that the reproduction of the impugned extracts of Mr Heller's letter was in itself a valid ground for the forfeiture at issue (see mutatis mutandis Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 55). On the contrary, due to the fact that the publication of Mr Heller's statements contributed to the discussion of a subject of public interest and addressed well-known politicians, particularly strong reasons had to be put forward in order to explain any punishment of the applicant company for assisting in their dissemination (see mutatis mutandis Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III, with further references).", "32. The second instance court found that the article's report lacked neutrality and referred in this regard to the repeated hints to the Minister of Justice, Mr Böhmdorfer, whose former law-firm represented the plaintiffs in the defamation proceedings, the article's allusions to political motivations of the law-suits and its passage concerning the outcome of the defamation proceedings before the second instance court, which in particular, expressed that an artist should have the right to sharp criticism. It next noted that the quoted passage had to be assessed in the light of the article as a whole. While the first part of the article, including the passage at issue, might still be regarded as objective reporting when assessed isolated, the following paragraph, namely by its layout, suggested to the reader that Mr Westenthaler, as stated in the quoted passage, was in fact dastardly.", "33. The Court cannot find that these are “particularly strong reasons” within the meaning of the above cited case-law. It is certainly true that the article at issue reflected a rather critical approach towards the defamation proceedings. This in itself cannot, however, justify the conclusion that the article identified and adopted the content of the impugned statements of the quoted passage. In this regard the Court further recalls that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v. Luxembourg, cited above, § 64 ). The Court finds that in the present case the article remained within the limits of acceptable comment on court proceedings.", "34. Turning to the second instance court's remaining arguments, the Court notes that the paragraph following the quoted passage cited extracts of the law-suit's wording which challenged precisely the impugned passage. This paragraph was headed by one of the words subsequently cited, namely the word “dastardly” (“ niederträchtig ”) published between quotation marks and printed in bold. The Court does not find that this form of presentation suggested any message beyond quoting the actual wording of Mr Heller's statement and the subsequent law-suit.", "35. In any event, the Court points out that the quoted passage was clearly distinguishable from the remainder of the article as it was published between quotation marks, printed in italic letters and finished off with: “end of quotation” in brackets. No further comment on Mr Westenthaler's character was made in the article or its headings. In these circumstances, the Court cannot accept the argument that the article adopted Mr Heller's criticism as its own.", "36. Thus, the domestic courts restricted the applicant company's freedom of expression while relying on reasons which cannot be regarded as “relevant” and “sufficient”. They therefore went beyond what would have amounted to a “necessary” restriction on the applicant company's freedom of expression. The Government's argument as to the limited nature of the interference is therefore not decisive.", "37. It follows that there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "38. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "39. The applicant company did not submit any claim for damages. However, under the head of costs and expenses, it claimed reimbursement of Mr Westenthaler's domestic proceedings costs which it was ordered to pay. The note of fees accompanying this claim put these costs at 1,956.64 euros (EUR) including value-added tax (VAT).", "40. The Government did not make any comment on this claim.", "41. The Court finds that this claim should be considered under the head of pecuniary damage. Having regard to the direct link between the applicant company's claim and the violation of Article 10 found by the Court, it awards the applicant company the full amount of EUR 1,956.64. This amount includes VAT.", "B. Costs and expenses", "42. The applicant claimed reimbursement of its costs of the domestic proceedings and the Strasbourg proceedings. These claims were substantiated in the amount of EUR 1, 911.69 including VAT, as regards the domestic and EUR 7,010.6 0, including VAT, as regards the Court proceedings.", "43. The Government contended that the applicant company's claim as regards the costs of the Strasbourg proceedings was excessive and that, according to the Austrian Autonomous Remuneration Guidelines for Lawyers, a maximum amount of EUR 1,832.04 should be granted.", "44. As to the costs of the domestic proceedings, the Court finds that they were actually and necessarily incurred and also reasonable as to quantum. It therefore awards the full amount claimed, namely EUR 1,911.69. This amount includes VAT. The costs of the Convention proceedings were also necessarily incurred. Having regard to the sums awarded in comparable cases (see, for instance, Öllinger v. Austria, no. 58547/00, § 59, 29 June 2006 ) and making an assessment on an equitable basis, the Court awards EUR 3 ,500. This amount includes VAT.", "45. Thus, the Court awards a total of EUR 5,411.69 including VAT under the head of costs and expenses.", "C. Default interest", "46. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicants are brothers. Mr Amir and Damir Khuzhin were twins born in 1975 and Mr Marat Khuzhin was born in 1970. They all live in the town of Glazov in the Udmurtiya Republic of the Russian Federation. On 19 June 2006 Mr Damir Khuzhin died in an accident.", "A. Arrest of the applicants", "5. On 14 April 1999 the first and second applicants were arrested on suspicion of kidnapping committed in concert. The case was assigned to Mr Kurbatov, a senior investigator in the prosecutor ’ s office of the Udmurtiya Republic.", "6. On 12 May 1999 the investigator Mr Kurbatov questioned the third applicant as a witness. On the same day he was placed in custody. On 14 May 1999 the investigator issued a formal decision to arrest the third applicant on suspicion on aiding and abetting kidnapping.", "7. On 17 and 26 May 1999 the first applicant was allowed to see his fiancée, Ms Maksimova. It would appear that on the latter date they contracted a marriage because from 9 June 1999 she began visiting him as his wife and changed her name to Mrs Khuzhina. In the subsequent period she visited the first applicant on a regular basis once or twice a month.", "8. On 2 June 1999 the three applicants were charged with kidnapping and torture, offences under Articles 117 and 126 of the Criminal Code. They were accused of having abducted a certain Mr V., a homeless tramp, and forced him to perform physical labour in a fruit warehouse owned by them in exchange for extremely low pay. On several occasions V. had run away but the brothers had caught him, beaten him and tortured him by applying electric wires to various parts of his body.", "9. On 7 June 1999 the first applicant and his counsel requested the investigator to arrange for a confrontation with V. and a certain witness U. On the following day the investigator refused their request, noting that the confrontation was “undesirable as both V. and U. had previously been financially dependent on the Khuzhin brothers and during a confrontation Amir Khuzhin could exert a negative influence on them”.", "10. The third applicant and his counsel requested the investigator to interview witnesses G., L., and A., who could allegedly testify that V. had been able to move around freely and that the Khuzhin brothers had treated him well. On 18 June 1999 the investigator dismissed the request as unsubstantiated. He noted that V. ’ s liberty of movement had indeed been unrestricted in the beginning and the Khuzhin brothers had restrained him “only at a later stage” and that there were “a sufficient number of depositions by witnesses and the victim to the effect that the Khuzhin brothers had treated V. very badly and humiliated him”.", "11. It appears that on an unspecified date the police entered and inspected a warehouse belonging to the applicants.", "B. Press coverage of the case", "1. Television broadcast", "12. On 20 July 1999 the State television channel Udmurtiya broadcast the Versiya ( “ Version ” ) programme. The second part of the programme concerned the applicants ’ case. The participants included the presenter Ms Temeyeva, the Glazov town prosecutor Mr Zinterekov, the investigator Mr Kurbatov, and Mr Nikitin, who was head of the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic, as well as the victim V., whose face was not shown.", "13. Mr Zinterekov opened the programme with the following statement:", "“The Khuzhin brothers are, by their nature, cruel, insolent and greedy; they wished to get cheap or, more precisely, free labour. On the other hand, the victim V., a person with no fixed abode, mild and gentle...”", "14. The presenter started telling the story of V. ’ s enslavement. As she was speaking, black-and-white passport-size photos of the applicants were shown full screen.", "15. The presenter ’ s story alternated with that of the victim V., who related how he had been ill-treated by the Khuzhins and had unsuccessfully attempted to escape. The presenter asked the participants whether the Khuzhin brothers could be described as sadistic.", "16. Mr Zinterekov replied as follows :", "“We, that is, prosecutors and the police, have known these brothers from the time when they were still minors... We investigated the acts committed by the brothers but they could not be held criminally liable by virtue of their young age. After they reached the age [of majority], they found themselves in the dock. All three brothers were convicted of disorderly acts. In my opinion, that offence is very much characteristic of all the Khuzhin brothers in its cruelty and meaningless brutality. I think that the personal qualities of the Khuzhin brothers and [their] desire to have free labour have led to this crime.”", "17. The participants subsequently discussed why the victim had not come to the police immediately after the beatings had begun, and commented on legal aspects of the pending proceedings:", "“ [Mr Kurbatov : ] You know when [V.] came to the law-enforcement authorities in April 1999, our investigative group in the Glazov town prosecutor ’ s office was shocked at the cruelty of this crime. When a person comes for protection to the law-enforcement authorities, you should examine him closely, listen carefully to his story. [V.] had more than 187 injuries on him. The Convention [for the Prevention] of Torture naturally comes to mind.", "[Presenter:] The Khuzhin brothers are now charged under two provisions of the Criminal Code: Article 126 – kidnapping committed for lucrative motives, and Article 117 – torture.”", "As she was speaking, the first page of the criminal case file was shown on screen.", "18. The other participants offered the following comments:", "[Mr Zinterekov:] The prosecutor ’ s office will insist on imprisonment as a measure of punishment in respect of all three brothers... For instance, Article 126 § 2 provides for five to ten years ’ imprisonment, Article 117 provides for three to seven years ’ imprisonment. The court will have to choose...", "[Mr Nikitin:] A brazen crime. If anyone knows about similar facts, report them to the police and the criminals will be punished...", "[Presenter:] ... In September the Glazov Town Court begins its examination of the criminal case. Three businessman brothers who got a false idea of being slave-owners will get a well-deserved punishment.”", "19. The programme was broadcast again in August 1999 and on 15 May and 25 October 2001.", "2. Newspaper publication", "20. On 7 August 1999 the journalist Ms M. published an article under the headline “The Land of Slaves” ( «Страна рабов» ) in the local newspaper Kalina Krasnaya. It began as follows :", "“I am firmly convinced that the following story is just one fact that emerged from the dim waters of market relations. And ethnic relations as well. Though I wish I were impartial as regards these ethnic relations – each people has its enlightened scholars and cruel murderers.”", "21. The journalist related the story of V., who had been exploited and beaten by the Khuzhin brothers. The article mentioned that the elder brother ’ s first name was Marat, that the two other brothers were twins aged 24 and that they traded in fruit at a local market. The applicants ’ last names were not listed. A former classmate of V. who had given him refuge was quoted as citing a statement by V. himself, to the effect that “these Tatars have everything fixed up”. The final paragraph read as follows:", "“Many, many questions crossed my mind as I was reading the criminal case file. Why is the life of a dirty piglet more valuable than a human life? Why are masses of Russians, Udmurts and others among the unemployed, while ‘ they ’ not only find work for themselves but also use hired labour! And why does everyone in the town know about the doings of that best friend of all tramps and put up with it? . .. ”", "3. Complaints about press coverage", "22. The applicants lodged several complaints about the press coverage of proceedings against them.", "23. In a letter of 23 March 2000 Mr Nikitin replied that the programme had been produced on the basis of information supplied by the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic. Pursuant to Article 139 of the RSFSR Code of Criminal Procedure, the prosecutor ’ s office had had the right to disclose materials in the case file and make them available to the journalist.", "24. In a letter of 3 May 2000 a deputy prosecutor of the Udmurtiya Republic replied that there were no grounds to hold officials of the Glazov prosecutor ’ s office criminally liable for disclosure of materials from the investigation.", "25. On 25 August 2000 Mr Zinterekov wrote that there were no grounds for liability to be incurred either by officials of the prosecutor ’ s office or by journalists who had provided coverage of the proceedings.", "26. On 18 December 2000 a deputy prosecutor of the Udmurtiya Republic replied to the third applicant that Mr Zinterekov could not be held criminally liable for his statements.", "27. In a letter of 12 March 2001 a deputy prosecutor of the Udmurtiya Republic confirmed that the disclosure of the case file to the mass media had been in compliance with Article 139 of the Code of Criminal Procedure. He further noted that the Glazov town prosecutor (Mr Zinterekov) had been told to use “a more balanced approach in determining the scope of information that could be made public in criminal cases before the conviction has become final”.", "28. In similarly worded letters of 25 July and 15 August 2001, deputy prosecutors of the Udmurtiya Republic informed the first and third applicants that there were no grounds to initiate a criminal case against the maker of the television programme and that no further replies concerning that matter would be given. The Glazov town prosecutor was, however, instructed to check whether a criminal investigation should be opened in connection with the article in the Kalina Krasnaya newspaper.", "29. On 27 September 2001 an investigator from the Glazov prosecutor ’ s office issued a formal decision not to initiate a criminal case for libel against the journalist M., who had authored the article “The Land of Slaves”. It appears from the decision that, in M. ’ s own words, she had received formal permission from the investigator Mr Kurbatov to consult the case file and that Mr Kurbatov had approved a draft of the article. Mr Kurbatov, however, denied any memory of granting access to the file to M. and claimed he had never read the article in question. He did not deny, though, that he had briefed the presenter of the television programme on details of the criminal case. Referring to the applicants ’ conviction by the judgment of 2 March 2001 (see below), the investigator found that the contents of the article had been essentially true and that M. had not disseminated any false information damaging the third applicant ’ s dignity or honour.", "C. The applicants ’ trial", "30. On 31 July 2000 the Glazov Town Court held a directions hearing and scheduled the opening of the trial for 10 August 2000.", "31. The trial continued in late 2000 and early 2001. Witnesses for the prosecution and defence, as well as the victim Mr V., testified in court.", "32. On 2 March 2001 the Glazov Town Court found the applicants guilty of kidnapping and torture under Article 126 § 2 and Article 117 § 2 of the Russian Criminal Code. The third applicant was sentenced to five years and one month ’ s imprisonment, whilst the first and second applicants were to serve seven years in a high-security colony.", "33. The applicants appealed against the conviction. Their points of appeal concerned, in particular, the alleged prejudice to their presumption of innocence which had resulted from the newspaper publication and television programme described above. The prosecution also lodged an appeal. The case file was sent to the Supreme Court of the Udmurtiya Republic for consideration on appeal.", "34. On 29 October 2001 the acting president of the Criminal Division of the Supreme Court of the Udmurtiya Republic returned the case file to the Town Court because the trial judge had failed to consider the applicants ’ comments on the trial record, to locate the allegedly missing documents and to provide the applicants with a copy of the prosecution ’ s points of appeal.", "35. In an interim decision of 1 November 2001 the Glazov Town Court partly accepted and partly rejected the applicants ’ corrections of the trial record.", "36. On 18 December 2001 the Supreme Court of the Udmurtiya Republic heard the case on appeal and upheld the judgment of 2 March 2001. The court did not address the applicants ’ arguments concerning an alleged impairment of their presumption of innocence.", "D. Conditions of the applicants ’ transport", "37. Following their conviction, the applicants remained in detention facility no. IZ-18/2 for unspecified reasons.", "38. On 21 October 2002 the facility administration distributed winter clothing to the prisoners. The applicants refused to take it. On 13 November 2002 the third applicant accepted a padded jacket and the second applicant winter shoes.", "39. On 26 December 2002 the applicants were listed for transport from detention facility no. IZ-18/2 to correctional colonies. According to them, the outside temperature on that day was -36 o C; the Government submitted a certificate from the meteorological service showing that the temperature fell to -29.8 o C in the night.", "40. At about 5 p.m., when the applicants were taken to the assembly cell of the detention facility together with ten to twelve other detainees, they were wearing T-shirts and tracksuit bottoms. The wardens offered them winter jackets and hats which, according to the Government, hailed from the humanitarian-aid supplies but had been washed and were neat. The applicants claimed that the items were “torn and old” and refused to take them.", "41. At 10 p.m. the applicants, together with other prisoners, were put into a prison van and taken to Glazov railway station to board the Kirov-Kazan train that arrived at 10.10 p.m. The distance between the facility and the station was 800 metres and the journey time was less than five minutes. At 10.05 p.m. the van arrived at the station and the applicants emerged from it without winter clothing. A prison inspector dashed into the van, collected the winter clothing which the applicants had left behind, and gave it to the escorting officer. The officer again offered the clothing to the applicants to put on but they refused to do so, claiming that it was unfit to wear. According to the statements by the inspector and the officer, the clothing was in an “appropriate condition”.", "42. It appears that the argument went on for about 10 to 15 minutes. The head of the train escort refused to take the applicants in without appropriate clothing and the facility personnel decided to take them back into the cells.", "43. In support of their claim that the clothing had been “ inappropriate ”, the applicants produced to the Court a written statement signed by five other detainees who had been held in facility no. IZ-18/2 at that time.", "44. On 27 and 29 December 2002, 7 January and 11 April 2003 and other dates the applicants complained that they had been subjected to inhuman and degrading treatment on 26 December 2002.", "45. On 28 February 2003 Mr Zinterekov responded to them in the following terms:", "“It has been established that winter clothing was given to you and that you remained outside in clothing inappropriate for that season only because you refused to put it on. Your arguments that the clothing offered did not meet sanitary and hygiene standards could not have been objectively confirmed; there are no grounds for disciplining any officials.”", "E. Impounding of the third applicant ’ s van", "46. On 12 May 1999 the third applicant arrived in his van at the Glazov police station for questioning. On that day he was taken into custody (see above).", "47. On 13 May 1999 the investigator Mr Kurbatov impounded the van and ordered that it should be kept in the car park of a private company. The charging order itself did not indicate the grounds on which it had been issued, but referred back to the investigator ’ s decision of the same date, a copy of which was not made available to the Court.", "48. The third applicant repeatedly complained to various authorities that his van had been unlawfully seized. He alleged that the investigator was using it for his private errands.", "49. In a letter of 14 April 2000 the acting Glazov prosecutor reported to the third applicant the findings of an internal inquiry into his complaints. He found as follows:", "“On 12 May 1999 Mr Kurbatov arrested you ... However, the Gazel car, in which you had arrived, remained in the street outside the premises of the Glazov police station, and measures for its safe keeping were not taken. The car remained there until 13 May 1999, when Mr Kurbatov impounded it ... However, he did not examine the state of the car, nor did he show it to you or any attesting witnesses ...", "The impounded car was taken by a road police employee from Glazov police station, acting on Mr Kurbatov ’ s orders, into the premises of the [private company]. The car was not properly sealed ...", "It must be noted at the same time that there existed no legal grounds for impounding the vehicle, as required by Article 175 § 1 of the RSFSR Code of Criminal Procedure. According to that provision, a charging order could be issued with a view to securing a civil claim or a possible confiscation order. However, in this case no civil claim was brought throughout the proceedings and the criminal-law provisions under which [ the third applicant ] was charged do not provide for confiscation measures as a penal sanction.", "Thus, Mr Kurbatov breached Articles 141, 142, 175 and 176 of the RSFSR Code of Criminal Procedure – which set out the requirements for the record of impounding and the procedure for issuing charging orders – and also the Instruction on the procedure for seizing, accounting, storing and transferring physical evidence in criminal cases, values and other assets by law-enforcement authorities and courts.", "Further to the internal inquiry, the prosecutor of the Udmurtiya Republic was advised to determine whether Mr Kurbatov should be disciplined.”", "50. On 13 June 2000 the investigator Mr Kurbatov handed the keys and registration documents of the van to the Glazov Town Court.", "51. In letters of 19 July and 18 December 2000 the Udmurtiya Republic prosecutor ’ s office informed the third applicant that Mr Kurbatov had been disciplined for breaches of the Instruction on the procedure for storing physical evidence and fined in the amount of his bonus salary for the first quarter of 2000.", "52. It appears that on 4 June 2002 the Glazov Town Court lifted the charging order and the third applicant ’ s van was returned to Mrs Khuzhina (his brother ’ s wife).", "F. Civil proceedings against the investigator and journalists", "1. Civil action against the investigator and the journalist Ms M.", "53. On an unspecified date the third applicant sued the investigator Mr Kurbatov for damages on account of his failure to ensure the safe keeping of his van; all three applicants also brought a defamation action against the journalist Ms M., seeking compensation in respect of non-pecuniary damage. The Glazov Town Court ordered the joinder of both actions and listed a hearing for 3 March 2003.", "54. In February 2003 the applicants asked the court for leave to appear. Mrs Khuzhina, as a representative of the first applicant, asked the court to ensure the attendance of the applicants at the hearing.", "55. On 3 March 2003 the Town Court issued several procedural decisions. In the first decision, it rejected Mrs Khuzhina ’ s request for the applicants ’ attendance, holding that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case. The second decision took stock of the absence of both parties – the journalist Ms M. and a representative of the newspaper had not shown up despite having been notified of the hearing – and indicated that the case would be heard in their absence. It appears that Mrs Khuzhina then walked out of the courtroom in protest against the court ’ s decision to hear the case in the absence of the first applicant. In a third decision, the court decided to proceed with the case in her absence. It additionally rejected the applicants ’ request for leave to appear on the same grounds as above, adding:", "“ ... parties to the case do not just have rights but also have duties, such as [a duty] to make written submissions and substantiate their claims. Taking into account the fact that the rights of Mr A. Khuzhin, Mr D. Khuzhin and Mr M. Khuzhin are not restricted and can be exercised by them in full measure, there are no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent [ дерзкие ] crimes.”", "Lastly, the Town Court rejected the applicants ’ requests to summon witnesses and study the hearing records, reasoning as follows:", "“The substantiation of the Khuzhins ’ claim seeks to obtain a new assessment of the circumstances and findings set out in the criminal judgment of 2 March 2001. The statements by the Khuzhin brothers are not reasoned or argued; they are not procedural requests as such [ sic ]; they have repeatedly studied the materials in the case file and can study them again by receiving copies of them; since they are serving a sentence imposed by a court judgment in a penitentiary institution, the case must be examined in their absence.”", "56. On 4 March 2003 the Town Court refused for the same reasons the third applicant ’ s request to obtain attendance of witnesses and an expert. It also decided to proceed with the hearing in the absence of both parties ’ representatives.", "57. On the same day the Town Court dismissed all of the applicants ’ claims. On the defamation issue it found that the article “The Land of Slaves” had been based on the true facts which had subsequently been established in the criminal judgment of 2 March 2001. As regards the claim relating to the damage caused to the third applicant ’ s van, it established that the vehicle had been returned to him after he had paid compensation to the victim for non-pecuniary damage and that the investigator had acted within his powers and had not caused any damage through his actions.", "58. The applicants and Mrs Khuzhina appealed. They complained, in particular, of a breach of the principle of equality of arms. Mrs Khuzhina additionally pointed out that she had not been the representative of either Damir or Marat Khuzhin.", "59. On 7 October 2003 the Civil Division of the Supreme Court of the Udmurtiya Republic held an appeal hearing. It appears that neither the applicants nor Mrs Khuzhina were in attendance. The court held that there had been no breach of equality of arms because the applicants had been duly notified of the hearing and informed of their right to appoint representatives. The second and third applicants had not made use of that right, whereas the first applicant ’ s representative, Mrs Khuzhina, had declined to take part in the hearing. In the court ’ s view, the joinder of the cases was also lawful and justified because the second applicant had been a party to both claims.", "60. According to a letter of 30 April 2003 from the prosecutor of the Udmurtiya Republic to the second applicant, it was incumbent on the court hearing a civil claim to decide whether the detainee ’ s presence was necessary. The second applicant could have been escorted to the hearing if there had been a decision of the Glazov Town Court to that effect.", "2. The third applicant ’ s action against the prosecutor", "61. On an unspecified date the third applicant brought a defamation action against the prosecutor Mr Zinterekov. He challenged as defamatory the statements made by Mr Zinterekov in the Versiya television programme about the applicants ’ adolescent delinquency, insolence and greediness.", "62. On 14 November 2003 the Glazov Town Court delivered its judgment. Mr Zinterekov made oral submissions to the court; the third applicant was neither present nor represented. In dismissing the defamation action, the court noted as relevant the materials relating to the criminal case against the applicants and, more specifically, a reference letter for the second applicant from his secondary school that concerned his unauthorised absences from classes and disorderly behaviour. The court held that the facts as established in the judgment of 2 March 2001 had justified Mr Zinterekov ’ s reference to the applicants as insolent and greedy.", "63. On 19 December 2003 and 22 January 2004 the third applicant lodged his points of appeal, alleging, in particular, a violation of the principle of equality of arms.", "64. The Court has not been provided with any information about the appeal proceedings." ]

[ "II. RELEVANT DOMESTIC LAW", "65. The Criminal Code provides that torture is punishable with up to seven years ’ imprisonment (Article 117 § 2) and kidnapping with up to twenty years ’ imprisonment (Article 126 § 3).", "66. The RSFSR Code of Criminal Procedure (in force at the material time) provided as follows:", "Article 137. Recognition as a civil claimant", "“If the investigator observes, on the basis of the case file, that the crime committed caused pecuniary damage to an individual or organisation, he must explain to them or to their representatives that they have a right to lodge a civil claim ...", "If a civil claim has been lodged, the investigator must issue a reasoned decision recognising [the interested party] as a civil claimant or refusing such status ... ”", "Article 139. Unacceptability of divulging the materials from the preliminary investigation", "“Materials from the preliminary investigation may only be made public with the consent of an investigator or a prosecutor and to the extent they consider it possible... ”", "Article 175. Charging of property", "“With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant ... or of the other persons who keep criminally acquired property ... If necessary, the charged property may be impounded ... ”", "67. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before the court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1).", "68. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant.", "69. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person ’ s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant ’ s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).", "THE LAW", "I. AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF THE APPLICANT MR DAMIR KHUZHIN", "70. Following the death of the second applicant on 19 June 2006 (see paragraph 4 above), the other two applicants, his brothers, informed the Court of their wish to pursue in his stead the grievances he had raised.", "71. The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant ’ s heirs or close family members who expressed the wish to pursue the proceedings before it (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). In the instant case it observes that the complaints raised by all three applicants were similar in substance and that the situations they complained about affected them in an equal measure. It therefore accepts that the first and third applicants may pursue the application in so far as it was lodged by the late second applicant.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "72. The applicants complained under Article 3 of the Convention that they had been humiliated, intimidated and pressurised by the investigator. They further complained that they had been transported in inhuman conditions on 26 December 2002. In addition, the first applicant complained of the degrading conditions of his detention from 22 April 1999 to 16 May 2002 and from 26 June 2002 to 16 January 2003. Article 3 reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "73. The Court observes at the outset that the first applicant raised his complaint about the conditions of his detention for the first time in an addendum to the application form dated 19 December 2003. Since this complaint relates to the period of detention which ended on 16 January 2003, it was submitted outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "74. The Court further notes that the applicants ’ submissions about the alleged intimidation and pressure on the part of the investigator were not elaborated on and did not contain any description of the alleged ill-treatment. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "75. Finally, as regards the complaint about the incident on 26 December 2002, the parties ’ submissions may be summarised in the following manner.", "76. The applicants submitted that they had been subjected to inhuman and degrading treatment because they had been deliberately put in a prison van without warm clothing, taken to the railway station, held there for some thirty minutes and then taken back to the prison. Padded jackets and winter hats had not been given to them before they had entered the van but only at the station. They had been unable to put them on because the jackets had shrunk after repeated washes. The applicants claimed that the time taken to enter and leave the prison van had been as long as twenty minutes because each prisoner had been required to state his full name, date of birth, the charges against him and the duration of the sentence.", "77. The Government put emphasis on the fact that the applicants had repeatedly been offered winter clothing but had refused to put it on. Admittedly, the clothing had been used but had been clean and neat as per the applicable sanitary and hygiene requirements. The applicants ’ decision to stay outside in the frost without appropriate clothing had been the result of their own deliberate actions.", "78. The Court observes that the circumstances of the incident on 26 December 2002 are largely not in dispute between the parties. On that day the applicants were scheduled to be transported to the correctional colony by train. The outside temperature was extremely low. As they were leaving the detention facility, prison officers handed them winter clothing, which they declined to put on. The train escort refused to take them in without warm clothes and the applicants were brought back to the detention facility. By all accounts, the applicants stayed outside the facility for less than one hour.", "79. The only contentious point between the parties is whether the clothing offered to the applicants was fit to wear. In their original submissions the applicants claimed that it had been “torn and old” (see paragraph 40 above), whereas in their submissions on the merits they alleged that it had been too small because it had shrunk. However, the Court is not convinced by the latter claim because it appears peculiar that it transpired for the first time only at an advanced stage of proceedings. The Government, for their part, did not deny that the clothing had not been new, yet they maintained that it had been washed in compliance with hygiene requirements. In these circumstances, the Court concludes that the applicants were offered winter clothing which was used but clean.", "80. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, p. 65, § 162).", "81. In the instant case the alleged inhuman treatment consisted in the applicants ’ being exposed to an extremely low outside temperature without warm clothing. It was not in dispute between the parties that their exposure was the result of the applicants ’ deliberate choice not to put on the clothing that the facility wardens had repeatedly offered to them.", "82. It has not been claimed that the applicants were singled out for any kind of special treatment. In particular, it does not appear that the winter clothing which was handed to them was any different from that distributed to other prisoners. As the Court has found above, the clothing was not new and was probably quite worn. Nevertheless, there is no evidence that it was in such a dire state as to be unacceptable to wear. Nor has it been alleged that it did not offer sufficient protection from the cold. The Court therefore cannot conclude that the domestic authorities failed in their duty to provide the applicants with adequate protection against inclement weather.", "83. Having regard to the above circumstances, the Court finds that the treatment complained about did not go beyond the threshold of a minimum level of severity. It follows that this part of the complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION", "84. The applicants complained under Article 5 of the Convention that their detention orders had not been based on sufficient reasons and that they had not been released pending trial despite their applications to that effect.", "85. The Court notes that the applicants ’ pre-trial detention ended with their conviction on 2 March 2001, whereas their application was only lodged on 26 February 2002, more than six months later. It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN THE CRIMINAL PROCEEDINGS", "86. The applicants complained under Article 6 §§ 1 and 3 (a ), ( b ) and ( d) that the materials in the investigation file had been made available to them only at the end of the investigation, that they had not had an opportunity to question the witnesses for the defence and the victim and that the trial judge had been biased and had dismissed their challenges. They further claimed that the length of the criminal proceedings against them had been excessive. Finally, they alleged a breach of their presumption of innocence guaranteed by Article 6 § 2 of the Convention in that the prosecution authorities had closely cooperated with the mass media during the trial. The relevant parts of Article 6 read as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...", "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.", "3. Everyone charged with a criminal offence has the following minimum rights:", "(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;", "(b) to have adequate time and facilities for the preparation of his defence;", "...", "(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ”", "A. Admissibility", "87. The Court notes that the criminal proceedings against the applicants lasted from 12 April 1999 to 18 December 2001, that is, for two years and eight months. Within that period the pre-trial investigation lasted for one year and three months and the trial at first instance continued from 31 July 2000 to 2 March 2001. The appeal proceedings had been preceded by a delay resulting from the Town Court ’ s failure to take certain procedural steps which were considered indispensable by the Supreme Court (see paragraph 34 above). Once those defects had been remedied, the appeals were heard in less than two months ’ time. The Court reiterates that the fact that the applicants were held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002 ‑ VI). Nevertheless, noting that there were no significant delays attributable to the authorities, save for the one mentioned above, and making a global assessment of the circumstances of the case, the Court does not find that the duration of proceedings was in breach of the “reasonable time” requirement in Article 6 § 1 of the Convention.", "88. As regards the complaint about the allegedly insufficient time for the preparation of the defence, the Court observes that in the Russian legal system it is normal practice to allow defendants to study the case file after the pre-trial investigation has been completed. This does not in itself run counter to the requirements of Article 6 of the Convention. The applicants did not complain that the time for studying the case file was insufficient or that their right to read the materials in the file was otherwise restricted.", "89. The Court further observes that the victim V. gave oral evidence during the trial and that the applicants therefore had an opportunity to put questions to him. As to the witnesses for the defence whom the court allegedly refused to call to the witness stand, the Court notes that the trial court did examine certain witnesses for the defence. The applicants did not identify further witnesses they wished to have examined or explain why it would have been useful to examine them in the circumstances of the case. Nor did they substantiate their claim that the trial judge had lacked impartiality. It follows that the above - mentioned complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "90. Finally, the Court considers, in the light of the parties ’ submissions, that the complaint concerning the alleged prejudice to the applicants ’ presumption of innocence raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "B. Merits", "1. Submissions by the parties", "91. The applicants submitted that the investigator Mr Kurbatov and other employees of the prosecutor ’ s office had not only granted Ms Temeyeva unrestricted access to the criminal case file but had also actively participated in the television show. The showing of the front cover of the case file in the opening sequence of the television show demonstrated that it had been made physically available to the journalist. The show had been recorded before the case had been referred for trial; it had been extensively advertised with the sensationalist line “Slavery in Glazov at the end of the twentieth century” and aired at such times as to precede the adjourned trial hearings and the appeal hearing. Article 139 of the RSFSR Code of Criminal Procedure could not be interpreted as justifying an encroachment on the applicants ’ presumption of innocence. Their right to be presumed innocent until found guilty had been further damaged by the statements made by the journalist Ms Temeyeva, the prosecutor Mr Zinterekov, the investigator Mr Kurbatov and the prosecutor Mr Nikitin during the television show. In addition, the prosecution had also granted access to the case file to the journalist Ms M., the author of the article “The Land of Slaves”, which had also been highly prejudicial to the applicants. The applicants insisted that the extensive press coverage of their case and the statements by high-ranking prosecution officials had led the public to believe them guilty.", "92. The Government denied that the investigator Mr Kurbatov had made the physical criminal case file available to the journalist Ms Temeyeva. They claimed that he had orally communicated to her certain information which he had considered appropriate to disclose in accordance with Article 139 of the RSFSR Code of Criminal Procedure. By that time the preliminary investigation had been completed and the case had been referred for trial. The Government submitted that the participants in the Versiya television show had not made any statements which could have breached the applicants ’ presumption of innocence.", "2. The Court ’ s assessment", "93. The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 35). It prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62) but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41; Daktaras v. Lithuania, no. 42095/98, §§ 41 - 43, ECHR 2000 ‑ X; and Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002 ‑ II ).", "94. It has been the Court ’ s consistent approach that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer v. Germany, no. 37568/97, § § 54 and 56, 3 October 2002, and Nešťák v. Slovakia, no. 65559/01, § § 88 and 89, 27 February 2007 ).", "95. Turning to the facts of the present case, the Court observes that a few days before the scheduled opening of the trial in the applicants ’ case, a State television channel broadcast a talk show, in which the investigator dealing with the applicants ’ case, the town prosecutor and the head of the particularly serious crimes division in the regional prosecutor ’ s office took part. The participants discussed the applicants ’ case in detail with some input from the show ’ s presenter and the alleged victim of their wrongdoings. Subsequently the show was aired again on two occasions during the trial and once more several days before the appeal hearing.", "96. As regards the contents of the show, the Court notes that all three prosecution officials described the acts imputed to the applicants as a “crime” which had been committed by them (see their statements in paragraphs 16, 17 and 18 above). Their statements were not limited to describing the status of the pending proceedings or a “state of suspicion” against the applicants but represented as an established fact, without any qualification or reservation, their involvement in the commission of the offences, without even mentioning that they denied it. In addition, the town prosecutor Mr Zinterekov referred to the applicants ’ criminal record, portraying them as hardened criminals, and made a claim that the commission of the “crime” had been the result of their “personal qualities” – “cruelty and meaningless brutality”. In the closing statement he also mentioned that the only choice the trial court would have to make would be that of a sentence of an appropriate length, thus presenting the applicants ’ conviction as the only possible outcome of the judicial proceedings (see paragraph 18 above). The Court considers that those statements by the public officials amounted to a declaration of the applicants ’ guilt and prejudged the assessment of the facts by the competent judicial authority. Given that those officials held high positions in the town and regional prosecuting authorities, they should have exercised particular caution in their choice of words for describing pending criminal proceedings against the applicants. However, having regard to the contents of their statements as outlined above, the Court finds that some of their statements could not but have encouraged the public to believe the applicants guilty before they had been proved guilty according to law. Accordingly, the Court finds that there was a breach of the applicants ’ presumption of innocence. This finding makes it unnecessary to examine separately the applicants ’ grievance that the release of the case file to the journalists was also prejudicial to their presumption of innocence.", "97. There has therefore been a violation of Article 6 § 2 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN THE CIVIL PROCEEDINGS", "98. The applicants complained of a breach of the equality-of-arms principle flowing from Article 6 § 1 of the Convention, in that the domestic courts examining their civil claims had refused them leave to appear. The relevant part of Article 6 reads as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Admissibility", "99. The Court observes that it has not received any information about the outcome of the defamation proceedings instituted by the third applicant against the prosecutor Mr Zinterekov (see paragraph 64 above). In these circumstances, this part of the complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "100. As regards the other claim lodged by the applicants, the Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "B. Merits", "1. Submissions by the parties", "101. The applicants emphasised that the summons had mentioned their right to appear in person before the civil court. However, since they were deprived of their liberty, the exercise of that right had been conditional on the court ’ s decision to have them transferred to the local investigative unit. They pointed out that Mrs Khuzhina had left the court, protesting against the court ’ s decision to refuse them leave to appear. They maintained that the principle of equality of arms had been breached because they had not been present or represented in the proceedings.", "102. The Government submitted that at the relevant time the applicants had been serving their sentences in a correctional colony. They had been duly summoned to the hearing and also informed of their right to make written submissions to the court. Mrs Khuzhina, a representative of the first applicant, had left the hearing of her own will and without any explanation. The court had examined written submissions by the second applicant. The third applicant had not appointed a representative, although he had been informed of his right to do so. The Government considered that there had been no violation of the applicants ’ right to a fair trial because they had made use of their right to make written submissions or to appoint a representative.", "2. The Court ’ s assessment", "103. The Court reiterates that the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party and to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, § 33 ). The Court has previously found a violation of the right to a “public and fair hearing” in several cases against Russia, in which a party to civil proceedings was deprived of an opportunity to attend the hearing because of the belated or defective service of the summons (see Yakovlev v. Russia, no. 72701/01, §§ 19 et seq., 15 March 2005; Groshev v. Russia, no. 69889/01, §§ 27 et seq., 20 October 2005; and Mokrushina v. Russia, no. 23377/02, 5 October 2006). It also found a violation of Article 6 in a case where a Russian court refused leave to appear to an imprisoned applicant who had wished to make oral submissions on his claim that he had been ill-treated by the police. Despite the fact that the applicant in that case was represented by his wife, the Court considered it relevant that his claim had been largely based on his personal experience and that his submissions would therefore have been “an important part of the plaintiff ’ s presentation of the case and virtually the only way to ensure adversarial proceedings” (see Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007).", "104. The Court observes that the Russian Code of Civil Procedure provides for the plaintiff ’ s right to appear in person before a civil court hearing his claim (see paragraph 67 above). However, neither the Code of Civil Procedure nor the Penitentiary Code make special provision for the exercise of that right by individuals who are in custody, whether they are in pre-trial detention or are serving a sentence. In the present case the applicants ’ and their representative ’ s requests for leave to appear were denied precisely on the ground that the domestic law did not make provision for convicted persons to be brought from correctional colonies to the place where their civil claim was being heard. The Court reiterates that Article 6 of the Convention does not guarantee the right to personal presence before a civil court but rather a more general right to present one ’ s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Steel and Morris v. the United Kingdom, no. 68416/01, § § 59-60, ECHR 2005 ‑ II ).", "105. The issue of the exercise of procedural rights by detainees in civil proceedings has been examined on several occasions by the Russian Constitutional Court, which has identified several ways in which their rights can be secured (see paragraph 69 above). It has consistently emphasised representation as an appropriate solution in cases where a party cannot appear in person before a civil court. Given the obvious difficulties involved in transporting convicted persons from one location to another, the Court can in principle accept that in cases where the claim is not based on the plaintiff ’ s personal experiences, as in the above-mentioned Kovalev case, representation of the detainee by an advocate would not be in breach of the principle of equality of arms.", "106. In the instant case the applicants were informed of their right to appoint a representative in civil proceedings and the first applicant nominated Mrs Khuzhina as his representative. However, given the personal nature of their claim for defamation, they sought leave to appear before the civil court, which was refused to them by the judge on 3 March 2003. After Mrs Khuzhina refused to participate further in the hearing in protest against the judge ’ s decision and walked out of the courtroom, the judge decided to proceed with the case in her absence and also in the absence of the applicants, finding that “there [were] no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent crimes”. On the following day the court dismissed the applicants ’ claim in its entirety.", "107. The Court notes that, after the Town Court had refused the applicants leave to appear in terms that can only be described as prejudicial, it did not consider the legal possibilities for securing their effective participation in the proceedings. Furthermore, it did not adjourn the proceedings to enable the second and third applicants, on having learnt of the refusal of leave to appear, to designate a representative and the first applicant to discuss the issue of further representation with Mrs Khuzhina or to find a replacement lawyer. The applicants were obviously unable to decide on a further course of action for the defence of their rights until such time as the decision refusing them leave to appear was communicated to them. However, as it happened, that decision reached them at the same time as the judgment in which their claim was dismissed on the merits. The appeal court did nothing to remedy that situation.", "108. In these circumstances the Court finds that the fact that the applicants ’ civil claim was heard with them being neither present nor represented deprived them of the opportunity to present their case effectively before the court.", "109. There has therefore been a violation of Article 6 § 1 of the Convention in those proceedings.", "VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "110. The first and second applicants complained under Article 8 of the Convention that the investigator had exerted pressure on their relatives. In addition, the first applicant complained under the same provision about the broadcasting of his photo and personal details during the Versiya television show. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "111. The Court notes that the applicants did not furnish any details of the pressure allegedly put on their relatives. It appears that the first applicant was able to receive visits from his fiancée ( later his wife ) on a regular basis (see paragraph 7 above), whereas the second applicant did not raise any specific grievances about family visits. In these circumstances, the Court is unable to discern any interference with these applicants ’ family life. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "112. As regards the alleged interference with the first applicant ’ s private life, the Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "113. The first applicant submitted that the black-and-white photo of him which had been shown during the television programme had been the one from his passport which had been appended to the criminal case file. This proved that the journalist had obtained it from the prosecuting authorities. He considered that the broadcasting of his photograph had not served any legitimate purpose and was in breach of Article 8 of the Convention.", "114. The Government did not mention the broadcasting of the applicants ’ photographs in their observations. They indicated, nevertheless, that, in the assessment made by the Prosecutor General ’ s Office, there had been no violation of Article 8 § 1 in respect of the applicants.", "2. The Court ’ s assessment", "115. The Court reiterates that the concept of private life includes elements relating to a person ’ s right to his or her image and that the publication of a photograph falls within the scope of private life (see Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I; and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI). In the Gurgenidze and Von Hannover cases the State failed to offer adequate protection to the applicants against the publication of their photographs taken by journalists, whereas in the Sciacca case the applicant ’ s published photograph had been released to the press by the police without her consent (see Sciacca, cited above, §§ 16, 26 and 28). The Court found that the fact that Mrs Sciacca was the subject of criminal proceedings did not curtail the scope of the enlarged protection of her private life which she enjoyed as an “ordinary person” (§ 29).", "116. The situation in the instant case was similar in substance to that obtaining in the Sciacca case. Without his consent, the first applicant ’ s passport photograph was taken by the police from the materials in the criminal case file and made available to a journalist, who used it in a television show. The Court finds that there has been an interference with the first applicant ’ s right to respect for his private life.", "117. As regards the justification for the interference, the Court observes that none has been put forward by the Government. The Court considers that where a photograph published in the context of reporting on pending criminal proceedings has no information value in itself, there must be compelling reasons to justify an interference with the defendant ’ s right to respect for his private life (compare News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 58 et passim, ECHR 2000 ‑ I ). Even assuming that Article 139 of the RSFSR Code of Criminal Procedure could be a lawful basis for granting the press access to the case file, in the instant case the Court does not see any legitimate aim for the interference with the first applicant ’ s right to respect for his private life. Being in custody at the material time, he was not a fugitive from justice and the showing of his photograph could not have been necessary for enlisting public support to determine his whereabouts. Nor could it be said to have bolstered the public character of judicial proceedings because at the time of the recording and the first airing of the television show the trial had not yet begun. Accordingly, the Court finds that in the circumstances of the present case the release of the first applicant ’ s photograph from the criminal file to the press did not pursue any of the legitimate aims enumerated in paragraph 2 of Article 8.", "118. There has therefore been a violation of Article 8 of the Convention in respect of the first applicant.", "VII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "119. The applicants complained under Article 1 of Protocol No. 1 about the unlawful impounding and retention of the third applicant ’ s van. They also alleged a violation of that provision on account of the police ’ s forceful entry into the warehouse, the locks of which had been damaged as a result. Article 1 of Protocol No. 1 provides as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "120. The Court observes that the applicants did not raise the complaint about the alleged damage to the warehouse in any domestic proceedings. It follows that it must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "121. It is not in dispute that the third applicant was the sole owner of the van. Accordingly, the Court considers that the complaints by the other two applicants relating to the van are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. On the other hand, the third applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Since it is not inadmissible on any other grounds, it must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "122. The Government submitted that the van had been returned to Mrs Khuzhina, who had not made any complaints about its state or any missing property. The third applicant ’ s claim against the investigator Mr Kurbatov had been dismissed by the domestic courts as unfounded. The Government asserted that his complaint under Article 1 of Protocol No. 1 was manifestly ill-founded because he had already made use of effective domestic remedies.", "123. The third applicant claimed that the vehicle had remained for more than three years in an open-air car park, as a result of which it had suffered a depreciation in value and considerable damage. Since it had been returned to Mrs Khuzhina rather than to its lawful owner, the third applicant, she had been unable to detect any missing parts or items of property. Moreover, the impounding of the vehicle had been unlawful: the Udmurtiya Republic prosecutor had ruled that the investigator Mr Kurbatov had proceeded without a legal basis and had acted in breach of the Instruction on storing physical evidence. However, the third applicant ’ s right to claim damages in civil proceedings had turned out to be merely theoretical rather than practical and effective, as required by the Convention.", "2. The Court ’ s assessment", "124. The Court observes that the “possession” at issue in the present case was the vehicle of which the third applicant was the lawful owner. The vehicle was impounded on 12 May 1999 and returned to his brother ’ s wife on 4 June 2002, three years and almost one month later.", "125. The parties did not take a clear stance on the question of the rule of Article 1 of Protocol No. 1 under which the case should be examined. The Court observes that the charging of the car amounted to a temporary restriction on its use and thus fell under the scope of the second paragraph of Article 1 concerning “a control of the use of property” (see Air Canada v. the United Kingdom, judgment of 5 May 1995, Series A no. 316 ‑ A, § 34).", "126. The Court has next to determine whether the interference was justified in accordance with the requirements of that provision. In this connection it reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful”: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, among other authorities, Baklanov v. Russia, no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, no. 58254/00, § 33, 24 March 2005, with further references ).", "127. The RSFSR Code of Criminal Procedure, in force at the material time, envisaged two situations in which a charging order in respect of a suspect ’ s or defendant ’ s property could be issued (Article 175) : firstly, if the offence with which the individual was charged carried a confiscation measure as an auxiliary penal sanction; and secondly, if the charging order was necessary to secure a civil claim in the criminal proceedings.", "128. In the instant case the Court observes that neither the offence of torture nor that of kidnapping, which formed the charges against the third applicant, carried a confiscation measure as a penal sanction (see paragraph 65 above). Furthermore, at the time the investigator issued a charging order no civil claim had been brought in criminal proceedings and no one had been recognised as a civil claimant by a reasoned decision, as required by Article 137 of the RSFSR Code of Criminal Procedure. It follows that neither of the two grounds was applicable for making a charging order in respect of the third applicant ’ s vehicle. The deficient legal basis for the contested measure was identified by an inquiry carried out by the supervising prosecutor in response to the third applicant ’ s complaints (see paragraph 49 above). The prosecutor found, in particular, that the investigator had acted in breach of Article 175 of the Code, in that he had impounded the vehicle without legal grounds for doing so. In examining the third applicant ’ s claim for damages, the domestic courts did not clarify why they believed that in those circumstances the investigator had acted in accordance with the applicable legal provisions.", "129. Accordingly, the Court finds that the interference with the third applicant ’ s rights under Article 1 of Protocol No. 1 did not meet the requirement of “lawfulness”. There has therefore been a violation of that provision.", "VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "130. Lastly, the applicants complained under Articles 9 and 14 of the Convention about discrimination on account of their Tatar ethnicity in the article by the journalist Ms M. The Court notes that the applicants did not raise the alleged discrimination issue in any domestic proceedings and that the contested statements represented a personal opinion by the journalist, for which the State authorities cannot be held accountable. It follows that this complaint must be rejected for non-exhaustion of domestic remedies or as being incompatible ratione personae with the provisions of the Convention.", "131. The applicants alleged a violation of Article 13 of the Convention in respect of all the above complaints. The Court observes that they did not explain in any detail why they considered that they were denied effective domestic remedies for their grievances. Having regard to the circumstances of the case, the Court finds that the complaint is devoid of merit. It therefore rejects this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.", "IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "132. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "133. The applicants did not submit any claim for just satisfaction. Instead, on 30 September 2005 the Court received a claim from Ms Natalie Volodina for pecuniary and non-pecuniary damage and also costs and expenses.", "134. The Government pointed out that the claim had been signed by Ms Volodina, who had not been authorised to represent the applicants before the Court. In addition, there had been significant discrepancies between the amounts cited in Ms Volodina ’ s covering letter and the list of claims enclosed with it. The claims for pecuniary damage and costs and expenses had not been accompanied by any supporting documents and the claim for non-pecuniary damage was either unrelated to the alleged violations of the Convention or manifestly excessive.", "135. The Court observes that the claim for just satisfaction was not signed by the applicants or by either of their two representatives in the proceedings, Ms Moskalenko or Ms Bokareva. Instead, it bore the signature of Ms Volodina, who had not been designated as the applicants ’ representative before the Court. No explanation as to Ms Volodina ’ s status in the proceedings or authority to act on the applicants ’ behalf has been provided. In these circumstances, the Court is unable to accept that the claim was submitted by the applicants or by their authorised representative. The claim must therefore be rejected." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1981 and lives in Tbilisi.", "A. Posting of the applicant ’ s photographs", "6. On 20 June 2003 criminal proceedings for murder were initiated (“the murder case”). On 3 July 2003 charges of murder and the unlawful acquisition, storage and transportation of firearms were brought against the applicant ’ s brother and another person. The accused persons, having fled, were formally declared wanted on 4 July 2003.", "7. On an unspecified date in July 2003, photographs of four persons – the applicant, his brother, the other person accused of murder and the latter ’ s brother – were posted on the boards of “wanted persons” in the police stations of the Vake-Saburtalo District in Tbilisi, the Ambrolauri district ( western Georgia) and on the Armenian-Georgian border. Identified by their names, they were said to be wanted by the police in connection with a murder.", "8. In reply to queries from the applicant ’ s lawyers, the Vake ‑ Saburtalo District Court in Tbilisi stated on 4 November 200 3 that, between May and November 2003, no criminal procedural measures of a coercive nature against the applicant had been registered in the relevant log. Further, by a notification of 28 November 2003, the Vake-Saburtalo police station confirmed to the lawyers that solely the applicant ’ s brother, who was charged with the murder and firearms offences, had been declared wanted and that no similar measure had been taken with respect to the applicant.", "9. On 15 December 2003 the applicant ’ s lawyers requested the Ministry of the Interior (“the MI”) to remove the applicant ’ s photograph from the police stations and to punish those who had unlawfully posted it. In a reply of 30 December 2003, the MI reiterated that only the applicant ’ s brother had been wanted for the murder and firearms offences. As to the applicant, in view of his constant refusals to appear before the Vake-Saburtalo district prosecutor ’ s office, the latter agency had taken “the relevant operational measures aimed at having him interviewed, in the capacity of a witness ”. No reply was given to the request for the photograph ’ s removal.", "10. On 28 January 2004 the applicant ’ s lawyers requested the Vake ‑ Saburtalo District Court to initiate criminal proceedings for libel on the basis of the unlawful posting of the applicant ’ s photograph in the police stations (“ the libel complaint”). Under Article 27 of the Code of Criminal Procedure (“the CCP”) as in force at the material time, the offence of libel was a matter for private prosecution and, pursuant to Article 627 § 1 of the CCP, only a competent court was empowered to initiate criminal proceedings on the basis of a complaint by the victim.", "11. As disclosed by the case file, the Vake-Saburtalo District Court decided to summon the applicant to a hearing, reasoning that it was necessary to hear oral submissions from him. The summons could not be served on the applicant at his home address, as his parents stated that his whereabouts had been unknown for the past eight months.", "12. In a decision of 4 February 2004, the Vake-Saburtalo District Court dismissed the libel complaint. The court pointed out that a private prosecution could be requested either personally by the victim or by his representative in law (Article 627 § 1 of the CCP). That being so, the court, whilst accepting the power of the applicant ’ s lawyers to represent him, pointed out that the libel complaint had been signed not by the applicant or his representative in law but by the director of the human rights advocacy centre of which the lawyers were members. The lawyers replied that their client had been feeling insecure as to his liberty, hence his non-appearance before the court. They reiterated the content of the complaint orally, requesting the identification and punishment of those officials who had unlawfully posted the applicant ’ s photograph and implicated him in the murder. The District Court concluded that the circumstances of the case disclosed no elements of libel. However, it decided to forward the request and the case file to the competent prosecutor ’ s office so that the latter agency could examine whether any offence had been committed by public officials in the performance of their duties.", "13. An appeal lay against the decision of 4 February 2004, but had to be lodged within the following fourteen days. However, as disclosed by the case file, the applicant ’ s lawyers did not appeal.", "14. On 9 February 2004 an article disclosing the story of the posted photograph was published in a national newspaper. Shortly afterwards, the applicant ’ s photograph was removed from the police stations.", "15. In a letter of 7 April 2004, the Vake-Saburtalo district prosecutor ’ s office informed the applicant ’ s lawyers that the court decision of 4 February 2004 had never ordered it to initiate criminal proceedings either for libel or for any offence committed by persons holding public office, but had simply forwarded the case file with the instruction “to react ”. Accordingly, the prosecutor ’ s office had decided, on 27 February 2004, to forward the case to the MI for an internal investigation. The letter of 7 April 2004 did not enclose a copy of the decision of 27 February 2004 and did not advise the applicant of the appeal procedure, if appropriate. As disclosed by the case file, the MI never informed the applicant of any decision taken in respect of the subsequent developments in his case ( see paragraph 10 5 below ).", "16. In late April 2004 the applicant lodged with the General Prosecutor ’ s Office (“the GPO”) another application to initiate criminal proceedings in respect of the unlawful posting of his photographs (“the second criminal complaint”). The GPO transmitted this request to the Tbilisi city prosecutor ’ s office with the instruction to take “a decision in accordance with the law”. The latter agency forwarded this instruction to the Vake ‑ Saburtalo district prosecutor ’ s office. According to the applicant, on 24 May 2004 he requested a report from the prosecution authority on the progress of the proceedings in respect of his second criminal complaint but no reply was forthcoming. According to the Government, however, the Vake ‑ Saburtalo district prosecutor ’ s office examined that complaint and took a decision on an unspecified date. Neither the content nor the date of that decision was specified by the Government in their observations.", "B. Criminal proceedings against the applicant", "17. According to the applicant, in the course of the investigation into the murder case, the authorities constantly threatened his parents that they would “ catch ” [1] him, unless his fugitive brother surrendered to the authorities.", "18. On 30 March 2004 the applicant responded to the authorities ’ repeated calls to testify as a witness in the murder case by voluntarily appearing before the Vake ‑ Saburtalo district prosecutor ’ s office. Upon arrival and without being examined in the capacity of a witness, he was arrested on suspicion of unlawfully acquiring, storing and/or transporting firearms and ammunition, which offence formed part of the murder case. The suspicion was formally based on several pieces of evidence – statements by three witnesses, the results of a search and the forensic examination of the seized firearms – all of which had been obtained in June and July 2003, in the course of the investigation into the murder case.", "19. Later the same day, the Vake-Saburtalo district prosecutor ’ s office disjoined the firearms aspect from the murder case and registered it as a separate set of proceedings (“the firearms case”). Subsequently, the applicant was confronted, in the presence of his lawyer, with one of the witnesses whose statements had been obtained in June and July 2003 ( see the preceding paragraph ). During that confrontation, the witness altered his previous testimony in favour of the applicant, by concluding that only the applicant ’ s brother had been involved in the firearms offence. The investigator concluded that the applicant and his lawyer had subjected the witness to undue “moral pressure” during the confrontation.", "20. On 31 March 2004 the investigator re ‑ examined the above ‑ mentioned witness, this time in the absence of the applicant and his lawyer. The witness retracted the altered testimony he had given the previous day and confirmed the truthfulness of the statements he had made in June and July 2003.", "21. On 1 April 2004 the charge of storing and transporting firearms and ammunition was preferred against the applicant. This charge was based on the above-mentioned evidence obtained in the course of the investigation into the murder case ( see paragraph 18 above ). The applicant pleaded “ not guilty ”. On the same day the prosecutor requested that the applicant be remanded in custody for three months.", "22. As disclosed by the case file, the prosecutor ’ s main argument during the remand hearing was that the applicant ’ s release could jeopardise the pending investigation of the murder case, particularly when one of the accused in that case, his brother, was missing. The applicant replied that it was unlawful to justify his pre-trial detention in the interests of the murder case, as he had been detained solely on suspicion of having committed the firearms offence. He challenged the reasonableness of the latter suspicion as well. In favour of his release, the applicant submitted that he had not committed a single act capable of impeding the investigation for the last ten months and that he had voluntarily appeared before the prosecutor ’ s office for an interview. He also referred to the fact that his father was seriously ill and required his care.", "23. On 2 April 2004 the Vake-Saburtalo District Court ordered the applicant ’ s remand in custody for three months, with effect from 30 March 2004. The detention order was a standard form, the reasoning of which had mostly been pre- printed. The judge added by hand the reference to the relevant evidence, the names of the parties ’ representatives to the proceedings and the classification of the impugned offence :", "“Having examined [in accordance with the requirements of procedural law] the well-foundedness of the detention request, and having heard the parties ’ pleadings, I have come to the conclusion that the evidence collected – [reference to the evidence obtained in June and July 2003 – see paragraph 18 above] – gives rise to a reasonable suspicion that Giorgi Nikolaishvili has committed the impugned offence. The evidence has been obtained in conformity with the rules of criminal procedure.", "Procedural law was also observed in the course of Giorgi Nikolaishvili ’ s arrest and in the bringing of charges against him.", "I consider that the detention request by [reference to the prosecutor ’ s name] is substantiated and that there exist legal grounds for granting it. Thus, in so far as the accused, G. Nikolaishvili, is charged with a less serious crime, the danger that, if released, he might hamper the establishment of the truth or abscond from the investigation and trial is substantiated ... ”", "The judge then dismissed, in a handwritten note, the applicant ’ s allegations of procedural violations as irrelevant to the classification of the impugned offence.", "24. In a final decision of 8 April 2004 the Tbilisi Regional Court upheld the detention order of 2 April 2004, reasoning as follows :", "“ ... [The applicant] has been charged with an offence classified as less serious, which carries a maximum term of five years ’ imprisonment. The impugned offence of the unlawful acquisition, storage and/or transportation of firearms might be related to the murder case, the investigation of which is still pending. In such conditions, the discontinuation of detention on remand or its substitution with a non-custodial measure of restraint might possibly hamper the establishment of the truth in that case; if released, the accused might influence witnesses, continue his criminal activities or abscond. Such conclusions can be derived from the insincerity of the accused.", "The case discloses both formal ( procedural ) and factual grounds for the imposition of pre-trial detention ... ”", "25. On several occasions in April and May 2004, the applicant requested to be confronted again with the above-mentioned witness for the prosecution ( paragraphs 19 and 20 above). His requests were dismissed as unsubstantiated, the authorities reasoning that the previous confrontation had been conducted in conformity with the procedural rules, whilst another one would most likely lead to the same result – the exertion of moral pressure on the witness in question.", "26. On 30 June 2004 the three month pre-trial detention period expired, without a court ordering its extension. On 7 July 2004, having terminated the investigation, the prosecutor sent the criminal case for trial, forwarding the bill of indictment.", "27. On 24 January 2005 the judge of the Vake-Saburtalo District Court, dispensing with an oral hearing, decided, in camera, to commit the applicant for trial under Article 417 § 1 of the CCP. This decision, like the detention order of 2 April 2004, was set out in a standard form with pre ‑ printed reasoning. The judge added, in the blank spaces provided, a brief statement of facts, the name of the accused and the definition of the impugned offence.", "28. As to the reasoning, the decision of 24 January 2005 confirmed the applicant ’ s pre-trial detention in a pre-printed phrase. The judge added by hand the definition of the measure of restraint :", "“The measure of pre-trial restraint – detention – has been correctly chosen.”", "29. The case file does not refer to any further developments in the criminal proceedings." ]

[ "II. RELEVANT DOMESTIC LAW AND COUNCIL OF EUROPE DOCUMENTS", "A. The Code of Criminal Procedure (“the CCP”), as in force at the material time", "30. Article 23 of the CCP provided at the material time as follows:", "“ A criminal prosecution may be carried out in the form of a public, subsidiary, private / public or private prosecution.”", "31. Pursuant to Article 27, libel, amongst various other crimes, was a matter for private prosecution and criminal proceedings could be initiated by a judge only on the basis of a complaint by the victim (see also Article 627 § 1 of the CCP and Article 148 of the Criminal Code, cited below ).", "32. In Article 44 § 22 the term “representative in law” was defined as “next of kin, curator or guardian”.", "33. Articles 93 to 94, defining the status, rights and responsibilities of a witness, did not envisage that a witness could be declared a “wanted” person by the prosecution. Article 95 § 1 (g) stated that a witness could not be obliged to testify against a close relative.", "34. Pursuant to Article 94 § 2, Article 174 § 1 and Article 17 5, the precondition for obliging a person to appear before the prosecution to testify in a criminal case was the issue of a relevant court order. Such an order was to be forwarded to the police for enforcement, in accordance with Article 176 § 1. However, if enforcement was impossible owing to, inter alia, the inability to locate the witness, the role of the police officer responsible for enforcement was limited to recording that fact on the order and returning it to the court as “unenforced”.", "35. Article 151 provided as follows:", "“ 1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or that the court ’ s verdict is implemented.", "2. The application of a measure of restraint shall be justified if the evidence collected in the case file sufficiently substantiates the assumption that it is necessary to secure the aims mentioned in the first paragraph of this Article.", "3. The ground for the imposition of pre-trial detention may be a reasonable suspicion that the accused might abscond or interfere with the establishment of the truth in a given criminal case, or if a serious or grave crime has been committed.”", "36. Article 15 9 § 3 on detention read :", "“Detention on remand shall be imposed only with regard to a person who is charged with an offence which carries more than two years ’ imprisonment ... ”", "37. An appeal lay under Article 234 against such measures:", "“Any decision or action of an inquiry officer/inquiry agency, investigator/investigative agency, prosecutor/prosecutor ’ s office or judge/court may be appealed by the parties to the criminal proceedings or by any other third parties. ”", "38. Under Article 236 § 1, that appeal against any action or decision by the inquiry officer, investigator or prosecutor could be lodged throughout the entire period of the preliminary inquiry or investigation (that is, before the criminal case had been sent to the competent court for trial).", "39. Article 410 § 2 regarding the bill of indictment required it to be accompanied by all relevant documentation about the detention. When endorsing the bill of indictment, the prosecutor had to consider, amongst other issues, whether any restraint measure which had been imposed was correct (Article 412). The case materials had to be referred to the competent court, along with the bill of indictment, within 48 hours following the prosecutor ’ s endorsement (Article 416 § 3).", "40. Under Article 417 §§ 1, 2 and 3, if the court considered that the case had a sufficient basis, the accused was to be committed for trial after holding an admissibility hearing in certain circumstances. At such a hearing, the court was to consider whether a measure of pre-trial restraint should be imposed on the accused.", "41. Following an amendment on 16 December 2005, Article 417 § 2 made it mandatory to hold an admissibility hearing when deciding to commit the accused for trial in relation to all types of criminal case. Article 419 laid down the following time-limits on committals:", "“The judge (court) shall decide whether to commit the accused for trial within fourteen days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).”", "42. Article 627 § 1 enabled a judge to initiate criminal proceedings following a complaint lodged either by the victim or that person ’ s representative in law. Moreover, under Articles 393 and 606 (1), only a person against whom charges had been brought or who had been convicted could be declared “wanted” in connection with a crime by means of a formal decision by the investigative, prosecution or judicial authorities. No provision of the Code provided for such a measure in respect of a witness.", "B. The Criminal Code", "43. Article 148 of the Criminal Code provided at the material time for the punishable offence of libel. It was removed from the Criminal Code on 24 June 2004.", "C. The Operational Investigative Measures Act of 30 April 1999", "44. The Operational Investigative Measures Act provided at the material time, in so far as relevant:", "Section 6 ( 2 )", "“ A person who considers that, as a result of an operational investigative measure, his or her rights and freedoms have unlawfully been restricted may appeal against such a measure to a hierarchically superior agency, prosecutor or court.”", "Section 8 ( 1 ) (c)", "“The basis for an operational investigative measure may be ...", "(c) a formal decision declaring that a person who absconds from the investigation and trial or evades the sentence is wanted. ”", "D. Preparatory work on Article 5 of the Convention (CDH (67) 10, 20 July 1967, Strasbourg)", "45. In the course of the Plenary Sitting of the First Session of the Consultative Assembly of the Council of Europe (“the CACE”), held on 19 August 1949, the representatives discussed the rights and freedoms which might be guaranteed by the Convention :", "“ ... We have all been compelled to bear unbelievable encroachments on our rights [such as] the loss of security of person; arbitrary arrest ...", "All have an equal right to life, liberty and personal safety ...", "It is a pitiable commentary on our boasted progress that in our generation it should be necessary to declare that everyone has the right of life, liberty and security of his person ... These things were taken for granted ... in the days before the sophists told us that man could make himself happy by making the State into a god, to be fed with blood, toil, tears and sweat ... We are now concerned to safeguard and preserve our very selves, and all that we are and have, against the insatiable appetite of the totalitarians ... ”", "46. During the CACE Plenary Sitting of 7 September 1949, a report of the Committee on Legal and Administrative Questions was presented. The relevant excerpts from that report read as follows :", "“The Committee has drawn up the list of rights and freedoms which are to be covered by the collective guarantee ...", "Here are the rights and freedoms included in this list: security of person ... freedom from arbitrary arrest, detention, exile and other measures ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "47. The applicant complained under Article 5 § 1 of the Convention about the circumstances surrounding his arrest at the Vake-Saburtalo district prosecutor ’ s office on 30 March 2004. He claimed that the period of his pre-trial detention between 30 June 2004 and 24 January 2005 had had no lawful basis. The provision relied on reads, in its relevant part, as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ... ”", "48. The Government did not submit any comments with regard to the applicant ’ s complaint about the circumstances surrounding his arrest. As to the allegedly unlawful period of detention, the Government stated that this period had complied with the provisions of the CCP. On 7 July 2004, after the investigation had been concluded, the prosecutor had sent the bill of indictment and case file to the competent court, in accordance with Article 416 of the CCP. Afterwards, the court had committed the applicant for trial in conformity with Article 419 of the CCP.", "49. In reply, the applicant reiterated that his arrest on 30 March 2004 had been arbitrary, as understood by the Court ’ s case-law under Article 5 § 1 of the Convention. His right to security of person had been undermined by the fact of having been called as a witness without any intimation of a possible criminal charge being brought against him. He complained that the authorities had hidden from him their intention to arrest him, and that this fact constituted an abuse of power on their part. As a result of the authorities ’ misleading behaviour, it had not been possible for the applicant, prior to his unexpected arrest, to take procedural actions aimed at dissipating any suspicions against him. As another sign of arbitrariness, the applicant referred to the fact that the criminal case against him, being based on the evidence obtained as far back as July 2003, had nevertheless been opened only upon his arrest on 30 March 2004 ( see paragraph 18 above ).", "50. Lastly, referring to the similar case of Baranowski v. Poland ( no. 28358/95, § § 56-58, ECHR 2000 ‑ III ), the applicant reiterated that his detention between 30 January 2004 and 24 January 2005, not having been covered by any court order, had been unlawful within the meaning of Article 5 § 1 (c) of the Convention.", "A. Admissibility", "51. The Court notes that the complaints under Article 5 § 1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. Circumstances surrounding the applicant ’ s arrest on 30 March 2004", "52. The Court reiterates that the expression “liberty and security of person” in Article 5 § 1 must be read as a single right and that, consequently, “security” should be understood in the context of “liberty”. The protection of “security” is concerned with guaranteeing an individual ’ s personal liberty against arbitrary interference by a public authority ( see Kemal Güven v. Turkey (dec.), no. 31847/96, 30 May 2000). The “security” clause reminds the national authorities of the requisite obligation to follow the rule - of - law safeguards and other rudimentary forms of legal protection when the deprivation of a person ’ s liberty is at stake ( see Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998 ‑ III, § § 122 - 123).", "53. The Court is of the opinion that the “ right to security of person ” was understood by the authors of the Convention to imply more than just an obligation to give legal protection to a person ’ s physical liberty ( see paragraphs 45-4 6 above ). The subsequent interpretation of Article 5 § 1 of the Convention has shown, “what is at stake [under the above provision] is both the physical liberty of individuals as well as their personal security” (see Kurt, cited above, § 123). Relying on the notion of “ security”, the Court has found that national authorities who are competent to deprive a person of his or her liberty are normally expected to act in good faith in their dealings with the latter (see Čonka v. Belgium, no. 51564/99, § § 41 and 42, ECHR 2002 ‑ I; Bozano v. France, judgment of 18 December 1986, Series A no. 111, § 55 ). Thus, the intention to deprive or otherwise affect an individual ’ s physical liberty should not, in the normal course of events, be consciously hidden by the authorities ( see also paragraph 58 below ). The individual should be able to resort, if need be, to the available and legitimate remedies aimed at opposing the authorities ’ actions and preserving his or her liberty (see, mutatis mutandis, Bozano, cited above, § § 59-60; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 380, ECHR 2005 ‑ III ). When a person ’ s liberty is at stake, it is particularly important that the general principle of legal certainty is satisfied. It is essential that the statutory criminal law, as well as the authorities ’ formal decisions and actions, are accessible and unequivocal to such an extent that the person – if need be, with appropriate advice – is able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see Gusinskiy v. Russia, no. 70276/01, § § 62 and 68, ECHR 2004 ‑ IV; Ladent v. Poland, no. 11036/ 03, §§ 53 and 56, ECHR 2008 ‑ ...; Kawka v. Poland, no. 25874/94, § 49, 9 January 2001; Lukanov v. Bulgaria, judgment of 20 March 1997, Reports 1997 ‑ II, § 44 ). The Court has assumed that an arrest under circumstances which undermine the principles of legal certainty could, in principle, entail a breach of the right to security of person ( see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 85, ECHR 2005 ‑ IV ).", "54. Turning to the circumstances of the present case, the Court considers that, when assessing the compatibility of the applicant ’ s deprivation of liberty with the requirements of Article 5 § 1 of the Convention, apart from examining the relevant detention decisions, the circumstances surrounding his arrest on 30 March 2004 should be taken into account.", "55. The Court notes that, according to the record, the authorities never intimated that there was any possibility of opening criminal proceedings against the applicant prior to his voluntary appearance, on 30 March 2004, before the Vake-Saburtalo district prosecutor ’ s office. The applicant had come forward to be interviewed as a witness in the unrelated murder case in which his brother was implicated. In this connection the Court observes that any possible compulsion imposed on the applicant to testify against his brother was clearly incompatible with Article 95 § 1 (g) of the CCP, which unequivocally excused the former from such a burden ( paragraph 33 above ). In principle, it cannot be ruled out that the suspicion that the applicant had committed the firearms offence – the latter being the only formal basis for his detention – could have emerged as a result of the statements made by him during that interview. However, having due regard to the relevant decisions of the domestic authorities, the Court notes that this suspicion, the subsequent charge and the reasons given for the detention were based on evidence which had already been obtained in the course of the investigation into the murder case in June and July 2003 ( see paragraphs 18, 21 and 2 3 above ). The Court also notes that the Government have not provided any explanation for this lack of transparency, firstly, as to why the authorities did not initiate the firearms case against the applicant as soon as they learnt of the incriminating facts and, secondly, as to why there was such urgency to arrest him on the very day of his voluntary appearance before the prosecution authority as a witness (see Stepuleac v. Moldova, no. 8207/06, § 76, 6 November 2007).", "56. The Court observes in this connection that, recently, a violation of the right to liberty and security was found on the basis of an arrest in circumstances where the arrested person had not been duly notified of the criminal proceedings pending against him and where the deprivation of his liberty under Article 5 § 1 (c) of the Convention fell short of the necessity test, which facts were considered to disclose arbitrariness on the part of the national authorities (see Ladent, cited above, §§ 45 and 55- 57). The circumstances surrounding the applicant ’ s arrest in the present case are all the more troubling. Thus, whilst maintaining that his cooperation as a witness was necessary for the investigation into the unrelated murder case ( see paragraphs 8, 9 and 18 above ), the authorities were apparently misleading the applicant about their real interest in him. The Court considers that such opaque methods may not only undermine legal certainty and, consequently, as the present case suggests, instil a feeling of personal insecurity in individuals summoned as witnesses, but they may also generally risk undermining public respect for and confidence in the prosecution authorities.", "57. As to the motives behind the applicant ’ s arrest, the Court takes note of the applicant ’ s allegation, undisputed by the respondent Government, that the authorities had constantly threatened his parents that they would “ catch ” him unless his fugitive brother, accused of murder, appeared before the prosecution ( see paragraph 17 above ). This allegation, in the Court ’ s view, gains credibility when assessed in the light of the reasons given by the national authorities when ordering the applicant ’ s pre-trial detention. Thus, neither the prosecution nor the judicial authorities denied the fact that, by detaining the applicant, their aim was to ensure the proper investigation of his brother ’ s criminal case ( see paragraphs 2 2 and 2 4 above ). In such circumstances, the Court finds that the applicant ’ s arrest, even if formally consistent with the domestic law, was nevertheless contrary to Article 5 § 1 of the Convention, as it served to acquire additional leverage over the unrelated criminal proceedings, an aim extraneous to sub-paragraph (c) of the above provision (see, mutatis mutandis, Gusinskiy, cited above, §§ 74 ‑ 77).", "58. The Court does not preclude the legitimacy of the national authorities using certain stratagems in order to counter criminal activities more effectively (see Čonka, cited above, § 41). However, not every ruse can be justified, especially when it is implemented in such a way that the principles of legal certainty are tarnished. In the particular circumstances of the present case, the Court considers that the authorities ’ misleading methods – the prospect of detention being used to exert moral pressure – reveal that the deprivation of his liberty fell short of the main purpose of Article 5 § 1 of the Convention, that is, to protect the individual from arbitrariness (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996 ‑ III, pp. 752-53, § 43). The protection against arbitrariness necessarily entailed, in the Court ’ s view, the obligation to safeguard the applicant from undue threats to his liberty.", "59. In the light of the above considerations, the Court concludes that there has been a violation of Article 5 § 1 of the Convention.", "2. Period of detention between 30 June 2004 and 24 January 2005", "60. The Court observes that, after the detention order of 2 April 2004 had expired on 30 June 2004, the applicant ’ s pre-trial detention was not covered by any court order. That situation lasted until 24 January 2005, when the domestic court, as well as committing the applicant for trial under Article 417 § 3 of the CCP, authorised his continued detention pending trial.", "61. According to the Government, the legal basis for the applicant ’ s detention between 30 June 2004 and 24 January 2005 lay in Articles 416 and 419 of the CCP ( paragraphs 39 and 41 above) after the prosecution had forwarded the bill of indictment and case file to the trial court. However, it is not disputed that the bill of indictment was filed with that court on 7 July 2004 (see paragraph 2 6 above ). Consequently, the question as to why the period of detention between 3 0 June and 7 July 2004 was not the subject of a court order still remains unexplained.", "62. As to the period between 7 July 2004 and 24 January 2005, the Court notes that a violation of Article 5 § 1 has been found in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been filed with a trial court. Detaining defendants without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period of time without judicial authorisation – is incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, amongst others, Gigolashvili v. Georgia, no. 18145/05, § § 32-36, 8 July 2008; Jėčius v. Lithuania, no. 34578/97, §§ 60-64, ECHR 2000 ‑ IX; Grauslys v. Lithuania, no. 36743/97, §§ 39-41, 10 October 2000; Baranowski, cited above, § § 53-58, ECHR 2000 ‑ III; Khudoyorov v. Russia, no. 6847/ 02, §§ 146-147, ECHR 2005 ‑ X ).", "63. The Court notes that the present application is no different from the Gigolashvili case cited above, owing to the similar deficiencies in Georgian criminal procedural law and practice at the material time.", "64. Notably, under Article 417 §§ 1 and 3 of the CCP ( paragraph 40 above ), once the prosecution had terminated the investigation and transmitted the criminal case file to the court with jurisdiction, the latter could hold an admissibility hearing and decide whether to commit the accused for trial and whether it was necessary to impose a measure of restraint on that individual.", "65. However, a problem arose with the timing of such a hearing. Pursuant to Article 419 of the CCP ( paragraph 41 above ), an admissibility hearing was to be held within fourteen days or, for “complicated cases”, within a month of the delivery of a final judgment on the last, unrelated criminal case brought before the same judge, but the latter had no time constraints in deciding that “last” case. The CCP neither required that, in the meantime, a judicial order authorising the defendant ’ s detention should be issued, nor did it specify any statutory periods for this phase of detention. Such statutory lacunae resulted in the practice of detaining defendants without any judicial decision for months, as happened in the present case (see also Absandze v. Georgia (dec.), no. 57861/00, 20 July 2004; Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26 June 2007).", "66. It follows that, between 30 June 2004 and 24 January 2005, for six months and twenty-five days, there was no judicial decision authorising the applicant ’ s detention. The Government failed to explain what the legal basis was for the first seven days of that period. Moreover, the fact that the criminal case file was sent, together with the bill of indictment, to the trial court did not render the remaining period of detention “lawful” within the meaning of Article 5 § 1 of the Convention (see Gigolashvili, cited above, § 36; Nakhmanovich v. Russia, no. 55669/00, § 68, 2 March 2006; Khudoyorov, cited above, §§ 149 and 151).", "67. There has thus been a violation of Article 5 § 1 (c) of the Convention in respect of that period of detention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION", "68. The applicant complained that the court decisions of 2 and 8 April 2004 and 24 January 2005 authorising his detention on remand were not properly reasoned. He relied on Article 5 § 3 of the Convention which reads, in its relevant part, as follows:", "“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”", "69. The Government, in their observations on the admissibility and merits of the case, did not submit any comments on this point.", "70. The applicant, however, further complained of the domestic courts ’ failure to consider the arguments in his applications for release and to provide any concrete reasons as to why there had existed a “danger of absconding or hampering the establishment of the truth”. He also complained about the courts ’ reliance on the pending investigation into the unrelated murder case as a ground for his detention on remand. The applicant further called into question the court decision of 24 January 2005 which had routinely upheld his continued detention without any significant scrutiny of the circumstances of the case.", "A. Admissibility", "71. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "72. The Court notes that the applicant ’ s detention on remand was authorised by the court decisions of 2 and 8 April 2004 and 2 4 January 2005. Consequently, in order to establish whether his detention was reasonable, within the meaning of Article 5 § 3 of the Convention, the reasons given in those decisions, as well as the applicant ’ s arguments mentioned in his applications for release, should be examined (see, for example, Galuashvili v. Georgia, no. 40008/04, § § 46 and 48, 17 July 2008; Jabłoński v. Poland, no. 33492/96, § 79, 21 December 2000 ).", "73. The Court deplores that the impugned detention order of 2 April 2004 was issued using a standard template. Rather than fulfilling its duty to establish convincing reasons for the detention, the domestic court relied on the abstract terms of the pre-printed form. Such a practice suggests a lack of “special diligence” on behalf of the national authorities, contrary to the spirit of Article 5 § 3 of the Convention (see Patsuria v. Georgia, no. 30779/04, § 74, 6 November 2007; G.K. v. Poland, no. 38816/97, § 84, 20 January 2004).", "74. As to the appellate decision of 8 April 2004, it relied on a ground which the Court finds to be alien to Convention objectives: The appellate court, apart from reiterating the argument relating to the severity of the punishment, justified the applicant ’ s pre-trial detention by reference to the interests of the investigation into the completely unrelated murder case which was pending at that time against the applicant ’ s brother. Such reasoning was not only irrelevant for the purposes of assessing the reasonableness of the applicant ’ s detention under Article 5 § 3 of the Convention, it also circumvented the very essence of the exception under Article 5 § 1 ( c) of the Convention. As to the appellate court ’ s reference to the applicant ’ s “insincerity”, it was a bare statement, unsubstantiated by any specific circumstances of the case.", "75. The impugned court decisions of 2 and 8 April 2004, at first and second instance, concerned the first three months of the applicant ’ s pre-trial detention. This period appears to be unreasonable when assessed, as the Court ’ s well-established case- law dictates, not in abstracto but in relation to the above-mentioned irrelevant, insufficient and even arbitrary reasons put forward by the domestic authorities (see, for example, Michta v. Poland, no. 13425/02, §§ 45 and 46, 4 May 2006 ). The Court reiterates in this regard that the right to provisional release pending trial is guaranteed by Article 5 § 3 of the Convention notwithstanding the length of the detention in question. Article 5 § 3 cannot be seen as authorising pre-trial detention unconditionally even if it is relatively short (see, among other authorities, Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004; Patsuria, cited above, § 66 ). When issuing the first order for the applicant ’ s detention on 2 April 200 4, three days after his arrest, the national authorities were already under an obligation to demonstrate convincingly the justification for such a measure. The presumption is always in favour of release (see Patsuria, cited above, §§ 66-67, and McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006 ‑ ... ).", "76. As for the court decision of 24 January 200 5, it was, like the detention order of 2 April 2004, issued in a standard, template form, containing pre-printed reasoning in abstract terms. After having remanded the applicant in custody for almost ten months, six months of which had no lawful basis ( see paragraph 6 6 above ), the domestic court, contrary to its obligation to establish convincingly the existence of concrete facts justifying continued detention (see G.K. , cited above, § 84 ), left the applicant in custody on the basis of a single abstract phrase : “the imposed measure of restraint has been correctly chosen.” This constituted a particularly broad restriction of the applicant ’ s rights guaranteed by Article 5 § 3 of the Convention ( see Patsuria, cited above, § 7 4 ).", "77. Assuming that specific, relevant facts warranting the applicant ’ s deprivation of liberty may have existed in the present case, they were not set out in the relevant domestic decisions ( see, Labita v. Italy [GC], no. 26772/95, § 152 in fine, ECHR 2000 ‑ IV ). It is not the Court ’ s task to take the place of the national authorities and establish such facts in their stead (see Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001; Nikolov v. Bulgaria, no. 38884/97, § 74, 30 January 2003; and Panchenko v. Russia, no. 45100/98, § 105, 8 February 2005 ).", "78. Lastly, the Court notes that the applicant ’ s pre-trial detention lasted some ten months ( see paragraphs 18, 28 and 29 above ). Such a long period shows that the authorities failed to deal with the case with special diligence, this factor being of further importance in assessing the compatibility of pre-trial detention with Article 5 § 3 of the Convention (compare Galuashvili, § 50 and Patsuria, §§ 61 and 77, both cited above).", "79. In view of the foregoing considerations, the Court concludes that, by failing to address the specific facts of the applicant ’ s case and to consider alternative non-custodial pre-trial measures, the authorities, using a stereotyped formula, paraphrasing the terms of the Code of Criminal Procedure (see Patsuria, cited above, §§ 12, 14 and 15; Javakhishvili v. Georgia (dec.), no. 42065/04, 2 October 2007), imposed pre-trial detention upon the applicant for reasons which cannot be regarded as “sufficient” or “relevant”.", "80. Accordingly, there has been a violation of Article 5 § 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "81. The applicant claimed that the judicial review of his detention on remand had been conducted, on 2 and 8 April 2004 and 2 4 January 2005, in violation of the procedural safeguards of Article 5 § 4 of the Convention. He further complained that the domestic law did not envisage any mechanism for regular reviews of the lawfulness of his detention. This Convention provision reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "82. The Government did not submit any comments on these points in their observations on the admissibility and merits of the case.", "83. In his observations the applicant argued that, since the court decisions of 2 and 8 April 2004 and 2 4 January 2005 had not been properly reasoned, the corresponding judicial reviews had amounted to routine formalities falling short of the standards prescribed by Article 5 § 4 of the Convention.", "84. The applicant further submitted that the court review of 24 January 2005 had violated the principles of equality of arms and adversarial proceedings because it had been held without an oral hearing. He added that no adequate written procedure had been offered instead. In accordance with the relevant domestic law, the court had determined the issue of committal for trial, of which the extension of his detention on remand formed a part, solely on the basis of the prosecutor ’ s submissions, without soliciting those of the applicant.", "A. Admissibility", "1. Absence of an automatic review of detention", "85. The Court observes that the relevant provisions of the CCP, as in force at the material time, have already been examined on two occasions and been found, in circumstances similar to those of the present case, to be compatible with the rule of Article 5 § 4 of the Convention requiring a regular review of the lawfulness of detention (see Patsuria, cited above, §§ 3-57; Galuashvili v. Georgia ( dec .), no. 40008/04, 24 October 2006 ).", "86. As in the cases of Patsuria and Galuashvili, the applicant in the present case failed to specify why the authorities should have initiated a review of his detention of their own motion. Neither did he indicate to the Court any important factors which could arguably have warranted the automatic review of his detention at more frequent intervals ( see Galuashvili, decision cited above). The applicant ’ s complaint is thus more a challenge to the domestic criminal procedural law in general and not the specific application of this law to the particular circumstances of his situation (see Patsuria, cited above, § 57 ).", "87. It follows that this complaint is unsubstantiated and must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "2. Judicial reviews of 2 and 8 April 2004", "88. The Court notes that the applicant ’ s complaint about the procedural unfairness of the judicial reviews of 2 and 8 April 2004 is based solely on the alleged inadequacy of the reasons given in the resultant court decisions. However, the latter issue has already been thoroughly examined by the Court under Article 5 § 3 of the Convention, which is a lex specialis in this respect ( see paragraphs 7 2 -8 0 above ). The Court cannot discern from the case file any additional circumstances which could cast doubt on the procedural safeguards relating to the judicial review of the applicant ’ s detention. In any event, the applicant himself has not referred to any ( contrast Danov v. Bulgaria, no. 56796/00, § 93, 26 October 2006 ).", "89. It follows that the complaint challenging the judicial reviews of 2 and 8 April 2004 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.", "3. Judicial review of 24 January 2005", "90. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "91. The Court reiterates that Article 5 § 4 of the Convention entitles a detained person to institute proceedings concerning the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of the deprivation of liberty (see, among many other authorities, Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 34-35, § 65). The proceedings must be adversarial and must always ensure “equality of arms” between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1 ( c), a hearing is required (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II).", "92. Under Article 5 § 4 of the Convention the competent court has to examine not only the compliance of the detention with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and ensuing detention (see Brogan and Others, cited above, pp. 34 ‑ 35, § 65). Where a second level of jurisdiction exists for such matters, the same guarantees should be provided (see Navarra v. France, judgment of 23 November 1993, Series A no. 273-B, § 28; Toth v. Austria, judgment of 12 December 1991, Series A no. 224, § 84).", "93. Turning to the problem in the present case – the absence of an oral hearing during the judicial review of 2 4 January 2005 – the Court finds that, in the circumstances, this constituted a departure from the principles of adversarial proceedings and equality of arms. Notably, in accordance with Article 417 § § 2 and 3 of the CCP, the competent court, sitting in camera, committed the applicant for trial and authorised his continued detention without an oral hearing. Having received the bill of indictment from the prosecutor, along with the latter ’ s position on the issue of the applicant ’ s further detention (Article 410 § 2 and Article 412 of the CCP), the court examined and upheld both the reasonableness of the suspicion that the applicant had committed the offence and his further detention on remand, without having solicited the applicant ’ s written comments on those issues. In fact, there was no statutory obligation for the exchange of written pleadings between the parties at that stage of the proceedings under Article 417 of the CCP.", "94. Thus, as a matter of domestic law and practice, the prosecuting authorities had the privilege of addressing the court, at the committal stage, with arguments pertinent to the issue of detention, which the applicant could not contest either in writing or in oral submissions. The judicial review of 24 January 2005 was not therefore of an adversarial nature. The principle of equality of arms was equally undermined ( see Ilijkov, cited above, § 104; G.K., cited above, § 93; Kawka, cited above, § 60; Trzaska v. Poland, no. 25792/94, § 78, 11 July 2000; Fodale v. Italy, no. 70148/01, § 43, ECHR 2006 ‑ VII; Osváth v. Hungary, no. 20723/02, § 18, 5 July 2005 ).", "95. Lastly, the Court considers that even the form of the decision – a template in which the findings had been already pre-printed – suggests that the domestic court did not carry out a proper judicial review of the applicant ’ s detention (see Belevitskiy v. Russia, no. 72967/01, § 111, 1 March 2007 ).", "96. In the light of the above considerations, the Court concludes that the judicial review of 2 4 January 2005 did not satisfy the requirements of Article 5 § 4 of the Convention.", "97. There has therefore been a violation of Article 5 § 4 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "98. Relying in substance on Article 8 of the Convention, the applicant complained that his photograph had been unlawfully posted in police stations as that of a person wanted for murder. Article 8 reads in its relevant part as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, .. .”", "A. Admissibility", "1. The Government ’ s arguments", "99. The Government stated that the applicant ’ s photograph had been posted in police stations as an investigative measure. Consequently, the applicant should have challenged it under section 6 ( 2 ) of the Operational Investigative Measures Act of 30 April 1999 before a hierarchically superior authority, prosecutor or court.", "100. The Government further contended that, instead of seeking to have criminal proceedings instituted against “particular persons”, the applicant should have formally requested to have his photograph removed from the boards of “wanted persons”.", "101. The Government argued that the Vake-Saburtalo District Court had correctly refused, on 4 February 2004, to authorise the applicant ’ s lawyers to request the institution of libel proceedings on his behalf. Even though Article 71 of the CCP stated, as a general rule, that a victim could be fully represented by his or her lawyer, Article 627 § 1 was the lex specialis in matters of private prosecution, and specified that only the victim in person or his or her representative in law could lodge a criminal complaint ( paragraph 42 above ). The Government further reproached the applicant for not having challenged the decision of 4 February 2004 before an appellate court.", "102. Lastly, the Government claimed that if the applicant was not satisfied with the Vake-Saburtalo district prosecutor ’ s decision to forward the case to the MI for a disciplinary investigation, he should have appealed against that decision to a superior prosecutor under Article 234 of the CCP ( paragraph 37 above). The applicant had been able, pursuant to Article 236 § 1 of the CCP (paragraph 38 above ), to lodge such a hierarchical complaint throughout the entire period of the preliminary inquiry. The same non ‑ exhaustion argument held true, in the Government ’ s view, in respect of the applicant ’ s second criminal complaint lodged with the GPO in April 2004 ( paragraph 16 above). In the Government ’ s submission, the Vake-Saburtalo district prosecutor ’ s office had duly examined this request and, having been unable to establish any elements of a criminal abuse of power by public officials, had decided to refer the case to the MI with a view to instituting disciplinary proceedings. ( The Government did not submit copies of this prosecutor ’ s decisions; again see paragraph 16 above).", "103. Relying on the above arguments, the Government submitted that the applicant ’ s complaint under Article 8 of the Convention should be dismissed for having failed to exhaust domestic remedies.", "2. The applicant ’ s arguments", "104. Referring to the relevant circumstances of the case ( see paragraphs 7 -1 3 above ), the applicant refuted the Government ’ s allegation that he had never formally requested to have his photograph removed from the police stations. On the contrary, his first and foremost aim had been to remedy that situation. Only after the photographs had been removed had he requested that the officials responsible be punished.", "105. As the applicant ’ s submissions indicated, he had not objected to the Vake-Saburtalo District Court ’ s refusal to institute libel proceedings. Nevertheless, in view of the instruction issued by the same court, the applicant had considered that the relevant investigative authorities would conduct an inquiry into the possible abuses of power committed by the State agents involved. However, neither the prosecution authority nor the MI had adequately fulfilled their investigative obligations. After the prosecution had referred his case to the MI with a view to instituting disciplinary proceedings, no reply had been forthcoming from the latter agency ( see paragraph 15 above ).", "106. As to the argument that he had failed to appeal against the Vake ‑ Saburtalo prosecutor ’ s office ’ s decision to refer his second criminal complaint to the MI with a view to instituting disciplinary proceedings ( paragraphs 16 and 10 2 above ), the applicant replied that he had first learnt about the referral from the Government ’ s submissions to the Court. Without having received the above-mentioned decision and studied its reasons, he had obviously been unable to lodge an appeal.", "107. The applicant stated that he had resorted to all accessible domestic remedies in order to have the perpetrators identified and punished. However, the competent authorities had left his complaints without due consideration by needlessly circulating them from one institution to another.", "3. The Court ’ s assessment", "108. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but it does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65 ‑ 67; Şarli v. Turkey, no. 24490/94, § 59, 22 May 2001 ).", "109. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights which the Contracting States have agreed to establish. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the individual did everything that could reasonably be expected of someone to exhaust domestic remedies ( see the aforecited judgments of Akdivar, § 69, Aksoy, §§ 53 and 54, and Şarli, § 60).", "110. Turning to the circumstances of the present case, the Court considers that the Government ’ s argument that the applicant never complained about the police posting of his photograph under section 6 ( 2 ) of the Operational Investigative Measures Act is unconvincing. In fact, the applicant did lodge such complaints on several occasions with all the authorities mentioned in that provision: the Ministry of the Interior (a hierarchically superior body ), a prosecutor and a court. Assuming that the applicant did not explicitly rely on section 6 ( 2 ) of the Act in his complaints, such a formality cannot outweigh the fact that he made all the competent authorities aware of his grievances. Equally unfounded is the Government ’ s assertion that the applicant never aimed to have his photographs removed but simply sought to have “particular persons” held criminally liable for posting them. The circumstances of the case clearly show the opposite (see paragraph 9 above).", "111. The Court finds it unnecessary to examine the validity of the reasons for the Vake-Saburtalo District Court ’ s decision of 4 February 2004 dismissing the libel complaint as, indeed, that decision was never challenged on appeal (see paragraph 13 above). However, the Court attaches importance to the fact that the applicant himself apparently dropped the idea of pursuing the libel proceedings and decided instead to request the initiation of criminal proceedings for the alleged offences committed by public officials in the performance of their duties, the latter course of action having been suggested by the District Court (see paragraphs 12 in fine and 1 0 5 above ). It is to be emphasised in this connection that, when there exist several potentially effective remedies with essentially the same objective, it is sufficient for the applicant to pursue only one of them ( see Moreira Barbosa v. Portugal (dec.), no. 6 5681/01, ECHR 2004 ‑ V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005 ‑ XII ).", "112. As to the Government ’ s argument that the applicant should have challenged the Vake-Saburtalo district prosecutor ’ s decisions, referring his case to the MI, before a higher prosecutor, the Court reiterates that, normally, a hierarchical remedy cannot be regarded as effective, because the litigants are unable to participate in such proceedings (see Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001 ‑ VIII; Hartman v. Czech Republic, no. 53341/99, § 66, ECHR 20 03 ‑ VIII). Moreover, as disclosed by the case file, and as the applicant maintained and the Government did not dispute, the applicant was never served with the impugned decisions ( see paragraphs 15 and 1 0 5 above ). Consequently, he cannot be criticised for not having appealed against them ( see Ramishvili and Kokhreidze (dec.), cited above; Chitayev and Chitayev v. Russia, no. 59334/00, §§ 139 and 140, 18 January 2007).", "113. Moreover, the Court is not persuaded by the Government ’ s reproach that the applicant did not challenge the Vake-Saburtalo district prosecutor ’ s decision in respect of his second criminal complaint ( see paragraphs 16 and 10 2 above ), given that the applicant was only informed of that decision by the Government ’ s observations on the admissibility and merits of the case before the Court.", "114. Contrary to the applicant ’ s legitimate expectations based on the Vake-Saburtalo District Court ’ s recommendation for an investigation, the prosecution, instead of conducting a speedy and objective examination of the incident, with the aim of establishing whether it disclosed the elements of the offence of an abuse of power, referred the case to the MI. However, the latter agency was directly responsible for the police, on whose premises the applicant ’ s photographs had been posted. In such circumstances, any internal inquiry conducted by the MI could not have been seen to have been objective or effective ( cf. Barbu Anghelescu v. Romania, no. 46430/99, § 66, 5 October 2004; Ergı v. Turkey, judgment of 28 July 1998, Reports 1998-IV, §§ 83-84 ). Since the competent authorities remained passive in the face of the applicant ’ s serious allegations of misconduct and the prejudice caused by State agents ( see paragraph 9 above, in fine ), the applicant could justifiably have regarded any further requests to the same authorities as a futile exercise (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 ‑ V).", "115. Consequently, in view of the fact that the applicant made the hierarchical, prosecution and judicial authorities fully aware of his grievances about the unlawful posting of his photographs, the Court considers that he was dispensed from having to observe meticulously any other exhaustion formalities as suggested by the Government. In the circumstances of the present case, the Court finds that the applicant did everything that could reasonably be expected of him to have his rights redressed ( see Ramishvili and Kokhreidze (dec.), cited above; Belevitskiy, cited above, § 71; Akdivar and Others, cited above, § 69).", "116. In the light of the foregoing, the Court dismisses the Government ’ s objection of non-exhaustion.", "117. The Court further notes that the complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ arguments", "118. The Government did not contest that the police posting of the applicant ’ s photograph constituted an interference, within the meaning of Article 8 of the Convention. However, that interference was justified because it had had been carried out as an “operational investigative measure”. The Government stated that, since the applicant ’ s photograph had not been circulated through the mass media, the interference was of a limited nature and could not amount to a violation. They further asserted that the competent authorities had duly conducted an investigation to identify the persons involved in the impugned act. The Government contested as untrue the applicant ’ s submission that his photograph had been removed after the newspaper publication of 9 February 2004. In reality, they claimed, the photograph had been removed following the authorities ’ proper recognition of their “error”.", "119. The applicant replied that the main reason why the interference had amounted to a violation of Article 8 of the Convention was because it had been unlawful. According to the criminal procedural law, the precondition for declaring a person “ wanted ” by the investigative authorities was the initiation of criminal proceedings, in which the person was suspected of or charged with an offence ( paragraph 4 2 above). In the present case, however, the authorities had implicated the applicant in a murder by posting his photograph on the boards of “wanted” persons in police stations, without ever having launched criminal proceedings against him. Consequently, the applicant had been unlawfully and libellously implicated in a very grave crime in the eyes of the public.", "120. In reply to the Government ’ s argument that the interference had been of a limited nature, the applicant noted that the police had not circulated his photograph for internal purposes. On the contrary, his photograph had been deliberately posted on the most visible site in several police stations all over the country, so that as large a part of the population as possible could consult it. The applicant also complained that the authorities had failed to investigate effectively his complaints. The State agents responsible had never been identified and punished.", "2. The Court ’ s assessment", "121. The Court reiterates that the concept of private life includes elements relating to a person ’ s right to his or her image, and that the publication of a photograph, without the consent of its owner, even if this act is devoid of any specific aim, constitutes an interference under Article 8 of the Convention (see Gurgenidze v. Georgia, no. 71678/01, §§ 56-57, 17 October 2006; Von Hannover v. Germany, no. 59320/00, § § 50-53, ECHR 2004 ‑ VI; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I).", "122. In the present case, the applicant ’ s photograph was not published in a newspaper or divulged through other mass media. However, it cannot be denied that, by posting it on the public premises of several police stations in different parts of the country, the authorities deliberately made the photograph easily accessible to the population at large. Furthermore, it is not solely the public disclosure of the applicant ’ s image, as such, which was at stake in the present case, but also the manner in which it was done and the aims it pursued. In identifying the applicant as being wanted in connection with a murder case, the authorities ’ action amounted to a public denunciation that he had been involved in a very serious crime. This denunciation constituted a statement of fact within the meaning of Article 10 of the Convention, which, since it failed to correspond to reality – the applicant never having been formally accused or suspected of murder – was defamatory (see White v. Sweden, no. 4 2435/02, § 24, 19 September 2006; Pfeifer v. Austria, no. 12556/03, § 46-47, ECHR 2007 ‑ ... ). It is noteworthy that the Government recognised the “error” committed by their authorities ( paragraph 1 18 above ). Consequently, gratuitous damage was done to the applicant ’ s reputation, which forms part of his social identity and psychological integrity and thus falls within the scope of his private life as understood by Article 8 of the Convention (see Pfeifer, cited above, § § 35 and 46-49; Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; Gunnarsson v. Iceland (dec.), no. 4591/04, 20 October 2004).", "123. The present case is different from most of the previous cases which the Court has examined concerning the disclosure of a photograph of a public person ( see Von Hannover, cited above, § 50; Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002). The present applicant was not even the subject of a criminal prosecution at the material time. His status as an “ordinary person” excluded the possibility of curtailing the scope of his private life in favour of any legitimate aim protected by the Convention (see Gurgenidze, cited above, §§ 56-58 and 60-61; Sciacca, cited above, § 29; and, a contrario, Craxi v. Italy (no. 2), no. 25337/94, § 65, 17 July 2003; Pfeifer, cited above, §§ 43-44).", "124. The interference with the applicant ’ s “private life “ should thus be examined, pursuant to the second paragraph of Article 8 of the Convention, as to whether it (a) complied with the criterion of “lawfulness”; (b) was compatible with the existence of a legitimate aim; and (c) was necessary “in a democratic society ” ( see Sciacca, cited above, § 28).", "125. Even though it is for the national authorities, notably the courts, to interpret and apply the relevant internal rules (see Kruslin v. France, judgment of 24 April 1990, Series A no. 176 ‑ A, pp. 21-22, § 29; Amann v. Switzerland [GC], no. 27798/95, § 52, ECHR 2000 ‑ II), the Court exercises a certain power of review (see Craxi (no. 2), cited above, § 78). This is particularly true when, as happened in the case at hand, the domestic authorities omitted to scrutinise effectively the compatibility of the impugned interference either with domestic rules or with Convention standards (see, mutatis mutandis, Gurgenidze, cited above, § 62).", "126. As acknowledged by the competent domestic authorities and confirmed by the respondent Government, the police posting of the applicant ’ s photograph on the boards of “wanted persons” was an “ operational investigative measure ” aimed at securing the applicant ’ s appearance before the prosecution authorities to testify in the murder case as a witness ( see paragraphs 9 and 1 18 above). However, under Articles 393 and 606 (1) of the CCP, only an accused or convicted person evading an investigation, trial or sentence could be declared “ wanted ”. Furthermore, as stated in section 8 ( 2 ) of the Operational Investigative Measures Act, before any specific measure aimed at establishing the whereabouts of an accused or convicted person who has absconded may be taken, a formal decision should first have been issued by the prosecution or judicial authorities.", "127. Articles 93 and 94 of the CCP (paragraphs 33-34 above), defining the status, rights and responsibilities of a witness, did not provide for the possibility of declaring a witness “wanted” in relation to a criminal case. If a witness refused to appear voluntarily before the prosecution, the court could issue an order for his or her compulsory appearance. However, the role of the police, in the event of an inability to establish that witness ’ s whereabouts, was limited to returning the order to the court as “unenforced”. No other measure aimed at searching for the witness was ever envisaged by the domestic law.", "128. In the present case, the applicant was neither an accused nor a suspect in the murder case and, consequently, could not have been designated as a “wanted” person. Nor does the case file disclose any record of a court order which, pursuant to Article 176 of the CCP, authorised the applicant ’ s compulsory appearance before the investigative authority as a witness. The respondent Government did not refer to any provision of domestic law or any decision of the national authorities which could have served as a legal basis for divulging the applicant ’ s photograph to the public and implicating him in a murder. In such circumstances, the interference cannot be said to have been “ in accordance with the law” within the meaning of Article 8 § 2 of the Convention.", "129. The Court reiterates that, where it has been shown that the interference was not in accordance with the law, a violation of Article 8 of the Convention will normally be found without investigating whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Sciacca, cited above, § 30; Craxi (no. 2), cited above, § 84; Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006).", "130. The Court would simply point out that, once disclosures of a private nature inconsistent with Article 8 of the Convention have taken place, the positive obligation inherent in ensuring respect for private life entails an obligation to carry out effective inquiries in order to rectify the matter as far as possible (see Sciacca, cited above, §§ 74-75). In the present case, this has not been done. The authorities failed to fulfil their obligation to provide a plausible explanation for the interference with the applicant ’ s “private life”. Moreover, despite the respondent Government ’ s recognition of the “ error ” before the Court, the competent national authorities have never identified or sanctioned the State agents responsible (see paragraph 1 1 4 above).", "131. In view of the foregoing considerations, the Court concludes that there has been a violation of Article 8 of the Convention.", "V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "132. The applicant relied on Article 6 §§ 1 and 3 of the Convention without identifying the substance of his complaints.", "133. Assuming that the applicant intended to challenge the criminal proceedings against him, the Court notes that, according to the information put at the Court ’ s disposal by the parties in its case file, these proceedings are still pending (see paragraph 2 9 above ). More importantly, the applicant has failed to specify or substantiate his complaints. This leads the Court to reject them as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "134. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "135. The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage. This, allegedly, was the average amount that he could have earned in gainful employment during the period of his unlawful detention.", "136. The Government submitted that there was no causal link between the damage claimed and the alleged violation, as the applicant had been unemployed prior to his detention.", "137. The Court does not discern any causal link between the violations found and the pecuniary damage alleged. It therefore dismisses this claim.", "2. Non-pecuniary damage", "138. The applicant claimed EUR 70,000 in respect of non-pecuniary damage, for the distress and hardship caused by the violation of his Convention rights.", "139. The Government contested the amount claimed as being unreasonably high.", "140. The Court has no doubt that the applicant suffered distress and frustration on account of the violations of his various rights under Articles 5 and 8 of the Convention. The resulting non-pecuniary damage would not be adequately compensated by the mere finding of these breaches (see, for example, Stašaitis v. Lithuania, no. 47679/99, § 99, 21 March 2002; Assanidze v. Georgia [GC], no. 71503/01, §§ 199-201, ECHR 2004 ‑ II; Patsuria, cited above, § 99; M.B. v. Poland, no. 34091/96, § § 71 and 72, 27 April 2004; Gurgenidze, cited above, § 76 ). Making its assessment on an equitable basis, the Court awards the applicant EUR 8 ,000 under this head.", "B. Costs and expenses", "141. The applicant ’ s representative claimed EUR 10,500 for the costs and expenses which the applicant had allegedly incurred before the domestic courts and the Court. The representative asserted that she had spent 113 hours working on the domestic proceedings and 90 hours on the Court ’ s proceedings, both at the rate of 50 EUR per hour. No invoices, contracts or other documents were submitted in support of the above claim.", "142. The Government replied that the amount claimed was excessive.", "143. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the absence of any legal or financial documents in support of this claim, the Court dismisses it.", "C. Default interest", "144. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1951 and 1943, respectively. The first applicant lives in Bekkestua, near Oslo, and the second applicant lives in Oslo. At the material time, the first applicant was the Editor in Chief of Dagbladet and the second applicant was the Editor in Chief of Aftenposten, two major national newspapers in Norway.", "A. General background to the case", "6. The present case has its background in the same case-complex as a previous application, P4 Radio Hele Norge ASA v. Norway (( dec .), no. 76682/01, ECHR 2003 ‑ VI). Like the latter, it concerns a complaint under Article 10 of the Convention about restrictions on media coverage of a major criminal trial, in this case concerning charges against four persons of triple murder, the so-called Orderud case, which took place before the Nes District Court ( herredsrett ) from 18 April to 15 June 2001. This was probably the most spectacular and media-focused criminal case in Norwegian history. The trial involved a son (A) and his wife (B), the wife ’ s half-sister (C) and a friend of the latter (D), who were charged with the murder of the son ’ s parents and sister, committed in a particularly brutal manner. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and pictures were transmitted live and shown on a television screen. On 6 May 2003 a Chamber of the former Third Section declared inadmissible as being manifestly ill-founded P4 ’ s complaint that a refusal by the District Court, under section 131A of the Administration of Courts Act 1915 ( domstolloven - hereinafter “the 1995 Act” ), to grant its application for radio broadcasting directly from the court hearing room violated Article 10 of the Convention.", "B. The impugned photographs", "7. The case under consideration concerns restrictions on the publication by the press of photographs taken of B without her consent outside the court house while leaving, shortly after having attended the District Court ’ s delivery of its judgment of 22 June 2001, convicting A, B and C of the charges and sentencing each of them to 21 years ’ imprisonment and sentencing D to 2½ years ’ imprisonment.", "8. The delivery of the District Court ’ s judgment was broadcast live on TV by two leading national broadcasting companies, the NRK and the TV2. The broadcast did not contain any pictures of B.", "9. In the proceedings summarised here below, the Supreme Court (in paragraph 12 of its judgment), relying on the District Court findings, described the circumstances in which the photographing of B had taken place as follows:", "\"The District Court has established as a fact that during the reading out of the judgment B realised that she would be found guilty, and that she suffered a physical reaction in the form of nausea. Because of this she went to the toilet, together with one of her defence counsels, Ms Y, Advokat. Thereafter she entered a side room, where she cried and was in deep despair. Shortly afterwards she was notified that she had been rearrested, to be remanded in custody. The rumour had spread, and a large number of photojournalists were waiting outside the community hall. B left the building 20-30 minutes after the judgment had been pronounced, together with defence counsel, Ms Y, accompanied by a plain-clothes police officer who walked a few metres behind them. On the way to the unmarked police car, which was parked 20-30 metres from the exit, she was photographed a number of times...”", "10. On 22 June 2001 Dagbladet published and extra edition featuring a photograph covering two thirds of a page, showing B, holding a handkerchief to her face, and her lawyer Y, taken in a side angle from behind. The picture was part of an article, entitled “The farm dispute led to homicide”. An article underneath was entitled “Tense atmosphere before verdict”. The caption stated “Arrested: [B] was this morning sentenced to 21 years of prison. Here, while crying, she is guided out of the premises by her lawyer [Y]”.", "11. On 23 June 2001 Dagbladet published a smaller photograph showing B seated inside an unmarked police car. The picture is part of an article entitled “Broken”, with an accompanying text: “The heavy trip, [B] is lead out of the [court house] and taken to Lillestrøm police station.”", "12. On 23 June 2001 Aftenposten published a photograph covering one fifth of a page, showing B crying outside the court house, taken from the front holding a handkerchief, while her lawyer Y walks next to her and makes a deprecating gesture toward the photographer. A person walks behind, identified as a plain clothes police officer. Underneath the caption states: “21 years. [B] has realised it now – that freedom will not be the outcome. She is supported on the way out by defence counsel Y.” The picture appeared next to an article entitled “Firm, clear – and appealed”, commenting on the judgment. Below on the same page featured another article entitled: “The words are merciless- they fall like needles against the dense silence. Twisting around”. This photograph had been purchased and published by a number of newspapers throughout the country.", "13. In the above-mentioned issues Dagbladet and Aftenposten reported on the District Court ’ s judgment and on the arrest. The prospects of arrests in the event of conviction had been an issue of discussion in the above newspapers during the weeks before.", "14. B had not given her consent for photographs to be taken of her; on the contrary her lawyer Y attempted to prevent it. The authorisation to broadcast the delivery of the judgment had only concerned the reading out of the judgment as such.", "C. The ensuing proceedings", "15. On 6 July 2001 B ’ s defence lawyer, F.S., reported the applicants and three of the photographers to the police for violation of section 131A of the 1915 Act, which led to charges being brought against them.", "16. On 15 October 2003 the Nedre Romerike District Court acquitted the defendants of the charges, giving inter alia the following reasons:", "“The District Court underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited, as is the publication of such images, but that the prohibition will not apply where entirely special considerations so indicate.", "In the assessment of the District Court such entirely special and weighty considerations are present in this case. In this regard the District Court notes that [B] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband. As has already been noted, this crime, the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public. A further point for the Court is that [B] ’ s identity had since long been revealed. Photographs of her had appeared in all the country ’ s newspapers numerous times during the course of the investigation and in connection with the trial hearing before Nes District Court. During the period prior to the trial in the District Court, [B] had rarely consented to being photographed. Nevertheless, the press took a number of photographs of her without her knowledge. However, the situation was different during the almost eight week long trial. According to the information provided, [B] and her husband had consented to being photographed once per week during the trial. The photographs taken during these photo sessions appeared almost daily in the country ’ s biggest newspapers and on various television channels. The issue of protection against identification through photographs was accordingly not an argument in this case. ...", "...", "A key consideration underlying the prohibition against the taking of photographs in section 131A is to protect the accused or convicted person against portrayal in situations in which their self-control is reduced. In this case [B] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock. On the other hand, the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until 25-30 minutes after the end of the court hearing at which the judgment was delivered. In the meantime she had had the opportunity to compose herself in a side room to the hearing room, in the presence of her two defence counsel and members of her family.", "In the assessment of the District Court it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to Article 10 § 2 of the ... Convention .... However, the court views this in the context of the fact that an arrest situation must be said to have existed at the time. [A], [B] and [C] were all arrested by the police during the minutes following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel. Two of the photographs that formed the basis for the penalty charge notices in this case depict [B] as she crosses the 20 - 30 metres between the court premises and the police car that would take her to the police station in Lillestrøm. The third photograph depicts her seated inside the unmarked police vehicle. It is clear that the issue of arrest had been discussed in a number of mass media during the days preceding the pronouncement of judgment. There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before the High Court that most people expected would come, whatever the outcome in the District Court. As noted earlier, the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation. This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that three of the convicted persons had been rearrested. Based on the information on the case presented before the District Court it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested.", "An arrest of this nature must be regarded as a new situation in terms of fact and law. This was an event that was awaited with considerable interest by the media and the general public. Interestingly, in the wake of the arrest, there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not. The District Court regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images. In the assessment of the District Court the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises. Aftenposten ’ s feature on 23 June 2001 states on the front page, on which [B] is shown being escorted into the prison building, that an arrest took place immediately after judgment had been pronounced. The arrest is also described in detail in the extra edition of Dagbladet on 22 June 2001. The Court ’ s assessment of the photographs concerned by the penalty charge notices [ foreleggene ] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest.", "As a general rule there is no prohibition against taking photographs of arrest situations. Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain-clothes officers and unmarked police vehicles, the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion. The three defendants who, prior to the trial before Nes District Court, had been at liberty for over a year were immediately arrested and subsequently remanded in custody. As a result of subsequent developments in the case, these three have not been out of prison since their arrest on 22 June 2001.", "The District Court accordingly finds having assessed the circumstances as a whole, that entirely special considerations are present such that the prohibition against the taking of photographs in section 131A of the 1915 Act cannot entail criminal liability for the journalists and editors charged in this case. All five defendants will accordingly be acquitted.”", "17. The Public Prosecutor appealed against the applicants ’ acquittal (not that of the photographers) directly to the Supreme Court.", "18. By a judgment of 23 March 2004 the Supreme Court convicted the applicants of having published the impugned photographs in violation of sections 131A and 198 (3) of the 1915 Act and sentenced each of them to pay NOK 10,000 in fines, failing which the fines were to be converted into 15 days ’ imprisonment. The Supreme Court rejected a claim by B for compensation of non-pecuniary damage. Its reasoning, stated by Mrs Justice Stabel and joined in the main by the other members of the formation, included the following:", "“(13) The District Court held that B had not given her consent to being photographed. On the contrary, Y made active attempts on her behalf to prevent the taking of photographs. I find in addition that the consent that the District Court gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment. It is in any event clear that the authority of the Court to grant an exemption from the prohibition against the taking of photographs in section 131A(2) of the 1915 Act applies only during the trial itself. This provision will accordingly not apply in our case.", "(14) The question in this case is whether it constituted a breach of section 131A of the 1915 Act and thus a criminal offence pursuant to its section 198 (3) to publish photographs of a weeping B, distraught and dissolved in tears, leaving the court premises having been convicted of aiding and abetting in a triple homicide. If this question were to be answered in the affirmative, a further question would arise as to whether the enforcement of the prohibition would be contrary to ... Article 10 of the Convention, cf. section 3 of the Human Rights Act. ...", "(15) It is the second sentence [of section 131A(1)] that is of interest in our case. ...", "(16) The question is: What restrictions will follow from the phrase ‘ on his or her way to, or from, the hearing ’. I agree with the District Court that the restrictions on the taking of photographs will apply only ‘ in the immediate vicinity of the court premises, i.e. normally up to the car parking area, and that the special protection that follows from section 131A will not apply after the accused has driven away from the court premises ’. The District Court concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle. I agree with this. I also agree with the District Court that the fact that she was under arrest at the time does not render the provision inapplicable.", "(17) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section 131A .... I must therefore examine whether ... Article 10 of the Convention would nevertheless lead to a different outcome.", "(18) On the subject of the general balancing of interests I refer to the discussion in Supreme Court ’ s judgment in the Valebrokk case (2003).... The Supreme Court held by three votes to two that the filming by TV2 of one of the convicted persons following the pronouncement of judgment in the Baneheia case did not constitute a punishable offence. The majority found, with the support of the minority, that the general rule must be that the taking of photographs in the courtroom was prohibited, including after the court had adjourned, but that this restriction would not apply ‘ where entirely special considerations suggest that the taking and publishing of photographs must be permitted ’.", "(19) The majority held that the purpose of the prohibition was to protect the ‘ reputation or rights ’ of the accused or convicted person, and that accordingly the Act pursued a legitimate aim. Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to Article 10 § 1, it ought to be considered whether the interference nevertheless was necessary in a democratic society according to Article 10 § 2. The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom, both during the hearing itself and in immediate connection with the hearings. The majority noted that most countries had prohibitions against the taking of photographs, although the scope and wording varies. By way of conclusion, paragraph 62 noted that:", "‘ The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned, and a prohibition against the publication of the photographs, although the prohibition will not apply if warranted by entirely special considerations. The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs. It is of course true that a rule with certain limitations will be less absolute. Even so, a rule of this nature will not give the news media a ‘ free hand ’ to take and publish photographs when deemed expedient. The prohibition against the taking of photographs is supported by weighty and genuine considerations, not least in the situation immediately after the pronouncement of a judgment. Accordingly, in such a situation, strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display. ’", "(20) The view that the prohibition against the taking of photographs does not violate Article 10 would appear to be supported by the inadmissibility decision of 6 May 2003 rendered by the European Court in P4 Radio Hele Norge ASA v. Norway ( dec .), no. 76682/01, ECHR 2003 ‑ VI. ...", "(21) The European Court found the application to be ’ manifestly ill-founded ’. The Court held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in Article 10 § 1. Nevertheless, the Court held that there was no common ground in the legal systems of the Contracting States with regard to radio and television transmission from court proceedings. The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways. Moreover ... the Court held:", "‘ Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. ... ’", "(22) The Court also held that the national authorities, particularly the courts, were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the ’ fair administration of justice ’. By way of conclusion the Court noted that on this point the Contracting States must enjoy a ’ wide margin of appreciation ’. Thus the general rule provided for in section 131A of the Administration of Courts Act, which applies equally to broadcasting and the taking of photographs, was not found to be problematic in relation to Article 10 of the Convention.", "(23) ...It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing ‘ fair administration of justice ’ is relatively broad.", "(24) The opinions expressed in this decision must also have a bearing in relation to section 131A(1), second sentence, of the 1915 Act. The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by the Director General of Public Prosecutions:", "-Protection against identification through the taking of photographs.", "- Protection against portrayal in photographs in situations in which the subject ’ s control is reduced.", "- The safeguarding of one of the fundamental requirements for due process of law, namely that it should inspire trust and show consideration towards the persons involved. An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden.", "- The need to protect the dignity and reputation of the courts. Since in general it is the courts that require the presence of the accused, which of itself may be burdensome, it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment. A failure to do so will affect not only the accused person him or herself, but also the court, which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court premises.", "(25) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process. Although the need to safeguard the openness of proceedings, including satisfactory opportunities for an active and alert press, is a central consideration, this means that a balancing of interests must be conducted. The legislators conducted this balancing of interests with the introduction of section 131A of the 1915 Act, and the penal provision in section 19(3), in connection with the enactment of the Criminal Procedure Act of 22 May 1981 nr. 25. It is apparent from the legislative history that the background to this was that the existing legislation, including the Photography Act of 1960, was not found to afford the accused and convicted persons sufficient protection against being treated as ‘ fair game ’ by the press, particularly in cases of major interest to the public.", "(26) I should add that the provision has not been regarded as a problem in relation to Article 10 of the Convention. Doubt on this point has mainly attached to other aspects of the new Article 390C of the Criminal Code, which was enacted with the legislative change of 4 June 1999 nr. 37, but which has not yet entered into force. This provision entails an extension of the prohibition against the taking of photographs, inter alia in relation to suspected persons in the custody of the police. Given the position of our case, I will not discuss this in further detail.", "(27) Accordingly I will now move on to consider whether in our case there exist entirely special considerations, see the Valebrokk ruling, according to which the prohibition against the taking of photographs must yield to the freedom of expression. In paragraph 63 of the judgment in that case (HR-2003-00037 a -A63) the majority attached weight to the fact that the case - the harrowing child killings in Baneheia - had attracted extensive public interest and that the identity of the convicted person was known. It was also noted that the photographs might reveal something significant - in a negative sense - about his personality. The decisive point, however, which was discussed in paragraph 64, was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel. This was viewed as information which the public had a right to receive in such a case.", "(28) Applied to our case it is clear that the Orderud case, too, was horrifying and was the subject of enormous public interest. Moreover, B ’ s identity was already widely known when the photographs were taken. However, the photographs of B were in my view of an entirely different nature. The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances. She was in a situation in which she had reduced control, in immediate connection with her conviction by the District Court - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect. The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them.", "(29) The decisive point as regards the District Court ’ s acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law. According to the District Court the arrest was an event that it was legitimate for the mass media to cover, including with the aid of photographs. In my view there are no grounds for maintaining that the arrest meant that ‘ entirely special considerations ’ applied. An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the Orderud case, in which the accused persons had been at liberty throughout the trial. Moreover, I cannot conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation. As long as the photographs do not show something entirely special, for example relating to the procedures of the police during the arrest itself, the protection must in my view remain the same.", "(30) [The applicants ’ ] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case, gave the media a right and a duty to inform, even if this was contrary to the interests of the convicted persons. Moreover, in today ’ s media-based society this information would not be complete without photographs, which suggested that the scope of the prohibition against the taking of photographs should be limited. In my view the protection afforded to the convicted person pursuant to section 131A of the 1915 Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes. In practice, persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified. Nevertheless, the other considerations justifying the prohibition against the taking of photographs will be present, frequently to a greater degree than in the case of other convicted persons.", "(31) ...", "(32) I have accordingly concluded that the District Court ’ s acquittal is not based on a correct application of the law. The case has been sufficiently elucidated for the Supreme Court to render a new judgment, cf. Section 345 second paragraph of the Criminal Procedure Act. The Defendants have not objected to this. I find that [the applicants] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution, a fine of NOK 10,000, in the alternative a prison sentence of 15 days, is appropriate for both parties.", "(33) I will conclude by considering the criminal injuries compensation claim.", "(34) B has filed a claim for damages for non-pecuniary loss, not to exceed NOK 50,000, from each of the accused. She submits that given their convictions for breaches of sections 131A and 198(3) of the 1915 Act, the preconditions for awarding damages pursuant to section 3-6(1), last sentence, of the Damage Compensation Act will also have been met. I agree that this may frequently be the case. However, I will not consider this further since this involves a ‘ may ’ provision and I do not find that there are sufficient grounds to award economic compensation in this case.", "(35) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment. Moreover it is clear from B ’ s testimony that she was not even aware that the photographs had been taken. The violation lies solely in the publication of the photographs, which were not particularly conspicuous in relation to what had been published about her otherwise. This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process. Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages.”", "III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE", "21. The Appendix to the Recommendation Rec (2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principle of particular interest to the present case:", "“ Principle 8 - Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”" ]

[ "II. RELEVANT DOMESTIC LAW", "19. Section 131A, as in force at the material time, of the Administration of Courts Act 1915 ( domstolloven ) provided:", "“During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent.", "If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.”", "20. Section 198(3) provided that the taking of photos or recordings made in breach of section 131A is punishable by the imposition of fines.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "22. The applicants complained under Article 10 of the Convention that the Supreme Court ’ s judgment of 23 March 2004 entailed an interference with their right to freedom of expression that was not supported by sufficient reasons and was therefore not “necessary” within the meaning of this provision.", "In so far as is relevant, Article 10 of the Convention reads:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ... or for maintaining the authority and impartiality of the judiciary.”", "23. The Court notes form the outset that it was undisputed that the Supreme Court ’ s judgment of 23 March 2004, concluding that the publication of the photographs in question by Dagbladet and Aftenposten on respectively 22 and 23 June 2001 constituted an offence under sections 131A and 198(3) of the 1915 Act and ordering that they each pay NOK 10,000 in fine, amounted to an interference with their right to freedom of expression as guaranteed by the first paragraph of Article 10. The Court, having regard to its own case-law, sees no reason to hold otherwise (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 40, ECHR 2000 ‑ I ).", "24. As to the fulfilment of the conditions in paragraph 2 it was common ground between the parties that the interference was prescribed by law, namely the aforementioned provisions of the 1915 Act. The Court is satisfied that this condition was fulfilled.", "25. Nor did the applicants contest that the interference pursued a legitimate aim, without however specifying which of the aims listed in paragraph 2 were relevant.", "26. The Government, referring to the considerations mentioned by the Supreme Court in paragraph 24 of its judgment, affirmed that the interference pursued the aims of protecting the privacy of an individual and maintaining central principles of due process.", "27. The Court considers that the interference could be deemed to pursue the legitimate aims of protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary” in the sense of paragraph 2 of Article 10.", "28. On the other hand, the parties were in disagreement as to whether the restriction was necessary in a democratic society for the achievement of the legitimate aims.", "Submissions of the parties", "1. The applicants ’ arguments", "29. As to whether the interference was necessary in a democratic society, the applicants did not contest that, generally, there would be weighty reasons for prohibiting the taking of photographs of defendants in criminal cases in court or on their way to or from the court. However, they argued that the reasons relied on by the Supreme Court in imposing the restrictions on the publication of the impugned photographs, although they were relevant, were not sufficient for the purposes of the necessity test to be carried out under Article 10 § 2 of the Convention.", "30. The disputed pictures of B had been taken when she was arrested by the police, about half an hour after she had been convicted and sentenced in open court to the maximum statutory penalty for aiding and abetting triple murder. The delivery of the judgment had been broadcast live. Not only had there been a great public interest in the case as a whole but the arrest of B had marked a new development in the case of which the public had the right to be informed. The public interest had not laid in her identity, which had already been well known, but in the fact that she had been arrested and taken into police custody after being free for the last 18 months.", "31. The applicants disputed the Government ’ s argument to the effect that pictorial reporting on a subject of public interest could only be regarded as covered by that interest if it showed something special or unexpected. In any event, when assessing the degree of public interest in the pictures at issue, regard should also be had to the fact that B ’ s own lawyer had been reported by the press to have stated that the arrest had been an unnecessary harassment by the police. Furthermore, the legitimacy of the arrest had been discussed in public by legal professionals, rendered by Dagbladet on 23 June 2001 and had definitely represented a turning point in the Orderud case.", "32. The crucial question was not, as the Government claimed, whether the pictures had been of public interest, which they where, but whether there were sufficiently pressing needs to ban their publication. Neither the interests of B nor the interests of fair administration of justice required such a ban in the present case.", "33. As to B ’ s interests, the Government had attached decisive weight to the fact that she had not consented to being photographed. However, it was contrary to press freedom to grant persons who, like B, had played a central role in issues of great public interest the opportunity to govern press coverage of such issues through their own consent. It would imply that B could use her consent to get media coverage when it suited her case and at the same time restrict media coverage by withholding consent when circumstances were less favourable to her or if she disliked the particular media coverage. B had actually made active use of the press when it suited her interests.", "34. In addition, as also noted by the District Court, the contents of the photographs could not be considered to have been particularly offensive or defamatory.", "35. The applicants would not dispute that B, when she was leaving the court building, had been in a situation that fell within the prohibition in section 131A of the 1915 Act. However, the Supreme Court, which had dealt with the matter only in a general manner, had failed to assess any particular need relating to the particular photographs or to her specific circumstances. In the applicants ’ opinion these were not such that the interference with their freedom of expression could be justified by the interests of protecting B ’ s privacy. The pictures had not been taken in court or immediately after the verdict or in the court building, but outside the court building half an hour after the verdict. There was no prohibition against taking photographs of an arrest, and it was exactly this latter circumstance that had motivated the taking and publishing of the pictures. In that sense, B had been outside the intended core protection area of section 131A.", "36. In the applicant ’ s view, none of the general justifications for the prohibition in section 131A of the 1915 Act had applied with any or much strength in this case. Firstly, B had since long been identified, wherefore protecting her against identification would have been futile. As to the second consideration – the need to protect the convicted person or the accused from being photographed in situations of reduced self control, the applicants stressed that B had left the court room when she understood that she was about to be convicted and had naturally reacted to the conviction. Before the pictures had been taken, she had spent more than half an-hour alone with her family and lawyers to gather herself. The Supreme Court had stated that the interests of protection of personal privacy had not been predominant. This was illustrated by the fact that none of the other persons convicted had complained about pictures having been taken of them and been published. Also the third consideration - to ensure that legal proceedings as far as possible inspire confidence in and show consideration for the persons involved - carried limited weight compared to the considerable public interest in the case generally and in the arrest of B specifically. To allow the taking and publishing of the pictures in the present case would not have undermined the prohibition in section 131A of 1915 Act. As to the fourth reason, the applicants stressed that the pictures had been taken in a parking area outside the court house and that it had been difficult therefore to see how they could have prejudiced the dignity and reputation of the judiciary.", "37. The applicants emphasised that, contrary to what was suggested by the Supreme Court, none of the considerations relied on by the European Court in P4 Radio Hele Norge ASA, cited above, for allowing States a wide margin of appreciation applied in the present case. Whereas the disputed restriction in the former case had not involved the prohibition of publication of specific expressions, but only limitations of a more trivial nature on the freedom to report from the proceedings by the means of live radio broadcasting, the present case concerned criminal conviction of members of the press for publication of specific expressions, notably pictures that documented the arrest of B. Referring to the Court ’ s judgment in News Verlags GmbH & Co.KG v. Austria, ( no. 31457/96, ECHR 2000 ‑ I ), the applicants argued that pictorial reporting should be judged by the same standards as written articles in the media.", "38. Finally, the applicants submitted that the interference complained of had been disproportionate to the legitimate aim pursued. In their view, the Supreme Court had erroneously adopted an approach which was the inverse of the one implied by Article 10 of the Convention. According to the Supreme Court, the question had not been whether there existed weighty reasons to justify the interference but, the other way round, whether there had existed very special considerations warranting the prohibition in section 131A to yield to the freedom of expression as protected by Article 10. In finding that a photograph must show something special in order to fall within the protection of Article 10, the Supreme Court had failed to have due regard to the freedom of speech. The application of such a norm constituted a serious infringement of the freedom of the media to report on serious criminal court cases.", "39. In short, the applicants submitted, the disputed interference with the applicants ’ right to freedom of expression was not offset by any weighty countervailing interests pertaining either to B ’ s interest of privacy or to considerations of fair administration of justice.", "2. The Government ’ s arguments", "40. On the question whether the interference was necessary in a democratic society the Government maintained that even though the Orderud case had been horrifying and the subject of enormous public interest, the photographs in question had been of limited public interest. B ’ s identity had been well known to the public at the time when the photographs had been taken. The arrest of the four freshly convicted persons admittedly represented developments of public interest, as was also recognized by the Supreme Court. However, a crucial fact for the assessment of the present case was that the impugned photographs had not been primarily used to illustrate the arrest. Rather than contributing to any debate of public interest, the sole purpose had been to satisfy readers ’ curiosity about B ’ s emotional reaction to her conviction, which showed nothing abnormal or unexpected. Thus the impugned reporting in the present case fell outside the function of the press to serve as a public watchdog.", "41. While not contesting the Court ’ s powers to make its own interpretation of the pictures in the context that they had been published, knowledge of national conditions was an important element in assessing the degree of public interest in a given subject. In the Government ’ s opinion, the national Supreme Court was better placed than the Court to assess this matter.", "42. The Government maintained that although B ’ s previous co-operation with the press was a valid argument with regard to her general protection against being photographed, this consideration did not apply in the present case. The pictures had been taken shortly after she had been found guilty of having wilfully murdered three persons and sentenced to 21 years ’ imprisonment. B had throughout the proceedings claimed her innocence. Both the fact that she had been found guilty and that she had been imposed the maximum penalty according to Norwegian law were clearly life-altering decisions for her, resulting in shock and utmost despair.", "43. It was, in the Governments view, undisputable that, despite her previous co-operation with the press, in this particular situation B was entitled to the same protection against being photographed as any other person who had been convicted. She was in a situation of reduced self-control, which was precisely the kind of situation in which the prohibition was designed to afford protection. Convicted persons had, even in serious criminal cases like the present one, a legitimate right to be protected from being photographed in situations of reduced self-control. Without such a prohibition undignified situations could easily arise in which accused and convicted persons would have to force their way past photographers waiting outside the court room or in the immediate premises. Like in Von Hannover v. Germany, ( no. 59320/00, § 68, ECHR 2004 ‑ VI ), an additional element was that the photographs had been taken without B ’ s consent. The Government stressed that any person, including persons considered as public figures, had a legitimate interest in protection against being photographed in certain situations. This was certainly the case of convicted persons.", "44. The Government, referring to the Court ’ s ruling in P4 Radio Hele Norge ASA v. Norway ( dec .), no. 76682/01, ECHR 2003 ‑ VI, maintained that a wide margin of appreciation should apply in the instant case. The Supreme Court had furthermore presented relevant and sufficient reasons for accepting the interference.", "45. The interference in this case had been of rather trivial nature in that it had only involved a restriction on the newspaper ’ s choice as to the means of imparting information. B ’ s reaction could have been appropriately described by words. The extent of the restriction had also been limited. According to Section 131A of the 1915 Act, the prohibition had included only the immediate vicinity of the court premises, i.e. normally up to the car parking area. Photographing beyond that point was not prohibited. Thus, the prohibition had entailed only a minor interference with the applicants ’ freedom of expression. Accordingly, even the arrest could be illustrated in another way, for example by photographing B at the police station or in prison.", "46. The Government further pointed out that rules which limited the right of the press to cover court proceedings could be found in the national legal systems of several European States. Sweden and Denmark had corresponding rules to those that applied in Norway.", "47. In light of the above and, in particular, due process considerations and the need to protect the person concerned in a situation of reduced self-control following her conviction, the interference with the applicants ’ freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "B. Assessment by the Court", "1. General principles", "48. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.", "49. An important factor for the Court ’ s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or of the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public has a right to receive them (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § § 55-56, ECHR 2000 ‑ I; Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1551-2, § 50 ).", "50. In sum, the Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).", "51. In this connection, the Court notes that in convicting and sentencing the applicants in this case, the Norwegian Supreme Court attached considerable weight to the European Court ’ s decision in the above cited P4 Radio Hele Norge ASA v. Norway (( dec .), no. 76682/01, ECHR 2003 ‑ VI .), relating to the same case complex and in which it held inter alia :", "“ ... [T]he Contracting States must enjoy a wide margin of appreciation in regulating the freedom of the press to transmit court hearings live. The Court does not consider that a legal presumption on the national level against allowing live transmission, such as that contained in section 131A of the Administration of Courts Act, in itself raises an issue of failure to comply with Article 10 of the Convention.”", "52. That case dealt with an issue of prohibition, pursuant to the first sentence of section 131A(1) of the 1915 Act, to transmit the trial hearing before the Nes District Court live (by radio), thereby limiting the choice of the means available to the press in covering the proceedings. Also in this case there is a question of restriction on the choice of journalistic means, in that it concerns a prohibition, according to the second sentence of section 131A(1), to take photographs of one of the convicted persons outside the court building after the proceedings had come to a close. Although the situations were different, the Court notes that the two rules pursued the same interests, notably the need to avoid additional pressure being brought on those involved in the trial. The Court therefore considers that the rationale for according States a wide margin of appreciation in the former case is applicable to the present instance.", "53. The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of convicted persons in criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec (2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above) and its obligations under Article 6 of the Convention to ensure a fair administration of justice.", "54. It is to be noted that Norway is not in an isolated position with regard to prohibition to photograph charged or convicted persons in connection with court proceedings. According to information available to the Court, similar prohibitions exist in the domestic laws of Cyprus, England and Wales, and legal restrictions apply also in Austria and Denmark. Whilst in a number of countries such matters are left to self-regulation by the press, it cannot be said that there is a European consensus to this effect.", "55. In light of the above considerations, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests.", "2. Application of those principles", "56. The Court observes that the national legal provision contained in the second sentence of section 131A(1) of the 1915 Act, stipulated a prohibition against the taking of photographs of an accused or a convicted person, without his or her consent, on his or her way to or from the court hearing. According to the Supreme Court ’ s case-law, the prohibition was not absolute but would be set aside in instances where the national court found that it would conflict with Article 10 of the Convention. The Court will therefore confine its examination to the manner in which the national courts applied the prohibition to the concrete circumstances of the case.", "57. In this regard, the Court notes that the Supreme Court based its decision in part on considerations of protection of privacy and in part on the need to safeguard due process (see paragraphs 24 and 25 of the Supreme Court ’ s judgment quoted at paragraph 18 above). In the Court ’ s view, these were undoubtedly relevant reasons for the purposes of the necessity test to be carried out under Article 10 § 2. It will next consider whether they were also sufficient.", "58. Largely because of the exceptionally heinous character of the criminal offences in respect of which B and her co-accused had been charged, the trial had been given unprecedented media coverage. It is undisputed before the Court that the passing of the judgment and the arrest immediately after conviction and sentence at first instance was a matter of public interest.", "59. However, under the terms of Article 10 § 2, the exercise of the freedom of expression carries with it “duties and responsibilities”, which also apply to the press. In the present case this relates to protecting “the reputation or rights of others” and “maintaining the authority and impartiality of the judiciary”. These duties and responsibilities are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004 ‑ VI; Hachette Filipacchi Associés c. France, no 71111/01, § 42, 14 juin 2007 ). The same applies when this is done in connection with criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec (2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 2 1 above). The Court reiterates that the notion of private life in Article 8 of the Convention extends to a person ’ s identity, such as a person ’ s name or a person ’ s picture ( Von Hannover, cited above, § 50; see also Schüssel v. Austria ( dec .), no. 42409/98, 21 February 2002).", "60. It is undisputed that at the time when the photos were taken B ’ s identity was already well known to the public and that, accordingly, there was no need to restrict the disclosure of her identity. The Court must nevertheless examine whether the contents of the photos, seen in the context of their publication, was such that the restriction on publication was justified.", "61. The Court notes that two of the impugned photographs, one taken from the side, the other from a more frontal angle, depicted B as she had left the court house accompanied by her lawyer and was being followed by a civil clothed police officer to an unmarked police car. The third photograph, taken through the window of the police car, depicted her seated in the back near the window. All three photographs portrayed her distraught with a handkerchief close to her face in a state of strong emotion. She had just been arrested inside the court house after being notified of the District Court ’ s judgment convicting her of triple murder and imposing on her a 21 years ’ prison sentence, the most severe sentence contemplated under Norwegian law. It must be assumed that B, who was shown in tears and great distress, was emotionally shaken and at her most vulnerable psychologically. As observed by the Supreme Court, immediately in connection with the delivery of the District Court judgment she was in a state of reduced self control, a situation which lay at the core of the protection which the relevant statutory provision was intended to provide. Although the photographs had been taken in a public place (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § § 57-63, ECHR 2003 ‑ I ) and in relation to a public event, the Court finds that their publication represented a particularly intrusive portrayal of B. She had not consented to the taking of the photographs or to their publication.", "62. The Court is unable to agree with the applicants ’ argument that the absence of consent by B was irrelevant in view of her previous cooperation with the press. Her situation could not be assimilated to that of a person who voluntarily exposes himself or herself by virtue of his or her role as a politician ( Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42; News Verlags GmbH & Co.KG, cited above, § 56; Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 35-39, 26 February 2002 ) or as a public figure (see Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999 ‑ I; Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, ECHR 2007 ‑ ... ) or as a participant in a public debate on a matter of public interest (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999 ‑ VIII; Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, pp. 1275-76, §§ 31-35). Accordingly, the fact that B had cooperated with the press on previous occasions could not serve as an argument for depriving her of protection against the publication by the press of the photographs in question.", "63. The Court therefore finds that the need to protect B ’ s privacy was equally important as that of safeguarding due process. While the Supreme Court attached more weight to the latter (see paragraph 35 of its judgment quoted at paragraph 18 above), for the European Court the former is predominant. However, when considered in the aggregate, both reasons corresponded to a pressing social need and were sufficient. The interests in restricting publication of the photographs outweighed those of the press in informing the public on a matter of public concern.", "64. Finally, the Court notes that the fines imposed were not particularly severe.", "65. In sum, the Court finds that, by prohibiting the taking and publication of the photographs of B on the way from the court building to an awaiting police car, the respondent State acted within its margin of appreciation in assessing the need to protect her privacy and those of fair administration of justice. It is satisfied that the restriction on the applicant editors ’ right to freedom of expression resulting from the Supreme Court ’ s judgment of 23 March 2003 was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed.", "There has therefore been no violation of Article 10 of the Convention in the present case." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant company, Axel Springer SE, is a publishing house operated in the legal form of a Societas Europea registered in Berlin. The second applicant company, RTL Television GmbH, is a broadcasting company set up as a private limited company registered in Cologne.", "6. On 14 June 2010 the defendant, S ., then aged 2 8, was arrested. The public prosecutor ’ s office charged him with killing his parents, dismembering their bodies, burning some of the parts, flushing others down the toilet and disposing of the rest by putting them in barrels. S. confessed to the police. Several German newspapers reported on the case. Some published pictures of S., which mostly showed him at a much younger age.", "7. The public prosecutor ’ s office obtained a psychiatric expert opinion in October 2010. The expert concluded that S. was suffering from a schizoid personality disorder at the time when he had committed the offence.", "8. The trial against S. began on 11 January 2011 at the Potsdam Regional Court. Photographers working for the applicant companies attended the hearings to take still photographs and make video ‑ recordings of the defendant.", "9. Prior to the start of the hearing, the presiding judge informed the photojournalists orally that the defendant ’ s face would have to be made unidentifiable “in the usual manner” before any images of him were published.", "10. According to the applicant companies, the presiding judge had indicated at the beginning of the hearing on 11 January 2011 that anyone who failed to comply with this order no longer needed to show himself at the Regional Court of Potsdam and apply for permission to take photos of future proceedings. The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge.", "11. The Government contested the applicant companies ’ assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant, but also from future proceedings before the Potsdam Regional Court. The Government submitted that according to the presiding judge no such statement had been made.", "12. S. repeated his confession on the first day of the hearing.", "13. By a letter of 12 January 2011 the second applicant company asked the President of the Regional Court to change the presiding judge ’ s oral order. It pointed out, inter alia, that several unpixelated pictures of S. had been published in different newspapers before. By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence.", "14. On 17 January 2011 the presiding judge supplemented his order and provided his reasons in writing. The only media representatives who were permitted to take photographs and make video -recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material, the face of S. would be disguised by a technical process, for example by pixelisation, so that it would only be possible to use the images in such a form. Journalists were barred from further reporting on the case if they failed to comply with the order.", "15. The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “usual crimes” and that permitting only pictures that disguised S. impaired the public ’ s ability to be informed. However, he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout Germany. No nationwide television channel besides the second applicant had shown any interest in reporting on it. He stressed the importance of the presumption of innocence, finding that reporting on S. in a way which identified him could have a “ pillory effect ”. Consequently, according to the presiding judge the personality rights of S., who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed, outweighed the public interest in being informed. Furthermore, the order had already proved to be necessary as there had been individual violations of the judge ’ s instructions following the first day of the hearing.", "16. On 18 January 2011 the presiding judge sent the supplemented written order to a number of journalists, including some who worked for the applicant companies.", "17. On 31 January 2011 the applicant companies filed an objection ( Gegenvorstellung ), requesting the suspension of the judicial order banning the publication of images enabling identification “during the proceedings against (...) S.” (” für die Dauer des Prozesses gegen (...) S. ”). The applicant companies stressed the fact that S. had confessed to the crime on the first day of the hearing.", "18. On 4 February 2011 the presiding judge upheld the order. He held that the implications of the confession and its credibility could only be assessed at the end of the hearing.", "19. Further hearings took place on 20 and 27 January 2011 and on 8 February 2011. On 10 February 2011 the Regional Court delivered its verdict, sentencing the defendant to prison on two counts of murder.", "20. On 1 February 2012 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant companies, without providing reasons ( no. 1 BvR 381/11).", "III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE", "24. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principles of particular interest to the present case:", "“ Principle 8 - Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.", "...", "Principle 14 - live reporting and recordings in court rooms", "Live reporting or recordings by the media in court rooms should not be possible unless and as far as expressly permitted by law or the competent judicial authorities. Such reporting should be authorised only where it does not bear a serious risk of undue influence on victims, witnesses, parties to criminal proceedings, juries or judges. ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Legal provisions", "21. The Courts Act (Gerichtsverfassungsgesetz) sets out provisions on reporting on court hearings and on judges ’ powers to issue orders to ensure their proper conduct. The relevant provisions read as follows:", "Section 169", "“ Hearings before the adjudicating court, including the pronouncement of judgments and rulings, shall be public. Audio, television or radio recordings as well as audio and film recordings intended for public presentation or publication are not permitted.", "...", "Section 176", "The presiding judge is responsible for maintaining order at hearings.", "Section 177", "Parties, accused persons, witnesses, experts or persons not participating in a hearing who fail to follow orders given to maintain order can be removed from the courtroom or taken into detention and held for a determined period of time; such a period may not exceed twenty-four hours. Decisions on measures pursuant to the first sentence in respect of persons who are not participants in the hearing shall be made by the presiding judge and in all other cases by the court. ”", "B. Case-law of the Federal Constitutional Court", "22. The Federal Constitutional Court established in a decision of 19 December 2007 (no. 1 BvR 620/07) on video - recording in criminal proceedings that based on section 176 of the Courts Act a presiding judge can impose restrictions, inter alia, on the taking of photographs and making video - recordings. In doing so, the presiding judge has to balance the public interest in being informed and the personality rights of the defendant, giving consideration to the circumstances of the case. An essential criterion is the gravity of the offence at stake and special circumstances which may cause a rise in public interest. It noted that the public interest weighed more when the gravity of the offence clearly differed from acts of common criminality. That applied even if the defendant had never been in the public eye before. As to a defendant ’ s personality rights, account had to be taken of the fact that criminal proceedings caused an unusual and burdensome situation which could not be avoided as attendance at them was mandatory. In particular in respect of defendants, a possible pillory effect or implications on the presumption of innocence and/or later social rehabilitation had to be considered.", "23. The Federal Constitutional Court has decided on several applications for interim relief concerning judicial orders banning the publication of pictures and/or photographic journalism in which a defendant could be identified. The decisions stressed that the presumption of innocence meant that reports on criminal proceedings which included photographs had in general to be restrained and, at the very least, very balanced. The nature and gravity of the offence at issue might not only cause a higher level of public interest but also a higher risk of the stigmatisation of the defendant (decision of 27 November 2008, no. 1 BvQ 46/08). A confession by a defendant might impact the balancing process (decision of 20 December 2011, no. 1 BvR 3048/11) as could a possible lack of criminal responsibility due to mental health problems (decision of 30 March 2012, no. 1 BvR 711/12). In a decision of 9 September 2016 the Federal Constitutional Court has further found that an order to pixelate pictures largely respected the public interest in information (no. 1 BvR 2022/16).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "25. The applicant companies complained that the judicial order banning the publication of images by which S. could be identified had violated their right to freedom of expression as provided in Article 10 of the Convention, which reads, so far as relevant, as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ( ... )", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ( ... ) for the protection of the reputation or rights of others ( ... ) .”", "A. Admissibility", "26. The Court observes that the applicant companies raised their complaint in substance before the domestic courts and that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The Government", "27. The Government stated that the presiding judge ’ s order had been based on section 176 of the Courts Act. It had been the presiding judge ’ s duty to issue instructions to maintain order at the court hearing, which also included ensuring the personality rights of S. and other parties involved.", "28. Article 10 of the Convention had not been violated as the presiding judge had maintained a fair balance between the interests affected. He had taken account to a sufficient degree of the public interest in being informed and had been entitled to give precedence to the interests of S. in view of the circumstances of the case. It had been obvious that the reports on the proceedings against S. had focused primarily on satisfying public demand for sensationalist stories about the gruesome details of the crime. The restriction on publishing images of S. had been justified. S. had been utterly unknown to the public. He had merited an increased degree of protection against reporting as he suffered from a psychiatric disorder, as established by a psychiatric report in October 2010.", "29. The Government emphasised that the pictures taken in the courtroom had shown S. in handcuffs, next to police officers or his defence lawyer. Disseminating pictures of that kind, where he could be identified, would have increased the pressure on him. His interests could not be given less weight in view of his confession on the first day of the hearing, bearing in mind the importance of the presumption of being innocent until proven guilty.", "(b) The applicant companies", "30. The applicant companies argued that the court order had had no legal basis in section 176 of the Courts Act.", "31. According to the applicant companies, the domestic courts had failed in the present case to recognise the importance of the public interest in being informed and to balance the interests in question properly. The very unusual circumstances of the crime at issue had attracted an enormous amount of public interest, which had not been limited to mere curiosity but had also involved issues such as the role of the parents of S. in the family conflict. The domestic courts had ignored the fact that S. had become known to the public by virtue of the crime he had committed. As to the presumption of innocence, the domestic courts had not paid enough attention to the fact that S. had not only made a confession on the first day of the hearing but also previously during the investigation. With regard to the presiding judge ’ s assumption that S. had needed particular protection, it had to be noted that the judge had nonetheless not taken any protective procedural measures, such as closing the proceedings to the public. Since the court had ordered that pictures of S. had to conceal his identity by technical means, the judicial ban had gone considerably beyond the requirements needed for the protection of the presumption of innocence.", "32. The applicant companies highlighted that Article 10 of the Convention not only protected the substance of information and ideas, but also the form in which it was conveyed.", "2. The Court ’ s assessment", "33. The Court notes, and the parties agreed, that the judicial order given in the present case had constituted an interference with the applicant companies ’ right to freedom of expression as guaranteed by Article 10 of the Convention.", "34. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, pursued one or more of the legitimate aims in that paragraph and was “necessary in a democratic society ” for that aim or aims.", "(a) Prescribed by law", "35. The Court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 42, ECHR 2000 ‑ I). It has, however, acknowledged the fact that frequently laws are framed in a manner that is not absolutely precise (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 143, 27 June 2017, and markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 30, Series A no. 165 ).", "36. The Court notes that the wording of section 176 of the Courts Act lacks precision to a certain degree, stating that “ the presiding judge is responsible for maintaining order at hearings ”, thereby giving presiding judges broad discretion. The Court acknowledges that in light of the varied situations that presiding judges face in proceedings, it is impossible to establish precise requirements for the measures to take in order to maintain the proper conduct of hearings in every individual case. Furthermore, in the context of restrictions on reports using photographs in criminal proceedings, the aforementioned provision has been subject to interpretation by the Federal Constitutional Court which has elaborated criteria for presiding judges for the balancing of interests (see paragraphs 22 -23 above ). The role of adjudication vested in the national courts is precisely to dissipate such interpretational doubts as may remain ( Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 144).", "37. Accordingly, the Court is satisfied that the interference was “ prescribed by law”.", "(b) Legitimate aim", "38. It is not in dispute that the judicial order served to protect the personal rights of S. in the context of the trial in the course of which he was to be presumed innocent until proved guilty. The Court notes that the judicial order therefore pursued the legitimate aim of “protecting the rights of others”.", "( c) Necessary in a democratic society", "( i) General principles", "39. The Court refers to the general principles set forth in its case-law for assessing the necessity of an interference with the exercise of freedom of expression which have been recently summarised in Bédat v. Switzerland [GC], no. 56925/08, § 48-54, ECHR 2016, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 88-93, 10 November 2015. The Court has emphasised the essential role played by the press in a democratic society and in particular its duty to impart information and ideas on all matters of public interest. This duty extends to the reporting and commenting on court proceedings which contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them ( Axel Springer AG v. Germany [GC], no. 39954/08, § 80, 7 February 2012 ). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case ( Axel Springer AG, cited above, § 81).", "40. However, the Court has also underlined that the press must not overstep certain bounds, regarding in particular the protection of the right to privacy of accused persons in criminal proceedings and the presumption of innocence ( Bédat, cited above, § 51; Egeland and Hanseid v. Norway, no. 34438/04, § 53, 16 April 2009; Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009 ). The fact that everyone charged with a criminal offence has the right under Article 6 § 2 of the Convention to be presumed innocent until proved guilty is of relevance for the balancing of competing interests which the Court must carry out (see News Verlags GmbH & Co.KG, cited above, § 56).", "41. Lastly, the Court reiterates that the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by Article 10 of the Convention, in particular when a balance has to be struck between conflicting private interests ( Bédat, cited above, § 54). Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Axel Springer AG, cited above, § 88 ).", "42. Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the Court ’ s case law have to be taken into account ( Couderc and Hachette Filipacchi Associés, cited above, § 93; Axel Springer AG v. Germany, cited above, §§ 89-95). The Court considers that the criteria thus defined are not exhaustive and should be transposed and adapted in the light of the particular circumstances of the case (compare Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 166). This applies in particular to cases where the presumption of innocence under Article 6 § 2 of the Convention comes into play (see, mutatis mutandis, Bédat, cited above, § 55). The Court has identified, as far as relevant for the present case, the following criteria in the context of balancing competing rights: the contribution to a debate of public interest, the degree to which the person affected is known, the influence on the criminal proceedings, the circumstances in which the photographs were taken, the content, form and consequences of the publication, as well as the severity of the sanction imposed.", "(ii) Application to the present case", "( α ) The contribution to a debate of public interest", "43. The Court has stressed the contribution made by photographs in the press to a debate of general interest ( News Verlags GmbH & Co.KG, cited above, § § 5 2 et seq.; and Eerikäinen and Others v. Finland, cited above, § 62). Depending on the degree of notoriety of the person concerned and the nature of the crime, the public might have an interest in having someone ’ s physical appearance disclosed ( see, mutatis mutandis, Österreichischer Rundfunk v. Austria, no. 35841/02, § 68, 7 December 2006). The Court acknowledges that there may be good reasons for prohibiting the publication of a suspect ’ s image, depending on the nature of the offence at issue and the particular circumstances of the case.", "44. The crime at issue was brutal but had been committed within a family following a private dispute and in a domestic setting. There were no indications that it had gained particular notoriety. At the very beginning of the proceedings, when the judicial ban was ordered, media interest in the case had been rather limited, as pointed out by the presiding judge and stressed by the Government. The Court agrees with the domestic court ’ s assessment that there was a limited degree of public interest in the case.", "45. The judicial order at issue did not restrict the content of reporting but concerned the publication of images by which S. could be identified. Therefore, the question arising here is whether the publication of such images was capable of contributing to the public debate on the case.", "46. The Court does not consider that information on S. ’ s physical appearance could have contributed significantly to the debate on the case, in particular as there was no notoriety. Furthermore, there is no indication that S. ’ s physical appearance could have contributed to the assessment of issues such as the role of S. ’ s parents in the family conflict.", "( β ) The degree to which the person affected was known", "47. The Court notes that S. was undoubtedly not a public figure, but an ordinary person who was the subject of criminal proceedings. The public became aware of S. for the first time as a consequence of the crime he had committed. The fact that he was the subject of criminal proceedings, albeit for a very serious offence, cannot deprive him entirely of the protection of Article 8 of the Convention ( Bédat, cited above, § 76 and Eerikäinen and Others, cited above, § 66 ).", "48. The fact that someone ’ s picture has already appeared in an earlier publication might be considered in the balancing process ( Axel Springer AG, cited above, § 92, and Österreichischer Rundfunk, cited above, § 65) and lead to the conclusion that there was no need to restrict the disclosure of an identity ( Egeland and Hanseid, cited above, § 59).", "49. The Court notes that the presiding judge did not take into account previously published photographs of S. Considering the particular circumstances in which the judge issued the order, namely the point in time at the very beginning of the court hearing, and the necessary promptness of the decision-making process, he could not be expected to know of all prior publications at that time and consider them when balancing the competing interests.", "50. The Court observes that S. ’ s physical appearance was known to the public as a consequence of the prior publications. However, most of the pictures of S. published prior to the criminal proceedings had apparently been taken many years before and showed him at a much younger age. In this regard, it must also be borne in mind that, until then, the German press had only occasionally reported on the case, with coverage basically limited to local media, as pointed out by the Government. Therefore, at the time of the proceedings against him, these pictures would not have enabled the public to identify S., and his identity cannot be said to have been already known to the public.", "(γ) The influence on the criminal proceedings", "51. The Court notes that S. had confessed to the crime twice and that, according to the applicant companies (see paragraph 32 above), therefore he would no longer have benefitted from the presumption of innocence. However, a confession in itself does not remove the protection of the presumption of innocence. According to Article 6 § 2 of the Convention, everyone charged with a criminal offence must be presumed innocent until proved guilty according to law. The Court acknowledges that a confession might, under certain circumstances, have an impact on the balancing of the competing rights, as the Federal Constitutional Court observed (no. 1 BvR 3048/11, see paragraph 23 above). However, in the present case the Court is satisfied that the presiding judge took into consideration the fact that S. ’ s declarations and their credibility had to be assessed at the end of the main hearing, according to the domestic law, and not before it began. This applies all the more as S. suffered from a schizoid personality disorder, according to a psychiatric expert report obtained by the prosecutor ’ s office. The criminal court had to review carefully the confession in order to satisfy itself that it was accurate and reliable.", "( δ ) The circumstances in which the photographs were taken", "52. The Court has regard to the fact that images of an accused taken in a court room may show the person in a state of great distress and possibly in a situation of reduced self-control (see, mutatis mutandis, Egeland and Hanseid, cited above, § 61). The photographs of S. taken at the beginning of the hearing showed him in the courtroom in handcuffs, next to police officers or his defense. Under these circumstances, S. had no means to protect his privacy and to prevent journalists from obtaining images by which he could be identified. He did not voluntarily expose himself to the public, but was forced to attend the hearing. The Court finds that under the given circumstances there was a strong need to protect S. ’ s privacy.", "53. The Court notes moreover that S. never sought to contact the media nor make any public comments. Quite the reverse, he expressly asked to be protected from reporting which identified him. S. did not consent to the taking of photographs.", "( ε ) The content, form and consequences of the publication", "54. The court order concerns the publication of images taken during the hearing by which S. could be identified. As pointed out by the Government, disseminating images showing S. in the courtroom, from which he could be identified, would have increased the psychological pressure on him. The Court notes that particular consideration should be given to the harmful effect which the disclosure of information enabling the identification of suspects, accused or convicted persons or other parties to criminal proceedings may have on these persons (see Principle 8 of the Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe, see paragraph 24 above ). Likewise, it has to be considered that a publication of images in which a defendant could be identified may have negative implications on a later social rehabilitation, if convicted, as the Federal Constitutional Court pointed out (no. 1 BvR 620/07, see paragraph 22 above). In the present case, it was also in the interest of safeguarding due process not to increase the psychological pressure on S., in particular in view of his personality disorder.", "( ζ ) The scope of the order and the severity of the sanction", "55. The material scope of the judicial order was limited to a ban on the publication of images from which S. could be identified. As to the temporal scope of the judicial order, the applicant companies submitted that the presiding judge had stated on 11 January 2011 that anyone who failed to comply with his order would no longer have the right to take photographs prior to the commencement of proceedings. They had concluded that the threat applied not only to the proceedings in question, but had to be considered as a general ban for the future. The court is not convinced by the applicants ’ argument that the judicial order could have an effect reaching beyond the first-instance hearing. The reasons given in the order explicitly refer to “orders on reporting on the main hearing” (“ Anordnung hinsichtlich der Bildberichterstattung über die Hauptverhandlung ”). In their objection of 31 January 2011 (see paragraph 17 above) the applicant companies themselves objected to a ban on reporting enabling identification “during the proceedings against (...) S.” (” für die Dauer des Prozesses gegen (...) S. ”). In view of the written version of the judicial order of 17 January 2011, and given that the presiding judge ’ s competence was limited to the hearing at issue under section 176 of the Courts Act, there is no support for the applicant companies ’ allegation that the scope of the order went beyond the proceedings against S.", "56. The Court notes that the judicial order was not a particularly severe restriction on reporting. The taking of images as such was not limited. The order banned merely the publication of images from which S. could be identified. Any other reporting on the proceedings was not restricted. Thus, the presiding judge chose the least restrictive of several possible measures in order to safeguard due process and protect S. ’ s privacy.", "57. As regards the consequences of a breach of the court order, the potential barring from further reporting on the case was equally limited to the proceedings against S. The Court does not consider that the order had a chilling effect on the applicant companies contrary to their rights under Article 10 of the Convention.", "( η ) Conclusion", "58. The Court recognises the careful balancing act carried out by the presiding judge, considering the various factors that are relevant under the Convention. Having regard to the criteria and considerations stated above, in particular the fact that the case concerned the publication of images taken in a criminal court hearing, the Court finds that the presiding judge clearly addressed the conflict between opposing interests and applied the domestic legal provision by carefully weighing the relevant aspects of the case. In view of the margin of appreciation available to the national authorities in the context of restrictions on reporting on criminal proceedings, the Court is satisfied that the presiding judge balanced the interests involved in conformity with Convention standards. The order was proportionate to the legitimate aim pursued as the presiding judge chose the least restrictive of several possible measures. Consequently, the Court concludes that the interference with the applicant companies ’ right to freedom of expression was “necessary in a democratic society”.", "59. Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. Circumstances of the case", "8. The applicant, Ms Alison Halford, was born in 1940 and lives in the Wirral. From 1962 until her retirement in 1992 she worked in the police service.", "A. Background to the alleged telephone interceptions", "9. In May 1983 Ms Halford was appointed to the rank of Assistant Chief Constable with the Merseyside police. As such she became the most senior-ranking female police officer in the United Kingdom.", "10. On eight occasions during the following seven years, Ms Halford applied unsuccessfully to be appointed to the rank of Deputy Chief Constable, in response to vacancies arising within Merseyside and other police authorities. In order to be considered for promotion to this rank, Home Office approval was required. However, according to the applicant, this was consistently withheld on the recommendation of the Chief Constable of the Merseyside police, who objected to her commitment to equality of treatment between men and women.", "11. Following a further refusal to promote her in February 1990, Ms Halford commenced proceedings on 4 June 1990 in the Industrial Tribunal against, inter alia, the Chief Constable of Merseyside and the Home Secretary, claiming that she had been discriminated against on grounds of sex.", "On 14 June 1990, the Chairman and Vice-Chairman of the Merseyside Police Authority were designated a \"Special Committee\" to handle the issues arising from the discrimination case.", "12. Ms Halford alleges that certain members of the Merseyside Police Authority launched a \"campaign\" against her in response to her complaint to the Industrial Tribunal. This took the form, inter alia, of leaks to the press, interception of her telephone calls (see paragraph 16 below) and the decision to bring disciplinary proceedings against her.", "13. Thus, on 14 September 1990, the Special Committee referred to the Senior Officers ’ Disciplinary Committee a report written by the Chief Constable about an alleged incident of misconduct on the part of Ms Halford on 24 July 1990. The Disciplinary Committee resolved, on 20 September 1990, to hold a formal investigation and to refer the matter to the Police Complaints Authority and, on 8 February 1991, to press charges. Ms Halford was suspended from duty on full pay from 12 December 1990.", "14. She challenged the above decisions by way of judicial review in the High Court. The matter was adjourned by Mr Justice MacPherson in September 1991 in view of a possible settlement. However, the parties failed to reach agreement and the matter came back before him on 20 December 1991. He found that the Chairman and Vice-Chairman of the Police Authority had acted ultra vires and, without imputing ill-motive to them, held that there had been an element of unfairness. He therefore quashed the relevant decisions.", "15. The hearing before the Industrial Tribunal took place in June 1992. On 14 July 1992 the proceedings were adjourned pending negotiation between the parties, which led to settlement of the case. Ms Halford was given an ex gratia payment of 10,000 pounds sterling (GBP) by the Chief Constable (the statutory maximum which the Industrial Tribunal could have awarded), together with GBP 5,000 towards her personal expenses by the Home Secretary. It was agreed that she would retire from the police force on medical grounds (arising out of an injury to her knee in 1 989). In addition, the Home Office agreed to implement various proposals put by the Equal Opportunities Commission, inter alia to update and review selection procedures for senior posts within the police force.", "B. The alleged interceptions", "16. As Assistant Chief Constable, Ms Halford was provided with her own office and two telephones, one of which was for private use. These telephones were part of the Merseyside police internal telephone network, a telecommunications system outside the public network. No restrictions were placed on the use of these telephones and no guidance was given to her, save for an assurance which she sought and received from the Chief Constable shortly after she instituted the proceedings in the Industrial Tribunal that she had authorisation to attend to the case while on duty, including by telephone.", "In addition, since she was frequently \"on call\", a substantial part of her home telephone costs were paid by the Merseyside police. Her home telephone consisted of a telephone apparatus connected, through the \"network termination point\", to the public telecommunications network.", "17. She alleges that calls made from her home and her office telephones were intercepted for the purposes of obtaining information to use against her in the discrimination proceedings. In support of these allegations she adduced various items of evidence before the Commission (see paragraph 21 of the Commission ’ s report). In addition, she informed the Court that she was told by an anonymous source on 16 April 1991 that, shortly before, the source had discovered the Merseyside police checking transcripts of conversations made on her home telephone.", "For the purposes of the case before the Court, the Government accepted that the applicant had adduced sufficient material to establish a reasonable likelihood that calls made from her office telephones were intercepted. They did not, however, accept that she had adduced sufficient material to establish such a reasonable likelihood in relation to her home telephone.", "18. Ms Halford raised her concerns about the interception of her calls before the Industrial Tribunal on 17 June 1992. On 2 July 1992, in the course of the hearing, counsel for the Home Secretary expressed the opinion that it was not possible for her to adduce evidence about the alleged interceptions before the Industrial Tribunal because section 9 of the Interception of Communications Act 1985 (\"the 1985 Act\") expressly excluded the calling of evidence before any court or tribunal which tended to suggest that an offence under section 1 of the Act had been committed (see paragraph 25 below).", "19. On 6 December 1991 Ms Halford applied to the Interception of Communications Tribunal (\"the Tribunal\") for an investigation under section 7 of the 1985 Act (see paragraphs 30-32 below). In a letter dated 21 February 1992, the Tribunal informed her that its investigation had satisfied it that there had been no contravention of sections 2 to 5 of the 1985 Act in her case (see paragraphs 26-29 below). In a letter dated 27 March 1992, the Tribunal confirmed that it could not specify whether any interception had in fact taken place (see paragraph 32 below).", "20. In a letter to Mr David Alton MP dated 4 August 1992, the Home Secretary explained that Ms Halford ’ s complaint regarding the interception of calls made from her office telephones \"[did] not fall within [his] responsibilities as Home Secretary nor within the terms of the [1985] Act\"." ]

[ "II. Relevant domestic law and practice", "A. Public telecommunications systems", "1. The offence created by the Interception of Communications Act 1985", "21. The Interception of Communications Act 1985 came into force on 10 April 1986 following the Court ’ s judgment in Malone v. the United Kingdom (2 August 1984, Series A no. 82). Its objective, as outlined in the Home Office White Paper which preceded it, was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence (Interception of Communications in the United Kingdom (February 1985) HMSO, Cmnd. 9438).", "22. A \"public\" telecommunications system is defined as a telecommunications system which is run pursuant to a licence granted under the Telecommunications Act 1984 (\"the 1984 Act\") and which has been designated as such by the Secretary of State (section 10 (1) of the 1985 Act, by reference to section 4 (1) of the 1984 Act).", "23. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence.", "24. Section 1 (2) and (3) provide four circumstances in which a person who intercepts communications in this way will not be guilty of the offence. The only one of these which is relevant to the present case is the interception of a communication pursuant to a warrant issued by the Secretary of State under section 2 of the Act (see paragraph 26 below).", "2. Exclusion of evidence", "25. Section 9 of the 1985 Act provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which tends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act.", "3. Warrants", "26. Sections 2 to 6 of the 1985 Act set out detailed rules for the issuing of warrants by the Secretary of State for the interception of communications and the disclosure of intercepted material. Thus, section 2 (2) of the 1985 Act provides:", "\"The Secretary of State shall not issue a warrant ... unless he considers that the warrant is necessary –", "(a) in the interests of national security;", "(b) for the purpose of preventing or detecting serious crime; or", "(c) for the purposes of safeguarding the economic well-being of the United Kingdom .\"", "When considering whether it is necessary to issue a warrant, the Secretary of State must take into account whether the information which it is considered necessary to acquire could reasonably be acquired by other means (section 2 (2) of the 1985 Act).", "27. The warrant must specify the person who is authorised to do the interception, and give particulars of the communications to be intercepted, such as the premises from which the communications will be made and the names of the individuals concerned (sections 2 (1) and 3 of the 1985 Act).", "28. A warrant cannot be issued unless it is under the hand of the Secretary of State himself or, in an urgent case, under the hand of a senior official where the Secretary of State has expressly authorised the issue of the warrant. A warrant issued under the hand of the Secretary of State is valid for two months; one issued under the hand of an official is only valid for two working days. In defined circumstances, warrants may be modified or renewed (sections 4 and 5 of the 1985 Act).", "29. Section 6 of the Act provides, inter alia, for the limitation of the extent to which material obtained pursuant to a warrant may be disclosed, copied and retained.", "4. The Interception of Communications Tribunal", "30. The 1985 Act also provided for the establishment of an Interception of Communications Tribunal. The Tribunal consists of five members, each of whom must be a lawyer of not less than ten years ’ standing, who hold office for five years subject to reappointment (section 7 of and Schedule 1 to the 1985 Act).", "31. Any person who believes, inter alia, that communications made by or to him may have been intercepted in the course of their transmission by means of a public telecommunications system can apply to the Tribunal for an investigation. If the application does not appear to the Tribunal to be frivolous or vexatious, it is under a duty to determine whether a warrant has been issued, and if so, whether it was issued in accordance with the 1985 Act. In making this determination, the Tribunal applies \"the principles applicable by a court on application for judicial review\" (section 7 (2)-(4) of the 1985 Act).", "32. If the Tribunal determines that there has been no breach of the 1985 Act, it will inform the complainant, but it will not confirm whether there was no breach because there was no authorised interception or because, although there was such an interception, it was justified under the terms of the 1985 Act. In cases where the Tribunal finds there has been a breach, it has a duty to make a report of its findings to the Prime Minister and a power to notify the complainant. It also has the power, inter alia, to order the quashing of the warrant and the payment of compensation to the complainant. The Tribunal does not give reasons for its decisions and there is no appeal from a decision of the Tribunal (section 7 (7)-(8) of the 1985 Act).", "5. The Commissioner", "33. The 1985 Act also makes provision for the appointment of a Commissioner by the Prime Minister. The first Commissioner was Lord Justice Lloyd (now Lord Lloyd), succeeded in 1992 by Lord Bingham, also a senior member of the judiciary, who was in turn succeeded in 1994 by another, Lord Nolan.", "34. The Commissioner ’ s functions include reviewing the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 of the 1985 Act, reporting to the Prime Minister breaches of sections 2 to 5 of the 1985 Act which have not been reported by the Tribunal and making an annual report to the Prime Minister on the exercise of his functions. This report must be laid before Parliament, although the Prime Minister has the power to exclude any matter from it the publication of which would be prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report must state if any matter has been excluded (section 8 of the 1985 Act).", "35. In general,the reports of the Commissioner to the Prime Minister have indicated an increase in new warrants issued, but the Commissioner has been satisfied that in all cases those new warrants were justified under section 2 of the 1985 Act.", "B. Telecommunications systems outside the public network", "36. The 1985 Act does not apply to telecommunications systems outside the public network, such as the internal system at Merseyside police headquarters, and there is no other legislation to regulate the interception of communications on such systems.", "37. The English common law provides no remedy against interception of communications, since it \"places no general constraints upon invasions of privacy as such\" (Mr Justice Sedley in R. v. Broadcasting Complaints Commission, ex parte Barclay, 4 October 1996, unreported).", "PROCEEDINGS BEFORE THE COMMISSION", "38. In her application of 22 April 1992 (no. 20605/92) to the Commission, Ms Halford complained that the interception of calls made from her office and home telephones amounted to unjustifiable interferences with her rights to respect for her private life and freedom of expression, contrary to Articles 8 and 10 of the Convention (art. 8, art. 10), that she had no effective domestic remedy in relation to the interceptions, contrary to Article 13 of the Convention (art. 13), and that she was discriminated against on grounds of sex, contrary to Article 14 of the Convention in conjunction with Articles 8 and 10 (art. 14+8, art. 14+10).", "39. The Commission declared the application admissible on 2 March 1995. In its report of 18 April 1996 (Article 31) (art. 31), it expressed the opinion, by twenty-six votes to one, that there had been violations of Articles 8 and 13 of the Convention (art. 8, art. 13) in relation to Ms Halford ’ s office telephones and, unanimously, that there had been no violation of Articles 8, 10 or 13 (art. 8, art. 10, art. 13) in relation to her home telephone, that it was not necessary to consider the complaint under Article 10 (art. 10) in relation to her office telephones, and that there had been no violation of Article 14 taken in conjunction with Articles 8 or 10 (art. 14+8, art. 14+10). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "40. At the hearing, as they had done in their memorial, the Government asked the Court to hold that there had been no violation of the Convention.", "The applicant maintained that there had been a violation, and asked the Court to award her compensation under Article 50 of the Convention (art. 50).", "AS TO THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION (art. 8)", "41. Ms Halford alleged that the interception of her telephone calls amounted to violations of Article 8 of the Convention (art. 8), which provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Commission agreed that there had been a violation so far as the interception of calls from her office telephones was concerned. The Government denied that there had been any violation.", "A. The office telephones", "1. Applicability of Article 8 (art. 8) to the complaint relating to the office telephones", "42. The applicant argued, and the Commission agreed, that the calls made on the telephones in Ms Halford ’ s office at Merseyside police headquarters fell within the scope of \"private life\" and \"correspondence\" in Article 8 para. 1 (art. 8-1), since the Court in its case-law had adopted a broad construction of these expressions (see, for example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, para. 41; the Huvig v. France judgment of 24 April 1990, Series A no. 176 ‑ B, p. 41, para. 8, and p. 52, para. 25; the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B; and the A. v. France judgment of 23 November 1993, Series A no. 277-B).", "43. The Government submitted that telephone calls made by Ms Halford from her workplace fell outside the protection of Article 8 (art. 8), because she could have had no reasonable expectation of privacy in relation to them. At the hearing before the Court, counsel for the Government expressed the view that an employer should in principle, without the prior knowledge of the employee, be able to monitor calls made by the latter on telephones provided by the employer.", "44. In the Court ’ s view, it is clear from its case-law that telephone calls made from business premises as well as from the home may be covered by the notions of \"private life\" and \"correspondence\" within the meaning of Article 8 para. 1 (art. 8-1) (see the above-mentioned Klass and Others judgment, loc. cit.; the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, para. 64; the above-mentioned Huvig judgment, loc. cit.; and, mutatis mutandis, the above-mentioned Niemietz judgment, pp. 33-35, paras. 29-33).", "45. There is no evidence of any warning having been given to Ms Halford, as a user of the internal telecommunications system operated at the Merseyside police headquarters, that calls made on that system would be liable to interception. She would, the Court considers, have had a reasonable expectation of privacy for such calls, which expectation was moreover reinforced by a number of factors. As Assistant Chief Constable she had sole use of her office where there were two telephones, one of which was specifically designated for her private use. Furthermore, she had been given the assurance, in response to a memorandum, that she could use her office telephones for the purposes of her sex-discrimination case (see paragraph 16 above).", "46. For all of the above reasons, the Court concludes that the conversations held by Ms Halford on her office telephones fell within the scope of the notions of \"private life\" and \"correspondence\" and that Article 8 (art. 8) is therefore applicable to this part of the complaint.", "2. Existence of an interference", "47. The Government conceded that the applicant had adduced sufficient material to establish a reasonable likelihood that calls made from her office telephones had been intercepted. The Commission also considered that an examination of the application revealed such a reasonable likelihood.", "48. The Court agrees. The evidence justifies the conclusion that there was a reasonable likelihood that calls made by Ms Halford from her office were intercepted by the Merseyside police with the primary aim of gathering material to assist in the defence of the sex-discrimination proceedings brought against them (see paragraph 17 above). This interception constituted an \"interference by a public authority\", within the meaning of Article 8 para. 2 (art. 8-2), with the exercise of Ms Halford ’ s right to respect for her private life and correspondence.", "3. Whether the interference was \"in accordance with the law\"", "49. Article 8 para. 2 (art. 8-2) further provides that any interference by a public authority with an individual ’ s right to respect for private life and correspondence must be \"in accordance with the law\".", "According to the Court ’ s well-established case-law, this expression does not only necessitate compliance with domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights (art. 8). Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see the above-mentioned Malone judgment, p. 32, para. 67; and, mutatis mutandis, the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 23, paras. 50-51).", "50. In the present case, the Government accepted that if, contrary to their submission, the Court were to conclude that there had been an interference with the applicant ’ s rights under Article 8 (art. 8) in relation to her office telephones, such interference was not \"in accordance with the law\" since domestic law did not provide any regulation of interceptions of calls made on telecommunications systems outside the public network.", "51. The Court notes that the 1985 Act does not apply to internal communications systems operated by public authorities, such as that at Merseyside police headquarters, and that there is no other provision in domestic law to regulate interceptions of telephone calls made on such systems (see paragraphs 36-37 above). It cannot therefore be said that the interference was \"in accordance with the law\" for the purposes of Article 8 para. 2 of the Convention (art. 8-2), since the domestic law did not provide adequate protection to Ms Halford against interferences by the police with her right to respect for her private life and correspondence.", "It follows that there has been a violation of Article 8 (art. 8) in relation to the interception of calls made on Ms Halford ’ s office telephones.", "B. The home telephone", "1. Applicability of Article 8 (art. 8) to the complaint relating to the home telephone", "52. It is clear from the Court ’ s case-law (see the citations at paragraph 44 above) that telephone conversations made from the home are covered by the notions of \"private life\" and \"correspondence\" under Article 8 of the Convention (art. 8). Indeed, this was not disputed by the Government.", "Article 8 (art. 8) is, therefore, applicable to this part of Ms Halford ’ s complaint.", "2. Existence of an interference", "53. The applicant alleged that calls made from her telephone at home also were intercepted by the Merseyside police for the purposes of defending the sex discrimination proceedings. She referred to the evidence of interception which she had adduced before the Commission, and to the further specification made to the Court (see paragraph 17 above). In addition she submitted that, contrary to the Commission ’ s approach, she should not be required to establish that there was a \"reasonable likelihood\" that calls made on her home telephone were intercepted. Such a requirement would be inconsistent with the Court ’ s pronouncement in the above-mentioned Klass and Others case that the menace of surveillance could in itself constitute an interference with Article 8 rights (art. 8). In the alternative, she contended that if the Court did require her to show some indication that she had been affected, the evidence brought by her was satisfactory; given the secrecy of the alleged measures it would undermine the effectiveness of the protection afforded by the Convention if the threshold of proof were set too high.", "54. The Government explained that they could not disclose whether or not there had been any interception of calls made from the telephone in Ms Halford ’ s home, since the finding which the Interception of Communications Tribunal was empowered to make under the 1985 Act was deliberately required to be couched in terms which did not reveal whether there had been an interception on a public telecommunications system properly authorised under the Act or whether there had in fact been no interception. They could, however, confirm that the Tribunal was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in Ms Halford ’ s case (see paragraphs 19 and 32 above).", "55. The Commission, applying its case-law, required the applicant to establish that there was a \"reasonable likelihood\" that calls made on her home telephone had been intercepted (see, for example, the report of the Commission on application no. 12175/86, Hewitt and Harman v. the United Kingdom, 9 May 1989, Decisions and Reports 67, pp. 98-99, paras. 29-32). Having reviewed all the evidence, it did not find such a likelihood established.", "56. The Court recalls that in the above-mentioned Klass and Others case it was called upon to decide, inter alia, whether legislation which empowered the authorities secretly to monitor the correspondence and telephone conversations of the applicants, who were unable to establish whether such measures had in fact been applied to them, amounted to an interference with their Article 8 rights (art. 8). The Court held in that case that \"in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an ‘ interference by a public authority ’ with the exercise of the applicants ’ right to respect for private and family life and for correspondence\" (p. 21, para. 41).", "The Court further recalls that in its above-mentioned Malone judgment, in addition to finding that one telephone conversation to which the applicant had been a party had been intercepted at the request of the police under a warrant issued by the Home Secretary, it observed that \"the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an ‘ interference ’\" (pp. 30-31, para. 64).", "57. However, the essence of Ms Halford ’ s complaint, unlike that of the applicants in the Klass and Others case (cited above, p. 20, para. 38), was not that her Article 8 rights (art. 8) were menaced by the very existence of admitted law and practice permitting secret surveillance, but instead that measures of surveillance were actually applied to her. Furthermore, she alleged that the Merseyside police intercepted her calls unlawfully, for a purpose unauthorised by the 1985 Act (see paragraphs 26 and 53 above).", "In these circumstances, since the applicant ’ s complaint concerns specific measures of telephone interception which fell outside the law, the Court must be satisfied that there was a reasonable likelihood that some such measure was applied to her.", "58. In this respect the Court notes, first, that the Commission, which under the Convention system is the organ primarily charged with the establishment and verification of the facts (see, for example, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2272, para. 38), considered that the evidence presented to it did not indicate a reasonable likelihood that calls made on the applicant ’ s home telephone were being intercepted (see the report of the Commission, paragraph 65).", "59. The Court observes that the only item of evidence which tends to suggest that calls made from Ms Halford ’ s home telephone, in addition to those made from her office, were being intercepted, is the information concerning the discovery of the Merseyside police checking transcripts of conversations. Before the Court, the applicant provided more specific details regarding this discovery, namely that it was made on a date after she had been suspended from duty (see paragraph 17 above). However, the Court notes that this information might be unreliable since its source has not been named. Furthermore, even if it is assumed to be true, the fact that the police were discovered checking transcripts of the applicant ’ s telephone conversations on a date after she had been suspended does not necessarily lead to the conclusion that these were transcripts of conversations made from her home.", "60. The Court, having considered all the evidence, does not find it established that there was an interference with Ms Halford ’ s rights to respect for her private life and correspondence in relation to her home telephone.", "In view of this conclusion, the Court does not find a violation of Article 8 of the Convention (art. 8) with regard to telephone calls made from Ms Halford ’ s home.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)", "61. Ms Halford further alleged that she had been denied an effective domestic remedy for her complaints, in violation of Article 13 of the Convention (art. 13), which states:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "A. The office telephones", "62. The applicant, with whom the Commission agreed, contended that there had been a violation of Article 13 (art. 13) in view of the fact that there was no avenue in domestic law by which to complain about interceptions of calls made on telecommunications systems outside the public network.", "63. The Government submitted that Article 13 (art. 13) was not applicable in that Ms Halford had not made out an \"arguable claim\" to a violation of Articles 8 or 10 of the Convention (art. 8, art. 10). In the alternative, they submitted that no separate issue arose under this provision (art. 13) in relation to the office telephones.", "64. The Court recalls that the effect of Article 13 (art. 13) is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 19 96-V, pp. 1869-70, para. 145). However, such a remedy is only required in respect of grievances which can be regarded as \"arguable\" in terms of the Convention.", "65. The Court observes that Ms Halford undoubtedly had an \"arguable\" claim that calls made from her office telephones were intercepted and that this amounted to a violation of Article 8 of the Convention (art. 8) (see paragraphs 42-51 above). She was, therefore, entitled to an effective domestic remedy within the meaning of Article 13 (art. 13). However, as the Government have conceded in relation to Article 8 of the Convention (art. 8) (see paragraph 50 above), there was no provision in domestic law to regulate interceptions of telephone calls made on internal communications systems operated by public authorities, such as the Merseyside police. The applicant was therefore unable to seek relief at national level in relation to her complaint concerning her office telephones.", "It follows that there has been a violation of Article 13 of the Convention (art. 13) in relation to the applicant ’ s office telephones.", "B. The home telephone", "66. The applicant also complained that there was no remedy available to her against an interception of telephone calls made from her home by the police acting without a warrant. She referred to the first report of the Commissioner appointed under the 1985 Act (see paragraphs 33-34 above) who observed that he \"was not concerned with [the offence of unlawful interception created by the 1985 Act. He could] not in the nature of things know, nor could he well find out, whether there [had] been an unlawful interception ... That is a job for the police\" (Interception of Communications Act 1985, Report of the Commissioner for 1986, Cm 108, p. 2, para. 3).", "67. The Government submitted that Ms Halford had not established an arguable claim of a violation of the Convention in relation to the interception of calls made from her home. In the alternative, they submitted that the aggregate of remedies available to her, including those provided by the 1985 Act (see paragraph 31 above), was sufficient to satisfy Article 13 (art. 13).", "68. The Commission, in view of its conclusion as to the lack of a reasonable likelihood of interception of her home telephone calls, considered that she did not have an arguable claim warranting a remedy under Article 13 (art. 13).", "69. The Court recalls its observation that, in order to find an \"interference\" within the meaning of Article 8 (art. 8) in relation to Ms Halford ’ s home telephone, it must be satisfied that there was a reasonable likelihood of some measure of surveillance having been applied to the applicant (see paragraph 57 above). It refers in addition to its assessment of the evidence adduced by the applicant in support of her claim that calls made from her home telephone were intercepted (see paragraphs 58-60 above).", "70. The Court considers that this evidence is not sufficient to found an \"arguable\" claim within the meaning of Article 13 (art. 13) (see paragraph 64 above).", "It follows that there has been no violation of Article 13 of the Convention (art. 13) in relation to the applicant ’ s complaint concerning her home telephone.", "III. ALLEGED VIOLATION OF ARTICLES 10 AND 14 OF THE CONVENTION (art. 10, art. 14)", "71. In her application to the Commission, Ms Halford had complained that the interception of calls made from both her home and office telephones amounted to violations of Articles 10 and 14 of the Convention (art. 10, art. 14). However, before the Court she accepted that it might not be necessary to examine, in relation to these provisions (art. 10, art. 14), matters which had already been considered under Article 8 (art. 8).", "Article 10 of the Convention (art. 10) states (as far as relevant):", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "Article 14 (art. 14) states:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "72. The Court considers that the allegations in relation to Articles 10 and 14 (art. 10, art. 14) are tantamount to restatements of the complaints under Article 8 (art. 8). It does not therefore find it necessary to examine them separately.", "IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)", "73. Ms Halford asked the Court to grant her just satisfaction under Article 50 of the Convention (art. 50), which provides as follows:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Non-pecuniary damage", "74. Ms Halford claimed compensation for the intrusion into her privacy and the distress it had caused. She informed the Court that in 1992 she had required medical treatment for stress.", "75. The Government commented that no causal connection had been established between the stress suffered by the applicant at the time of proceedings before the Industrial Tribunal and the interception of her telephone calls.", "76. The Court, bearing in mind that the interception of calls made by Ms Halford on her office telephones at Merseyside police headquarters, not subject to any regulation by domestic law, appears to have been carried out by the police with the primary purpose of gathering material to be used against her in sex-discrimination proceedings, considers what occurred to have amounted to a serious infringement of her rights by those concerned. On the other hand, there is no evidence to suggest that the stress Ms Halford suffered was directly attributable to the interception of her calls, rather than to her other conflicts with the Merseyside police.", "Having taken these matters into account, the Court considers that GBP 10,000 is a just and equitable amount of compensation.", "B. Pecuniary damage", "77. Ms Halford requested reimbursement of her personal expenses incurred in bringing the Strasbourg proceedings, estimated at between GBP 1,000 and GBP 1,250.", "78. The Government accepted that a sum could properly be awarded to cover her costs in attending the hearing before the Court. However, they observed that she had not produced any evidence to substantiate any other expenses.", "79. In view of the fact that no evidence was produced to substantiate Ms Halford ’ s expenses but that she clearly attended the hearing in Strasbourg, the Court decides to award GBP 600 in respect of this item.", "C. Costs and expenses", "80. The applicant also claimed the costs and expenses of instructing solicitors and counsel. Her solicitors asked for payment at the rate of GBP 239 per hour. They estimated that they had undertaken the equivalent of 500 hours ’ work in connection with the Strasbourg proceedings and asked for GBP 119,500 (exclusive of value-added tax, \"VAT\") in respect of this. In addition, they asked for GBP 7,500 (exclusive of VAT) in respect of disbursements and expenses. Counsel ’ s fees were GBP 14,875 plus expenses of GBP 1,000 (exclusive of VAT).", "81. The Government considered that the hourly rate requested by Ms Halford ’ s solicitors was too high: in domestic proceedings the appropriate rate would be GBP 120-150 per hour. Furthermore, they submitted that it had not been necessary to work for 500 hours on the case. By way of illustration, they observed that, although the case involved only a narrow range of issues, the applicant ’ s solicitor had chosen to submit written pleadings of approximately 200 pages, with some 500 pages of annexes and appendices, containing for the most part information which was either irrelevant or of only peripheral relevance. They submitted that a total figure for legal costs of approximately GBP 25,000 would be entirely sufficient.", "82. Bearing in mind the nature of the issues raised by the case, the Court is not satisfied that the amounts claimed by the applicant were necessarily incurred or reasonable as to quantum (see, for example, the Saunders v. the United Kingdom judgment of 17 December 1996, Reports 1996-VI, p. 2070, para. 93). Deciding on an equitable basis, it awards GBP 25,000 under this head, together with any VAT which may be chargeable.", "D. Default interest", "83. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum." ]

[ "2. The applicant was born in 1968 and lives in the village of Pilviškiai, in the Vilkaviškis region. He was represented by Mr A. Kručkauskas, a lawyer practising in Vilnius.", "3. The Government were represented by their Agent, Ms K. Bubnytė-Širmenė.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background to the case", "5. The applicant was the director of Kybartai prison.", "6. On 22 June 2015 the Internal Affairs Division at the Department of Prisons ( Kalėjimų departamento Imuniteto skyrius ) opened a criminal intelligence investigation in respect of the applicant, on suspicion of abuse of office (Article 228 § 1 of the Criminal Code).", "7. On 26 June 2015 a prosecutor of the Prosecutor General’s Office, acting on the basis of the criminal intelligence information received that month from the Department of Prisons, asked the Vilnius Regional Court to authorise the interception of the applicant’s electronic communications. The prosecutor based the request on the above-mentioned information which showed that the applicant might have abused his office: it was suspected that he had provided, for pay, better conditions for inmates while they were serving their sentences, and that he had also awarded them incentives ( paskatinimus ). The prosecutor noted that, before asking for authorisation for the interception, other investigative measures had been taken, but that, given in addition the specific features of applicant’s post, they had been insufficient to investigate possible criminal activity. In support of his request, the prosecutor referred to two reports by the Department of Prisons, both of 22 June 2015.", "8. By ruling of 30 June 2015 the Vilnius Regional Court granted the prosecutor’s request on the basis of the Law on Criminal Intelligence (see paragraph 47 below) and allowed, for an initial period of three months, the interception of the applicant’s telephone and other communications, in order to investigate his possible abuse of office. The court noted that the material in the file – criminal intelligence reports – confirmed the applicant’s possible involvement in criminal activity of medium severity, and that other criminal intelligence measures had already been used, which justified authorising the interception. The authorisation was extended by further orders of the Vilnius Regional Court of 29 September and 22 December 2015, and 29 March 2016. Each time the court based the extension on specific information provided to it – transcripts of concrete and numerous newly intercepted telephone conversations of the applicant, where, among other elements, payment for the applicant’s specific actions was mentioned. Those transcripts had been produced by the Department of Prisons in its motions to the prosecutor, who, in turn, referred to that information when asking the court that the authorisation for interception be extended.", "9. Between June 2015 and June 2016 the Internal Affairs Division of the Department of Prisons placed covert listening devices in the applicant’s office in the prison. During that period, his telephone communications were monitored and intercepted.", "10. On 23 June 2016 the criminal intelligence investigation was discontinued for lack of incriminating evidence to charge the applicant under Article 228 § 1 of the Criminal Code.", "That notwithstanding, the prosecutor permitted the use of the collected information in disciplinary proceedings, which ultimately led to the applicant’s dismissal (see paragraphs 25-45 below).", "11. In the meantime, the applicant sought to obtain the information gathered against him during the secret surveillance. He also contested the lawfulness of the relevant measure.", "The proceedings regarding access to information in the criminal intelligence file and regarding the lawfulness of the criminal intelligence measuresAs to access to information", "As to access to information", "As to access to information", "12. By a ruling of 16 March 2017, the Vilnius Regional Court, in a public hearing in which the applicant’s lawyer and a representative from the Ministry of Justice (which oversees the Department of Prisons) took part, granted the applicant’s request and ordered the Department of Prisons to provide the applicant with the information about him that had been gathered during the criminal intelligence investigation. The court observed that information could be disclosed only inasmuch as the law allowed, and in compliance with restrictions set out in Article 19 § 7 of the Law on Criminal Intelligence (see paragraph 47 below).", "13. In compliance with that court decision, on 27 March 2017 the Department of Prisons provided the applicant with two declassified reports ( pažymos ) from the criminal investigation file. The Department noted that it had received a prosecutor’s permission to use that information for investigation of the applicant’s disciplinary offences (see paragraph 25 below). The first report consisted of eleven pages and included analysis of the applicant’s actions in organising the prison’s internal competitions, entering into mobile telephone contracts and using the prison car for personal purposes, as well as other offences. The second report contained fifty-four pages of transcripts of the applicant’s intercepted telephone conversations.", "The Department of Prisons noted that other information, such as that linked to measures, methods or tactics of criminal intelligence, and individuals who had performed those actions, could not be revealed, under Article 19 § 7 of the Law on Criminal Intelligence (see paragraph 47 below).", "14. On the basis of its earlier ruling (see paragraph 12 above), on 29 November 2017 the Vilnius Regional Court issued a writ of execution, ordering the Department of Prisons to “disclose” to the applicant the information gathered about him during the criminal intelligence investigation.", "15. By a letter of 21 December 2017, the Department of Prisons informed the applicant that it had “repeatedly” sent him and his lawyer two reports (see paragraph 13 above), the Vilnius Regional Court’s rulings authorising the interception of the applicant’s telephone communications (see paragraph 8 above), and certain other documents regarding the declassification of those materials, in total eighty-four pages of documents. The Department wrote that, following the court order for disclosure, it was providing the applicant with “all” the criminal intelligence investigation information gathered about him, except for the information which could not be disclosed pursuant to Article 19 § 7 of the Law on Criminal Intelligence, which point had been emphasised by the Vilnius Regional Court (see paragraph 12 above).", "16. According to the Government, in January 2018 the applicant requested, through a bailiff, that the Department of Prisons be ordered to provide certain other documents, such as those relating to a secret entering of the applicant’s office and the placement of covert listening devices, those documents having been mentioned in the documents that had already been made available to the applicant. In February 2018 the Department refused to release that information, referring to Article 19 § 7 of the Law on Criminal Intelligence, on the ground that those documents contained specific information about listening devices, their installation and dismantlement, and information about the identities of secret participants in the criminal intelligence investigation. The Department also informed the bailiff about that refusal.", "17. According to the Government, neither the applicant nor his lawyer submitted any further requests to the bailiff regarding the execution of the Vilnius Regional Court’s ruling of 16 March 2017, and on 24 April 2018 the bailiff confirmed that the execution of that court decision had been fully completed. Neither the applicant nor his lawyer complained about the bailiff’s actions.", "The decisions regarding the lawfulness of the criminal intelligence measures applied to the applicant", "18. The applicant lodged a complaint regarding the lawfulness of the criminal intelligence investigation, and the alleged breach of his rights and freedoms. On 4 August 2017 that complaint was dismissed by the Prosecutor General’s Office. The prosecutor noted that he had obtained and examined the materials in the criminal investigation file. As noted by the prosecutor, given that some of the documents, or parts of the documents, in that file had been marked as “restricted use”, in the decision he would refer only to information which was either not classified or which had been declassified. The prosecutor thus referred to a number of particular documents of 2015 and 2016, such as requests for the interception of the applicant’s telephone communications, lodged by the Department of Prisons and the Prosecutor General’s Office, and the authorising decisions by the Vilnius Regional Court. The prosecutor observed that, prior to authorising the interception of the applicant’s telephone communications, other methods had been used to try to establish possible criminal acts: information had been collected about the inmates and other persons with whom the applicant maintained contact, and about incentives and other privileges awarded to inmates. On the facts it had been found that, by calling the applicant from unlawfully owned mobile telephones, the inmates would not only solve their own issues, but also act as intermediaries to solve other inmates’ problems. The applicant would meet the inmates’ relatives in his office at Kybartai prison or in secret locations in town. Although the applicant contended that the criminal intelligence investigation had been opened in connection with his unlawful actions in organising internal competitions, in reality it had been commenced on the basis of information about the applicant awarding incentives to inmates in exchange for remuneration.", "19. In the light of the above, the prosecutor held that the criminal intelligence investigation had been opened and performed reasonably and lawfully. Its duration had been determined by the need to verify and assess the information collected. The prosecutor also considered that the information gathered during the criminal intelligence investigation had been (lawfully) used to examine the applicant’s disciplinary offences or misconduct in office, in compliance with the requirements of the Law on Criminal Intelligence.", "20. By a ruling of 4 September 2017 ordering the Department of Prisons to provide it with the criminal intelligence materials, and, afterwards, by a ruling of 25 September 2017, adopted in written proceedings, notwithstanding the applicant’s request that a hearing be held, the Vilnius Regional Court dismissed an appeal by the applicant against the prosecutor’s decision. The court pointed out that, under Article 5 § 9 of the Law on Criminal Intelligence, a person had a right to challenge criminal intelligence measures, should he or she consider that those measures had breached his or her rights (see paragraph 47 below). Such complaints were amenable to appeal at two stages – an appeal could be made to the prosecutor and then to the court. The court also observed that the applicant had not explained which particular freedoms or rights had been breached by the criminal intelligence measures. Even so, it appeared from the applicant’s arguments that the complaint was linked to his dismissal from work. For the court, in the proceedings at hand it had jurisdiction to examine only questions relating to the duration of the criminal intelligence measures and their proportionality. Any arguments regarding whether information obtained by employing criminal intelligence measures could be used when examining disciplinary offences should be examined in different court proceedings regarding that disciplinary offence.", "21. On the merits, the Vilnius Regional Court specified that on 20 May 2015 the Department of Prisons had received information about the applicant providing better living conditions for inmates in exchange for payment, and also awarding them incentives. That information had contained elements of the crime of abuse of office. It had included details of one particular inmate who had been given better conditions and incentives; that information had already been known about before the opening of the criminal intelligence investigation. Once the investigation had been opened, but before the authorisation of the interception of the applicant’s telephone communications, information about disciplinary penalties and incentives in respect of the inmates had been received, and that information supported the suspicions against the applicant. A criminal intelligence measure – the interception of the applicant’s electronic communications – had then been authorised by the court. That authorisation had been extended several times by the court, the interception lasting for twelve months altogether, that being the maximum term allowed under the Law on Criminal Intelligence. Accordingly, neither the time-limit for the above-mentioned measure, nor the rules for its authorisation – by a court decision – had been breached. The court noted that “it had acquainted itself with the criminal intelligence investigation file”. The criminal intelligence investigation had been intensive, information had not only been gathered by intercepting the applicant’s telephone communications, and the new information obtained was being verified in various ways, and would prove to be true. The Vilnius Regional Court also specifically noted that during the first three-month period when the technical measures had been applied, “another event” ( kitas įvykis ), having the features of the crime of abuse of office, had been established. That “new event” had been referred to in the prosecutor’s request to the court to extend the interception measure. Similarly, during the first and the second extensions, the Department of Prisons had referred to “new concrete events”, and that information had likewise been relied on by the prosecutor when asking to extend the authorisation of the interception. There had not been a single extension in respect of which there had been no new information received about the applicant’s possible criminal acts (see also paragraph 8 above). It was understandable that at the time when the criminal intelligence investigation started and the interception had been authorised, there had not been much information about the possible unlawful activity; however, with each extension of the interception period, the amount of such information should have become greater, which had been the case.", "22. Given the applicant’s place of work and his position – he was the director of a prison – the interception of his electronic communications had been a proportionate measure. Specifically, the State and society had an interest in having inmates following the letter of the law. The information which had prompted the criminal investigation showed that the applicant used to award unwarranted incentives to the inmates, thus portraying them positively, without merit. Those actions by the applicant posed a clear and present danger to society, as those inmates could use the incentives in order to be released from prison early. Furthermore, the applicant’s work in an inaccessible and protected incarceration facility had significantly restricted the means for the criminal intelligence investigation, which made recourse to such technical means as interception of the applicant’s electronic communications reasonable and proportionate. The applicant’s actions had elements of corruption-related criminal acts, and uncovering such crimes was always complicated on account of the perpetrators’ conspiratorial tendencies, their interest in not being detected, and, in this particular case, the applicant’s specific knowledge of criminal intelligence means and methods, and his knowledge of how to counter them.", "23. Lastly, the Vilnius Regional Court noted that in his complaint the applicant did not demonstrate any possible connection between the court orders authorising the interception of his electronic communications and a breach of his right to respect for his private life. There had been no breach of the applicant’s right to respect for his private life on account of those court orders.", "The list of documents provided to the applicant, as specified by the Government", "24. As specified by the Government, the applicant was provided with the following documents relating to the criminal intelligence measures.", "As early as in 2016 he had been provided with the materials gathered when his telephone communications were intercepted, as part of his disciplinary investigation file. At his request, he had again been given those documents in March and December 2017. During the court proceedings regarding the disciplinary penalties, those documents had again been given to him in November 2016 and in January 2017. In addition, in April 2017 the applicant had been provided with all of the procedural documents, such as partly declassified applications by the Prosecutor General’s Office and partly declassified court decisions, which stated the legal and factual grounds for asking for authorisation for the interception of his telephone communications, the scope of the criminal intelligence measures, and their duration. At the applicant’s request, the same documents had again been provided to him in March 2020, during the court proceedings concerning the disciplinary penalties. In addition, in January 2018, at the applicant’s request, the Department of Prisons had provided him with all of its applications for the interception of his telephone communications; the same documents had again been provided to the applicant in March 2020, during the court proceedings concerning the disciplinary penalties. He had also been provided that month with the entirely declassified letter no. SD-141RN of 22 June 2016, whereby the Prosecutor General’s Office had consented to the use of criminal intelligence information in the disciplinary proceedings against the applicant (see paragraph 25 below).", "Additionally, at the applicant’s request, during the court proceedings concerning the disciplinary penalties, in September 2020 the Department of Prisons and the Prosecutor General’s Office partly declassified and made available to the applicant their applications and the decisions regarding secret entry into the applicant’s office to place and use covert listening devices therein, and regarding surveillance of the applicant. In October 2020 the applicant was also given partly declassified rulings of the Vilnius Regional Court, of November 2015 and March 2016, authorising secret entry into the applicant’s offices, and his surveillance.", "the applicant’s dismissal ON disciplinary GROUNDS and related COURT proceedingsThe applicant’s dismissal", "The applicant’s dismissal", "The applicant’s dismissal", "25. On the basis of a request by the Department of Prisons, referring to Article 19 § 3 of the Law on Criminal Intelligence, on 22 June 2016 by decision no. SD-141RN, the Prosecutor General’s Office consented that information gathered during the criminal intelligence investigation could be used when investigating the applicant’s disciplinary offences or misconduct in office.", "26. On 10 August 2016 the Department of Prisons provided the Ministry of Justice with the materials gathered during the criminal intelligence investigation for the purpose of the examination of applicant’s disciplinary liability. Those materials have been declassified by the Department of Prisons, the Prosecutor General’s Office and the Vilnius Regional Court (each institution having declassified its own documents).", "27. On 26 September 2016, by a decision of the Minister of Justice, the applicant received a disciplinary penalty – a strict reprimand. It was established that in 2015 he had organised competitions for several posts at Kybartai prison and had given unlawful orders to his subordinates so that individuals close to him would win those competitions. Among other things, the applicant had demanded that some other individuals should not take part in those competitions and had set up certain requirements so that a person close to him would qualify. Those actions by the applicant were characterised as unethical, and as constituting a gross disciplinary offence ( šiurkštus tarnybinis nusižengimas ) and abuse of office.", "28. Additionally, on 3 November 2016, by a decision of the Minister of Justice, the applicant received another disciplinary penalty – dismissal from service. It was established that in 2014 he had, in his capacity as the director of Kybartai prison, without public procurement signed a contract with a telecommunications company and obtained four mobile telephone numbers which he had then given to individuals close to him for their use. In addition, he had used the prison car for personal purposes, and had given the driver of the prison car unlawful orders. All this constituted a gross breach of numerous legal regulations concerning ethics and the adjustment of private and public interests in public service, and amounted to an abuse of office.", "29. The applicant contested both decisions in court.", "Administrative court proceedings regarding the lawfulness of the use of criminal intelligence information and the lawfulness and proportionality of the applicant’s dismissalThe Vilnius Regional Administrative Court", "The Vilnius Regional Administrative Court", "The Vilnius Regional Administrative Court", "30. On 3 November 2016 the Vilnius Regional Administrative Court accepted the applicant’s lawsuit for examination. The court ordered the Ministry of Justice to provide a response to the applicant’s lawsuit and to provide “all materials they possessed” on which the Ministry’s findings regarding the applicant’s disciplinary offence had been based. The Ministry of Justice complied, providing the court with a number of documents, such as three criminal intelligence reports from August 2016 by the Department of Prisons (twenty-three, fourteen and nineteen pages), the Department of Prisons report from July 2016 (sixty-five pages), statements of witnesses who had worked at Kybartai prison, and other documents.", "On 28 November 2016 the Vilnius Regional Court forwarded the Ministry’s reply, as well as the above-mentioned supporting documents to the applicant, for information.", "31. The administrative court proceedings were subsequently suspended until 20 December 2018, until another linked complaint by the applicant, regarding a disciplinary penalty – a reprimand received previously for releasing certain prisoners without valid court orders or while the court orders were not yet in force – was over. Those proceedings ended with a final ruling of the Supreme Administrative Court of 14 November 2018, in which the reprimand was upheld.", "32. At the applicant’s request, on 9 April 2019 the Vilnius Regional Court again suspended the proceedings until the Constitutional Court had given a ruling in a case which concerned an analogous legal measure (see paragraph 50 below). The administrative court proceedings resumed on 2 May 2019, after the Constitutional Court had delivered its ruling of 18 April 2019.", "33. As it transpires from the documents submitted by the parties, by a decision of 3 March 2020 the Vilnius Regional Administrative Court, on the basis of the applicant’s lawyer’s request of 25 February 2020, ordered the Department of Prisons to provide the following documents: 1. the letters of the Department to the Prosecutor General’s Office, asking for the authorisation and the extension of the criminal intelligence measures; 2. the prosecutor’s corresponding applications to the court; 3. the court’s decisions authorising and extending the interception of the applicant’s communications; 4. the Department’s request for the prosecutor’s consent to use the collected information in the disciplinary proceedings; 5. the prosecutor’s consent; 6. the decisions to declassify the materials listed in points 1-3 above. Complying with the court order, the Department provided that court with those documents (thirty-eight pages).", "As submitted by the Government, during the court proceedings concerning the disciplinary penalties, both the applicant’s lawyer and the applicant had become familiar with the above-mentioned documents (they were in possession of all that information contained in the above-mentioned documents in 2016-2018).", "34. On 18 March 2020 the Prosecutor General’s Office also provided the Vilnius Regional Administrative Court with a copy of its letter of 22 June 2016, whereby it had consented to information gathered during the criminal intelligence investigation being used in the disciplinary proceedings.", "35. On 30 October 2020 the Vilnius Regional Administrative Court wrote to the Ministry of Justice and the applicant, asking whether, in the light of the extreme health situation in the country, they would not object if the case was heard by means of written proceedings. Both parties agreed.", "36. By a ruling of 22 December 2020, in written proceedings, the Vilnius Regional Administrative Court dismissed the applicant’s complaint. The court referred to the ruling of the Constitutional Court of 18 April 2019 (see paragraph 50 below), and observed that, when deciding a case wherein the unlawfulness of an official’s actions was proved by information obtained during a criminal intelligence investigation, the court should examine each time whether the information had been obtained without breaching the law and whether it had been reasonable to use it when investigating disciplinary offences.", "37. On the facts, the court established that on 15 June 2016, on the basis of Article 19 § 3 of the Law on Criminal Intelligence, the Department of Prisons had requested the Prosecutor General’s Office to allow the use of the information obtained through criminal intelligence measures when investigating the applicant’s disciplinary offences; that request had been granted. Between June and August 2016, those criminal intelligence investigation materials had therefore been declassified and transferred to the Ministry of Justice, which oversees the Department.", "38. As to the applicant’s arguments concerning the lawfulness and proportionality of the criminal intelligence measures, those had already been examined by a court in another set of proceedings, where no breach of the law had been found (see paragraphs 18-23 above). For the administrative court, there was no information in the file that required it to hold that the criminal intelligence institutions’ actions, when gathering information which had been used to examine the disciplinary offences, would not have complied with the law. It was also of relevance that the measures had been taken after a corruption-related crime had been suspected. The fact that no criminal investigation had been opened in respect of the applicant did not, in and of itself, make the use of the criminal intelligence materials unlawful, given that those materials could be used to investigate corruption-related disciplinary offences. In that context, Article 2 § 13 of the Law on State Service was pertinent (see paragraph 48 below). It followed that the materials gathered had been declassified and used in the disciplinary proceedings in compliance with the requirements of Article 19 § 3 of the Law on Criminal Intelligence.", "39. On the facts, the administrative court held that both disciplinary offences had been established correctly. Regarding the first disciplinary offence, it had been established on the basis of nine witnesses’ testimony, and the content of the applicant’s intercepted telephone conversations, which he had not denied. Regarding the second disciplinary offence, that was proven by documents, namely contracts with the telecommunications company, the applicant’s entries in the car travel records, and his telephone conversations. The disciplinary penalty of dismissal from work had been imposed on the applicant appropriately, as he had committed two gross disciplinary offences, for which Article 29 § 4 of the Law on State Service provided for dismissal from service (see paragraph 48 below). In the court’s view, as the director of Kybartai prison, the applicant had been its [senior] manager, and higher requirements to observe the law applied to him. He had to lead by example, within and outside the service. The disciplinary offences had been committed by the applicant intentionally. His actions discredited the system of the execution of sentences, reduced society’s respect for State institutions and officials, and gave the impression that State officials could breach the law and use State property for personal gain.", "40. Lastly, the administrative court held that there was no basis on which to rule that the criminal investigation measures had been disproportionate, as no information had been provided to show that any serious restrictions of the applicant’s personal rights and freedoms had taken place.", "The Supreme Administrative Court", "41. By a final ruling of 29 April 2021, in written proceedings, the Supreme Administrative Court dismissed an appeal by the applicant. The court noted that both the Ministry of Justice, and the first instance court, when examining the disciplinary offences committed by the applicant, had relied on declassified information obtained through the criminal intelligence measures. The disciplinary offences committed by the applicant had been established on the basis of the entirety of the evidence, and not only on the basis of information obtained through secret surveillance. The first instance court had in particular precisely examined and assessed the lawfulness, reliability and proportionality of the use of the information gathered during the surveillance as evidence, which had later been declassified and had been provided for the investigation of a disciplinary offence. This was in compliance with paragraphs 86.3 and 86.3.1. of the Constitutional Court’s ruling of 18 April 2019 (see paragraph 50 below). Furthermore, the applicant had had an opportunity to put forward his arguments regarding the lawfulness, reliability and proportionality of the use of that information. As noted by the Constitutional Court, Article 19 § 3 of the Law on Criminal Intelligence permitted the use of information obtained through criminal intelligence to investigate corruption-related disciplinary offences. This had been the situation in the applicant’s case, as it stemmed from Article 2 § 13 of the Law on State Service. Both the Ministry of Justice and the first instance court had therefore reasonably relied on declassified criminal intelligence information.", "42. The Supreme Administrative Court also noted that by a final ruling of 25 September 2017, the applicant’s arguments regarding the alleged unlawfulness of the criminal intelligence actions had been rejected (see paragraphs 20-23 above). It had to be emphasised that within that (second) set of administrative court proceedings the applicant had not contested the reliability of the information collected during the disciplinary investigations.", "43. Given the applicant’s duties – he had been the manager of an institution – and the offences which he had committed, the use of declassified information when examining those offences had been necessary in a democratic society, and had pursued a legitimate aim of guaranteeing transparency and openness in public service and prevention of the abuse of State office. The use of such information for the investigation of disciplinary offences had also been proportionate. The law set a higher disciplinary and moral standard for officials compared with other persons, and those officials’ behaviour when in service should not give rise to doubts about their meeting both the norms of general ethics and service-related ethics. Actions that contradicted the aims of statutory institutions ( statutinės institucijos ) were not acceptable. Use of information thus obtained was a proportionate measure to guarantee the effectiveness of law enforcement institutions.", "44. On the entirety of the evidence, the court concluded that the applicant had committed two gross disciplinary offences. Given his position as the manager of an incarceration institution, he had clearly shown an inappropriate example to his employees, and acted for personal gain. His dismissal had therefore been an appropriate measure.", "45. The Supreme Administrative Court lastly found that in his appeal, the applicant had not provided any reasoned legal arguments as to why the forwarding of the criminal investigation materials to the Ministry of Justice, for the investigation of disciplinary offences, had restricted his right to respect for his private life under Article 8 of the Convention." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "46. The Constitution reads:", "Article 22", "“Private life shall be inviolable.", "Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable.", "Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law.", "The law and the courts shall protect everyone from arbitrary or unlawful interference with his or her private and family life, as well as from encroachment upon his or her honour and dignity.”", "Article 25", "“... Citizens shall have the right to receive, according to the procedure established by law, any information held about them by State institutions.”", "Article 33", "“Citizens shall have the right to ... enter on equal terms the State Service of the Republic of Lithuania ...”", "47. The Law on Criminal Intelligence ( Kriminalinės žvalgybos įstatymas ), in force as of 1 January 2013, read as follows at the material time:", "Article 5. Protection of human rights and freedoms when conducting criminal intelligence", "“1. Human rights and freedoms must not be violated during the conduct of criminal intelligence measures. Individual limitations on human rights and freedoms must be temporary and apply only in the manner prescribed by law in order to protect the rights and freedoms, as well as property, of other persons, and public and national security.", "...", "6. At the request of a person who has been subjected to criminal intelligence measures, but where the information received has not been confirmed and no pre-trial investigation has been opened, but [as a result of criminal intelligence measures], the person has experienced negative legal consequences, the information collected about him or her when conducting criminal intelligence, except the information specified in Article 19 § 7 of this Law, must be provided.", "...", "9. A person who considers that the actions of criminal intelligence entities have violated his or her rights and freedoms may lodge an appeal against their actions with the head of the principal criminal intelligence institution or the prosecutor ..., [and] may lodge an appeal against decisions of the latter to the president of the regional court or a judge authorised by him or her ...”", "Article 8. The grounds for a criminal intelligence investigation", "“1. A criminal intelligence investigation shall be performed when:", "1) there is information about a very serious or serious crime that is being prepared, is being committed, or has been committed, or about crimes of medium severity referred to in Article ... 228 § 1 ... of the Criminal Code [abuse of office], or about those who are preparing, are committing, or have committed such acts,", "...", "3. If, during the conduct or completion of a criminal intelligence investigation, the characteristics of a criminal act are detected, a pre-trial investigation shall be initiated immediately ...”", "Article 19. The Use of Criminal Intelligence Information", "“1. Criminal intelligence information may be used in the following cases:", "1) to carry out criminal intelligence tasks;", "...", "3) in providing information about a person in accordance with the procedure established in the Republic of Lithuania’s Law on the Prevention of Corruption.", "...", "3. Criminal intelligence information about an act with the characteristics of a corruption criminal act may, with the consent of the prosecutor, be declassified by decision of the head of the principal criminal intelligence institution and be used in an investigation into a disciplinary offence and/or misconduct in office.", "...", "7. The following information shall not be provided: detailed information about the methods and means of collecting criminal intelligence information, tactics concerning the application of the methods by which criminal intelligence information is collected and the identity of secret participants in criminal intelligence, and detailed information on the quantitative and personal composition of these participants.”", "48. The Law on State Service ( Valstybės tarnybos įstatymas ) read as follows at the relevant time:", "Article 2. Definitions", "“13. “Abuse of office” ( Piktnaudžiavimas tarnyba ) means an act (act or omission) by a civil servant where his or her official position is used not in the interests of the service or in accordance with laws or other legal acts, or is used for self-interest (misappropriation of another’s property, funds, and so on, or unlawful transfer thereof to other persons) or for other personal reasons (revenge, envy, self-advancement, unlawful provision of services and so on), also any actions of the civil servant exceeding the powers conferred on him or her, or any wilful acts.”", "Article 29. Disciplinary penalties", "“4. Dismissal from office may be imposed as a disciplinary penalty for a gross disciplinary offence and for any other disciplinary offence where the civil servant has received a strict reprimand at least once over the past twelve months.", "5. Serious misconduct in office shall mean misconduct which results in a serious breach of the laws or other regulatory provisions governing the civil service and the activities of civil servants, or which adversely affects the duties of a civil servant or the principles of ethics for civil servants’ conduct.", "6. The following shall be considered as serious official misconduct:", "1) the conduct of a civil servant, as related to the performance of official duties, which discredits the civil service, degrades human dignity or other actions which directly violate the constitutional rights of people;", "...", "3) criminal acts of a corrupt nature, as defined in the Law on Prevention of Corruption, related to the performance of the official’s duties, even if the act did not incur criminal or administrative liability for the civil servant concerned;", "4) abuse of office and non-compliance with the requirements of the Law on the Coordination of Public and Private Interests in the Civil Service.”", "49. The Law on Prevention of Corruption ( Korupcijos prevencijos įstatymas ) read as follows at the material time:", "Article 2. Main definitions", "“2. “Corruption offences” ( Korupcinio pobūdžio nusikalstamos veikos ) means the acceptance of a bribe, influence peddling, other criminal acts committed in the public administration sector or when providing public services with a view to seeking personal gain or gain for other persons: abuse of office or misuse of powers, abuse of authority, forgery of documents and measuring devices, fraud, appropriation or embezzlement, disclosure of an official secret or a commercial secret, incorrect income, profit or assets statements, money or asset laundering, interfering with the activities of a civil servant or a person carrying out public administration functions, and other criminal acts aimed at seeking or soliciting a bribe or subornation, or concealing or disguising the acceptance or giving of a bribe or subornation.”", "50. By a ruling of 18 April 2019, on the compliance of the provisions of the Law on Criminal Intelligence, the Law on State Service and of the Statute of Internal Service with the Constitution, the Constitutional Court held:", "“86.3.1. It has ... been mentioned that, under the Constitution, ... a court (judge), when administering justice and settling a dispute concerning the imposition of an official penalty, must, on a case-by-case basis, fully assess all the material, data, or information used in investigating the misconduct in office, and must decide whether, inter alia, information about a person that has been collected secretly in the manner established by law, declassified in accordance with the procedure laid down in legal acts, and transmitted for use for the purposes of the investigation of the misconduct in office by the person in question, can be considered evidence in a concrete case, whether such information complies with requirements for the lawfulness and credibility of evidence, and whether such use is necessary in a democratic society when the State seeks to attain certain legitimate aims, such as to ensure the transparency and openness of State service, as well as to prevent corruption and acts of a corrupt nature in State service; the court (judge) must also assess, in each case, whether the use of the information in question for the purposes of investigating misconduct in office of a corrupt nature is in line with the principle of proportionality, and whether the said legitimate aims could be achieved in a particular case by other less restrictive means.", "86.7.", "...", "Thus ... it should be held that a State servant or official about whom information has been collected secretly in accordance with the procedure established by the Law on Criminal Intelligence, after such information has been used in investigating misconduct in office of a corrupt nature committed by him or her, has the right, under Paragraph 9 of Article 5 of the Law on Criminal Intelligence, to apply to the court (judge) referred to in this paragraph and raise questions of the legitimacy, necessity, and proportionality of the use of such declassified information, as well as challenge the admissibility of such information as evidence. As mentioned above, under the Constitution, a person must be afforded effective protection against the possible arbitrariness of public authorities, namely an opportunity to apply to a court and to lodge an appeal against the lawfulness, reasonableness, and proportionality of the collection of the criminal intelligence in question about him or her and of the transmission of that information under Paragraph 3 of Article 19 of the Law on Criminal Intelligence for the purposes of investigating misconduct in office of a corrupt nature.”", "51. As summed up by the Constitutional Court, in the above-mentioned ruling it held that the legal measure, consolidated in Article 19 § 3 of the Law on Criminal Intelligence, pursuant to which criminal intelligence information could be declassified and used only for the purposes of the investigation of misconduct in office which had the characteristics of a corruption-related criminal act, for the commission of which a State servant or official faced the risk of the most severe official penalty being imposed – dismissal from the position in State service – was justified by constitutionally important objectives, such as ensuring the proper functioning of State service, its transparency and openness, and preventing corruption and acts of a corrupt nature in State service. This was a necessary and proportionate measure in a democratic society in order to achieve the objective of official liability in accordance with the Constitution, that is, to create preconditions for the proper application of official liability as a public form of control over servants or officials of a democratic State and for their accountability to society, for acts that were incompatible with the requirements, arising from the Constitution, of State service as a system and for State servants or officials. After providing for the possibility of declassifying criminal intelligence information relating to an act which had the characteristics of a corruption-related criminal act and using it for the investigation of misconduct in office of a corrupt nature, the right to the protection of private life, enshrined in Article 22 of the Constitution, and the right to enter State service, enshrined in Paragraph 1 of Article 33 thereof, were not restricted more than was permitted by the Constitution, since the essence of those rights had not been denied.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "52. The applicant complained of a lack of access to the materials from the secret surveillance against him, those materials having served as the basis for his dismissal from service. He also maintained that there was a lack of a proper and precise legal framework indicating how information gathered when employing criminal intelligence actions could be used and its lawfulness contested.", "53. Although in support of his complaints the applicant relied on both Article 6 § 1 and Article 13 of the Convention, the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), finds that the essence of the applicant’s grievance is related to the fairness of the court proceedings concerning the lawfulness of the surveillance against him and those regarding his dismissal from service. The complaint thus falls to be examined under Article 6 § 1 of the Convention alone, which is the special norm vis-à-vis Article 13 (see also, mutatis mutandis, Airey v. Ireland, 9 October 1979, § 35, Series A no. 32), and, in so far as is relevant, reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "AdmissibilityThe submissions by the parties", "The submissions by the parties", "The submissions by the parties", "54. In their initial observations of 6 November 2020 and 9 February 2021, the Government argued that, having regard to the fact that the domestic judicial proceedings concerning the disciplinary penalties were still pending, it would be premature for the Court to deal with the applicant’s complaints under Articles 6 and/or 13 and Article 8 of the Convention.", "55. The Government also submitted that the applicant’s conduct had been contrary to the purpose of the right of individual application. In support of this suggestion, they firstly appeared to argue that, although in his application of 23 March 2018 the applicant had complained to the Court that he had not received all the criminal intelligence information about the interception of his telephone communications in a timely manner, that information had been provided to him by the Department of Prisons as early as April 2017 (see paragraph 24 above). Secondly, the applicant had not informed the Court about any of the developments in the court proceedings about his disciplinary penalties, or about the fact that during those administrative proceedings he had received all the declassified documents regarding the criminal intelligence actions, even documents regarding secret entering of his office, which went beyond the scope of the applicant’s disciplinary liability (see paragraph 24 in fine above). The Government thus contended that the application should be rejected as an abuse of the right of application.", "56. Lastly, on 21 May 2021 the Government informed the Court about the Supreme Administrative Court’s ruling of 29 April 2021 (see paragraphs 41-45 above), and considered that the applicant had had access to an effective remedy and a fair hearing, as required by Article 6 and/or Article 13 of the Convention.", "57. The applicant did not comment.", "The Court’s assessment", "58. The Court considers that the Government’s arguments regarding the timing and the amount of the criminal intelligence information disclosed to the applicant are intrinsically linked to the merits of his complaint that he did not have a fair hearing regarding his complaints of unlawful surveillance and his complaints about his dismissal. Furthermore, given the fact that both the applicant and the Government have been asked to inform the Court about the outcome of the pending litigation regarding the disciplinary penalties in respect of the applicant, the Court is not ready to find that the fact that it was the Government which sent the Court a copy of the Supreme Administrative Court’s ruling of 29 April 2021, and not the applicant, in and of itself means the applicant’s conduct amounted to an abuse of the right of application. Likewise, even if the Government argued that the applicant had received some or all of those previously classified documents, the fact remains that the court proceedings regarding the disciplinary penalties ended by a final court decision only on 29 April 2021, and it was only in those proceedings that the court examined the applicant’s grievances regarding the lawfulness and proportionality of the use of those documents during the disciplinary proceedings. The Court therefore cannot hold that the applicant can be regarded as having abused the right of application.", "59. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe submissions by the parties", "The submissions by the parties", "The submissions by the parties", "(a) The applicant", "60. The applicant complained that he had not been able to see in a timely manner the materials from the secret surveillance against him, although those materials had ultimately led to his dismissal, and notwithstanding the fact that State institutions had had access to that information. The applicant argued that there was a lack of a precise and proper legal framework indicating how information collected through criminal intelligence actions could be used and how its lawfulness could be contested.", "61. The applicant also argued that although under Article 5 § 9 of the Law on Criminal Intelligence it was possible to complain about a breach of rights in connection with criminal intelligence actions, in the applicant’s case his complaints had been examined by the prosecutor, and then the Vilnius Regional Court only formally, in written proceedings, without making statements about specific criminal intelligence material. As a result, he had not been able to see the criminal intelligence materials or make statements in court. That process had not been fair and had not effectively protected his rights.", "(b) The Government", "62. In their initial observations of 6 November 2020 and 9 February 2021, the Government argued that the applicant had had access to an effective remedy and had also had a fair hearing before a court with regard to his complaint about the lawfulness and proportionality of the criminal investigation measures, and the use of the information thus obtained in the subsequent disciplinary proceedings. Firstly, his complaints had been examined by the prosecutor and the Vilnius Regional Court (see paragraphs 18-23 above). Secondly, from the very beginning of the disciplinary proceedings the applicant had been afforded the opportunity to comment, and had commented, on the materials used against him, those materials having been disclosed to him to the necessary extent. Overall, he had been aware of the duration, scope and content of the criminal investigation measures employed. The applicant had received all the relevant materials relating to the criminal intelligence investigation, and the scope of the materials that he had received even exceeded the materials directly used in the disciplinary proceedings against him (see paragraphs 24 and 55 above).", "63. As the Vilnius Regional Court had examined the applicant’s complaint regarding the lawfulness of the criminal intelligence measures in written proceedings, neither the applicant nor the prosecutor had participated in them physically, and therefore the principles of adversarial proceedings and equality of arms had been respected.", "64. Lastly, referring to the content of the Supreme Administrative Court’s ruling of 29 April 2021 (see paragraphs 41-45 above), the Government contended that the lawfulness and proportionality of the intelligence measures, as well as the use of the information thus obtained, had been carefully and properly addressed, also having regard to the principles stemming from the Constitutional Court’s ruling of 18 April 2019.", "The Court’s assessment", "(a) General principles", "65. The relevant case-law of the Court has been set out in Drakšas v. Lithuania (no. 36662/04, § 67, 31 July 2012); Pocius v. Lithuania (no. 35601/04, §§ 51 and 52, 6 July 2010); see also, more recently, Prebil v. Slovenia (no. 29278/16, § 42, 19 March 2019, and, mutatis mutandis, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 150 and 152, 17 October 2019).", "(b) Application of the general principles to the instant case", "66. The Court finds that the applicant’s complaint may be understood as twofold: firstly, he pleaded not having been able to effectively contest the lawfulness of the authorities’ actions and decisions concerning the interception of his telephone communications; secondly, he contended that he had not been able to become familiar with and contest the materials obtained during that surveillance, even though those materials had led to his dismissal. The Court will address both issues in turn.", "67. The Court finds that this case must be distinguished from the facts in Drakšas (cited above, § 68), where the applicant could not contest the lawfulness of the interception of his telephone communications in an effective manner. With regard to this point, the Court refers to Article 5 § 9 of the Law on Criminal Intelligence, which sets out two levels of appeal against such actions (see paragraph 47 above), this fact also having been noted by the domestic court (see paragraph 20 above). Accordingly, in the instant case the applicant put his grievances to the prosecutor, who examined his complaint and gave detailed answers, and afterwards to a court (see paragraphs 18-23 above). As it appears from the documents in the Court’s possession, before reaching his decision the prosecutor had obtained the criminal investigation file; even so, the prosecutor would only rely on the materials which were not classified (see paragraph 18 above).", "68. The applicant’s appeal against the prosecutor’s decision was then examined by the Vilnius Regional Court, which gave detailed and specific reasons why it had been lawful and proportionate to use criminal intelligence measures against the applicant. Before reaching its verdict, the Vilnius Regional Court had ordered the Department of Prisons to provide it with the criminal intelligence materials (see paragraph 20 in limine above). As the court decision of 25 September 2017 reads, the Vilnius Regional Court entered into the merits of the applicant’s complaint concerning the lawfulness and proportionality of the use of the criminal intelligence measures (see, in particular, paragraph 21 above; contrast, mutatis mutandis, Prebil, cited above, § 44). This aspect was later pointed out by the administrative court, which also held that there had been no basis on which to hold that the authorities’ actions would have been in breach of the law (see paragraph 38 above). Given the documents previously made available to the applicant (see paragraphs 12 and 13 above; see also paragraph 24 above), the Court considers that he was able to formulate his claims to the necessary extent (contrast Pocius, cited above, §§ 51, 54 and 56). Even assuming that at the stage of the proceedings before the Vilnius Regional Court the applicant had not yet had access to all the criminal intelligence materials – a circumstance which in any case was remedied by the applicant having access to those materials at a later stage (see paragraph 70 below) -, the Court observes that the entitlement to disclosure of relevant evidence is not an absolute right. In any court proceedings there may be competing interests, such as national security or the need to keep secret certain police methods of investigation, which must be weighed against the rights of the defence (see Pocius, cited above, §§ 52 and 53), this having clearly been the situation in the case at hand. On the effectiveness of review, the Court has stated that a reviewing authority must be able to verify whether contested measures have been lawfully ordered and executed. In the case of retrospective review of the lawfulness of a surveillance measure, the applicant must, at the very least, be provided with sufficient information regarding the existence of an authorisation and the minimum level of information about the decision authorising secret surveillance (see Šantare and Labazņikovs v. Latvia, no. 34148/07, § 55, 31 March 2016, and the case-law cited therein). On the facts of this case, the Court finds that such information was provided to the applicant. The Court also does not lose sight of the legal rule that certain materials, such as those relating to the participants in the criminal investigation measures, may not be disclosed to individuals by law (see paragraph 47 above), this aspect having been underscored both by the Department of Prisons and the court (see paragraphs 12 and 13 above).", "69. Last but not least, the Court considers that the fact that the proceedings before the Vilnius Regional Court were conducted in writing (see paragraph 20 above), does not mean, in and of itself, that the examination of the applicant’s complaints was in any sense formal, as alleged by him (see paragraph 61 above), or that the applicant was placed at a disadvantage vis-à-vis the State authorities – the Department of Prisons and the Prosecutor General’s Office – because the representatives of those institutions did not take part in that court hearing either so as to be able to counter the applicant’s written submissions to the Vilnius Regional Court (contrast, mutatis mutandis, Prebil, cited above, § 43). It follows, that each party had thus been given a reasonable opportunity to present its case under conditions that did not place it at a substantial disadvantage vis-a-vis its opponent. As the relevant case-law bears out, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber v. Switzerland, 18 February 1997, § 30, Reports of Judgments and Decisions 1997‑I), and to ensure that such fundamental principles as the right to adversarial proceedings and the principle of equality of arms have been respected. Besides, the Court notes that during the subsequent set of proceedings in which the lawfulness of the criminal intelligence measure against the applicant was examined afresh, the applicant consented to no hearing being held (see paragraph 35 above).", "70. The Court also finds that the applicant’s main grievance lies in the fact that he was dismissed from his post on the basis of the materials gathered during the secret interception of his telephone communications, those materials containing factual allegations about the applicant’s behaviour. On this point, and as regards the factual grounds for his dismissal, the Court notes that as early as 2016, within the disciplinary proceedings, the Vilnius Regional Administrative Court obliged the relevant institutions to provide those documents, and, in accordance with the principle of equality of arms, the applicant was provided with numerous documents on which the disciplinary penalty had been based (see paragraph 36 above). It also transpires that relevant documents were provided to him in March and December 2017 (see paragraphs 12-15, and 24 in limine, above). Likewise, other declassified documents concerning the basis for the interception measure from the Department of Prisons, the Prosecutor General’s Office and the court were disclosed to the applicant in 2020 (see paragraph 33 above; contrast Pocius, cited above, § 57).", "71. The Court also finds that the proportionality of the use of that information for the purpose of the applicant’s disciplinary liability was thoroughly examined and explained, firstly by the Vilnius Regional Administrative Court and then by the Supreme Administrative Court (see paragraphs 36-38, 41 and 42 above), both of which in turn relied on the Constitutional Court’s ruling on that issue (see paragraphs 36 and 41 above). As noted by the administrative courts, the applicant had not contested the reliability of that information (see paragraphs 39 and 43 above). The Court also takes into account the fact that, as pointed out by the Government, during the judicial proceedings regarding the disciplinary penalties, the applicant was even provided with the documents proving the lawfulness of the secret entry and surveillance that were not used in the disciplinary proceedings against him (see paragraph 24 in fine above). Similarly, the Court also does not lose sight of the fact that the applicant’s dismissal was based not only on the materials gathered through the interception of his telephone communications, but also on the entirety of the evidence, which included contracts with the telecommunications company and witness testimony (see paragraphs 39, 41 and 44 above). Thus, in the present case the applicant was apprised of the evidence against him and had the opportunity to respond to it. In addition, the applicant did not object to the hearing before the Vilnius Regional Administrative Court being held in writing, this having been for clearly objective reasons (see paragraph 35 above ).", "72. That being so, the Court finds that the applicant had effective access to court for his complaints about the interception of his telephone communications and the use of the thus obtained information, and his complaints were given due examination by the domestic courts of both general and administrative jurisdiction.", "73. The foregoing considerations are also sufficient to enable the Court to conclude that the applicant had effective access to court and that the decision-making procedure fully complied with the requirements of adversarial proceedings and equality of arms, and incorporated adequate safeguards to protect the interests of the applicant.", "74. The Court holds that there has been no violation of Article 6 § 1 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "75. The applicant further complained that the secret surveillance against him had been in breach of his right to respect for his private life, as provided in Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The Government", "76. Referring to the Supreme Administrative Court’s analysis in the ruling of 29 April 2021, the Government contended that the applicant’s complaint regarding the use of information obtained during the criminal intelligence investigation in the criminal proceedings had been unfounded.", "(b) The applicant", "77. The applicant made no comments regarding the admissibility of the complaint.", "The Court’s assessment", "78. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "79. The applicant submitted that there had been no proper factual or legal basis to intercept his telephone communications. The factual basis for the criminal intelligence investigation had been his alleged abuse of office. That being so, and even though this information had not been confirmed during the first period authorised by the court, in order to obtain further information about any other possible offences committed by the applicant, the criminal intelligence officers had listened to his calls for an entire year. The applicant thus contended that, in the absence of evidence of a crime, the investigation should have finished after the initial period of three months. The applicant also argued that the judge authorising and extending the secret measures had based all the orders on identical and abstract reasons. Given that no pre-trial investigation had eventually been initiated, such measures could not be considered as a proportionate interference with his private life. The applicant was dissatisfied that, although the authorities had not identified any criminal offences in his respect, the information gathered was used to investigate his disciplinary offences. His right to privacy had been disproportionately restricted.", "(b) The Government", "80. The Government admitted that there had been an interference with the applicant’s right to respect for his private life, given the interception of his telephone conversations and their use to investigate the applicant’s disciplinary offences. However, the interference with the applicant’s right to respect for his private life was in compliance with the requirements of Article 8 § 2 of the Convention, as it was lawful, it pursued a legitimate aim and it was necessary in a democratic society.", "The Court’s assessment", "81. On the facts of the case the Court cannot but find that the interception of the applicant’s telephone conversations, the storage of that information and its disclosure in the disciplinary proceedings, which ultimately led to his dismissal, amounted to an interference with his right to respect for his private life (see, mutatis mutandis, Pocius, cited above, §§ 41-43, with further references). The Court has emphasised that telephone tapping is a very serious interference with a person’s rights and that only very serious reasons based on a reasonable suspicion that the person is involved in serious criminal activity should be taken as a basis for authorising it (see Iordachi and Others v. Moldova, no. 25198/02, § 51, 10 February 2009). The existence of the interference has not been disputed by the Government (see paragraph 80 above).", "82. The cardinal issue arising in the present case is whether the interference so found was justified in terms of paragraph 2 of Article 8. This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see Rotaru v. Romania [GC], no. 28341/95, § 47, ECHR 2000-V, see also Drakšas, cited above, § 54).", "83. In order for the interference established above not to infringe Article 8, it must first of all have been “in accordance with the law” (see Drakšas, cited above, § 55), a condition which has been met in the present case, given that the interference had a basis in the Law on Criminal Intelligence. The Court is also satisfied that the measure was authorised by the court (see paragraph 8 above). Accordingly, the authorisation to start monitoring the applicant’s telephone conversations had a legal basis in domestic law. The same conclusion holds true regarding the use of those materials within the disciplinary proceedings, as authorised by the prosecutor on the basis of Article 19 § 3 of the Law on Criminal Intelligence (see paragraph 25 above), that provision having been in force well before the applicant had committed the disciplinary offences, and the constitutionality of that provision having been confirmed by the Constitutional Court (see paragraphs 47, 50 and 51 above; compare Karabeyoğlu v. Turkey, no. 30083/10, §§ 78-84, 7 June 2016, and Eminağaoğlu v. Turkey, no. 76521/12, § 161, 9 March 2021). Besides, as to the requirement of foreseeability, it cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see Drakšas, cited above, § 67). In the present case the Court also finds that the absence of prior notification of interception was compensated for in the Law on Criminal Intelligence, accessible to the applicant, as that Law laid down strict conditions with regard to the implementation of the surveillance measures.", "84. Regarding the legitimate aim, the Court observes that the applicant had been suspected of corruption-related activity – giving better conditions, as well as incentives, to inmates – for personal gain. Such actions, which could have led to inmates being released before they had reformed, demonstrated a danger to society (see paragraphs 21 and 22 above). In this context the Court notes the domestic courts’ finding that such activity, which the applicant was suspected of, and which was not entirely without basis (see paragraph 31 above), could have placed people outside the prison walls in danger (see paragraph 22 above). Furthermore, as pointed out by the Vilnius Regional Administrative Court, the applicant’s actions discredited the system of the execution of sentences, and were damaging to society’s trust in public service (see paragraph 39 above). Likewise, as emphasised by the Supreme Administrative Court, the use of information gathered during the secret surveillance against the applicant served the purpose of guaranteeing the transparency and openness of public service, and sought to ensure that the aims of statutory institutions were not ignored (see paragraph 43 above). Prevention of acts of a corrupt nature and transparency and openness of State service have also been listed among legitimate aims by the Constitutional Court (see paragraphs 50 and 51 above). Seeing no reason to depart from the domestic courts’ findings, the Court therefore holds that the interference pursued a legitimate aim – the prevention of disorder or crime, and the protection of the rights and freedoms of others – in pursuance of Article 8 paragraph 2 of the Convention.", "85. The Court lastly turns to the necessity and proportionality of the interference. It observes that on 30 June 2015 the Vilnius Regional Court, acting on a request by the Prosecutor General’s Office, and on the basis of the information made available to that court by the Department of Prisons through the prosecutor, authorised the tapping of the applicant’s telephone on the basis of information that the applicant had been involved in corruption-related acts that amounted to an abuse of office (see paragraphs 6-8 above). As it appears from the prosecutor’s application, and as it was afterwards upheld by a court, by then other investigative measures had already been employed; however, they had been insufficient to investigate possible criminal activity (see paragraphs 7, 8 and 21 above). As later explained by the Vilnius Regional Court, that information included information about a particular inmate who had received better conditions in prison, and also incentives (see paragraph 21 above). Having regard to the facts of the case, the Court is ready to accept that the Vilnius Regional Court had sufficient reasons, based on specific information, to authorise and extend the measure of the telephone tapping (see also paragraph 8 above). Accordingly, the Court cannot find that the authorisation was without grounds or that the surveillance was “general” or “exploratory” (see Klass and Others v. Germany, 6 September 1978, § 51, Series A no. 28, see also Drakšas, cited above, § 56). Above all, on this last point the Court also reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. In principle, therefore, it is not for the Court to express an opinion contrary to that of the Vilnius Regional Court in its ruling of 30 June 2015 on the compatibility of the judicially ordered tapping of the applicant’s telephone with Article 10 of the Law on Criminal Intelligence (see Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II, and Drakšas, cited above, § 56).", "86. Furthermore, although the applicant implied that the interception of his telephone communications had been exploratory (see paragraph 79 above), the Court cannot subscribe to that statement, because, as was clearly explained by the Vilnius Regional Court, during each three-month period that the measure was extended, new events materialised which showed the applicant’s involvement in illegal activities, and information about “new concrete events” proved to be true (see paragraph 21 above). The duration of the interception did not exceed the maximum twelve-month period, as set out in the Law on Criminal Intelligence, which was also pointed out by the domestic court (see paragraph 21 above). Lastly, as noted by the Vilnius Regional Court, the interception was proportionate in view of the applicant’s position – he was the director of a protected incarceration facility – which significantly reduced other means for a criminal investigation (see paragraph 22 above).", "87. As regards the proportionality of the use of that information in the disciplinary proceedings, the Court gives weight to the applicant’s position as the director of a prison, and the seriousness of the acts which were investigated, and thus does not dispute the Vilnius Regional Administrative Court’s finding that the fact that no criminal investigation had been opened in respect of the applicant, in and of itself, did not make the use of the information obtained unlawful in the disciplinary proceedings (see paragraph 38 above). The Court also notes that the use of the materials obtained during the criminal intelligence investigation was not limitless; rather, under Article 19 § 3 of the Law on Criminal Intelligence, it was restricted to acts of a corrupt nature (see paragraph 47 above). The proportionality of such use – in order to guarantee the effectiveness of the law enforcement institutions, and the need for a high disciplinary and moral standard for State officials, including the applicant, who was supposed to lead by example – was explained by the Supreme Administrative Court (see paragraphs 39 and 43 above). That court found that disciplinary offences, as committed by the applicant, had been established on the basis of the entirety of evidence, and the applicant had not contested the reliability of the collected information during the disciplinary investigation (see paragraphs 41 and 42 above). The applicant had also been able to contest the proportionality of the use of that information (see paragraph 41 above), this finding also having been reached by this Court (see paragraph 73 above). In the light of the foregoing, the Court finds that when assessing the necessity and proportionality of the use of such information for the investigation of the applicant’s disciplinary offences, the administrative courts followed the Constitutional Court’s guidelines and afforded effective protection of his rights (see paragraphs 50 and 51 above). The fact that there had been no disproportionate interference with the applicant’s right to privacy has also been noted by the domestic courts (see paragraphs 23 and 40 above).", "88. Lastly, as noted by the administrative court, and as already established by this Court, the applicant had an opportunity to take part in court proceedings in an effective manner in order to contest the lawfulness and proportionality of the use of those materials (see paragraphs 41 and 73 above).", "89. In the light of the foregoing the Court holds that the interference with the applicant’s right to respect for his private life may be regarded necessary and proportionate.", "90. There has therefore been no violation of Article 8 of the Convention." ]

[ "I. CIRCUMSTANCES OF THE CASE", "6. Mr Saïd André Remli, a French national of Algerian origin, is currently in custody at Les Baumettes Prison in Marseilles.", "A. Background to the case", "7. On 16 April 1985, while attempting to escape from Lyons- Montluc Prison, the applicant and a fellow prisoner of Algerian nationality, Mr Boumédienne Merdji, knocked out a warder, who died four months later as a result of the blows he had received.", "8. The two prisoners were charged with intentional homicide for the purpose of facilitating, preparing or executing the offences of escape and attempted escape. In a judgment of 12 August 1988 the Indictment Division of the Lyons Court of Appeal committed them for trial at the Rhône Assize Court. On 5 December 1988 the Court of Cassation dismissed an appeal on points of law that Mr Remli had lodged against the decision to commit him for trial.", "B. Proceedings in the Rhône Assize Court", "9. The trial at the Assize Court took place on 12, 13 and 14 April 1989. On the first day, when the sitting began, the members of the jury and two additional jurors were drawn by lot. The defendants challenged five of them, the legal maximum, and the prosecution two of them. The jury was subsequently finally empanelled and the hearing of witnesses began.", "10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed, counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by one of the jurors on 12 April, before the hearing began, which had been overheard by a third person, Mrs M., and to append her written statement, together with their submissions, to the record of the trial.", "11. Mrs M. ’ s statement of 13 April read as follows:", "\"I, the undersigned Mrs [M.], declare on my honour that I witnessed the following facts:", "I was at the door of the court at about 1 p.m., next to a group of people. From their conversation, I chanced to overhear that they were members of the jury drawn by lot in the Merdji [ and] Remli against Pahon case.", "One of them then let slip the following remark : ‘ What ’ s more, I ’ m a racist. ’", "I do not know that person ’ s name, but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge ’ s left.", "Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital, but being at the court ’ s disposal if it proves essential to call me as a witness, I have drawn up this statement to be used for the appropriate legal purposes.\"", "12. The court, composed in this instance solely of the judges, withdrew to deliberate and then delivered the following judgment:", "\"...", "According to the handwritten statement of a Mrs [M.] of 13 April 1989, one of the members of the jury in the present case said ‘ What ’ s more, I ’ m a racist ’ at the door of the court at about 1 p.m.", "According to this statement and the written submissions, these words were spoken before the beginning of the first hearing in the instant case and not in the presence of the judges of the Court.", "The Court is thus not able to take formal note of events alleged to have occurred out of its presence.", "For these reasons,", "it Refuses the application made to it for formal note to be taken;", "Holds that the applicants ’ written submissions and the statement of Mrs [M.] are to be appended to the record of the trial;", "...\"", "13. On 14 April 1989 the Assize Court sentenced Mr Remli to life imprisonment and Mr Merdji to a twenty-year term, for two-thirds of which he would not be liable to any form of release.", "C. Proceedings in the Court of Cassation", "14. Mr Remli appealed on points of law. He argued mainly that the Assize Court had made a mistake of law and had disregarded Article 6 para. 1 (art. 6-1) of the Convention in holding that it was \"not able to take formal note of events alleged to have occurred out of its presence\" when it had power to do so.", "15. In a judgment of 22 November 1989 the Court of Cassation dismissed the appeal. It gave the following reason in particular:", "\"The Assize Court rightly refused to take formal note of events which, assuming they were established, had taken place outside the hearing, such that it could not have been in a position to note them.\"" ]

[ "II. RELEVANT DOMESTIC LAW", "16. Procedure in the Assize Court is governed by Articles 231 to 380 of the Code of Criminal Procedure (\"CCP\").", "The Assize Court consists of the court properly speaking - the presiding judge and, normally, two other judges - and the jury, composed of citizens who satisfy the conditions of eligibility laid down by law. It tries mainly serious criminal cases sent to it by the Indictment Division and related or inseparable lesser offences. No reasons are given in its judgments, which are appealable only on points of law.", "A. The Assize Court jury", "1. Constitution of the jury", "17. For each case on the Assize Court ’ s list a jury is empanelled at the beginning of the trial. It contains nine jurors, drawn by lot from a session list. This list contains thirty-five names drawn by lot every three months from an annual list, itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register.", "One or more additional jurors are also drawn by lot and attend the trial in order that they may, if necessary, replace any juror who is unable to sit.", "The jury is constituted at the point when the names of nine jurors who have not been challenged and the names of the additional jurors have all been drawn by lot.", "2. Challenges", "18. As the names of the jurors are being drawn, the defendant or defendants are entitled to challenge up to five of them and the prosecution up to four. Their grounds for doing so cannot be given.", "19. Article 668 CCP provides:", "\"Any judge may be challenged on any of the following grounds:", "1. Where the judge or his spouse is a blood relative or a relative by marriage of one of the parties or of a party ’ s spouse, up to the degree of second cousin inclusive. The challenge may be made against the judge even in the event of divorce from his spouse or the latter ’ s death where the spouse was a relative by marriage of one of the parties, up to the second degree inclusive;", "2. Where the judge or his spouse, or a person in respect of whom either acts as guardian ( tuteur ), supervisory guardian ( subrogé tuteur ) or court-appointed administrator, or a company or association in whose management or supervision either takes part has an interest in the dispute;", "3. Where the judge or his spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of a director or manager of a company that is a party to the proceedings;", "4. Where the judge or his spouse is dependent on one of the parties;", "5. Where the judge has dealt with the case as a judge, arbitrator or legal adviser, or where he has given evidence as a witness relating to the facts of the case;", "6. Where there has been litigation between the judge, his spouse or their lineal blood relatives or relatives by marriage and one of the parties, his spouse or his lineal blood relatives or relatives by marriage;", "7. Where the judge or his spouse is litigating in a court of which one of the parties is a judge;", "8. Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties;", "9. Where there have been any disagreements between the judge or his spouse and one of the parties sufficiently serious to cast doubt on his impartiality.\"", "Article 669 CCP provides:", "\"A charged person, accused or any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the Criminal Court, the Court of Appeal or the Assize Court must, if the challenge is to be valid, make an application to the President of the Court of Appeal.", "Members of State Counsel ’ s Office cannot be challenged.", "The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence.", "A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since, where they are such as to constitute a ground for challenge.\"", "In the case of the Assize Court these provisions apply only to the judges and not to the jurors.", "3. Taking of the oath", "20. The members of the jury, standing bareheaded, are addressed by the presiding judge as follows:", "\"You swear and promise to consider the charges that will be brought against X ... with the greatest care; not to betray either the interests of the accused or those of society, which is accusing him/her; not to communicate with anyone until you have returned your verdict; not to be swayed by hatred or spitefulness or by fear or affection; to reach your verdict in the light of the charges and the defence, according to your conscience and your innermost conviction, with the impartiality and firmness that befit a free man of integrity; and to preserve the secrecy of the deliberations, even after you have discharged your office.\"", "Each of the jurors is individually called upon by the presiding judge and replies, raising his hand: \"I swear.\"", "B. Procedural applications or objections during trials and entries in the record", "21. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to \"take formal note\" of it. This is the party ’ s only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 19 77, Dalloz-Sirey 1978, p. 28)", "The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It also has an unfettered discretion to decide whether evidence should be taken to verify them (Court of Cassation, Criminal Division, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985, Garbidjian ).", "22. Interlocutory decisions on such matters can be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits (Article 316 CCP).", "C. Transfer of a case on the ground of reasonable suspicion of bias (suspicion légitime )", "23. Article 662 CCP provides:", "\"In matters within the jurisdiction of the Assize Court, the Criminal Court or the police court, the Criminal Division of the Court of Cassation may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank, either where the court that would normally have jurisdiction cannot be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias.", "An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor attached to the court dealing with the case, or by the person charged, or by a civil party to the proceedings.", "...", "The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise.", "...\"", "The Criminal Division has unfettered discretion to determine whether such a ground is made out on the alleged facts (Court of Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272; 9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61; 17 November 1964, Bull. crim. no. 301). An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question.", "This procedure can be used only in respect of a whole court and not against one or more members of a collegiate court (Court of Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343; Revue de science criminelle et de droit pénal comparé 1977, p. 603, comments by J. Robert).", "PROCEEDINGS BEFORE THE COMMISSION", "24. Mr Remli applied to the Commission on 16 May 1990. He complained that he had not had a hearing by an impartial tribunal and that he had also suffered discrimination on the ground of racial origin, contrary to Article 6 para. 1 and Article 14 (art. 6-1, art. 14) of the Convention. He further alleged that he had not had an effective remedy before a national authority as required by Article 13 (art. 13) of the Convention.", "25. On 1 April 1994 the Commission adjourned its examination of the complaints based on Article 6 para. 1 (art. 6-1) taken alone and together with Article 14 (art. 6-1+14) and declared the remainder of the application (no. 16839/90) inadmissible. On 12 April it declared the first complaint admissible and decided that it was unnecessary to express an opinion separately on the second complaint, as this was bound up with the issue of the court ’ s impartiality. In its report of 30 November 1994 (Article 31) (art. 31), it expressed the opinion by seven votes to four that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "26. In their memorial the Government asked the Court to \"dismiss Mr Remli ’ s application\".", "27. The applicant requested the Court to", "\"find that France has breached Articles 6 para. 1 and 14 (art. 6-1, art. 14) of the Convention; and award just satisfaction under Article 50 (art. 50) ...\"", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION", "28. The applicant maintained that he had been the victim of a breach of Article 6 para. 1 (art. 6-1) of the Convention, which provides:", "\"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...\"", "A. The Government ’ s preliminary objections", "29. As they had done before the Commission, the Government raised two objections to admissibility.", "1. Non- exhaustion of domestic remedies", "(a) As to the complaint based on Article 6 (art. 6) of the Convention", "30. The Government argued that the domestic remedies had not been exhausted. Not only had Mr Remli ’ s application to the Assize Court for formal note to be taken been inappropriate, but the applicant had also failed either to ask for evidence to be taken or to lodge an application for transfer of the trial on the ground of reasonable suspicion of bias.", "The Rhône Assize Court could not take formal note of events which, even supposing their occurrence was established, had taken place outside the courtroom. Furthermore, by not applying for evidence to be taken as to the truth of the alleged matters, the applicant had deprived himself of a remedy that could have redressed the supposed breach. If the taking of evidence had made it possible to establish the alleged facts, the Assize Court could have replaced the juror in question by one of the additional jurors. If the Assize Court had refused to allow the application for evidence to be taken, Mr Remli could have applied to the Criminal Division of the Court of Cassation for a transfer of the trial on the ground of reasonable suspicion of bias in order to secure the immediate removal of the case from the Rhône Assize Court. Such a procedure could be used only in respect of a whole court and not against one or more members of a collegiate court who were suspected of bias. However, the Government continued, seeing that the juror in question had not been challenged, the impartiality of the Assize Court as a whole might be affected and the procedure of an application for transfer of the trial on the ground of reasonable suspicion of bias was therefore the appropriate one. Under Article 662 of the Code of Criminal Procedure, the Court of Cassation could have ordered that the application should have a suspensive effect.", "31. In the applicant ’ s submission, the application for formal note to be taken was the remedy envisaged in Article 26 (art. 26) of the Convention, since it alone afforded the possibility of having the facts in issue recorded. It had been the Assize Court ’ s duty to order evidence to be taken of its own motion if it considered the evidence filed by Mr Remli - Mrs M. ’ s written statements - to be insufficient. Nor could an application for evidence to be taken be regarded as a remedy for the purposes of Article 26 (art. 26). As to making an application to have the trial transferred on the ground of reasonable suspicion of bias, this was a wholly exceptional procedure and could only be used in respect of a court as a whole and not in respect of a single juror. Since such an application would not have had a suspensive effect, the Assize Court would anyway have continued to sit, so the harm would have been done.", "32. The Commission agreed with the applicant ’ s submissions.", "33. The Court reiterates that the purpose of Article 26 (art. 26) is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, para. 33). Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among other authorities, the Pressos Compania S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 19, para. 27).", "34. In the instant case the application for formal note to be taken was a prerequisite of any subsequent appeal on points of law, since the Court of Cassation cannot entertain complaints that have not been formally noted by the Assize Court and have not been entered in the record of the trial. Admittedly, the Assize Court can refuse to take formal note of events that have occurred outside the hearing, but it has the power to order evidence to be taken for the purpose of verifying them (see paragraph 21 above). That being so, and regard being had to the fact that by submitting Mrs M. ’ s written statement to the Assize Court, the applicant put that court in a position to exercise its power to order that evidence should be taken, the Court considers that the application for formal note to be taken was an effective remedy.", "An application for transfer of a trial on the ground of reasonable suspicion of bias can only be made in respect of a whole court.", "Where the impartiality of a given member of a court is in issue, only the procedure of a challenge is available. In the case of members of the jury, however, a challenge can only be made when the names of the jurors are being drawn by lot, so that it was too late to make one in the circumstances of the instant case.", "The objection must therefore fail.", "(b) As to the complaint based on Article 14 of the Convention taken together with Article 6 (art. 14+6)", "35. The Government maintained that in the national courts Mr Remli had not complained of discrimination on the ground of race or national origin. The applicant was thus relying on Article 14 (art. 14) for the first time before the Convention institutions.", "36. In the applicant ’ s submission, a breach of Article 14 (art. 14) could be alleged before the Convention institutions in so far as it was a consequence of the Court of Cassation ’ s judgment itself.", "37. In its decision on the admissibility of the application the Commission considered that this complaint was bound up with the one based on Article 6 para. 1 (art. 6-1) and therefore did not require separate examination.", "38. Having regard to the purpose of the requirement that domestic remedies must be exhausted (see paragraph 33 above), the Court allows the Government ’ s objection as to the admissibility of the complaint based on Article 14 taken together with Article 6 (art. 14+6).", "2. Application out of time", "39. The Government also argued, in the alternative, that the application had been out of time. The judgment of 22 November 1989, in which the appeal on points of law against the refusal to take formal note of events that had occurred outside the courtroom had been dismissed, was not the final decision from whose date the six-month period for applying to the Commission began to run. The Court of Cassation, which ruled on issues of law and not of fact, considered that the Assize Court had unfettered discretion to decide whether or not to take formal note of events that occurred out of its presence. The relevant period had accordingly begun to run on 14 April 1989, when the Assize Court had delivered its interlocutory judgment, and so the applicant had not complied with the time-limit.", "40. Mr Remli disputed that submission. An appeal on points of law against interlocutory judgments of the Assize Court was expressly provided in Article 316, last paragraph, of the Code of Criminal Procedure.", "41. In its decision on the admissibility of the application the Commission noted the provisions of Article 316 of the Code of Criminal Procedure. It went on to point out that the Court of Cassation had held that it had jurisdiction to rule on possible breaches of the Convention, which was directly applicable in French law; the Government had not shown that the grounds based on the Convention that had been argued in the Court of Cassation were contrary to case-law so settled that the appeal on points of law could not be considered an effective remedy. The Delegate of the Commission also pointed out that the ground of appeal based on a breach of Article 6 (art. 6) of the Convention had not been declared inadmissible by the Court of Cassation. In the Commission ’ s opinion, the relevant date for the purposes of Article 26 (art. 26) was therefore that of the Court of Cassation ’ s judgment, 22 November 1989.", "42. The Court reiterates that an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably bound to fail in this specific case, the filing of the appeal was thus not a futile step. It consequently had the effect at the very least of postponing the beginning of the six-month period (see, as the most recent authority, the A. v. France judgment of 23 November 1993, Series A no. 277-B, pp. 47-48, para. 30). The objection that the application was out of time must therefore be dismissed.", "B. Merits of the complaint", "43. In Mr Remli ’ s submission, if a court trying people of foreign nationality or origin included a juror who, before the hearing, had publicly expressed racist sentiments, it lacked impartiality. The juror in question should not have sat in a case that he was unable to assess with complete objectivity.", "The Rhône Assize Court, however, had dismissed his application for formal note to be taken of the remark in issue, although it had had jurisdiction to allow it. Mrs M. ’ s written statement had been clear, detailed and free from ambiguity or inconsistency, had accurately reported the remark and had identified the person who had uttered it.", "Where, as in the instant case, the alleged facts were such as to cast very serious doubt on the impartiality of one of the jurors, the Assize Court was, the applicant submitted, under an obligation to take formal note of it, failing which it would be denying the accused the opportunity of being tried by an impartial tribunal. In short, the Assize Court and the Court of Cassation should have reacted.", "44. The Government conceded that a court containing a juror who had declared himself to be a racist could not be regarded as impartial. Nevertheless, it had to be established with certainty that such racist opinions were really held and evidence had to be brought to show that they could have influenced the conviction. In the instant case, however, Mrs M. ’ s statement was not, the Government continued, sufficiently reliable or supported to amount to evidence capable of objectively casting doubt on the jury ’ s impartiality. For one thing, it conflicted with what the applicant ’ s lawyers had said and, for another, the sentence \"What ’ s more, I ’ m a racist\" was just as likely to have been uttered as a joke or in connection with another case or solely in relation to the applicant ’ s co-defendant, an Algerian national, and not to Mr Remli himself, who had French nationality. It was therefore not possible to consider that it had been established that there was a doubt as to the impartiality of a member of the jury that had tried the applicant.", "Furthermore, a court could not be expected to verify all the remarks that a juror might make before being drawn by lot. In the instant case, the juror in question had not been challenged. Thereafter it was the impartiality of the jury itself that was relevant. In the instant case, however, it was difficult to describe the jury as a whole as biased, especially as under the Code of Criminal Procedure any decision unfavourable to an accused had to be taken by a majority of at least eight.", "45. In the Commission ’ s opinion, the statement drawn up by Mrs M. contained no inconsistencies and made it possible to identify with accuracy the person who had made the remark. As the Assize Court had not verified the alleged facts, the applicant was reasonably entitled to call the juror ’ s impartiality into question, and his fears in this respect were objectively justified. There had therefore been a breach of Article 6 para. 1 (art. 6-1) of the Convention.", "46. The Court refers to the principles laid down in its case-law concerning the independence and impartiality of tribunals, which apply to jurors as they do to professional and lay judges (see the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, para. 30).", "When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, para. 35, and the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 27).", "47. The Court notes that in the instant case the Rhône Assize Court had to try Mr Remli and his co-defendant, both of them of North African origin, and that a third person, Mrs M., certified in writing that she had heard one of the jurors say : \"What ’ s more, I ’ m a racist.\"", "It is not for the Court to rule on the evidential value of Mrs M. ’ s written statement or on whether the racist remark attributed to the juror in question was actually made. It notes merely that Mrs M. ’ s statement - which contained a serious allegation in the context of the case - was filed with the Assize Court by the applicant ’ s lawyers, who asked the court to take formal note of it. The court dismissed their application without even examining the evidence submitted to it, on the purely formal ground that it was \"not able to take formal note of events alleged to have occurred out of its presence\". Nor did it order that evidence should be taken to verify what had been reported - and, if it was established, take formal note of it as requested by the defence - although it could have done so. Consequently, the applicant was unable either to have the juror in question replaced by one of the additional jurors or to rely on the fact in issue in support of his appeal on points of law (see paragraph 21 above). Nor could he challenge the juror, since the jury had been finally empanelled (see paragraph 17 above) and no appeal lay against the Assize Court ’ s judgment other than on points of law (see paragraph 16 above).", "48. Like the Commission, the Court considers that Article 6 para. 1 (art. 6-1) of the Convention imposes an obligation on every national court to check whether, as constituted, it is \"an impartial tribunal\" within the meaning of that provision (art. 6-1) where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit.", "In the instant case, however, the Rhône Assize Court did not make any such check, thereby depriving Mr Remli of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention. This finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, suffices for the Court to hold that there has been a breach of Article 6 para. 1 (art. 6-1).", "II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "49. Under Article 5 0 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A.Non -pecuniary damage", "50. Mr Remli claimed 1,000,000 French francs (FRF) in respect of non-pecuniary damage.", "51. The Delegate of the Commission invited the Court to assess that damage on an equitable basis.", "52. Like the Government, the Court considers that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient just satisfaction.", "B. Retrial or reduction of sentence", "53. The applicant further sought a retrial by an assize court affording all the guarantees of impartiality or, failing that, a reduction of his life sentence to fifteen years ’ imprisonment.", "54. Like the Government and the Delegate of the Commission, the Court points out that Article 50 (art. 50) does not give it jurisdiction to make such an order against a Contracting State (see, for example, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, para. 47).", "C. Costs and expenses", "55. Mr Remli sought FRF 166,896 (including value-added tax - VAT) for costs and expenses, that is to say FRF 118,600 for those incurred in the national courts and FRF 48,296 for those incurred before the Convention institutions.", "56. The Government maintained that the applicant had not provided vouchers for these expenses, so that the claim should be disallowed or, failing that, the question of the application of Article 50 (art. 50) should be reserved. They added that at all events, costs and expenses incurred in the national courts should not be reimbursed.", "57. The Delegate of the Commission considered that the reimbursement of costs and expenses had to be limited to those incurred in the national and international legal systems in order to remedy the alleged breach.", "58. The Court notes that the applicant gave particulars of his claims in his memorial and his supplementary observations and, making its assessment on an equitable basis, awards him FRF 60,000, including VAT.", "D. Default interest", "59. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 6.65% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad.", "11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”.", "12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990.", "13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence.", "14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment.", "15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision.", "16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said:", "“This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.”", "17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms:", "“... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release.", "For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.”", "18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review.", "19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act).", "20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences.", "21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public.", "22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however:", "“The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.”", "23. Lord Justice Buxton, concurring with the latter remarks, added:", "“The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...”", "24. On 16 December 1997 the applicant was moved to open conditions.", "25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review.", "26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law.", "27. On 22 December 1998 the applicant was released on licence by the Secretary of State.", "III. THIRD-PARTY INTERVENTION", "50. Justice, a human rights and law reform organisation founded in 1957, submitted written comments regarding domestic law and practice, following the leave granted to it by the President of the Court to intervene as a third party (see paragraph 7 above). Its submissions may be summarised as follows.", "51. The mandatory life sentence imposed by the 1965 Act (see paragraph 28 above) applied to all convictions for murder, covering a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal serial killings to the mercy killing of a beloved partner. It could not be said that murder was a uniquely heinous offence. The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts. Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of State could no longer set tariffs in these cases. Similar provisions were now being extended to mandatory life prisoners in both Scotland and Northern Ireland under legislation to ensure compliance with human rights.", "52. There had been substantial criticism of the current system. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. In 1996 the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the same issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and Parole Board. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993.", "53. The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness. They had a lower recidivism rate than discretionary life prisoners and the general prison population. The system of tariff-fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty, both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences.", "54. The United Kingdom had more serving life prisoners than the rest of Europe together, which was attributable primarily to the mandatory life sentence for murder. While some countries, such as Germany, France and Italy, had mandatory life sentences, these were only applied where there were aggravating factors or for a particular type of murder. Article 77 of the Statute for the International Criminal Court provided that a life sentence could only be ordered “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Life sentences", "28. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (such as manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside. Where an offender is under 18 years of age when the offence of murder is committed, he or she is sentenced to detention during Her Majesty's pleasure (section 53(1) of the Children and Young Persons Act 1933).", "29. As at 31 December 2001 there were 3,171 male and 114 female mandatory life prisoners, 228 men and 11 women serving a sentence of detention during Her Majesty's pleasure and 1,424 male and 25 female discretionary life prisoners.", "B. Tariffs", "30. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-07). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407, at pp. 492G-493A).", "31. According to section 34 of the Criminal Justice Act 1991 (“the 1991 Act”), the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board, which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.", "32. A different regime, however, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State, who then proceeds to fix the tariff and is entitled to depart from the judicial view ( R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-64).", "33. In the judicial review proceedings in Ex parte V. and T. (cited above), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise.", "34. Lord Steyn held:", "“The starting-point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.”", "35. Lord Hope held:", "“But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ...", "If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...”", "36. In Ex parte Pierson [1998] Appeal Cases 539, Lord Steyn stated, in a case concerning mandatory life prisoners:", "“In public law the emphasis should be on substance rather than form. The case should not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise'. The undeniable fact is that in fixing a tariff in the individual case the Home Secretary is making a decision about the punishment of the convicted man. In any event, a majority holding in Ex Parte V. concludes the matter ... This point is therefore settled by the binding authority of a decision of the House.”", "37. A whole life tariff may be set in appropriate cases. In R. v. the Home Secretary, ex parte Hindley [2001] 1 Appeal Cases, where a provisional tariff of thirty years had been replaced by a whole life tariff, Lord Steyn held that “life-long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous”. The decision of the Secretary of State to apply a whole life tariff in her case was found in the circumstances to be lawful. He had been entitled to revise his view of the tariff, which had initially been based on incomplete knowledge of her role in the three murders upon which she had faced trial and in ignorance of her involvement in two other murders, matters which came to light later. According to information provided by the Government, there were twenty-two mandatory life prisoners with whole life tariffs at 31 December 2001.", "C. Release on licence of mandatory life prisoners", "38. At the relevant time, the Criminal Justice Act 1991 provided in section 35(2):", "“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”", "This is in contrast to the position for other life prisoners, where the Parole Board now has the power of decision – pursuant to the provisions of the 1991 Act for discretionary life prisoners and pursuant to the 1997 Act for detainees during Her Majesty's pleasure. Where, however, a mandatory life prisoner was recalled to prison, the Parole Board did have a power to direct the Secretary of State to release the prisoner immediately (section 39(5) of the 1991 Act, now section 32(5) of the 1997 Act).", "39. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State", "“will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that [he] will only exercise [his] discretion to release if [he is] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”", "40. In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135, and R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Law Reports 576).", "41. In R. v. Secretary of State for the Home Department, ex parte Doody ([1993] 3 All England Law Reports 92), the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and practice in respect of mandatory life sentences were out of tune. In his speech, with which the other judges agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “tariff” period to reflect the requirements of retribution and deterrence. He added:", "“The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and current practice, there remains a substantial gap between them. It may be – I express no opinion – that the time is approaching when the effect of the two types of sentence should be further assimilated. But this is a task of Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review.”", "42. On 10 November 1997 the Secretary of State made the following parliamentary statement, inter alia :", "“I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.”", "43. It was noted by the Court of Appeal in R. ( Lichniak and Pyrah) v. Secretary of State for the Home Department [2001] 3 Weekly Law Reports (judgment of 2 May 2001) that the criterion of public acceptability of release identified by the Home Secretary (point (c) in paragraph 39 above) had never been a determining factor, although the current Home Secretary followed the policy of his predecessors.", "D. Recent domestic case-law and statutory developments", "44. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings.", "45. In Lichniak and Pyrah (cited above), the two applicants challenged the imposition on them for murder of a mandatory life sentence, arguing that this was disproportionate and arbitrary and contrary to Articles 3 and 5 of the Convention. In dismissing their appeals, the Court of Appeal found that the mandatory sentence of life imprisonment was in reality an indeterminate sentence, rarely involving imprisonment for life, and as such could not be labelled inhuman and degrading. Nor was it arbitrary as in each case the sentence was individualised from the moment it was imposed. The purpose of the mandatory life sentence was, according to the Government's counsel,", "“to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him ... That is not merely the effect of the sentence, it is the sentence”.", "Lord Justice Kennedy also cited in his judgment the conclusions of the Committee on the Penalty for Homicide, chaired by Lord Lane, issued in 1993:", "“(1) The mandatory life sentence for murder is founded on the assumption that murder is a crime of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free. (2) That assumption is a fallacy. It arises from the divergence between the legal definition of murder and that which the lay public believes to be murder. (3) The common-law definition of murder embraces a wide range of offences, some of which are truly heinous, some of which are not. (4) The majority of murder cases, though not those which receive the most publicity, fall into the latter category. (5) It is logically and jurisprudentially wrong to require judges to sentence all categories of murderer in the same way, regardless of the particular circumstances of the case before them. (6) It is logically and constitutionally wrong to require the distinction between the various types of murder to be decided (and decided behind the scenes) by the executive as is, generally speaking, the case at present ...”", "46. In R. (Anderson and Taylor) v. Secretary of State for the Home Department, two prisoners who had been convicted of murder complained that the Home Secretary had fixed a tariff superior to that recommended by the judiciary – twenty years instead of fifteen years and thirty years instead of sixteen years. They relied on Article 6 § 1 of the Convention, alleging that it was incompatible for the executive to carry out what was in fact a sentencing exercise. The Divisional Court dismissed their claims. The Court of Appeal rejected their appeals on 13 November 2001. In doing so, the appellate judges considered the nature of the tariff-fixing exercise for mandatory life prisoners and the significance of Strasbourg case-law.", "Lord Justice Simon Brown held, inter alia :", "“... I accept of course that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally. As for 'broader considerations of a public character', it is difficult to understand quite what these are. Regard must not be had to 'public clamour' – see [ V. ]. There is, of course, 'the need to maintain public confidence in the system of criminal justice' (see the Home Secretary's statement to Parliament on 10 November 1997). To my mind, however, this can and should be catered for in the fixing of the tariff. The retributive element of the tariff should reflect the public's moral outrage at an offence. Surely the maintenance of public confidence in the system cannot require longer incarceration than that which properly reflects society's entitlement to vengeance. Sometimes, I recognise that will require a whole life tariff. But why should not the judges determine that? ... [A]s to retrospectively increasing the tariff ... [t]he same problem could presumably arise in a discretionary life sentence case. In truth, however, it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing.", "In short I find none of Mr Pannick's arguments convincing. Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff-fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty's pleasure detainees. In all three cases the exercise is in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence – that part of it which (subject only to the need for continuing review in Her Majesty's pleasure cases) must be served in custody before any question of release can arise ...”", "47. Although he was of the view that the existing mandatory life sentence regime breached Article 6 § 1 and Article 5 § 4, he, and the other two judges, considered that the Strasbourg case-law (in particular, Wynne v. the United Kingdom, judgment of 18 July 1994, Series A no. 294-A) had to be regarded as determinative of the Convention issues in the case. He noted that the European Court of Human Rights was about to re-examine the position in Stafford and, although considering that the final decision should be the Court's, stated that he would be surprised if the present regime for implementing mandatory life sentences survived that re-examination.", "48. In Scotland, the Convention Rights (Compliance) (Scotland) Act 2001 now provides that in the case of mandatory life sentences the trial judge fixes the “punishment part” of the sentence, on the expiry of which the Parole Board decides on possible release on licence. The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in England and Wales, namely, that the Parole Board is satisfied that the prisoner does not present a substantial risk of reoffending in a manner which is dangerous to life or limb or of committing serious sexual offences.", "49. In Northern Ireland, the Life Sentences (Northern Ireland) Order SI no. 2564 provides that the trial judge decides on the tariff for a mandatory life prisoner and that release post-tariff is determined by Life Sentence Review Commissioners (with a status and functions very similar to those of the Parole Board operating in England and Wales). The test applied by the Commissioners is one of protection of the public from “serious harm”, this term meaning the risk of harm from violent or sexual offences.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "55. Article 5 § 1 of the Convention provides in its relevant part:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(a) the lawful detention of a person after conviction by a competent court;", "...”", "A. The parties' submissions", "1. The applicant", "56. The applicant submitted that it was obsolete under domestic law to regard a mandatory life prisoner as having forfeited his liberty for life. On analysis, the parole exercise could no longer be regarded as a matter of leniency to a post-tariff prisoner. In recent cases ( Ex parte Doody, Ex parte V. and T. and Ex parte Pierson, cited above), the House of Lords had moved to a recognition of the clear similarity between the fixing of a tariff and a sentencing exercise. Therefore, references to notions of “public acceptability” of release could not support the proposition that the Secretary of State could rely on the wholly undefined and uncertain concept of the “public interest” as a reason for not releasing a mandatory life prisoner who had completed his tariff and who was no longer considered to be a risk to the public in the sense of being likely to commit further violent offences.", "57. The applicant claimed that to detain a post-tariff mandatory life prisoner by reference to concerns about the prisoner which bore no necessary relationship to the nature of the criminal conduct which resulted in the imposition of the sentence in the first place produced a form of detention which had no sufficient connection with the object of the legislature and the sentence of the court, such that it amounted to an arbitrary detention in breach of Article 5 § 1 of the Convention. He pointed out that no Secretary of State had ever sought to justify post-tariff detention of a mandatory life prisoner who was no longer a risk to the public on the basis of a general need to maintain public confidence in the system of criminal justice. The Government could not convincingly rely on the domestic courts' decisions where those judges had expressed unease about the imposition of a substantial term of imprisonment by the exercise of executive discretion. Nor could they rely on the recent case-law of this Court in V. v. the United Kingdom ([GC] no. 24888/94, ECHR 1999-IX), which concerned minors detained during Her Majesty's pleasure and did not address developments in domestic law concerning adult mandatory life prisoners. The domestic courts identified no practical distinction between these two categories and have clearly found that the fixing of tariffs in both was akin to an exercise of sentencing or imposing punishment which attracted the same procedural safeguards as applied to a judge when passing sentence.", "58. The applicant disputed that the true objective of the mandatory life sentence was life-long punishment. He remained the only mandatory life prisoner who had been detained post-tariff on the basis that the Secretary of State believed that he might commit a non-violent offence if released. Different considerations might apply where a risk of drug trafficking was concerned, as such activity was clearly capable of causing physical or psychological harm to others. To justify indefinite imprisonment by reference to a belief that he might on release commit a non-violent crime involving no conceivable physical harm to others was arbitrary, encompassing matters wholly unrelated in nature and seriousness to the reasons for the prisoner being within the power of the State in the first place.", "2. The Government", "59. The Government submitted that the imposition of a mandatory life sentence for murder satisfied Article 5 § 1 of the Convention. In their view, this continued to provide a lawful basis for the applicant's detention after the expiry of the six-year sentence for fraud as his life licence had been revoked. They rejected the applicant's argument that this detention, based on a concern that he might commit serious non-violent offences of dishonesty, bore no proper relationship to the object of the original mandatory life sentence. They argued that the original sentence was imposed because of the gravity of the offence of murder. A mandatory life sentence for murder fell within a distinct category, different from a discretionary life sentence, as it was imposed as punishment for the seriousness of the offence. It was not governed by characteristics specific to a particular offender which might change over time, factors such as dangerousness, mental instability or youth. A trial judge was required by Parliament to impose a life sentence for murder whether or not the offender was considered dangerous.", "60. The object and purpose of the sentence was to confer power on the Secretary of State to decide when, if at all, it was in the public interest to allow the applicant to return to society on life licence and to empower the Secretary of State to decide, subject to the applicable statutory procedures, whether it was in the public interest to recall the applicant to prison at any time until his death. Whether or not the concern was about risk of further offences of violence or further non-violent offences, a refusal to release on life licence, or a decision to revoke the life licence, was closely related to the original mandatory life sentence by reason of the gravity of the offence and to the need to ensure that the prisoner could only be released when the public interest made it appropriate. The sentence also provided flexibility, since it allowed reconsideration of the tariff if it had been set in ignorance of relevant factors, a possibility not available to a judge (see, for example, Ex parte Hindley, referred to in paragraph 37 above).", "61. The Government submitted that, in deciding whether it was in the public interest to release the applicant, the Secretary of State was therefore entitled to have regard to the risk of serious non-violent offending. It would not be logical or rational if he was unable to refuse to order the release of a prisoner where there was an unacceptable risk of his committing serious non-violent offences such as burglary or trafficking in heroin, which attracted far longer prison sentences than some offences of a violent nature (wounding, for example) and which caused far more harm to the public interest. The Government referred to the previous case-law of the Court which found that continued detention of life prisoners was justified by their original trial and appeal proceedings (see, for example, Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, and Wynne v. the United Kingdom, judgment of 18 July 1994, Series A no. 294-A). The fact that the applicant had been released on life licence and had been free for some time had no relevance to the lawful basis of his detention after revocation of that licence. Nor had there been any relevant developments in either domestic or Convention case-law which altered the statutory basis of the mandatory life sentence or its proper meaning and effect.", "B. The Court's assessment", "1. Preliminary considerations", "62. The question to be determined is whether, after the expiry on 1 July 1997 of the fixed-term sentence imposed on the applicant for fraud, the continued detention of the applicant under the original mandatory life sentence imposed on him for murder in 1967 complied with the requirements of Article 5 § 1 of the Convention.", "63. Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, pp. 850-51, § 50).", "64. It is not contested that the applicant's detention from 1 July 1997 was in accordance with a procedure prescribed by English law and otherwise lawful under English law. This was established in the judicial review proceedings, where the Court of Appeal and House of Lords found that the Secretary of State's decision to detain the applicant fell within his discretion as conferred by section 35(1) of the 1991 Act. This is not however conclusive of the matter. The Court's case-law indicates that it may be necessary to look beyond the appearances and the language used and concentrate on the realities of the situation (see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 20-21, § 38). In Weeks (cited above, p. 23, § 42), which concerned the recall to prison by the Secretary of State of an applicant who had been released from a discretionary life sentence for robbery, the Court interpreted the requirements of Article 5 as applying to the situation as follows:", "“The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of Article 5 § 1 (see, as the most recent authority, the Bozano judgment of 18 December 1986, Series A no. 111, p. 23, § 54). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction' (ibid., pp. 22-23, § 53, and the Van Droogenbroeck judgment ..., p. 19, § 35). In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see the above-mentioned Van Droogenbroeck judgment, p. 21, § 39).”", "65. The Court notes that in Weeks it was found that the discretionary life sentence imposed on the applicant was an indeterminate sentence expressly based on considerations of his dangerousness to society, factors which were susceptible by their very nature to change with the passage of time. On that basis, his recall, in the light of concerns about his unstable, disturbed and aggressive behaviour, could not be regarded as arbitrary or unreasonable in terms of the objectives of the sentence imposed on him and there was sufficient connection for the purposes of Article 5 § 1 (a) between his conviction in 1966 and his recall to prison in 1977 (see Weeks, cited above, pp. 25-27, §§ 46-51).", "66. Much of the argument from the parties has focused on the nature and purpose of the mandatory life sentence as compared with other forms of life sentence and whether the detention after 1 July 1997 continued to conform with the objectives of that sentence. And since the procedures applying to the varying types of life sentences have generated considerable case-law, both on the domestic level and before the Convention organs, there has been extensive reference to the judicial dicta produced as supporting the arguments on both sides.", "67. Of particular importance in this regard is Wynne, decided in 1994, in which this Court found that no violation arose under Article 5 § 4 in relation to the continued detention after release and recall to prison of a mandatory life prisoner convicted of an intervening offence of manslaughter, the tariff element of which had expired. This provides strong support for the Government's case, while the applicant sought to argue that this decision did not succeed in identifying the reality of the situation for mandatory life prisoners which subsequent developments have clarified still further. The Court in Wynne was well aware that there were similarities between the discretionary life and mandatory life sentences, in particular that both contained a punitive and a preventive element and that mandatory life prisoners did not actually spend the rest of their lives in prison. The key passage states:", "“However, the fact remains that the mandatory life sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender ...”(p. 14, § 35)", "68. While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, among other authorities, Cossey v. the United Kingdom, judgment of 27 September 1990, Series A no. 184, p. 14, § 35, and Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.", "69. Similar considerations apply as regards the changing conditions and any emerging consensus discernible within the domestic legal order of the respondent Contracting State. Although there is no material distinction on the facts between this case and Wynne, having regard to the significant developments in the domestic sphere, the Court proposes to reassess “in the light of present-day conditions” what is now the appropriate interpretation and application of the Convention (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31, and subsequent case-law).", "2. Legal developments", "70. The mandatory life sentence is imposed pursuant to statute in all cases of murder. This position has not changed, although there has been increasing criticism of the inflexibility of the statutory regime, which does not reflect the differing types of killing covered by the offence, from so-called mercy killing to brutal psychopathic serial attacks (see, for example, the 1993 report of the Committee on the Penalty for Homicide, cited by Lord Justice Kennedy in Lichniak and Pyrah, paragraph 45 above, the recommendations of the Select Committee of the House of Lords concerning murder and life imprisonment and the comments of Lord Justice Simon Brown in Anderson and Taylor, paragraph 46 above; see also the third-party intervention by Justice, paragraphs 51-54 above).", "71. The inflexibility of this regime was, from a very early stage, mitigated by the approach of the Secretary of State, who in all types of life sentences – mandatory, discretionary and detention during Her Majesty's pleasure – adopted a practice of setting a specific term known as the “tariff” to represent the element of deterrence and retribution. This was generally the minimum period of detention which would be served before an offender could hope to be released. It was never anticipated that prisoners serving mandatory life sentences would in fact stay in prison for life, save in exceptional cases. Similarly, the decision as to the release of all life prisoners also lay generally with the Secretary of State. The tariff-fixing and release procedures applicable to life sentences have however been modified considerably over the past twenty years, to a large extent due to the case-law of this Court. It is also significant that the domestic courts were frequently called upon to rule on lawfulness issues arising out of the Secretary of State's role in fixing the tariff and in deciding the appropriate moment for release, the courts requiring the establishment of proper and fair procedures in his exercise of those functions. Between Strasbourg and the domestic courts, a steady erosion of the scope of the Secretary of State's decision-making power in this field may be identified.", "72. The first examination of the Court in this area focused on the situation of discretionary life prisoners. In Weeks (cited above) and Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A), the Court analysed the purpose and effect of the discretionary life sentence, imposable for very serious offences such as manslaughter and rape. It was held that since the grounds relied upon in sentencing to a discretionary life term concerned risk and dangerousness (see paragraph 28 above), factors susceptible to change over time, new issues of lawfulness could arise after the expiry of the tariff which, in the context of Article 5 § 4, necessitated proper review by a judicial body. As a result, the Criminal Justice Act 1991 provided that the question of release, after expiry of the tariff of a discretionary life prisoner, was to be decided not by the Secretary of State but by the Parole Board in a procedure with judicial safeguards. The same Act also gave statutory force to the Secretary of State's policy of accepting the judicial view of the tariff in discretionary life cases. The judges then took on the role, in open court, of setting the punishment element of the sentence. Although no significant changes were made by statute to the regime of mandatory life sentences, the procedure whereby the tariff was fixed was shortly afterwards modified following the House of Lords' decision in Ex parte Doody, where it was found that procedural fairness required that mandatory life prisoners be informed of the judicial view of the tariff in order that they could make written representations to the Secretary of State before he reached his decision (see paragraph 32 above). This reflected a growing perception that the tariff-fixing function was closely analogous to a sentencing function.", "73. It was at this stage that the Court, in Wynne, directly addressed the position of mandatory life prisoners and took the view that the mandatory life sentence was different in character from the discretionary life sentence. In reaching that decision, it concentrated on the automatic imposition of the mandatory life sentence, which was perceived as pursuing a punitive purpose.", "74. Not long afterwards, the situation of post-tariff juvenile murderers (detained during Her Majesty's pleasure) was the subject of applications under the Convention. Although this type of sentence, as with the adult mandatory life sentence, was imposed automatically for the offence of murder, the Court was not persuaded that it could be regarded as a true sentence of punishment to detention for life. Such a term applied to children would have conflicted with United Nations instruments and raised serious problems under Article 3 of the Convention. Considering that it must be regarded in practice as an indeterminate sentence which could only be justified by considerations based on the need to protect the public and therefore linked to assessments of the offender's mental development and maturity, it therefore held that a review by a court of the continued existence of grounds of detention was required for the purposes of Article 5 § 4 (see Hussain v. the United Kingdom and Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I).", "75. The issues arising from the sentencing process for juvenile murderers at the tariff-fixing stage were then examined both in the domestic courts and in Strasbourg. In Ex parte V. and T. (cited above), the House of Lords made very strong comment on the judicial nature of the tariff-fixing exercise and quashed a tariff fixed by the Home Secretary which, inter alia, took into account “public clamour” whipped up by the press against the offenders in the case. This Court found that Article 6 § 1 applied to the fixing of the tariff, which represented the requirements of retribution and deterrence and was thus a sentencing exercise. The fact that it was decided by the Secretary of State, a member of the executive and therefore not independent, was found to violate this provision (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, and V. v. the United Kingdom, cited above).", "76. By this stage therefore, there were further statutory changes, which assimilated the position of juvenile murderers to that of discretionary life prisoners in giving the courts the role of fixing the tariff and providing the Parole Board with decision-making powers and appropriate procedures when dealing with questions of release.", "77. While mandatory life prisoners alone remained under the old regime, the coming into force on 2 October 2000 of the Human Rights Act 1998 provided the opportunity for the first direct challenges to the mandatory life regime under the provisions of the Convention in the domestic courts. In Lichniak and Pyrah (see paragraphs 43 and 45 above), the prisoners' arguments that the mandatory life sentence was arbitrary due to its inflexibility were rejected. It may be observed, as pointed out by the applicant, that the Government in that case contended that the mandatory life sentence was an indeterminate sentence by which an individualised tariff was set and that after the expiry of the tariff the prisoner could expect to be released once it was safe to do so. They expressly departed from the position that the mandatory life sentence represented a punishment whereby a prisoner forfeited his liberty for life. On that basis, the Court of Appeal found that there were no problems of arbitrariness or disproportionality in imposing mandatory life sentences. Then, in the case of Anderson and Taylor decided in November 2001, which concerned a challenge under Article 6 § 1 to the role of the Secretary of State in fixing the tariffs for two mandatory life prisoners, the Court of Appeal was unanimous in finding that this was a sentencing exercise which should attract the guarantees of that Article, following on from clear statements made by the House of Lords in Ex parte V. and T. and Ex parte Pierson (see paragraphs 34-35 above).", "78. The above developments demonstrate an evolving analysis, in terms of the right to liberty and its underlying values, of the role of the Secretary of State concerning life sentences. The abolition of the death penalty in 1965 and the conferring on the Secretary of State of the power to release convicted murderers represented, at that time, a major and progressive reform. However, with the wider recognition of the need to develop and apply, in relation to mandatory life prisoners, judicial procedures reflecting standards of independence, fairness and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner's release following its expiry has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case-law of the Court (see, mutatis mutandis, Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV).", "79. The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence. It is true that the Court, in its more recent judgments in V. and T., citing Wynne as authority, reiterated that an adult mandatory life sentence constituted punishment for life (see V. v. the United Kingdom, cited above, § 110, and T. v. the United Kingdom, cited above, § 109). In doing so it had, however, merely sought to draw attention to the difference between such a life sentence and a sentence to detention during Her Majesty's pleasure, which was the category of sentence under review in the cases concerned. The purpose of the statement had therefore been to distinguish previous case-law rather than to confirm an analysis deriving from that case-law.", "80. The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness, and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the Court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness. Reference has been made by Secretaries of State to a third element – public acceptability of release – yet this has never in fact been relied upon. As Lord Justice Simon Brown forcefully commented in Anderson and Taylor (see paragraph 46 above), it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who has served the term required for punishment for the offence and is no longer a risk to the public. It may also be noted that recent reforms in Scotland and Northern Ireland equate the position of mandatory life prisoners in those jurisdictions to that of discretionary life prisoners in England and Wales, in respect of whom continued detention after expiry of the tariff is solely based on assessment of risk of harm to the public from future violent or sexual offending.", "3. The present case", "81. In the Court's view, the applicant in the present case must be regarded as having exhausted the punishment element for his offence of murder – if this were not the case, it is hard to understand why the Secretary of State allowed his release in 1979. When his sentence for the later fraud offence expired on 1 July 1997, his continued detention under the mandatory life sentence cannot be regarded as justified by his punishment for the original murder. Nor, in contrast to the recall of the applicant in Weeks, was the continued detention of the present applicant justified by the Secretary of State on grounds of mental instability and dangerousness to the public from the risk of further violence. The Secretary of State expressly relied on the risk of non-violent offending by the applicant. The Court finds no sufficient causal connection, as required by the notion of lawfulness in Article 5 § 1 (a) of the Convention (see paragraph 64 above), between the possible commission of other non-violent offences and the original sentence for murder in 1967.", "82. The Government have argued that it would be absurd if a Secretary of State were bound to release a mandatory life prisoner who was likely to commit serious non-violent offences. With reference to the present case, however, the Court would note that the applicant was sentenced for the fraud which he committed while on release and served the sentence found appropriate as punishment by the trial court. There was no power under domestic law to impose indefinite detention on him to prevent future non-violent offending. If there was evidence that the applicant was conspiring to commit any such offences, a further criminal prosecution could have been brought against him. The Court cannot accept that a decision-making power by the executive to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction accords with the spirit of the Convention, with its emphasis on the rule of law and protection from arbitrariness.", "83. The Court concludes that the applicant's detention after 1 July 1997 was not justified in terms of Article 5 § 1 (a) and that there has accordingly been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "84. Article 5 § 4 of the Convention provides:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "A. The parties' submissions", "1. The applicant", "85. The applicant argued that as the only legitimate basis for his continued detention concerned considerations of risk, factors susceptible to change, he was entitled to review of his continued detention by a body satisfying the requirements of Article 5 § 4. He submitted that, since Wynne (cited above) was decided, the courts in the United Kingdom have so altered the approach to and understanding of the mandatory life sentence that it is no longer possible to argue that the safeguards mandated by Article 5 § 4 are incorporated into the sentence by the original trial process. The Court should reconsider its judgment in Wynne, and determine, in particular, whether the recognition that the mandatory life sentence, like the discretionary life sentence, authorises a two-phase period of detention had implications in terms of Article 5 § 4 in the post-tariff phase. The fact that the Parole Board had power to direct the applicant's release on his initial recall was not sufficient to meet the requirements of Article 5 § 4, which applied to his post-tariff detention as a whole and, when it did later recommend his release, this was not binding on the Secretary of State.", "2. The Government", "86. The Government considered that the requirements of Article 5 § 4 of the Convention were met by the original trial and appeal proceedings and that no new issues of lawfulness concerning the applicant's detention arose requiring the possibility of recourse to a court or similar body with power to order release. The Secretary of State's determination of the tariff was an administrative procedure governing the implementation of a sentence and not part of the imposition of the sentence itself. Adult mandatory life prisoners convicted of murder were in a distinct category in domestic law, as was recognised in the Court's case-law (see, for example, Thynne, Wilson and Gunnell and V. v. the United Kingdom, cited above). The sentence was imposed because of the inherent gravity of the offence and not because of the presence of factors susceptible to change with the passage of time, such as mental instability or dangerousness. Parliament had decided that all adult murderers must be sentenced to life imprisonment, whether or not they were dangerous and whatever their circumstances, because such a grave crime deserved to be punished by loss of liberty for life. In any event, the Government pointed out that, when the applicant was recalled to prison on revocation of his life licence, the Parole Board enjoyed a power to direct the Secretary of State that he be immediately released. No such direction was made. That was sufficient in itself to ensure compliance with Article 5 § 4 in the circumstances of the case.", "B. The Court's assessment", "87. The Court has found above that the tariff comprises the punishment element of the mandatory life sentence. The Secretary of State's role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment. After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 § 4. It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 § 1 of the Convention.", "88. The Government contended that the fact that the Parole Board had a power to direct the applicant's release on revocation of his life licence in 1994 was sufficient in itself to comply with Article 5 § 4. However, the Court notes that the applicant's life licence was revoked while he was serving a fixed term of imprisonment for fraud. When the fixed-term sentence expired on 1 July 1997, the applicant remained in prison under the life sentence. Although the Parole Board had recommended his release at that date, the power of decision lay with the Secretary of State. In the circumstances of this case, the power of the Parole Board to direct release in 1994 is not material.", "89. From 1 July 1997 to the date of his release on 22 December 1998, the lawfulness of the applicant's continued detention was not reviewed by a body with the power to release or following a procedure containing the necessary judicial safeguards, including, for example, the possibility of an oral hearing.", "90. There has, accordingly, been a violation of Article 5 § 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "91. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "92. The applicant claimed damages for the period of imprisonment from 1 July 1996 to 22 December 1998. In respect of pecuniary damage, he claimed 38,614.26 pounds sterling (GBP) for loss of earnings, which sum represented a rate of GBP 15,600 per annum over that period of twenty-nine months and twenty-two days. He also claimed that he had sustained non-pecuniary damage through the distress, prolonged uncertainty, and feelings of frustration arising out of this period of detention. For that head, he claimed the sum of GBP 74,260.27, calculated at a rate of GBP 30,000 per annum.", "93. The Government pointed out that the calculations for damages were based on the erroneous date of 1 July 1996, whereas the date on which the applicant's sentence for the fraud conviction expired was in fact 1 July 1997. In any event, they argued that the applicant should be awarded no sum, or only a nominal sum for pecuniary damage. The claim for loss of earnings was entirely speculative and based on assertions, which, on the applicant's past history, could not be regarded as reliable. No sum, or only a nominal sum, should be paid for alleged non-pecuniary damage, given his criminal record. In their view, a finding of a violation of the Convention would constitute sufficient compensation.", "94. The Court notes that it has found a violation of Article 5 § 1 in respect of the period of detention from 1 July 1997 to the applicant's release on 22 December 1998, a period of seventeen months and twenty-two days, as well as a violation of Article 5 § 4 due to the lack of review of the lawfulness of his continued detention during that period. The Court observes that the applicant has not given any explanation of the basis on which the sums claimed for loss of earnings have been calculated. In the absence of any adequate substantiation of these claims, the Court does not find it appropriate to award a specific sum for pecuniary damage. Nevertheless a claim for pecuniary loss cannot be completely discounted. In addition, the extension of his detention without a proper review procedure being available to him must have caused the applicant feelings of frustration, uncertainty and anxiety. Making a global assessment on an equitable basis, the Court awards the sum of 16,500 euros for pecuniary and non-pecuniary damage together.", "B. Costs and expenses", "95. The applicant claimed a total of GBP 17,865.10 for legal costs and expenses, inclusive of value-added tax.", "96. The Government accepted that this figure was reasonable in the circumstances.", "97. Having regard to the complexity of the case and the amounts claimed which appear reasonable in quantum in comparison with other cases, the Court awards the sum claimed by the applicant.", "C. Default interest", "98. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The applicants", "Application no. 39343/98", "12. Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) Kleijn Financierings - en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V. He is also part- owner of the restaurant “De Goudreinet ”.", "Application no. 39651/98", "13. Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel.", "Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company ’ s business premises.", "Grasshopper Reclame is a registered partnership ( vennootschap onder firma ) established under Netherlands law. Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee -van Frankfoort, who were born in 1947 and 1948 respectively, live above the company ’ s business premises.", "M.C. Gerritse B.V. is a limited liability company. Its premises are located in Tiel.", "Texshop B.V. is a limited liability company. Its premises are located in Tiel.", "Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel.", "Maasglas B.V. is a limited liability company. Its premises are located in Tiel.", "Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren.", "Kuwait Petroleum ( Nederland ) B.V. is a limited liability company established in Rotterdam. It owns the petrol station operated by Mr van Burk.", "Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk.", "Kleijn Financierings - en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part - owners of the restaurant “De Goudreinet ” that is located on one of the plots.", "Application no. 43147/98", "14. Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk - Avezaath.", "Application no. 46664/99", "15. Mr A.J.Th. Berndsen and Mrs B.A.G. Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen.", "Mr P. Bunschoten was born in 1955 and lives in Herveld.", "Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn.", "Mr C.J. Hanhart was born in 1938 and lives in Tiel.", "Mr J.H. Kardol was born in 1938 and lives in Meteren.", "Mr C. de Kreij was born in 1948 and lives in Giessenburg.", "Mr G.J. van Lent was born in 1944 and lives in Ochten.", "Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld.", "Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel.", "Takel - en Bergingsbedrijf Hanhart is a partnership ( maatschap ) of which Mr C.J. Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel.", "Ms C.M.M. Wennekes was born in 1949 and lives in Herveld.", "Mr M. Witvliet was born in 1944 and lives in Kesteren.", "B. Factual background", "16. The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into the North Sea at or near the town of Rotterdam. These rivers have long been used for the transport of merchandise to and from a large part of the north-western and central European hinterland, and in particular the vast industrial area situated along the River Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe ’ s major transport hubs, with Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods.", "17. In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of central and east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic.", "18. Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks.", "19. In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe ’ s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles and London. At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment.", "C. The Transport Infrastructure Planning Bill ( Tracéwet ) and the advisory opinions of the Council of State ( Raad van State )", "20. On 1 July 1991, in accordance with section 15 of the Council of State Act ( Wet op de Raad van State ) and upon a proposal of the Minister for Transport and Communications ( Verkeer en Waterstaat ) and the Minister for Housing, Planning and Environment Management ( Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer ), the Queen transmitted the Transport Infrastructure Planning Bill ( Tracéwet ) to the Council of State for an advisory opinion.", "21. The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra - regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities.", "22. The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads:", "“The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects. The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government ’ s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.”", "23. In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities. It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards ( waterschappen ) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill.", "24. Point 8 of the advisory opinion reads:", "“Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [ tracévaststelling ] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra ‑ )national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them. In that case, the routing plans [ tracés ] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.”", "25. The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads:", "“The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.”", "26. In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities. It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision.", "27. As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows:", "“With the approval of the Council of Ministers (decision of 24 January 1992 ), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘ Betuweroute ’ [railway]. The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.”", "28. The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State ’ s criticism. The amendments were submitted to the Council of State for advice on 6 February 1992.", "29. In its advisory opinion of 8 May 1992, the Council of State considered, inter alia :", "“... it desirable to indicate in section 24g that the notions ‘ high-speed railway ’ and ‘ Betuweroute ’ railway relate to specific [railway] connections between specifically named places.”", "30. The ministerial reply of 19 May 1992 to this recommendation states:", "“This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘ Betuweroute ’ [railway] to the Rotterdam- Zevenaar route.”", "31. The government then submitted the bill to the Lower House ( Tweede Kamer ) of Parliament, together with the Council of State ’ s advisory opinion and the ministers ’ comments. The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance.", "D. The planning process of the Betuweroute railway", "1. The preparatory stages", "32. An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal ) – known as the “ Betuwe line” ( Betuwelijn ) – links the city of Rotterdam to the town of Elst. It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways ( Nederlandse Spoorwegen – “ the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient.", "33. This led the government to reject that idea. Instead, the government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “ Betuweroute ”, along the A15 motorway. The NS was required to prepare an environmental impact report ( milieu- effectrapportage ).", "2. Outline Planning Decision – Part 1", "34. On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision ( Planologische Kernbeslissing ) within the meaning of section 2a of the Town and Country Planning Act ( Wet op de Ruimtelijke Ordening ), which later became known as “ Outline Planning Decision – Part 1 ”. The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette ( Staatscourant ) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received.", "35. On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation in the matter of cross-border railway communication. The agreement provided – subject to the conclusion of procedures prescribed by national law – for, inter alia, the building of a new railway from Rotterdam to the German border via Zevenaar. There were to be two border crossings, one at Oldenzaal /Bad Bentheim and the other at Venlo/Kaldenkirchen. The agreement also provided for corresponding measures to be taken on the German side and for a time frame.", "3. Outline Planning Decision – Part 2", "36. On 18 April 1993 the government published a document entitled “ Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute ” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision – Part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, that is provinces, municipalities and regional surface waterboards. Advice obtained from the Netherlands-German Planning Board ( Nederlands-Duitse Commissie voor de Ruimtelijke Ordening ), the Environmental Impact Reports Board ( Commissie milieu- effectrapportage ), the Planning Advisory Board ( Raad van Advies voor de Ruimtelijke Ordening ) and the Traffic Infrastructure Consultation Body ( Overlegorgaan Verkeersinfrastructuur ) was also included in this document, which became known as Outline Planning Decision – Part 2.", "4. Outline Planning Decision – Parts 3 and 3A", "37. On 18 May 1993 the government published their views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval. This document became known as Outline Planning Decision – Part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision – Part 3 back to the government with its comments.", "38. The government made certain modifications. The resulting document, which became known as Outline Planning Decision – Part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval.", "5. Outline Planning Decision – Part 4", "39. Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House ( Eerste Kamer ) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994.", "40. Outline Planning Decision – Part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the government, and giving reasons for the choices made. It was stated that Rotterdam, the Netherlands ’ main port, and Schiphol Airport, now served most of the European continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water. Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of eastern Europe the railway infrastructure was better developed and in a better state of repair than the roads.", "41. Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community also provided for the development of new railways.", "42. The explanatory memorandum contained summaries of studies – additional to that undertaken by the NS in 1991 – that had been commissioned by the government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office ( Centraal Planbureau ). The results of this appraisal were also rendered in summary form. The government considered that although the conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable.", "43. Other alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany ( the “ Brabantroute ”), used mainly for passenger traffic, and making it more suitable for the transport of goods. This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems.", "44. Alternatives not involving railways, which had been suggested after Outline Planning Decision – Part 1 had been laid open for public inspection, were discarded in view of the need to connect to the existing railway infrastructure in the rest of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were undergoing further development.", "45. Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision – Part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level. These were considered, but rejected as the cost would be prohibitive. A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen.", "46. Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, with reasons being given for the choices made and for the rejection of alternatives.", "47. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance – Besluit geluidhinder spoorwegen ) the maximum permissible noise level was 60 decibel ampere ( dBA ) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible, by screening and other measures, to reduce the combined noise levels to 60 dBA.", "48. Some 150 residential buildings were found to be located within 50 m of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels.", "49. The danger that might be result from the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas. The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the routing decision.", "50. There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138 ,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975 ,000,000 would be paid out of the State budget. The remaining NLG 5,163 ,000,000 would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750 ,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375 ,000,000 required to meet objections and special requests made by individuals and local authorities.", "51. A new government took office on 22 August 1994, which in pursuance of agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee ( the “ Hermans Committee”), the new government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the government ’ s views.", "6. The Betuweroute Routing Decision ( Tracébesluit )", "52. In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals, non ‑ governmental organisations and local - government bodies. These led to modifications, which were incorporated into the draft routing decision.", "53. The draft routing decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local - government bodies. Changes were considered, and eventually incorporated into the final routing decision, in so far as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise-reduction measures in addition to those foreseen in Outline Planning Decision – Part 4.", "54. The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations – not concerned by the present case – for which further planning was required.", "55. The routing decision comprises twenty-four Articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made.", "56. A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary regardless of the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, other measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to the accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision – Part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas ( stiltegebieden – “silent areas”). The residential function of buildings where the noise levels would be excessive would have to be terminated. A detailed report setting out the noise levels for each municipality was appended to the routing decision.", "57. Compensating measures for the preservation of the environment and the existing landscape were to include, among other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites.", "58. Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas. The need, at some locations, for cleaning polluted soil was noted.", "59. Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway ’ s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths – safety was the main consideration. Changes to existing ditches and waterways were unavoidable. Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date.", "E. Appeals against Outline Planning Decision – Part 3A and the Betuweroute Routing Decision", "1. Appeals against Outline Planning Decision – Part 3A", "60. A total of 173 appeals against Outline Planning Decision – Part 3A were lodged with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State, many jointly by a plurality of appellants. With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision – Part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected.", "61. The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors ( Staatsraden ) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively.", "62. On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision. It rejected all the complaints of a general nature.", "63. As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive route of the railway. It therefore limited the scope of its review, for each separate location, to the question whether the government could reasonably have set the band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision.", "64. One group of general complaints addressed, inter alia, the assessment made by the government of the need for a new railway. These were rejected with reference to government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the government ’ s assessment of the need to construct the railway did not appear incorrect or unreasonable.", "65. Another group of general complaints challenged the government ’ s estimates of the railway ’ s macro-economic effects and its profitability and the financial calculations underlying the government ’ s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned.", "66. A further group of general complaints challenged the government ’ s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost-effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision.", "67. Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A ( and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case.", "68. As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants ’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation.", "69. The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision – Part 3A were annulled.", "2. The appeals against the Betuweroute Routing Decision", "70. In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed. Some challenged the government ’ s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels.", "71. The composition of the bench of the Administrative Jurisdiction Division dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against Outline Planning Decision – Part 3A (see paragraph 61 above). It commenced its examination of the appeals on 18 November 1997.", "72. In the course of a public hearing held on 2 December 1997, Mr and Mrs Raymakers challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the councillors of that Division with the exception of the extraordinary councillors ( Staatsraden in buitengewone dienst ), and in the further alternative, the councillors sitting on the case, on the ground of lack of impartiality. They argued that, since the Plenary Council of State ( Volle Raad ) was involved in advising the government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted.", "73. A hearing on this challenge was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal, that is Mr E. Korthals Altes (President), Mr A.G. van Galen and Mr C. de Gooyer (members), all of whom were extraordinary councillors of the Council of State.", "74. Mr and Mrs Raymakers cited the European Court ’ s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxembourg Conseil d ’ Etat and quoted several comments published in the legal press by learned authors.", "75. Given that the Council of State ’ s advice on the introduction of the Transport Infrastructure Planning Act had been worded “in generally positive terms” and therefore conflicted with these applicants ’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case.", "76. On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, under section 8(15) of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), a challenge could only be directed against judges who were dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act had provided otherwise, no member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, in so far as the applicants ’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants ’ appeal, it was inadmissible. The challenge directed against the members who were so involved was rejected in the following terms:", "“The Division considers that under section 8(15) of the General Administrative Law Act each of the members who decide a case can be removed from it [ gewraakt ] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case. Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge ’ s removal from a case. For this reason alone the appellants ’ submissions at the hearing cannot lead to their application being granted.", "As to the appellants ’ reliance on Procola, the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.”", "77. The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division delivered its decision, which ran to 354 pages.", "78. General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all – including complaints about the environmental impact report – were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision – Part 3A. The question was no longer whether the building of the Betuweroute was acceptable, but only whether, in coming to the routing decision, the government could reasonably have decided as it had.", "79. The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by the Administrative Jurisdiction Division. It held that, under section 24( 5 ) of the Transport Infrastructure Planning Act, the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that, therefore, it was normal that a routing decision was already taken before the outline planning decision had become final. It further considered that it did not follow from the Transport Infrastructure Planning Act that where, like in the present case, a separate appeal lay against an outline planning decision, no routing decision could be taken before the outline planning decision had become final. The mere fact that the time-limits for appealing started to run independently did not, according to the Administrative Jurisdiction Division, alter the tenor of section 24 ( 5 ) of the Transport Infrastructure Planning Act that no final outline planning decision was required for a routing decision to be taken on the basis of that decision.", "80. As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained. Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the routing decision provided that new development which would increase it within 30 m from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis.", "81. As to vibration levels, the Administrative Jurisdiction Division held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration unreasonable per se. Moreover, the government had undertaken to provide active monitoring ( that is, to measure vibration levels of its own motion) in all residential buildings located within 50 m of the railway once it was in use, and passive monitoring ( that is, to measure vibration levels after complaints were received) in residential buildings located 50 to 100 m from the railway. The government would then deal with unacceptable nuisance on a case - by - case basis. Specific problems raised by appellants would be dealt with individually.", "82. With regard to general complaints about the arrangements for compensating damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible.", "83. As to the appeal lodged by Mettler Toledo B.V. (no. 39651/98), whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, the Administrative Jurisdiction Division noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company ’ s business. That being so, Mettler Toledo B.V. ’ s claims could not be dismissed as unfounded; to that extent, the appeal was allowed.", "84. Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available. The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant.", "85. With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98) and Kleijn Financierings - en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet ” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded. The remainder of their appeal was dismissed.", "86. As regards the appeal lodged by Mr M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act ( Onteigeningswet ). As to his complaint about nuisance from noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was well-founded. The remainder was rejected.", "87. The Administrative Jurisdiction Division rejected the appeals lodged by the other individual applicants and applicant companies.", "88. In so far as the appeals were considered well-founded, the Administrative Jurisdiction Division annulled the routing decision and made an award in respect of costs.", "F. Subsequent developments", "1. The 1998 routing decisions", "89. In a letter to the Lower House of Parliament of 13 July 1998 the Minister for Transport and Communications, writing also on behalf of the Minister for Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95% of the routing decision intact. It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work. It was expected that the Betuweroute railway would be operational by 2005.", "90. In so far as minor parts of the routing decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded. In so far as relevant to the present case, the minister expected that in all but one or two cases changes to the original routing decision would prove unnecessary.", "91. New partial routing decisions were taken in the course of 1998. An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999. The appeal lodged by Sterk Technisch Adviesbureau B.V. was dismissed by the Administrative Jurisdiction Division on 25 October 1999. The appeals lodged by Kleijn Financierings - en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn and Mr A.A. Kleyn were dismissed by the Administrative Jurisdiction Division on 25 July 2000. Mr Witvliet apparently did not lodge an appeal against any of the 1998 routing decisions.", "2. The Betuweroute Note", "92. In response to suggestions made in the media to reconsider the Betuweroute project, the Minister for Transport and Communications sent a note ( Notitie Betuweroute ) to the Lower House of Parliament on 6 November 1998. In this note the minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead. She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions as to the viability and desirability of the project. On the contrary, developments had been such as to endorse these.", "3. Revision proceedings before the Administrative Jurisdiction Division", "93. On 13 April 1999 the Stichting Duurzame Mobiliteit (Durable Mobility Foundation) – one of the appellants against the routing decision but not one of the applicants in the present case – lodged a request for revision ( herziening ) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division. This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised Outline Planning Decision – Part 3A or had failed to consider this information.", "94. In a decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its decisions. It found that the information in question was not of such a nature as to justify reopening the proceedings.", "4. The report of the Chamber of Audit", "95. From August 1999 until February 2000 the Chamber of Audit ( Algemene Rekenkamer ) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title “ Beleidsinformatie Betuweroute ” ( Betuweroute Policy Information).", "96. The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects. The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process. Developments subsequent to the reconsideration of 1995 were taken into account.", "97. The Chamber of Audit found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the outline planning decision was based had not been sought.", "98. Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained, inter alia, as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example, Belgium and France ) of the liberalisation of rail transport. Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being envisaged in a policy proposal of the European Commission.", "99. Alternatives to the Betuweroute had not been sufficiently explored. The Chamber of Audit criticised the way in which the use of the existing railway infrastructure in the Netherlands and waterborne inland and coastal transport had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking. Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into.", "100. The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and groundwater pollution attending alternative choices.", "101. A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note – see paragraph 92 above). However, the information available at those times and the way in which it had been used was open to criticism.", "102. The draft of the report was transmitted in its entirety to the government. The Minister for Transport and Communications, in a reaction submitted also on behalf of the Minister for Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested. The conclusions of the Chamber of Audit were accepted for future reference.", "103. Parts of the draft report were transmitted to the NS Railway Infrastructure Division and to Railned, the Netherlands government entity which operated the railway system. The Railway Infrastructure Division disagreed with certain findings of the Chamber of Audit with regard to environmental impact estimates. Railned called into question some of the findings of the Chamber of Audit with regard to the predicted increase in the volume of rail transport.", "104. The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, 27 195, nos. 1 ‑ 2)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Outline planning decisions", "105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a ( 1 )). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a ( 2 ) ). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a ( 5 ) ).", "106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a ( 3 ) ). The advice of the Planning Advisory Board had to be sought (section 2a ( 4 ) ).", "107. The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a ( 6 ) ).", "108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a ( 7 ) ).", "109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a ( 8 ) ). If approved by the Upper House, the outline planning decision came into force (section 2a ( 7 )). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a ( 9 ) ).", "110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it ( that is, for the purposes of the present case, Outline Planning Decision – Part 3A ).", "111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39).", "B. The Transport Infrastructure Planning Act", "112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11 ( 1 ), 12( 1 ) and ( 2 ), and section 13).", "113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15( 1 ) - ( 3 ) ). The routing decision is transmitted to Parliament with an explanatory statement (section 16 ( 1 ) ). Non-binding time-limits are set for the various stages of the procedure.", "114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15 ( 4 ) ).", "115. Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local - government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23 ( 1 ) ).", "116. The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24 ( 1 ) - ( 3 ) ).", "117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24 ( 4 ) ). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24 ( 5 ) ).", "C. Historical overview of the Council of State and its Divisions", "118. The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent ( landvoogdes ) of the Low Countries to rule on his behalf.", "119. Following the Low Countries ’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder ( Stadhouder ), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General ( Staten- Generaal ).", "120. The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary ( Raadpensionaris ), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813. According to the 1815 Netherlands Constitution ( Grondwet ), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters.", "121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown ( Kroonberoep ) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice. For the exercise of this function, the Administrative Litigation Division of the Council of State ( Afdeling voor Geschillen van Bestuur van de Raad van State ) was created.", "122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration ( Wet administrative rechtspraak overheidsbeschikkingen – “ the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State ( Afdeling Rechtspraak van de Raad van State ).", "123. In order to give effect to the Court ’ s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals ( Tijdelijke Wet Kroongeschillen ) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act.", "124. On 1 January 1994 the General Administrative Law Act ( Algemene Wet Bestuursrecht ), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ).", "D. General features and functions of the Council of State", "1. Membership of the Council of State", "125. The Council of State is presided over by the monarch and consists of a vice- president and up to 28 ordinary councillors ( Staatsraden ) (section 1 of the Council of State Act ( Wet op de Raad van State )) and 55 extraordinary councillors ( Staatsraden in buitengewone dienst ) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors.", "126. All councillors are appointed by royal decree ( Koninklijk Besluit ) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice. Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree.", "127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State ( Volle Raad ), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament ( Staten- Generaal ). However, membership of a political party is not a formal or material criterion.", "128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience.", "129. Section 7 ( 1 ) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice- president of the Council of State and with being an ordinary councillor. These categories are extended in section 7 ( 2 ) of this Act with regard to the extraordinary councillors. This provision reads:", "“The vice- president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.”", "130. Pursuant to section 7 ( 3 ), the vice- president renders public any other positions held by members of the Council of State. This information is published in the Netherlands Government Gazette and posted on the Council of State ’ s official website.", "2. Advisory function of the Council of State concerning draft legislation", "131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State ( section 15 of the Council of State Act ).", "132. In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a).", "133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion. This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption.", "134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands ( Statuut voor het Koninkrijk der Nederlanden ), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda. It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection.", "135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors.", "3. Judicial function of the Administrative Jurisdiction Division", "136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act ). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act.", "137. The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice- president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life.", "138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers. The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge.", "139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings ( that is without an oral hearing), any objection ( verzet ) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality.", "140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative.", "E. Combination of the advisory and judicial functions", "141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State.", "F. Effect given to Procola v. Luxembourg ( judgment of 28 September 1995 )", "142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3).", "143. The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government.", "144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice ’ s letter of 12 February 1998, these adaptations were of such a nature that so-called “ Procola risks ” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000- 01, 27 400 II, no. 3).", "145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows:", "“Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no. 3), amounts to the following:", "If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.”", "G. Challenge of members of the Administrative Jurisdiction Division", "146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act ).", "147. The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act ).", "148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State ’ s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State.", "149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later case ‑ law, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no. E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28).", "150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72).", "151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified.", "152. In an appeal in cassation lodged with the Supreme Court ( Hoge Raad ) against a judgment of 29 March 1999 of the Arnhem Regional Court ( Arrondissementsrechtbank ) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to the Court ’ s judgment in Procola (cited above), he argued that the Council of State ’ s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts.", "153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant ’ s point concerning the impartiality of the Council of State, the Supreme Court held as follows:", "“3.2. [ The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation:", "...", "(b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention;", "...", "3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act.", "3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.”", "THE LAW", "I. ADMISSIBILITY OF THE APPLICATIONS", "154. The Government submitted that, with the exception of Mr and Mrs Raymakers, the applicants had not challenged the Administrative Jurisdiction Division or appealed to the civil courts on the ground that the administrative proceedings at issue did not offer sufficient guarantees of a fair procedure. According to the Government, both remedies were effective and capable of redressing the alleged violation of the Convention. The Government argued that none of the applicants, apart from Mr and Mrs Raymakers, had therefore exhausted domestic remedies as required by Article 35 § 1 of the Convention.", "155. The applicants submitted that, although they had misgivings about the impartiality of the Administrative Jurisdiction Division, which some of them did in fact express in their appeal submissions, they had not lodged a formal challenge like Mr and Mrs Raymakers, fearing that this might have adverse consequences. They further pointed out that there were no substantial differences between the appeal lodged by Mr and Mrs Raymakers and those lodged by the other applicants. As to the remedy before the civil courts referred to by the Government, the applicants indicated that, according to the case-law of the civil courts as illustrated by the Supreme Court ’ s judgment of 16 February 2000 (see paragraph 153 above), the Administrative Jurisdiction Division is regarded as complying with the requirements of impartiality under Article 6 § 1 of the Convention.", "156. The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, the Court ’ s judgment of 28 July 1999 in Selmouni v. France ( [ GC ], no. 25803/94, §§ 74-77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case ‑ law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail.", "157. The Court can agree with the Government that, where it is alleged that a tribunal does not meet the requirements of independence or impartiality under Article 6 § 1 of the Convention, a challenge can be regarded as an effective remedy under Netherlands law for the purposes of Article 35 § 1.", "158. In the present case, however, the challenge of Mr and Mrs Raymakers – based on the same grounds as now submitted by all applicants to the Court – was dismissed. The Court fails to see that a further challenge by the other applicants, who were parties in the same set of proceedings as Mr and Mrs Raymakers, could have resulted in a different decision. The Court therefore accepts that, in the particular circumstances of the present case, the other applicants were not required to avail themselves of that remedy because it would have been bound to fail.", "159. As regards the civil remedy advanced by the Government, it is true that the Court has previously held this remedy to be an effective one where an administrative appeal procedure is considered to offer insufficient guarantees as to a fair procedure (see Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, pp. 21-22, §§ 50-57). However, in that case the applicant ’ s administrative appeal had been heard by the Crown (see paragraphs 121 and 123 above ) after the Court had concluded in Benthem v. the Netherlands ( judgment of 23 October 1985, Series A no. 97) that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention.", "160. In their brief remarks about the remedy before the civil courts, the Government have not cited any domestic case-law in which a civil court agreed to hear an administrative appeal on the ground that, in view of the Court ’ s judgment of 28 September 1995 in Procola v. Luxembourg ( Series A no. 326 ), the Administrative Jurisdiction Division afforded insufficient guarantees as to independence and impartiality. The Supreme Court ’ s case-law referred to by the applicants in fact indicates that this argument was rejected by the Supreme Court. The Court considers that the applicants have sufficiently established that in the present case this remedy too could not be regarded as offering any reasonable prospect of success.", "161. In these circumstances, the applications cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.", "162. The Court considers that the applicants ’ complaint that, from an objective point of view, the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established. The remaining part of the applications is therefore declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 11 above), the Court will immediately consider the merits of the applicants ’ complaint.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "163. The applicants complained that the Administrative Jurisdiction Division of the Council of State was not independent and impartial, in that the Council of State exercises both advisory and judicial functions. They alleged a violation of Article 6 § 1 of the Convention, which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”", "A. Applicability of Article 6", "164. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties and the Court sees no reason not to find that the proceedings at issue fall within the scope of this provision.", "B. Compliance with Article 6", "1. Submissions before the Court", "(a) The applicants", "165. The applicants submitted that, in the light of the Court ’ s judgments in Procola ( cited above ) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II), the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. In Procola, the Court indicated that, by reason of the combination of different functions within the Luxembourg Conseil d ’ Etat, this “institution ’ s structural impartiality” could be put in doubt. The applicants further submitted that the perception of appellants had to be regarded as decisive where it concerned a tribunal ’ s objective impartiality. Any doubts by appellants – based on reasonable and objectively justified grounds – as to the impartiality of a tribunal had to be dispelled.", "166. The applicants considered that in this respect no distinction could be made between, on the one hand, a simultaneous exercise of different functions by one person and, on the other, an institutionalised simultaneous exercise of different structural tasks. To draw such a distinction would, from an appellant ’ s perspective, be artificial. The practical implementation of a norm based on such a distinction was likely to be inadequate and to offer an appellant insufficient guarantees and opportunities for control.", "167. It would follow that, in appeals to the Administrative Jurisdiction Division, an investigation would have to be carried out in each case as to which statutory provisions were at issue when the Council of State advised on the relevant provisions, which councillors were then members of the Plenary Council of State, and what the content of the advice was. Apart from the risk of mistakes in such investigations, it was also incumbent on an appellant – who under administrative law was considered entitled to litigate without professional legal assistance – to verify whether such a possible combination of tasks existed. Appellants were often unable themselves to obtain a timely answer on the question how the Plenary Council of State was composed when an advice was given. Furthermore, in most cases appellants only became aware of the definite composition of the bench of the Administrative Jurisdiction Division shortly before the hearing of their case.", "168. The applicants further submitted that the Council of State, in its advisory capacity, could not be compared to an independent and impartial judicial authority, in that it was a politically composed body having close ties with the government and the legislator. In this respect the applicants referred to section 22 of the Council of State Act, providing for a general possibility of consultation between the Council of State and the minister concerned, and submitted that no similar provision could be found in regulations on the status of the judiciary.", "169. When considering the conditions for appointment as ordinary councillor – which are considerably less strict than for judges of the ordinary courts –, the appointment procedure itself and the role of the Council of State in the Netherlands legal order, it was, from the perspective of appellants, obvious that the Council of State had to be regarded as a part of the legislature and the executive. It was also clear that, in the exercise of its advisory functions, the Council of State dealt not only with questions of lawfulness but also with political and policy considerations.", "170. As no distinction was made between the persons involved in the exercise of the Council of State ’ s advisory functions and those involved in the exercise of its judicial functions, the applicants considered that institutionalised simultaneous exercise of both the advisory and the judicial functions of the Council of State was incompatible with the requirement of objective impartiality under Article 6 § 1 of the Convention.", "171. The applicants further submitted that the advisory opinions given by the Council of State on the Transport Infrastructure Planning Bill did in fact serve as a prelude to future adjudication of appeals lodged against the Betuweroute routing decision. In its advisory opinion it dealt intensively with the issues going to problems of the legislation applicable to the decision ‑ making process in relation to the planning of the Betuweroute railway. In this context the Council of State suggested the enactment of a special regulation for large-scale projects of (supra - )national importance such as the – expressly mentioned – Betuweroute railway, in order to allow a fast and efficient construction thereof, bypassing the normal legal - protection proceedings and the powers of local and regional public authorities. To this end the Council of State even suggested that, by way of transitory arrangements, the Transport Infrastructure Planning Act be rendered applicable to the decision-making process already underway in respect of the planning of the Betuweroute railway. This considerably restricted the opportunities for, as well as the scope of, judicial control, which was limited to some main aspects of the decision-making process. In its second advice the Council of State further advised that the envisaged routing of the Betuweroute railway be mentioned expressly in the Transport Infrastructure Planning Act.", "172. From the perspective of appellants it could not therefore be maintained that the Administrative Jurisdiction Division of the Council of State was an independent and impartial tribunal. From their perspective it appeared that both the political and judicial decisions on the construction of the railway had eventually been taken by the same kind of institution.", "173. In this context the applicants further referred to the fact that the bench of the Administrative Jurisdiction Division that heard their appeals had been composed of three ordinary councillors. In the applicants ’ opinion, this gave rise to an objectively justified impression that these members considered themselves bound by the advisory opinions given previously by the Council of State on the Transport Infrastructure Planning Bill in which, in addition, the President of the bench concerned had participated.", "174. This impression was confirmed by the reserved manner in which the Administrative Jurisdiction Division had examined the challenged decisions on the construction of the Betuweroute railway. It had relied upon favourable expert opinions, without giving adequate reasons for attaching less value to opposing expert opinions submitted by the appellants. It could be concluded from this that the Council of State, in the exercise of its judicial functions in the instant case, had allowed itself to be too influenced by policy considerations, that is the desirability of a speedy construction of the Betuweroute railway, a point of view which had been subscribed to in the Council of State ’ s advisory opinions.", "175. The applicants further argued that the policy adopted by the Council of State for preventing so-called “ Procola risks ” was inadequate and ineffective, in that this policy was formulated with insufficient precision and, further, had not been laid down in a regulation accessible to the general public. Furthermore, the Council of State did not indicate in concrete cases whether this policy had in fact been applied. At the material time the applicants could only deduce the existence of this policy from a memorandum sent by the Minister for Justice and the Minister of the Interior to the Lower House, after the decision on the appeals against the outline planning decision had already been taken. It was further only in the Annual Report 2000 of the Council of State, which was published in 2001, that an attempt was made to describe the “ Procola policy” applied by the Council of State. The applicants were of the opinion that, given the importance of the impartiality of the judiciary in a State respecting the rule of law, it could not be considered sufficient to refer merely to communications addressed to Parliament or to a chapter in an annual report. These kinds of guarantees for judicial impartiality should be laid down in a statutory regulation which was accessible to the general public.", "176. The applicants submitted lastly that it was also incompatible with Article 6 § 1 of the Convention that the Council of State, according to the description of its Procola policy in its Annual Report 2000, only examined whether there was a Procola risk when an appellant “had advanced doubts as to the independence and impartiality of the bench dealing with the appeal”. It could be inferred that the Council of State only examined this issue seriously after having been requested to do so. Given the Contracting States ’ positive obligation under Article 6 § 1 of the Convention to organise their judicial systems in such a way that their courts were capable of meeting each of its requirements, including that of judicial impartiality, such a system could not be seen otherwise than as being incompatible with this provision.", "(b) The Government", "177. According to the Government, the decision to construct the Betuweroute railway was taken after obtaining the consent of Parliament and after considering all the relevant interests. Construction projects like the one at issue in the present case were regulated by the Transport Infrastructure Planning Act and involved two stages, namely the taking of an outline planning decision containing the broad principles and the subsequent taking of a routing decision. The Government stressed that the Council of State had no advisory function whatsoever in the process leading to an outline planning decision or a routing decision and that an appeal against both types of decision lay to the Administrative Jurisdiction Division.", "178. In administrative appeal proceedings the Administrative Jurisdiction Division examined solely the lawfulness of an administrative decision. The policy on which a decision was based and policy considerations that had played a role in the decision were not examined on their merits. Given the division of powers between the executive and the judiciary, there was no room for a more comprehensive review than an examination of the lawfulness of a challenged decision. Where the Administrative Jurisdiction Division concluded that a decision was unlawful, it quashed the decision and referred the case back to the competent administrative authority for a new decision with due regard to the considerations stated by the Administrative Jurisdiction Division. It did not give a fresh decision of its own.", "179. The applicants ’ complaint was based solely on the fact that the bench of the Administrative Jurisdiction Division that dealt with their appeals against the routing decision had been composed of three ordinary councillors who were also members of the Plenary Council of State, which had issued an advisory opinion on the Transport Infrastructure Planning Bill. In the Government ’ s view, by adopting this position, the applicants had misconstrued the link between the Transport Infrastructure Planning Act – and hence the Council of State ’ s advice on it – and the determination of their appeals against the routing decision.", "180. The proceedings in respect of the applicants ’ appeals had not involved any matter on which the Council of State had given an advisory opinion and they could not, therefore, have any grounds for fearing that the three judges had felt bound by an opinion previously given, since there had simply been no such opinion in respect of the routing decision.", "181. The challenge lodged by Mr and Mrs Raymakers had been determined by three extraordinary councillors, who had never been involved in the exercise of the Council of State ’ s advisory functions. Two of the three ordinary councillors who determined the applicants ’ appeals against the routing decision had not yet joined the Council of State when this body exercised its advisory functions in respect of the Transport Infrastructure Planning Bill, and the advice given by the Council of State on this bill had not discussed or even touched upon the questions which the Administrative Jurisdiction Division had been called upon to determine in the applicants ’ appeals against the routing decision. This was supported by the applicants ’ failure to identify elements of the Council of State ’ s advisory opinion on the Transport Infrastructure Planning Bill which would cast doubt on the Administrative Jurisdiction Division ’ s impartiality in hearing the applicants ’ appeals. The Government therefore failed to see in what manner any member of the bench of the Administrative Jurisdiction Division that dealt with the applicants ’ case could have felt bound by a previous position taken by the Council of State.", "182. Although the ordinary councillors sat in the Plenary Council of State as well as the Administrative Jurisdiction Division, the Government considered that there was no general incompatibility between delivering advisory opinions to the executive and exercising a judicial function. It was only in very rare cases that an advisory opinion on draft legislation and a specific ruling by the Administrative Jurisdiction Division in which the finalised legislation was applied related to “the same case” or amounted to “the same decision”.", "183. According to the Government, it was clear from the Court ’ s judgments in Procola and McGonnell ( both cited above) that the key question was whether and how the same judge was directly involved in drafting regulations on which he or she was subsequently called upon to rule in a judicial capacity. The Government were therefore of the opinion that the mere fact that advisory and judicial functions were combined within a single body did not in itself vitiate the independence and impartiality of that body. The Government considered that the measures taken by the Administrative Jurisdiction Division in response to Procola constituted sufficient safeguards for securing its objective impartiality.", "(c) Third-party interventions", "( i ) The Italian Government", "184. The Italian Government submitted that for the purposes of assessing judicial impartiality, a distinction had to be drawn between an abstract assessment of a provision, such as an advisory opinion, and an evaluation of the application of a provision in a specific case. In their view, a judgment, evaluation or examination of a law did not prevent further judgments or evaluations of that same law. It was incompatible with the requirements of impartiality for a judge to assess specific facts twice, but not for an abstract provision to be assessed by the same judge in different individual cases.", "(ii) The French Government", "185. The French Government drew attention to the fact that the French legislation on the operation of the French Conseil d ’ Etat and the status of its members were based on the principle of a simultaneous exercise of advisory and judicial functions by the same body. The French Conseil d ’ Etat was divided into five Administrative Divisions ( sections administratives ) : interior, finance, public works, social, and report and research, which were responsible for giving advisory opinions to the government, and one Judicial Division ( section du contentieux ) responsible for hearing administrative disputes.", "186. The primary function of the Administrative Divisions was to ensure the lawfulness of legislation submitted to them. Their legal advice to the government aimed to prevent illegalities which judicial authorities would only be able to remedy later, once the administrative decision had been made and sometimes already applied. The existence of a body able to analyse an administrative decision or rule and provide legal advice before it was enacted, and hence improve its quality, also guaranteed greater stability of the rule of law. If administrative decisions were better protected against legal errors, they were less likely to be set aside by the judicial authorities and therefore more stable.", "187. The inherent advantage of a simultaneous exercise of both advisory and judicial functions was that it was easier for the members of Administrative Divisions who were also members of the Judicial Division to identify illegalities, which meant that the quality of the advisory opinions was guaranteed. It was impossible to separate the judicial function of the Conseil d ’ Etat from its advisory responsibilities. The adviser to the government relied on case- law and the judge took into account the adviser ’ s opinion. This resulted in the best possible guarantee of legal certainty.", "188. Nevertheless, the simultaneous assignment of Conseil d ’ Etat members to an Administrative Division and the benches of the Judicial Division was not without limits, in that the requirement of impartiality took precedence over this principle of dual assignment. The Conseil d ’ Etat observed the rule that any judge who had either assisted, in the course of duties performed outside the Conseil d ’ Etat, in drafting an administrative decision which was then challenged before the Judicial Division, or had even dealt with the decision in the past as a reporting judge ( rapporteur ) to an Administrative Division, had to withdraw from the case.", "189. The French Government considered that the fact that the same point of law was submitted successively to the Conseil d ’ Etat in its advisory capacity and its judicial capacity did not as such constitute a ground, given its independence in both capacities, for an objective doubt in the mind of an appellant that could undermine the impartiality of the Judicial Division. The impartiality of a body where advisory and judicial responsibilities coexisted did not pose a problem where an advisory opinion concerned merely a point of law. Where it concerned a question of fact, the assessment of the question whether an appellant could have objectively justified fears of bias depended on the merits of each case.", "2. The Court ’ s assessment", "190. As is well established in the Court ’ s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.", "191. As to the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).", "192. The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73).", "193. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002 - IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers ’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position of the Netherlands Council of State. The Court is faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell, cited above, § 51).", "194. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48).", "195. Having regard to the manner and conditions of appointment of the Netherlands Council of State ’ s members and their terms of office, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, the Court has found nothing in the applicant ’ s submissions that could substantiate their concerns as to the independence of the Council of State and its members, the more so as this particular issue was not addressed in the challenge proceedings brought by Mr and Mrs Raymakers.", "Neither is there any indication in the present case that any member of the bench of the Administrative Jurisdiction Division was subjectively prejudiced or biased when hearing the applicants ’ appeals against the routing decision. In particular, it has not been alleged by the applicants that the participation of the President of the bench in the advisory opinion on the Transport Infrastructure Planning Bill gave rise to actual bias on his part.", "196. Nevertheless, as illustrated in Procola (cited above), the consecutive exercise of advisory and judicial functions within one body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from the objective viewpoint. In this context the Court reiterates that it is crucial for tribunals to inspire trust and confidence (see paragraph 191 above).", "197. The Government have brought to the Court ’ s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands (see paragraphs 142-45 above). According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench will only be scrutinised if doubts are expressed by a party; the criterion then applied is that if the appeal goes to a matter explicitly addressed in a previous advisory opinion, the composition will be changed so as to exclude any judges who participated in that opinion.", "198. The Court is not as confident as the government was in its statement during the parliamentary budget discussions in 2000 that these arrangements are such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division constitutes an “impartial tribunal” for the purposes of Article 6 § 1 of the Convention. It is not, however, the task of the Court to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of the “objective” impartiality of a tribunal under Article 6 § 1 that the Council of State ’ s institutional structure had allowed certain of its ordinary councillors to exercise both advisory and judicial functions.", "199. In the present case the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra - regional planning of new major transport infrastructure. The applicants ’ appeals, however, were directed against the routing decision, which is a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. Earlier appeals against the outline planning decision are not at issue as they were based on a different legal framework.", "200. The Court is of the opinion that, unlike the situation examined by it in Procola and McGonnell, both cited above, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”.", "201. Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references cannot reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. The passages containing the references to the Betuweroute railway in the Council of State ’ s advice were concerned with removing perceived ambiguities in sections 24b and 24g of the Transport Infrastructure Planning Bill. These provisions were intended to apply to two major construction projects already under consideration at the relevant time, of which the Betuweroute railway was one. The Court cannot agree with the applicants that, by suggesting to the government to indicate in the bill the names of the places where the Betuweroute railway was to start and end, the Council of State determined, expressed any views on or in any way prejudged the exact routing of that railway.", "202. In these circumstances, the Court is of the opinion that the applicants ’ fears as to a lack of independence and impartiality of the Administrative Jurisdiction Division, due to the composition of the bench that heard their appeals, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Relevant background", "8. Following its declaration of independence from the former SFRY in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. Numerous crimes were committed during the war, including those committed by the present applicants. The following local forces were the main parties to the conflict: the ARBH [1] (mostly made up of Bosniacs [2] and loyal to the central authorities in Sarajevo), the HVO [3] (mostly made up of Croats) and the VRS [4] (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska.", "9. In response to atrocities then taking place in the territory of the former SFRY, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) as an interim institution [5]. In 2002, in order to ensure that its mission was concluded successfully, in a timely way and in coordination with domestic legal systems in the former Yugoslavia, the ICTY began devising a completion strategy [6]. That strategy was endorsed by the UN Security Council [7] and the authorities of Bosnia and Herzegovina (they enacted the necessary statutory amendments and concluded agreements with the High Representative – an international administrator appointed under the Dayton Agreement). A vital component of the strategy was the setting up of war crimes chambers within the State Court consisting of international and national judges (see paragraphs 34-36 below).", "B. The facts concerning Mr Maktouf", "10. Mr Maktouf was born in 1959 and lives in Malaysia.", "11. On 19 October 1993 he deliberately assisted a third party to abduct two civilians in order to exchange them for members of the ARBH forces who had been captured by the HVO forces. The civilians were freed several days later.", "12. On 11 June 2004 the applicant was arrested.", "13. On 1 July 2005 a Trial Chamber of the State Court found him guilty of aiding and abetting the taking of hostages as a war crime and sentenced him to five years’ imprisonment under Article 173 § 1 in conjunction with Article 31 of the 2003 Criminal Code.", "14. On 24 November 2005 an Appeals Chamber of that court quashed the judgment of 1 July 2005 and scheduled a fresh hearing. On 4 April 2006 the Appeals Chamber, composed of two international judges (Judge Pietro Spera and Judge Finn Lynghjem) and one national judge (Judge Hilmo Vučinić), convicted the applicant of the same offence and imposed the same sentence under the 2003 Criminal Code. As regards the sentence, it held as follows (the translation has been provided by the State Court):", "“Considering the degree of criminal responsibility of the accused and consequences of the criminal offence, as well as the fact that the accused was an accessory to the commission of the criminal offence, and considering the mitigating circumstances in favour of the accused, the Chamber applied the provisions on reduction of punishment and reduced the sentence to the maximum extent possible, applying the provision of Article 50 § 1 (a) of the [2003 Criminal Code], sentencing him to imprisonment for a term of five years, being of the opinion that the pronounced sentence can fully achieve the purpose of punishment and that the pronounced sentence will influence the accused not to commit other criminal offences in future.”", "15. Following the applicant’s constitutional appeal, on 30 March 2007 the Constitutional Court examined the case under Articles 5, 6, 7 and 14 of the Convention and found no violation of the Convention. The decision was served on the applicant on 23 June 2007. The majority decision reads, in the relevant part, as follows:", "“42. The Constitutional Court points out that section 65 of the [State Court Act 2000], the initial text of which was imposed in a Decision taken by the High Representative and subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina, provides that during the transitional period, which may not exceed five years, the Panels of Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption are to be composed of national and international judges. The Criminal and Appellate Divisions may be composed of several international judges. The international judges may not be citizens of Bosnia and Herzegovina or any other neighboring state. International judges are to act as panel judges in accordance with the relevant provisions of the Criminal Procedure Code of Bosnia and Herzegovina and in accordance with the provisions of the Law on the Protection of Witnesses and Vulnerable Witnesses of Bosnia and Herzegovina and may not be criminally prosecuted, arrested or detained, nor are they liable in civil proceedings for an opinion expressed or decision made in the scope of their official duties.", "43. The High Representative ‘... in the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, ... under which the High Representative shall facilitate, as the High Representative deems necessary, the resolution of any difficulties arising in connection with civilian implementation..., noting that the communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 26 September 2003 stated that the Board took note of the UN Security Council Resolution 1503, which, inter alia, called on the International Community to support the work of the High Representative in setting up the war crimes chamber..., noting the Joint Recommendation for the Appointment of International Judges signed by the Registrar of the Registry ... and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina...,, [and] bearing in mind the relevant provisions of the [State Court Act 2000],’ on 24 February and 28 April 2005, took Decisions on the Appointment of International Judges Finn Lynghjem and Pietro Spera to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court].", "44. Under the aforementioned Decisions on Appointment, international judges are to serve for a term of two years and are eligible for reappointment as prescribed by law. International judges may not discharge duties which are incompatible with their judicial service. All other requirements concerning the judicial duty referred to in the [State Court Act 2000] apply to these appointments to the greatest extent possible. The international Registrar of the Registry shall inform the High Representative of any event which may prevent the judge from discharging his/her duties. During the mandate, the judge is to comply with all standards relating to professional conduct as prescribed by the [State Court]. The appointed international judge is to discharge his/her duties in accordance with the laws of Bosnia and Herzegovina and take decisions on the basis of his/her knowledge [and] skills and in a conscientious, responsible and impartial manner, strengthening the rule of law and protecting individual human rights and freedoms as guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention.", "...", "46. The competences of the Divisions of the [State Court] to which international judges are appointed include, beyond any doubt, certain matters derived from international law. The acknowledgment of the supranational nature of international criminal law, established through the case-law of the Nuremberg and Tokyo Military Tribunals, the Tribunal in The Hague and the Tribunal for Rwanda, also includes international criminal tribunals. This certainly includes the situation in which a certain number of international judges are appointed to national courts. The High Representative appointed international judges to the [State Court] in accordance with the powers vested in him according to the UN Security Council’s resolutions, adopted in accordance with Chapter VII of the UN Charter and the Recommendation of the Registry pursuant to the Agreement of 1 December 2004, which was also signed by the President of the High Judicial and Prosecutorial Council; it is particularly important that the High Judicial and Prosecutorial Council, an independent body competent to appoint national judges, was involved in the procedure preceding the appointment.", "47. The Constitutional Court holds that the international judges who were members of the Panel which rendered the contested verdict were appointed in a manner and in accordance with a procedure which complied with the standards concerning a fair trial provided for in Article 6 of the European Convention. In addition, the [State Court Act 2000], the Agreement of 1 December 2004 and the decisions on [their] appointment created the prerequisites and mechanisms which secure the independence of [the] judges from interference or influence by the executive authority or international authorities. Judges appointed in this manner are obliged to respect and apply all the rules which generally apply in national criminal proceedings and which comply with international standards. Their term of office is defined and their activities are monitored during this period. The reasoning behind their appointment was the need to establish and strengthen national courts in the transitional period and to support the efforts of these courts in establishing responsibility for serious violations of human rights and ethnically motivated crimes. It is therefore aimed at securing the independence and impartiality of the judiciary and administering justice. Even the fact that the manner of appointment was changed by the subsequent Agreement of 26 September 2006, so that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina has become responsible for the appointment of international judges, does not in itself automatically imply that their original appointments, in the manner provided for at the time of the contested verdicts, were contrary to the principles of independence of the court in terms of Article 6 § 1 of the European Convention. The Constitutional Court holds that the appellant failed to submit convincing arguments and evidence in support of the allegations relating to a lack of independence on the part of the international judges. As to the appellant’s allegations concerning the lack of independence of the national judge, on the ground that he is a person with ‘insufficient experience’, the Constitutional Court finds that these allegations are prima facie ill-founded and do not require any extensive examination. Taking all of the above into account, the Constitutional Court concludes that the appellant’s allegations concerning the lack of independence and related violation of the standards relating to the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention are unfounded.", "...", "60. One of the appellant’s key arguments refers to the relationship between the criminal proceedings in issue and Article 7 of the European Convention, namely the fact that, as the appellant stated, he was sentenced under the [2003 Criminal Code] rather than under the [1976 Criminal Code], valid at the time of the offence, which provided for a more lenient sanction.", "...", "65. In this particular case, the appellant acknowledges that, under the regulations applicable at the material time, the offence for which he was convicted constituted a criminal offence when it was committed. However, he expressly refers to the application of the substantive law in his case and examines primarily the concept of a ‘more lenient punishment’, i.e. ‘more lenient law’. He considers that the [1976 Criminal Code], in force when the criminal offence for which he was convicted was committed, and in respect of which, inter alia, the death penalty was prescribed for the severest forms, was a more lenient law than the [2003 Criminal Code], which prescribes a punishment of long-term imprisonment for the severest forms of the criminal offence in question.", "...", "69. In this context, the Constitutional Court finds that it is simply not possible to ‘eliminate’ the more severe sanction applicable under both the earlier and later laws, and apply only the other, more lenient, sanctions, with the effect that the most serious crimes would in practice be inadequately punished. However, the Constitutional Court will not provide detailed reasons or analysis of these regulations, but will focus on the exemptions to the obligations arising under Article 7 § 1 of the European Convention, which are regulated, as is generally accepted, by Article 7 § 2.", "70. In such a situation, the Constitutional Court notes that Article 7 § 2 of the European Convention refers to ‘the general principles of law recognized by civilised nations’, and Article III (3) (b) of the Constitution of Bosnia and Herzegovina establishes that ‘the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.’ It follows that these principles constitute an integral part of the legal system in Bosnia and Herzegovina, even without the special ratification of Conventions and other documents regulating their application, and thus also include the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY.", "71. Further, the Constitutional Court draws attention to the fact that the Constitution of Bosnia and Herzegovina is part of an international agreement and, while this fact does not diminish the Constitution’s importance, it clearly indicates the position of international law within the legal system of Bosnia and Herzegovina, so that a number of international conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I-II (1977), have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina. It should be mentioned that the former SFRY was signatory to the said Conventions, and that Bosnia and Herzegovina, as an internationally recognised subject which declared its independence on 6 March 1992, accepted all of the Conventions ratified by the former SFRY and, thereby, the aforementioned Conventions, which were subsequently included in Annex 4, that is, the Constitution of Bosnia and Herzegovina.", "72. The wording of Article 7 § 1 of the European Convention is limited to those cases in which an accused person is found guilty and convicted of a criminal offence. However, Article 7 § 1 of the European Convention neither prohibits the retrospective application of laws nor includes the non bis in idem principle. Further, Article 7 § 1 of the European Convention could not be applied to cases such as those referred to in the United Kingdom’s War Damages Act 1965, which amended with retrospective effect the common-law rule granting compensation for private property in certain wartime circumstances.", "73. The Constitutional Court notes that Article 7 § 1 of the European Convention concerns criminal offences ‘under national or international law’. The Constitutional Court also notes, in particular, the interpretation of Article 7 provided in a number of texts dealing with this issue, which are based on the European Court’s position that a conviction resulting from a retrospective application of national law does not constitute a violation of Article 7 of the European Convention where such a conviction is based on an act which was a crime under ‘international law’ when committed. This position is particularly relevant in respect of the present case, and of similar cases, given that the main point of the appeal refers to the application of primarily international law, that is, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I ‑ II (1977), rather than to the application of one or another text of criminal law, irrespective of their content or stipulated sanctions.", "74. In addition, with regard to the retrospective application of criminal legislation, the Constitutional Court stresses that Article 7 of the European Convention was formulated immediately after World War II with the particular intention of encompassing the general principles of law recognised by civilised nations, where the notion of ‘civilised nations’ was adopted from Article 38 of the Statute of the International Court of Justice (ICJ), the case-law of which is generally recognized as the third formal source of international law. In other words, the Statute of the International Court of Justice is applicable in respect of member states of the ICJ, and the rules established by it are regarded as a source of law, which concern even municipal authorities. Both the Statute of the International Court of Justice and Article 7 of the European Convention exceed the framework of national law, and refer to ‘nations’ in general. Accordingly, the Constitutional Court holds that the standards for their application should be looked for in this context, and not merely within a national framework.", "75. The Constitutional Court further notes that the travaux préparatoires refer to the wording in paragraph 2 of Article 7 of the European Convention, which is calculated to ‘make it clear that Article 7 does not have any effect on the laws which were adopted in certain circumstances after World War II and intended for punishment of war crimes, treason and collaboration with the enemy, and it is not aimed at either moral or legal disapproval of such laws’ (see X v. Belgium, no. 268/57, Yearbook 1 (1957); ... compare De Becker v. Belgium no. 214/56), Yearbook 2 (1958)). In fact, the wording of Article 7 of the European Convention is not restrictive and must be construed dynamically so to encompass other acts which imply immoral behaviour that is generally recognized as criminal under national laws. In view of the above, the United Kingdom’s War Crimes Act 1991 confers retrospective jurisdiction on the UK courts in respect of certain grave violations of the law, such as murder, manslaughter or culpable homicide, committed in German-held territory during the Second World War", "76. In the Constitutional Court’s opinion, all of the above confirms that war crimes are ‘crimes according to international law’, given the universal jurisdiction to conduct proceedings, so that convictions for such offences would not be inconsistent with Article 7 § 1 of the European Convention under a law which subsequently defined and determined certain acts as criminal and stipulated criminal sanctions, where such acts did not constitute criminal offences under the law that was applicable at the time the criminal offence was committed. On 4 May 2000 the European Court of Human Rights issued a decision in the case of Naletilić v. the Republic of Croatia (no. 51891/99). It follows from that decision that the applicant was charged by the Prosecutor’s Office of the International Criminal Tribunal for the former Yugoslavia with war crimes committed in the territory of Bosnia and Herzegovina, and that he submitted complaints that were identical to those of the appellant in the present case, i.e. he called for the application of ‘more lenient law’. He argued that the Criminal Code of the Republic of Croatia stipulated a more lenient criminal sanction than the Statute of the International Criminal Tribunal for the former Yugoslavia, and called for application of Article 7 of the European Convention. In its decision, the European Court of Human Rights considered the application of Article 7 and emphasised the following: ‘As to the applicant’s contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalise the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 paragraph 1 of the Convention invoked by the applicant could not apply. It follows that the application is manifestly ill-founded ... and, therefore, must be rejected ...’", "77. Finally, the Constitutional Court points out that the Nuremberg and Tokyo War Crimes Trials were conducted in 1945 and 1946, after World War II, in respect of crimes that were only subsequently, i.e. by the Geneva Convention, defined as acts amounting to war crimes, crimes against humanity, crimes of genocide, etc. Aggressive war was defined as an ‘international crime’, as confirmed by the International Law Commission in its Yearbook of 1957, Vol. II. Related discussions on the principle of nullum crimen nulla poena sine lege were also held at that time. This is also valid in respect of the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY.", "78. It is quite clear that the concept of individual criminal responsibility for acts committed contrary to the Geneva Convention or appropriate national laws is very closely related to that of human rights protection, since human-rights and related conventions concern the right to life, the right to physical and emotional integrity, prohibition of slavery and torture, prohibition of discrimination, etc. In the Constitutional Court’s opinion, it seems that an absence of protection for victims, i.e. inadequate sanctions for perpetrators of crime, is not compatible with the principle of fairness and the rule of law as embodied in Article 7 of the European Convention, paragraph 2 of which allows this exemption from the rule set out in paragraph 1 of the same Article.", "79. In view of the above, and having regard to the application of Article 4a of the [2003 Criminal Code] in conjunction with Article 7 § 1 of the European Convention, the Constitutional Court concludes that, in the present case, the application of the [2003 Criminal Code] in the proceedings conducted before the [State Court] does not constitute a violation of Article 7 § 1 of the European Convention.”", "16. The relevant part of the dissenting opinion of Judge Mato Tadić, attached to that decision, reads as follows:", "“Pursuant to Article 41 § 2 of the Rules of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina No. 60/50), I hereby give my separate dissenting opinion, in which I dissent from the opinion of the majority of the Judges of the Constitutional Court of Bosnia and Herzegovina in the aforesaid decision, for the following reasons:", "...", "It is my opinion that the more lenient law should be applied before the domestic courts, i.e. the law which was in force when the criminal offence was committed. It is not easy to give an answer as to which law is more lenient, and this legal issue is much more complex than it appears. Taking into account around ten criteria that have been developed through theory and practice, one may conclude that in the instant case the prescribed penalty is a key factor which is relevant to the question of which law is the more lenient. Given that the same criminal offence existed (Article 142 of the [1976 Criminal Code]) under the criminal legislation of the former Yugoslavia, which Bosnia and Herzegovina inherited by its 1992 Decree, and which provided for a penalty of five years’ imprisonment or the death penalty, while the new criminal legislation applied in the instant case (Article 173 of the [2003 Criminal Code]) provides for a penalty of ten years’ imprisonment or long-term imprisonment, the basic question is which law is more lenient. At first sight, the [2003 Criminal Code] is more lenient, since it does not provide for the death penalty. However, taking into account that subsequent to the entry into force of the Washington Agreement and the Constitution of the Federation of Bosnia and Herzegovina in 1994, the death penalty was abolished, as was merely confirmed by the Constitution of Bosnia and Herzegovina from 1995, and taking into account the positions of the ordinary courts in Bosnia and Herzegovina, the Entities and the Brčko District (Supreme Court of the Federation of Bosnia and Herzegovina, Supreme Court of the Republika Srpska and Appellate Court of the Brčko District) that the death penalty was not to be pronounced (this position was also taken by the Human Rights Chamber in the case of Damjanović and Herak v. Federation of Bosnia and Herzegovina ), it appears that the 1992 law is more lenient. According to the above-mentioned court positions and the law, the maximum term of imprisonment that can be pronounced for this criminal offence is 20 years.", "Reference to Article 7 § 2 of the European Convention is irrelevant in the instant case. Article 7 § 2 of the European Convention has the primary task of providing a basis for criminal prosecution for violations of the Geneva Conventions before the international bodies established to deal with such cases, for example the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and to provide a legal basis for cases pending before domestic courts where the domestic legislation failed to prescribe the actions in question as criminal offences. In other words, this is the case where the legislature failed to include all of the elements characterising the said offences as referred to in the Geneva Conventions. This case does not raise that issue. The criminal offence in question existed in the domestic legislation, both when the offence was committed and at the time of trial, and therefore all of the mechanisms of criminal law and safeguarded constitutional rights should be consistently applied, including the rights guaranteed under the European Convention. The Naletelić case is irrelevant here, because it concerned an international prosecutor who accused [the applicant] before an international tribunal which had been established on a special basis and is vested with the powers defined by the Resolution of the United Nations and its Statute; it does not apply national legislation, but rather its own procedures and sanctions/penalties. If it were otherwise, a very small number of accused persons would respond to summons for proceedings before that court. Thus, I am of the opinion that the position of the European Court of Human Rights in the Naletelić case was absolutely correct, but that this position cannot be applied in the instant case.", "I consider that extensive reference to an international court is absolutely unnecessary, such as reference to its jurisdiction, etc., since the issue here is simply the domestic court conducting a trial in compliance with national legislation, and does not involve a case which was transferred to an international tribunal.", "For the most part, the Naletelić decision deals with history (Nuremberg, Tokyo) and, generally, an international aspect which is completely unnecessary in the instant case, because our national legislation, as pointed out above, incorporated this criminal offence and, when the offence was committed, the sanction was already prescribed, unlike the Nuremberg case. Moreover, the appellant is not challenging the aforesaid. It is in fact the appellant himself who pointed out that the national legislation had the incriminated acts coded as a criminal offence and sanctioned, and the appellant is only asking that it be applied. He also stated that, on account of the failure to apply Article 142 of the inherited [1976 Criminal Code] instead of the [2003 Criminal Code], there had been a violation of the Constitution and of Article 7 § 1 of the European Convention.", "Wishing to keep this explanation brief, I will recollect the opinion of Mr Antonio Cassese, the esteemed professor of Florence State University, who was appointed President of the International Criminal Tribunal in The Hague. In a 2003 document entitled ‘Opinion on the Possibility of Retroactive Application of Some Provisions of the New Criminal Code of Bosnia and Herzegovina’, Professor Cassese concluded as follows: ‘Finally, let us deal with the issue whether the [State Court] should apply the more lenient sanction in the event of a crime for which the new criminal code prescribes a graver penalty than that envisaged by the former law. The reply to this question can only be affirmative. This conclusion rests on two legal bases: first, there is a general principle of international law according to which, if a single crime is envisaged in two successive provisions with one imposing a less strict penalty, that penalty should be determined according to the favor libertatis principle; secondly, this principle is explicitly mentioned in Article 7 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, wherein it is stated that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed. Accordingly, the [State Court] should always apply the more lenient penalty whenever there is a difference in length of penalty when the former is compared with the new criminal provision. It is clear that retroactive application of criminal code is related to the penalty only and not to other elements of this Article.’", "...", "For the aforesaid reasons, I could not agree fully with the opinion of the majority which is presented in this decision.”", "17. On 12 June 2009 the applicant completed his sentence and left the country soon afterwards.", "C. The facts concerning Mr Damjanović", "18. Mr Damjanović was born in 1966. He is still serving his sentence in Foča Prison.", "19. On 2 June 1992, in the course of the war in Bosnia and Herzegovina, he played a prominent part in the beating of captured Bosniacs in Sarajevo, in an incident which lasted for one to three hours and was performed using rifles, batons, bottles, kicks and punches. The victims were afterwards taken to an internment camp.", "20. On 17 October 2005 a Pre-Trial Chamber of the State Court decided to take over this case from the Sarajevo Cantonal Court, where it had been pending for years, in consideration of its sensitivity (the case concerned torture of a large number of victims) and the better facilities available for witness protection at the State Court (a higher risk of witness intimidation at the Entity level). It relied on the criteria set out in paragraph 40 below and Article 449 of the 2003 Code of Criminal Procedure.", "21. On 26 April 2006 the applicant was arrested.", "22. On 18 June 2007 a Trial Chamber of the State Court convicted him of torture as a war crime and sentenced him to eleven years’ imprisonment for that crime under Article 173 § 1 of the 2003 Criminal Code. An Appeals Chamber of the same court upheld that judgment on 19 November 2007. The second-instance judgment was served on the applicant on 21 December 2007.", "23. On 20 February 2008 the applicant lodged a constitutional appeal. It was dismissed as out of time on 15 April 2009." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL MATERIALS", "A. Applicable substantive law in war crimes cases", "1. General principles", "24. In accordance with its emergency powers [8], on 24 January 2003 the Office of the High Representative imposed the 2003 Criminal Code. The Code entered into force on 1 March 2003. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina [9]. Article 3 thereof provides that no punishment or other criminal sanction may be imposed on any person for an act which, at the time when it was committed, did not constitute a criminal offence under national or international law and for which a punishment was not prescribed by law. Furthermore, in accordance with Article 4 of that Code, the law that was in effect at the time when a criminal offence was committed applies to the offender; however, if the law has been amended after the commission of the offence, the law that is more lenient to the offender must be applied. In January 2005, Article 4a was added to the 2003 Criminal Code. Like Article 7 § 2 of the Convention, it stipulates that the provisions of Articles 3 and 4 of the Criminal Code must not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law.", "25. In line with those principles, the domestic courts have, in cases concerning war crimes, been applying either the 1976 Criminal Code [10] or, if it was considered to be more lenient to an offender, the 2003 Criminal Code. Since the intermediate Entities’ Codes (the 1998 Criminal Code of the Federation of Bosnia and Herzegovina [11] and the 2000 Criminal Code of the Republika Srpska [12] ) have rarely, if ever, been applied in such cases, they are irrelevant to the present applicants.", "2. The 1976 Criminal Code", "26. During the war in Bosnia and Herzegovina, the 1976 Criminal Code was in force throughout the country. It remained in force in the Federation of Bosnia and Herzegovina until 1998 and in the Republika Srpska until 2000 (when it was repealed and replaced by the Entities’ Codes mentioned in paragraph 25 above). Under that Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty; a 20-year prison term could also be imposed instead of the death penalty (see Articles 37, 38 and 142 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) were to be punished as if they themselves had committed war crimes, but their punishment could also be reduced to one year’s imprisonment (Articles 24, 42 and 43 of that Code). The relevant Articles read as follows:", "Article 24 § 1", "“Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.”", "Article 37 § 2", "“The death penalty may be imposed only for the most serious criminal acts when so provided by statute.”", "Article 38 §§ 1 and 2", "“The sentence of imprisonment may not be shorter than 15 days or longer than 15 years.", "The court may impose a sentence of imprisonment for a term of 20 years in respect of criminal acts eligible for the death penalty.”", "Article 42", "“The court may impose a sentence below the limit prescribed by statute, or impose a milder type of sentence:", "(a) when it is provided by statute that the sentence may be reduced [as in Article 24 § 1 of this Code];", "(b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.”", "Article 43 § 1", "“Where conditions exist for the reduction of sentence referred to in Article 42 of this Code, the court shall reduce the sentence within the following limits:", "(a) if a period of three or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, this may be reduced to one year’s imprisonment;", "...”", "Article 142 § 1", "“Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of five years or by the death penalty.”", "27. The death penalty could no longer be imposed after the entry into force of the Dayton Agreement on 14 December 1995. In particular, pursuant to Annexes 4 and 6 thereto, Bosnia and Herzegovina and its Entities must secure to all persons within their jurisdiction the rights and freedoms provided in the Convention and its Protocols (including Protocol No. 6 on the Abolition of the Death Penalty) and in the other human rights agreements listed therein (including the Second Optional Protocol to the International Covenant on Civil and Political Rights on the death penalty). The domestic authorities have always taken those provisions to mean that no one may be condemned to the death penalty or executed in peacetime, even in respect of criminal offences committed during the 1992 ‑ 95 war [13].", "3. The 2003 Criminal Code", "28. Under the 2003 Criminal Code, war crimes attract imprisonment for a term of 10-20 years or, in most serious cases, long-term imprisonment for a term of 20-45 years (Articles 42 and 173 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) are to be punished as if they themselves committed war crimes, but their punishment could also be reduced to five years’ imprisonment (see Articles 31, 49 and 50 of that Code). The relevant Articles read as follows:", "Article 31 § 1", "“Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.”", "Article 42 §§ 1 and 2", "“The sentence of imprisonment may not be shorter than 30 days or longer than 20 years.", "For the most serious criminal acts perpetrated with intent, imprisonment for a term of 20 to 45 years may exceptionally be prescribed (long-term imprisonment).”", "Article 49", "“The court may set the sentence below the limit prescribed by statute, or impose a milder type of sentence:", "(a) when it is provided by statute that the sentence may be reduced [as in Article 31 § 1 of this Code];", "(b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.”", "Article 50 § 1", "“Where conditions exist for the reduction of sentence referred to in Article 49 of this Code, the court shall reduce the sentence within the following limits:", "(a) if a period of ten or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, it may be reduced to five years’ imprisonment;", "...”", "Article 173 § 1", "“Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of ten years’ or long-term imprisonment.”", "4. Sentencing practices", "29. The Entity courts and the State Court have interpreted the principles outlined in paragraph 24 above differently in war crimes cases. With a few exceptions [14], the Entity courts generally apply the 1976 Code. In contrast, the State Court initially held that the 2003 Code was always more lenient and applied it in all cases. In March 2009, however, the State Court began applying a new approach, which was to establish on a case-by-case basis which of the Codes was more lenient to the offender [15]. It has since applied the 1976 Code to less serious instances of war crimes [16]. At the same time, it has continued to apply the 2003 Code to more serious instances of war crimes, which were punishable by the death penalty under the 1976 Code [17], and whenever it held that the 2003 Code was more lenient to the offender for any reason [18]. It should be noted that the new approach concerns only the appeals chambers of the State Court; the trial chambers have continued to apply the 2003 Code in all war crimes cases. According to figures provided by the Government (see paragraph 63 below), appeals chambers rendered 21 decisions in war crimes cases between March 2009, when the new approach was first applied, and November 2012. They applied the 1976 Code in five of them and the 2003 Code in 16 of them. However, the application of the 1976 Code by an appeals chamber did not always lead to a reduction of penalty (in two cases [19], the appeals chamber imposed the same penalty under the 1976 Code as the trial chamber had done under the 2003 Code; in one case [20], the penalty imposed by the appeals chamber under the 1976 Code was even heavier than that imposed by the trial chamber under the 2003 Code).", "5. Observations by other international human rights agencies", "30. It would appear that the application of different Criminal Codes in war crimes cases, as described in the previous paragraph, has led to diverse sentencing practices. According to a report published by the Organisation for Security and Cooperation in Europe (OSCE) in 2008 (“Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”), the Entity courts generally imposed lighter sentences than the State Court. The relevant part of that report reads as follows:", "“Usage of different criminal codes also leads to marked discrepancies between the sentences delivered in state and entity courts for war crimes. This stems from the wide variances in the sentences enforceable under these codes. For instance, an entity court has sentenced a defendant convicted of cruel treatment of prisoners to a term of one year and eight months’ imprisonment even as the State Court has sentenced another defendant charged with a comparable act to imprisonment for a period of ten-and-a-half years. On average, sentences delivered by the [State Court] in war crimes cases have been almost double the length of those delivered by entity courts.”", "31. In a 2011 report (“Delivering Justice in Bosnia and Herzegovina”), the OSCE held that the application of different Criminal Codes at the State- and Entity-levels could be problematic in certain types of war crimes cases. The relevant part of that report reads as follows:", "“Certainly, it is acceptable that the issue of which criminal code should be applied to war crime cases is assessed on a case-by-case basis. In many cases before entity courts, the application of the [1976] Code does not represent a serious problem in practice. In general, the cases in which the application of different codes undermines the principle of equality before the law are those in which the court, by applying the [2003] Code, could sentence the accused to a sentence higher than the 15 or 20 years maximum sentence prescribed under the [1976] Code. In these cases, the application of the [1976] Code arguably does not allow the court to deliver a sentence which is proportional to the gravity of the crimes. Nor are the sentences in those cases harmonized with practice at the state level. Another category of cases in which the application of the [1976] Code is problematic are those in which the accused’s conduct is arguably best captured under the concept of crimes against humanity or under the theory of command responsibility, which are expressly prescribed only under the [2003] Code.”", "32. The UN Human Rights Committee, in its “concluding observations” on Bosnia and Herzegovina in 2012 (CCPR/C/BIH/CO/1), expressed similar concerns (at § 7):", "“While appreciating efforts to deal with war crime cases such as the implementation of the National War Crimes Processing Strategy, the Committee remains concerned at the slow pace of prosecutions, particularly those relating to sexual violence, as well as lack of support to victims of such crimes. The Committee is also concerned at the lack of efforts to harmonise jurisprudence on war crimes among entities, and that entity-level courts use the archaic criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY) that does not, inter alia, define crimes against humanity, command responsibility, sexual slavery and forced pregnancy. The Committee is concerned that this might affect consistency in sentencing among entities (arts. 2 and 14). The State party should expedite the prosecution of war crime cases. The State party should also continue to provide adequate psychological support to victims of sexual violence, particularly during the conduct of trials. Furthermore, the State party should ensure that the judiciary in all entities strongly pursues efforts aimed at harmonising jurisprudence on war crimes and that charges for war crimes are not brought under the archaic criminal code of the former SFRY, which does not recognise certain offences as crimes against humanity.”", "33. In its Opinion on Legal Certainty and the Independence of Judiciary in Bosnia and Herzegovina (no. 648/2011), issued on 18 June 2012, the Venice Commission noted that the existence of several legal orders and the fragmentation of the judiciary made it difficult for Bosnia and Herzegovina to fulfil the requirements of, inter alia, consistency in its legislation and case-law.", "B. State Court", "34. In accordance with its emergency powers, on 12 November 2000 the Office of the High Representative imposed the State Court Act 2000 [21] establishing the State Court. The Act entered into force on 8 December 2000. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina.", "35. As part of the ICTY’s completion strategy mentioned in paragraph 9 above, war crimes chambers were established within the State Court in early 2005. During a transitional phase which ended on 31 December 2012, some international judges were included in the composition of those chambers. Initially, they were appointed by the Office of the High Representative in accordance with its 2004 agreement with the authorities of Bosnia and Herzegovina [22]. The mandate of those judges was two years and was renewable. A typical decision appointing an international judge read, in the relevant part, as follows:", "“...", "Noting the joint recommendation for the appointment of an International Judge of 22 April 2005 signed by the Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office of Bosnia and Herzegovina], President of the [State Court] and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina;", "The High Representative hereby issues the following decision on appointment of an International Judge to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]", "1. As provided by section 65 § 4, as amended, of the [State Court Act 2000] the following person is hereby appointed as International Judge of Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]:", "Pietro Spera", "2. The initial term of appointment ... shall be for two years, subject to reappointment pursuant to the [State Court Act 2000]. The [appointee] is required to reside in Bosnia in Herzegovina during the term of his appointment and cannot perform any other function that is incompatible with the judicial service or that can impede his performance of the judicial function on a full time basis. To the extent applicable, all other requirements for judicial service as set forth in the [State Court Act 2000] shall apply...", "3. The International Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office] shall notify the High Representative of any occurrence, including the ones as referred to in paragraph 2 [above], that may cause the inability of the [appointee] to perform his mandate. In the event of resignation by or inability of the [appointee] to complete his mandate, the High Representative will appoint a successor to complete the above-mentioned term of office.", "4. During the term of appointment, the appointee shall complete all training programs as directed by the President of the [State Court] and adhere to all professional conduct standards as established by the [State Court].", "5. The [appointee] shall perform the duty of judge in accordance with the Constitution and laws of Bosnia and Herzegovina, take decisions upon his best knowledge, conscientiously, responsibly and impartially to uphold the rule of law, and shall protect the freedoms and rights of individuals granted by the Constitution and the European Convention on Human Rights. Before taking up his official function, which occurs not later then 6 May 2005, the International Judge shall take a solemn declaration before the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina to that effect.", "6. This Decision shall enter into force forthwith and shall be published without delay in the Official Gazette of Bosnia and Herzegovina.”", "36. In September 2006 the Office of the High Representative and Bosnia and Herzegovina revised the procedure for the appointment of international judges to the State Court [23] : international judges were thereafter appointed by a specialised professional body, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, also for a renewable period of two years.", "C. Jurisdiction over war crimes cases", "37. Domestic war crimes cases can be divided into two categories.", "38. Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case in accordance with the criteria set out in paragraph 40 below (see Article 449 of the 2003 Code of Criminal Procedure [24] ).", "39. New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 40 below (see Article 27 of the 2003 Code of Criminal Procedure).", "40. In accordance with the Book of Rules on the Review of War Crimes Cases of 28 December 2004 [25] the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. In December 2008 the authorities adopted the National War Crimes Strategy, providing, among other things, a new set of criteria. They are, however, almost identical to those outlined above.", "D. Reopening of a criminal trial", "41. Article 327 of the 2003 Code of Criminal Procedure provides that a criminal trial may be reopened in favour of the offender where the European Court of Human Rights has found that human rights were violated during the trial and that the verdict was based on these violations. An application for the reopening of a criminal trial is not subject to deadlines. It may even be lodged after the sentence has been served (Article 329 § 2 of this Code).", "Pursuant to Article 333 § 4 of this Code, in any new trial the verdict may not be modified to the detriment of the accused (prohibition of reformatio in peius ).", "E. International humanitarian law", "42. Pursuant to the 1949 Geneva Conventions (see, for example, Article 146 of the Convention relative to the Protection of Civilian Persons in Time of War), the High Contracting Parties must enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of those Conventions. At the same time, the accused persons must in all circumstances benefit from safeguards of proper trial and defence that are not less favourable than those provided by the Convention relative to the Treatment of Prisoners of War.", "43. Pursuant to Article 99 of the Convention relative to the Treatment of Prisoners of War no prisoner of war may be tried or sentenced for an act which is not forbidden, at the time the said act was committed, by the law of the Detaining Power or by international law. The rule of non-retroactivity of crimes and punishments also appears in the Additional Protocols I and II of 1977 in almost identical terms. Article 75 § 4 (c) of the Additional Protocol I reads as follows:", "“No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "44. The first applicant, Mr Maktouf, complained that he had not been afforded a fair hearing by an independent tribunal, in violation of Article 6 § 1 of the Convention. He submitted that the adjudicating tribunal had not been independent within the meaning of that provision, notably because two of its members had been appointed by the Office of the High Representative for a renewable period of two years. Article 6 § 1, in the relevant part, reads:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. The parties’ submissions", "1. The Government", "45. The Government maintained that Bosnia and Herzegovina could not be held responsible for the conduct of the High Representative (they relied on Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al ., ECHR 2007 ‑ XII). They therefore invited the Court to declare this complaint inadmissible as being incompatible ratione personae. Even if the Court had jurisdiction ratione personae to deal with this complaint, the Government submitted that it was manifestly ill-founded. The Convention did not require that judges be appointed for their lifetime, as illustrated by Sramek v. Austria, 22 October 1984, Series A no. 84, in which the Court regarded appointment for a renewable period of three years as sufficient. Moreover, the international members of the State Court had been appointed as judges in their countries of origin by independent bodies and had been seconded to the State Court as a means of international assistance to war-torn Bosnia and Herzegovina.", "2. The applicant", "46. The applicant responded that Bosnia and Herzegovina had a duty to organise its legal system in such a way as to ensure the independence of the judiciary. He submitted that the short duration of the international judges’ mandate (two years) with the possibility of reappointment cast serious doubt on their ability to make decisions independently. He added, without relying on any particular authority, that according to accepted criteria, mandates of less than six years were not satisfactory as a guarantee of judges’ independence. Further, the international judges of the State Court were appointed, at the relevant time, by the Office of the High Representative, which could be compared to a national government. In view of all of the above, the applicant concluded that the adjudicating tribunal had not been independent within the meaning of Article 6 § 1 of the Convention.", "3. The third party", "47. The Office of the High Representative, in its third-party submissions of November 2012, asserted that the presence of international judges in the State Court had been aimed at promoting independence and impartiality, as well as the transfer of required legal knowledge. It also submitted that its decisions on appointments of international judges had been a formality, due to the fact that no domestic authority had had powers to appoint non-nationals prior to late 2006 (see paragraph 36 above). As to the duration of their mandate, the Office of the High Representative contended that this had been due to funding restrictions in the redeployment of foreign judicial officials: namely, budgetary projections and restrictions had disallowed a funding guarantee for a longer period. Lastly, the third party maintained that the international judges’ terms had been duly regulated and that they could not have been dismissed arbitrarily.", "B. The Court’s assessment", "48. The Court notes from the outset that the establishment of war crimes chambers within the State Court consisting of international and national judges was an initiative of international institutions (see paragraph 9 above). However, it is not required in the instant case to decide whether the respondent Government could nevertheless be held liable for the alleged breach of Article 6 § 1 of the Convention, since it finds that this complaint is in any event manifestly ill-founded for the reasons set out below.", "49. By way of general observation, the Court reiterates that in determining in previous cases whether a body could be considered as “independent” – notably of the executive and of the parties to the case – it has had regard to such factors as the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, for example, Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005 ‑ II). The irremovability of judges by the executive during their term of office is in general considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), appointment of judges by the executive or the legislature is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007).", "50. Turning to the present case, the Court notes that the independence of the national member of the adjudicating tribunal was not challenged. As to its international members, there is no reason to doubt their independence of the political organs of Bosnia and Herzegovina and the parties to the case. Their appointment was indeed motivated by a desire, inter alia, to reinforce the appearance of independence of the State Court’s war crimes chambers (in view of remaining ethnic bias and animosity in the population at large in the post-war period) and to restore public confidence in the domestic judicial system.", "51. Although they were appointed by the High Representative, the Court finds no reason to question that the international members of the State Court were independent of that institution. Their appointments were made on the basis of a recommendation from the highest judicial figures in Bosnia and Herzegovina (see the decision cited in paragraph 35 above). Like the national members whose independence was undisputed, once appointed, the judges in question had to make a solemn declaration before the High Judicial and Prosecutorial Council of Bosnia and Herzegovina and were required to perform their judicial duties in accordance with national law and to respect the rules of professional conduct established by the State Court. All of the requirements for judicial service as set forth in the State Court Act 2000 applied to them by analogy (see paragraph 35 above). The fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this is understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments.", "52. Against this background, the Court sees no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court was independent within the meaning of Article 6 § 1 of the Convention (see paragraph 15 above; contrast Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 45-53, 30 November 2010).", "53. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION", "54. Both applicants complained under Article 7 of the Convention that a more stringent criminal law had been applied to them than that which had been applicable at the time of their commission of the criminal offences. Article 7 provides:", "“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”", "A. Introductory remark", "55. Serious violations of international humanitarian law falling under the State Court’s jurisdiction can be divided into two categories. Some crimes, notably crimes against humanity, were introduced into national law in 2003. The State Court and the Entity courts therefore have no other option but to apply the 2003 Criminal Code in such cases (see the international materials cited in paragraphs 31 and 32 above). In this regard, the Court reiterates that in Šimšić v. Bosnia and Herzegovina (dec.), no. 51552/10, 10 April 2012, the applicant complained about his 2007 conviction for crimes against humanity with regard to acts which had taken place in 1992. The Court examined that case, inter alia, under Article 7 of the Convention and declared it manifestly ill-founded. It considered the fact that crimes against humanity had not been criminal offences under national law during the 1992-95 war to be irrelevant, since they had clearly constituted criminal offences under international law at that time. In contrast, the war crimes committed by the present applicants constituted criminal offences under national law at the time when they were committed. The present case thus raises entirely different questions to those in the Šimšić case.", "B. Admissibility", "56. The Government argued that Mr Damjanović’s complaint should be dismissed in view of his failure to lodge a constitutional appeal in a timely manner. They had no objections with regard to the admissibility of Mr Maktouf’s complaint.", "57. Mr Damjanović alleged that a constitutional appeal was not an effective remedy in respect of this complaint, as it did not offer reasonable prospects of success (he relied on the Constitutional Court’s decision in the Maktouf case, finding no breach of Article 7, and many subsequent cases in which the same reasoning had been applied).", "58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the domestic remedies, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible and capable of providing effective and sufficient redress in respect of the applicant’s complaints. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV; Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 6 May 2006; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 68-71, 17 September 2009).", "59. The Court notes that on 30 March 2007 the Constitutional Court of Bosnia and Herzegovina found no breach of Article 7 of the Convention in nearly identical circumstances in the Maktouf case, and has since applied the same reasoning in numerous cases. Indeed, the Government did not produce before the Court any decision by the Constitutional Court finding a violation of Article 7 in a similar case. Furthermore, the State Court referred in the Damjanović case to the Constitutional Court’s decision in the Maktouf case.", "60. The Court concludes that a constitutional appeal did not offer reasonable prospects of success for Mr Damjanović’s complaint under Article 7 of the Convention and dismisses the Government’s objection. As this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible.", "C. Merits", "1. The parties’ submissions", "(a) The applicants", "61. The prohibition of the retroactive application of the criminal law to the disadvantage of an accused was, according to the applicants, a well-established rule of both international and domestic law. The 2003 Criminal Code, being more severe than the 1976 Code with regard to the minimum sentences for war crimes, should not therefore have been applied in their case. In this regard, they referred to a small number of cases in which the State Court had considered the 1976 Code to be more lenient (see paragraph 29 above), criticising at the same time the State Court for not applying that Code consistently. Given that their convictions had been based exclusively on national law, they submitted that the Government’s reliance on the “general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 was misleading. They further submitted that their case should be distinguished from the cases to which the Government and the third party had referred (namely S.W. v. the United Kingdom, 22 November 1995, Series A no. 335 ‑ B, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II). In particular, the S.W. case concerned the gradual development of the criminal law through a line of case-law, over the course of several years, in order to take account of society’s changing attitudes. This was clearly different from the enactment of new legislation prescribing heavier penalties for some criminal offences, as in the present case. The applicants added that the States should not change their laws after an event so as to punish perpetrators, no matter how controversial the offence in question.", "(b) The Government", "62. The Government maintained that the 2003 Criminal Code was more lenient to the applicants than the 1976 Criminal Code, given the absence of the death penalty (they referred to Karmo v. Bulgaria (dec.), no. 76965/01, 9 February 2006). That was indeed the opinion of the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 15 above). They further argued that even if the 2003 Code was not more lenient to the applicants, it was still justified to apply it in this case, for the following reasons. First, the Government claimed that Article 7 § 2 of the Convention provided an exception to the rule of non-retroactivity of crimes and punishments set out in Article 7 § 1 (they referred to Naletilić v. Croatia (dec.), no. 51891/99, ECHR 2000 ‑ V). In other words, if an act was criminal at the time when it was committed both under “the general principles of law recognised by civilised nations” and under national law, then a penalty even heavier than that which was applicable under national law might be imposed. It was clear that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations”. As a result, the rule of non-retroactivity of punishments did not apply and, in the Government’s opinion, any penalty could have been imposed on the applicants. Secondly, the Government submitted that the interests of justice required that the principle of non-retroactivity be set aside in this case (they referred in this connection to S.W., cited above; Streletz, Kessler and Krenz, cited above; and a duty under international humanitarian law to punish war crimes adequately). The rigidity of the principle of non-retroactivity, it was argued, had to be softened in certain historical situations so that this principle would not be to the detriment of the principle of equity.", "63. As to the question whether the State Court had changed its practice with regard to sentencing in war crimes cases, the Government accepted that the 1976 Code had been applied on several occasions since March 2009 (see paragraph 29 above). However, they contended that the 2003 Code was still applied in most cases. Specifically, the State Court issued 102 decisions between March 2009 and November 2012 (59 by trial chambers and 43 by appeals chambers). The trial chambers had always applied the 2003 Code. The appeals chambers had applied that Code in all the cases concerning crimes against humanity and genocide. As to war crimes, the appeals chambers had applied the 1976 Code in five cases and the 2003 Code in 16 cases. The Government criticised the approach adopted in those first five cases and argued that the State Court should always have applied the 2003 Code in war crimes cases.", "(c) The third party", "64. The third-party submissions of the Office of the High Representative of November 2012 were along the same lines as the Government’s submissions. Notably, the third party claimed, like the Government, that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations” and that therefore the rule of non-retroactivity of punishments did not apply in this case. The Office of the High Representative also emphasised that although the 2003 Code had been applied in this case, the applicants’ sentences were nevertheless within the latitude of both the 1976 Code and the 2003 Code. Lastly, the third party referred to the UN Human Rights Committee’s “concluding observations” on Bosnia and Herzegovina (CCPR/C/BIH/CO/1), cited in paragraph 32 above.", "2. The Court’s assessment", "65. At the outset, the Court reiterates that it is not its task to review in abstracto whether the retroactive application of the 2003 Code in war crimes cases is, per se, incompatible with Article 7 of the Convention. This matter must be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether the domestic courts have applied the law whose provisions are most favourable to the defendant (see Scoppola, cited above, § 109).", "66. The general principles concerning Article 7 were recently restated in Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010:", "“The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable.", "When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II; K. ‑ H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001 ‑ II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).”", "67. Turning to the present case, the Court notes that the definition of war crimes is the same in Article 142 § 1 of the 1976 Criminal Code, which was applicable at the time the offences were committed, and Article 173 § 1 of the 2003 Criminal Code, which was applied retroactively in this case (see paragraphs 26 and 28 above). Moreover, the applicants did not dispute that their acts constituted criminal offences defined with sufficient accessibility and foreseeability at the time when they were committed. The lawfulness of the applicants’ convictions is therefore not an issue in the instant case.", "68. It is further noted, however, that the two Criminal Codes provide for different sentencing frameworks regarding war crimes. Pursuant to the 1976 Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty (see Article 142 § 1 in conjunction with Articles 37 § 2 and 38 § 1 of the 1976 Code). A 20-year prison term could have also been imposed instead of the death penalty (see Article 38 § 2 thereof). Aiders and abettors of war crimes, like Mr Maktouf, were to be punished as if they themselves had committed the crimes, but their punishment could be reduced to one year’s imprisonment (see Article 42 of the same Code in conjunction with Articles 24 § 1 and 43 § 1 thereof). Pursuant to the 2003 Code, war crimes attract imprisonment for a term of 10-20 years or, for the most serious cases, long-term imprisonment for a term of 20-45 years (see Article 173 § 1 of the 2003 Code in conjunction with Article 42 §§ 1 and 2 of that Code). Aiders and abettors of war crimes, such as Mr Maktouf, are to be punished as if they themselves had committed the crimes, but their punishment could be reduced to five years’ imprisonment (Article 49 in conjunction with Articles 31 § 1 and 50 § 1 of that Code). While pointing out that his sentence should be reduced as far as possible (see paragraph 14 above), the State Court sentenced Mr Maktouf to five years’ imprisonment, the lowest possible sentence under the 2003 Code. In contrast, under the 1976 Code he could have been sentenced to one year’s imprisonment. As regards Mr Damjanović, he was sentenced to 11 years’ imprisonment, slightly above the minimum of ten years. Under the 1976 Code, it would have been possible to impose a sentence of only five years.", "69. As regards the Government’s argument that the 2003 Code was more lenient to the applicants than the 1976 Code, given the absence of the death penalty, the Court notes that only the most serious instances of war crimes were punishable by the death penalty pursuant to the 1976 Code (see paragraph 26 above). As neither of the applicants was held criminally liable for any loss of life, the crimes of which they were convicted clearly did not belong to that category. Indeed, as observed above, Mr Maktouf received the lowest sentence provided for and Mr Damjanović a sentence which was only slightly above the lowest level set by the 2003 Code for war crimes. In these circumstances, it is of particular relevance in the present case which Code was more lenient in respect of the minimum sentence, and this was without doubt the 1976 Code. Such an approach has been taken by at least some of the appeals chambers in the State Court in recent cases (see paragraph 29 above).", "70. Admittedly, the applicants’ sentences in the instant case were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code. It thus cannot be said with any certainty that either applicant would have received lower sentences had the former Code been applied (contrast Jamil v. France, 8 June 1995, Series A no. 317 ‑ B; Gabarri Moreno v. Spain, no. 68066/01, 22 July 2003; Scoppola, cited above). What is crucial, however, is that the applicants could have received lower sentences had that Code been applied in their cases. As already observed in paragraph 68 above, the State Court held, when imposing Mr Maktouf’s sentence, that it should be reduced to the lowest possible level permitted by the 2003 Code. Similarly, Mr Damjanović received a sentence that was close to the minimum level. It should further be noted that, according to the approach followed in some more recent war crimes cases referred to in paragraph 29 above, the appeals chambers of the State Court had opted for the 1976 Code rather than the 2003 Code, specifically with a view to applying the most lenient sentencing rules. Accordingly, since there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage as concerns the sentencing, it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty, in breach of Article 7 of the Convention.", "71. The Court is unable to accept the Government’s suggestion that its decision in Karmo, cited above, offers guidance for its assessment of the case now under consideration. The circumstances are significantly different. Whilst the present applicants were sentenced to relatively short terms of imprisonment, the applicant in Karmo had been sentenced to death and the issue was whether it was contrary to Article 7 to commute the death penalty to life imprisonment following the abolition of the death penalty in 1998. The Court considered that it was not and rejected the complaint under Article 7 as manifestly ill-founded.", "72. Furthermore, the Court is unable to agree with the Government’s argument that if an act was criminal under “the general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 of the Convention at the time when it was committed then the rule of non-retroactivity of crimes and punishments did not apply. This argument is inconsistent with the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war (see Kononov, cited above, § 186). It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity. Indeed, the Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see, for example, Tess v. Latvia (dec.), no. 34854/02, 12 December 2002, and Kononov, cited above, § 186).", "73. The Government’s reliance in this regard on S.W. and Streletz, Kessler and Krenz (cited above) likewise cannot be accepted. The present case does not concern an issue of progressive development of the criminal law through judicial interpretation, as in the case of S.W. Nor does the case at hand concern a State practice that is inconsistent with the State’s written or unwritten law. In Streletz, Kessler and Krenz, the applicants’ acts had constituted offences defined with sufficient accessibility and foreseeability in the criminal law of the German Democratic Republic at the material time, but those provisions had not been enforced for a long time prior to the regime change in 1990.", "74. The Court sees no need to examine in any detail the Government’s further argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in this case. It suffices to note that the rule of non-retroactivity of crimes and punishments also appears in the Geneva Conventions and their Additional Protocols (see paragraph 43 above). Moreover, as the applicants’ sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government’s argument that the applicants could not have been adequately punished under the former Code is clearly unfounded.", "75. Lastly, while the Court in principle agrees with the Government that States are free to decide their own penal policy (see Achour v. France [GC], no. 67335/01, § 44, ECHR 2006 ‑ IV, and Ould Dah v. France (dec.), no. 13113/03, ECHR 2009), they must comply with the requirements of Article 7 in doing so.", "D. Conclusion", "76. Accordingly, the Court considers that there has been a violation of Article 7 of the Convention in the particular circumstances of the present case. This conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code should have been applied in the applicants’ cases.", "III. THE APPLICANTS’ DISCRIMINATION COMPLAINT", "77. Lastly, the applicants argued, without going into any detail, that the fact that their cases had been heard before the State Court, while many other war crimes cases had been heard before Entity courts, amounted to a breach of Article 14 of the Convention and/or Article 1 of Protocol No. 12 to the Convention.", "Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 12 provides:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "78. The Government invited the Court to follow its Šimšić case-law, cited above. They added that the distribution of war crimes cases between the State Court and Entity courts was not arbitrary: it was done by the State Court on the basis of objective and reasonable criteria. As regards Mr Maktouf’s case, the Government argued that it was sensitive and complex, as it had been one of the first cases dealing with crimes committed by foreign mujahedin (the ICTY had dealt with that issue for the first time in 2006 in Hadžihasanović and Kubura ). In addition, ritual beheadings, carried out at their camps, had caused alarm among the local population. The Government asserted that Mr Damjanović’s case was also sensitive given, inter alia, that it concerned the torture of a large number of victims. Another reason for the transfer of Mr Damjanović’s case to the State Court was that better facilities were available for the protection of witnesses at the State Court; there was thus a higher risk of witness intimidation at the Entity level.", "79. The applicants disagreed with the Government. They maintained that their cases were neither sensitive nor complex. Mr Maktouf also argued that his Iraqi nationality and his religion had been the key reason for the State Court’s decision to retain jurisdiction.", "80. The Office of the High Representative, in its third-party submissions of November 2012, agreed with the Government.", "81. The notion of discrimination has been interpreted consistently in the Court’s case-law with regard to Article 14 of the Convention. This case-law has made it clear that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. The same term, discrimination, is also used in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).", "82. In the present case, the Court first notes that given the large number of war crimes cases in post-war Bosnia and Herzegovina, it is inevitable that the burden must be shared between the State Court and Entity courts. If not, the respondent State would not be able to honour its Convention obligation to bring to justice those responsible for serious violations of international humanitarian law in a timely manner (see Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011).", "83. The Court is aware that the Entity courts imposed in general lighter sentences than the State Court at the relevant time (see paragraph 30 above), but that difference in treatment is not to be explained in terms of personal characteristics and, therefore, does not amount to discriminatory treatment. Whether a case was to be heard before the State Court or before an Entity court was a matter decided on a case-by-case basis by the State Court itself with reference to objective and reasonable criteria outlined in paragraph 40 above (contrast Camilleri v. Malta, no. 42931/10, 22 January 2013, in which such a decision was dependent only on the prosecutor’s discretion). Accordingly, in the particular circumstances of this case, there is no appearance of a violation of either Article 14 taken in conjunction with Article 7 of the Convention or of Article 1 of Protocol No. 12 (see Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000 VI, and Šimšić, cited above).", "84. The applicants’ discrimination complaint is therefore manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "86. Mr Maktouf claimed that he had been unable to run his company as a result of his trial and punishment and that he had suffered damage in the amount of 500,000 euros (EUR).", "87. The Government considered the claim to be unsubstantiated.", "88. The Court agrees with the Government and rejects this claim for lack of substantiation.", "B. Non-pecuniary damage", "89. Mr Maktouf claimed EUR 100,000 under this head. Mr Damjanović also claimed compensation for non-pecuniary damage, but failed to specify an amount which in his view would be equitable.", "90. The Government considered Mr Maktouf’s claim to be excessive.", "91. Since it is not certain that the applicants would indeed have received lower sentences had the 1976 Code been applied (contrast Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, ECHR 2001 ‑ II, and Scoppola, cited above), the Court holds in the particular circumstances of this case that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.", "C. Costs and expenses", "92. Mr Maktouf further claimed EUR 36,409 for the costs and expenses incurred before the domestic courts. Mr Damjanović was granted legal aid under the Court’s legal-aid scheme in the total amount of EUR 1,545 for his counsel’s appearance at the hearing before the Grand Chamber. He sought reimbursement of additional costs and expenses incurred before the Court in the amount of EUR 13,120.", "93. The Government considered the claims to be unsubstantiated.", "94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 10,000 each, plus any tax that may be chargeable to them, under this head.", "D. Default interest", "95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Relevant background", "8. Following its declaration of independence from the former SFRY in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. Numerous crimes were committed during the war, including those committed by the present applicants. The following local forces were the main parties to the conflict: the ARBH [1] (mostly made up of Bosniacs [2] and loyal to the central authorities in Sarajevo), the HVO [3] (mostly made up of Croats) and the VRS [4] (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska.", "9. In response to atrocities then taking place in the territory of the former SFRY, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) as an interim institution [5]. In 2002, in order to ensure that its mission was concluded successfully, in a timely way and in coordination with domestic legal systems in the former Yugoslavia, the ICTY began devising a completion strategy [6]. That strategy was endorsed by the UN Security Council [7] and the authorities of Bosnia and Herzegovina (they enacted the necessary statutory amendments and concluded agreements with the High Representative – an international administrator appointed under the Dayton Agreement). A vital component of the strategy was the setting up of war crimes chambers within the State Court consisting of international and national judges (see paragraphs 34-36 below).", "B. The facts concerning Mr Maktouf", "10. Mr Maktouf was born in 1959 and lives in Malaysia.", "11. On 19 October 1993 he deliberately assisted a third party to abduct two civilians in order to exchange them for members of the ARBH forces who had been captured by the HVO forces. The civilians were freed several days later.", "12. On 11 June 2004 the applicant was arrested.", "13. On 1 July 2005 a Trial Chamber of the State Court found him guilty of aiding and abetting the taking of hostages as a war crime and sentenced him to five years’ imprisonment under Article 173 § 1 in conjunction with Article 31 of the 2003 Criminal Code.", "14. On 24 November 2005 an Appeals Chamber of that court quashed the judgment of 1 July 2005 and scheduled a fresh hearing. On 4 April 2006 the Appeals Chamber, composed of two international judges (Judge Pietro Spera and Judge Finn Lynghjem) and one national judge (Judge Hilmo Vučinić), convicted the applicant of the same offence and imposed the same sentence under the 2003 Criminal Code. As regards the sentence, it held as follows (the translation has been provided by the State Court):", "“Considering the degree of criminal responsibility of the accused and consequences of the criminal offence, as well as the fact that the accused was an accessory to the commission of the criminal offence, and considering the mitigating circumstances in favour of the accused, the Chamber applied the provisions on reduction of punishment and reduced the sentence to the maximum extent possible, applying the provision of Article 50 § 1 (a) of the [2003 Criminal Code], sentencing him to imprisonment for a term of five years, being of the opinion that the pronounced sentence can fully achieve the purpose of punishment and that the pronounced sentence will influence the accused not to commit other criminal offences in future.”", "15. Following the applicant’s constitutional appeal, on 30 March 2007 the Constitutional Court examined the case under Articles 5, 6, 7 and 14 of the Convention and found no violation of the Convention. The decision was served on the applicant on 23 June 2007. The majority decision reads, in the relevant part, as follows:", "“42. The Constitutional Court points out that section 65 of the [State Court Act 2000], the initial text of which was imposed in a Decision taken by the High Representative and subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina, provides that during the transitional period, which may not exceed five years, the Panels of Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption are to be composed of national and international judges. The Criminal and Appellate Divisions may be composed of several international judges. The international judges may not be citizens of Bosnia and Herzegovina or any other neighboring state. International judges are to act as panel judges in accordance with the relevant provisions of the Criminal Procedure Code of Bosnia and Herzegovina and in accordance with the provisions of the Law on the Protection of Witnesses and Vulnerable Witnesses of Bosnia and Herzegovina and may not be criminally prosecuted, arrested or detained, nor are they liable in civil proceedings for an opinion expressed or decision made in the scope of their official duties.", "43. The High Representative ‘... in the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, ... under which the High Representative shall facilitate, as the High Representative deems necessary, the resolution of any difficulties arising in connection with civilian implementation..., noting that the communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 26 September 2003 stated that the Board took note of the UN Security Council Resolution 1503, which, inter alia, called on the International Community to support the work of the High Representative in setting up the war crimes chamber..., noting the Joint Recommendation for the Appointment of International Judges signed by the Registrar of the Registry ... and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina...,, [and] bearing in mind the relevant provisions of the [State Court Act 2000],’ on 24 February and 28 April 2005, took Decisions on the Appointment of International Judges Finn Lynghjem and Pietro Spera to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court].", "44. Under the aforementioned Decisions on Appointment, international judges are to serve for a term of two years and are eligible for reappointment as prescribed by law. International judges may not discharge duties which are incompatible with their judicial service. All other requirements concerning the judicial duty referred to in the [State Court Act 2000] apply to these appointments to the greatest extent possible. The international Registrar of the Registry shall inform the High Representative of any event which may prevent the judge from discharging his/her duties. During the mandate, the judge is to comply with all standards relating to professional conduct as prescribed by the [State Court]. The appointed international judge is to discharge his/her duties in accordance with the laws of Bosnia and Herzegovina and take decisions on the basis of his/her knowledge [and] skills and in a conscientious, responsible and impartial manner, strengthening the rule of law and protecting individual human rights and freedoms as guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention.", "...", "46. The competences of the Divisions of the [State Court] to which international judges are appointed include, beyond any doubt, certain matters derived from international law. The acknowledgment of the supranational nature of international criminal law, established through the case-law of the Nuremberg and Tokyo Military Tribunals, the Tribunal in The Hague and the Tribunal for Rwanda, also includes international criminal tribunals. This certainly includes the situation in which a certain number of international judges are appointed to national courts. The High Representative appointed international judges to the [State Court] in accordance with the powers vested in him according to the UN Security Council’s resolutions, adopted in accordance with Chapter VII of the UN Charter and the Recommendation of the Registry pursuant to the Agreement of 1 December 2004, which was also signed by the President of the High Judicial and Prosecutorial Council; it is particularly important that the High Judicial and Prosecutorial Council, an independent body competent to appoint national judges, was involved in the procedure preceding the appointment.", "47. The Constitutional Court holds that the international judges who were members of the Panel which rendered the contested verdict were appointed in a manner and in accordance with a procedure which complied with the standards concerning a fair trial provided for in Article 6 of the European Convention. In addition, the [State Court Act 2000], the Agreement of 1 December 2004 and the decisions on [their] appointment created the prerequisites and mechanisms which secure the independence of [the] judges from interference or influence by the executive authority or international authorities. Judges appointed in this manner are obliged to respect and apply all the rules which generally apply in national criminal proceedings and which comply with international standards. Their term of office is defined and their activities are monitored during this period. The reasoning behind their appointment was the need to establish and strengthen national courts in the transitional period and to support the efforts of these courts in establishing responsibility for serious violations of human rights and ethnically motivated crimes. It is therefore aimed at securing the independence and impartiality of the judiciary and administering justice. Even the fact that the manner of appointment was changed by the subsequent Agreement of 26 September 2006, so that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina has become responsible for the appointment of international judges, does not in itself automatically imply that their original appointments, in the manner provided for at the time of the contested verdicts, were contrary to the principles of independence of the court in terms of Article 6 § 1 of the European Convention. The Constitutional Court holds that the appellant failed to submit convincing arguments and evidence in support of the allegations relating to a lack of independence on the part of the international judges. As to the appellant’s allegations concerning the lack of independence of the national judge, on the ground that he is a person with ‘insufficient experience’, the Constitutional Court finds that these allegations are prima facie ill-founded and do not require any extensive examination. Taking all of the above into account, the Constitutional Court concludes that the appellant’s allegations concerning the lack of independence and related violation of the standards relating to the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention are unfounded.", "...", "60. One of the appellant’s key arguments refers to the relationship between the criminal proceedings in issue and Article 7 of the European Convention, namely the fact that, as the appellant stated, he was sentenced under the [2003 Criminal Code] rather than under the [1976 Criminal Code], valid at the time of the offence, which provided for a more lenient sanction.", "...", "65. In this particular case, the appellant acknowledges that, under the regulations applicable at the material time, the offence for which he was convicted constituted a criminal offence when it was committed. However, he expressly refers to the application of the substantive law in his case and examines primarily the concept of a ‘more lenient punishment’, i.e. ‘more lenient law’. He considers that the [1976 Criminal Code], in force when the criminal offence for which he was convicted was committed, and in respect of which, inter alia, the death penalty was prescribed for the severest forms, was a more lenient law than the [2003 Criminal Code], which prescribes a punishment of long-term imprisonment for the severest forms of the criminal offence in question.", "...", "69. In this context, the Constitutional Court finds that it is simply not possible to ‘eliminate’ the more severe sanction applicable under both the earlier and later laws, and apply only the other, more lenient, sanctions, with the effect that the most serious crimes would in practice be inadequately punished. However, the Constitutional Court will not provide detailed reasons or analysis of these regulations, but will focus on the exemptions to the obligations arising under Article 7 § 1 of the European Convention, which are regulated, as is generally accepted, by Article 7 § 2.", "70. In such a situation, the Constitutional Court notes that Article 7 § 2 of the European Convention refers to ‘the general principles of law recognized by civilised nations’, and Article III (3) (b) of the Constitution of Bosnia and Herzegovina establishes that ‘the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.’ It follows that these principles constitute an integral part of the legal system in Bosnia and Herzegovina, even without the special ratification of Conventions and other documents regulating their application, and thus also include the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY.", "71. Further, the Constitutional Court draws attention to the fact that the Constitution of Bosnia and Herzegovina is part of an international agreement and, while this fact does not diminish the Constitution’s importance, it clearly indicates the position of international law within the legal system of Bosnia and Herzegovina, so that a number of international conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I-II (1977), have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina. It should be mentioned that the former SFRY was signatory to the said Conventions, and that Bosnia and Herzegovina, as an internationally recognised subject which declared its independence on 6 March 1992, accepted all of the Conventions ratified by the former SFRY and, thereby, the aforementioned Conventions, which were subsequently included in Annex 4, that is, the Constitution of Bosnia and Herzegovina.", "72. The wording of Article 7 § 1 of the European Convention is limited to those cases in which an accused person is found guilty and convicted of a criminal offence. However, Article 7 § 1 of the European Convention neither prohibits the retrospective application of laws nor includes the non bis in idem principle. Further, Article 7 § 1 of the European Convention could not be applied to cases such as those referred to in the United Kingdom’s War Damages Act 1965, which amended with retrospective effect the common-law rule granting compensation for private property in certain wartime circumstances.", "73. The Constitutional Court notes that Article 7 § 1 of the European Convention concerns criminal offences ‘under national or international law’. The Constitutional Court also notes, in particular, the interpretation of Article 7 provided in a number of texts dealing with this issue, which are based on the European Court’s position that a conviction resulting from a retrospective application of national law does not constitute a violation of Article 7 of the European Convention where such a conviction is based on an act which was a crime under ‘international law’ when committed. This position is particularly relevant in respect of the present case, and of similar cases, given that the main point of the appeal refers to the application of primarily international law, that is, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I ‑ II (1977), rather than to the application of one or another text of criminal law, irrespective of their content or stipulated sanctions.", "74. In addition, with regard to the retrospective application of criminal legislation, the Constitutional Court stresses that Article 7 of the European Convention was formulated immediately after World War II with the particular intention of encompassing the general principles of law recognised by civilised nations, where the notion of ‘civilised nations’ was adopted from Article 38 of the Statute of the International Court of Justice (ICJ), the case-law of which is generally recognized as the third formal source of international law. In other words, the Statute of the International Court of Justice is applicable in respect of member states of the ICJ, and the rules established by it are regarded as a source of law, which concern even municipal authorities. Both the Statute of the International Court of Justice and Article 7 of the European Convention exceed the framework of national law, and refer to ‘nations’ in general. Accordingly, the Constitutional Court holds that the standards for their application should be looked for in this context, and not merely within a national framework.", "75. The Constitutional Court further notes that the travaux préparatoires refer to the wording in paragraph 2 of Article 7 of the European Convention, which is calculated to ‘make it clear that Article 7 does not have any effect on the laws which were adopted in certain circumstances after World War II and intended for punishment of war crimes, treason and collaboration with the enemy, and it is not aimed at either moral or legal disapproval of such laws’ (see X v. Belgium, no. 268/57, Yearbook 1 (1957); ... compare De Becker v. Belgium no. 214/56), Yearbook 2 (1958)). In fact, the wording of Article 7 of the European Convention is not restrictive and must be construed dynamically so to encompass other acts which imply immoral behaviour that is generally recognized as criminal under national laws. In view of the above, the United Kingdom’s War Crimes Act 1991 confers retrospective jurisdiction on the UK courts in respect of certain grave violations of the law, such as murder, manslaughter or culpable homicide, committed in German-held territory during the Second World War", "76. In the Constitutional Court’s opinion, all of the above confirms that war crimes are ‘crimes according to international law’, given the universal jurisdiction to conduct proceedings, so that convictions for such offences would not be inconsistent with Article 7 § 1 of the European Convention under a law which subsequently defined and determined certain acts as criminal and stipulated criminal sanctions, where such acts did not constitute criminal offences under the law that was applicable at the time the criminal offence was committed. On 4 May 2000 the European Court of Human Rights issued a decision in the case of Naletilić v. the Republic of Croatia (no. 51891/99). It follows from that decision that the applicant was charged by the Prosecutor’s Office of the International Criminal Tribunal for the former Yugoslavia with war crimes committed in the territory of Bosnia and Herzegovina, and that he submitted complaints that were identical to those of the appellant in the present case, i.e. he called for the application of ‘more lenient law’. He argued that the Criminal Code of the Republic of Croatia stipulated a more lenient criminal sanction than the Statute of the International Criminal Tribunal for the former Yugoslavia, and called for application of Article 7 of the European Convention. In its decision, the European Court of Human Rights considered the application of Article 7 and emphasised the following: ‘As to the applicant’s contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalise the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 paragraph 1 of the Convention invoked by the applicant could not apply. It follows that the application is manifestly ill-founded ... and, therefore, must be rejected ...’", "77. Finally, the Constitutional Court points out that the Nuremberg and Tokyo War Crimes Trials were conducted in 1945 and 1946, after World War II, in respect of crimes that were only subsequently, i.e. by the Geneva Convention, defined as acts amounting to war crimes, crimes against humanity, crimes of genocide, etc. Aggressive war was defined as an ‘international crime’, as confirmed by the International Law Commission in its Yearbook of 1957, Vol. II. Related discussions on the principle of nullum crimen nulla poena sine lege were also held at that time. This is also valid in respect of the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY.", "78. It is quite clear that the concept of individual criminal responsibility for acts committed contrary to the Geneva Convention or appropriate national laws is very closely related to that of human rights protection, since human-rights and related conventions concern the right to life, the right to physical and emotional integrity, prohibition of slavery and torture, prohibition of discrimination, etc. In the Constitutional Court’s opinion, it seems that an absence of protection for victims, i.e. inadequate sanctions for perpetrators of crime, is not compatible with the principle of fairness and the rule of law as embodied in Article 7 of the European Convention, paragraph 2 of which allows this exemption from the rule set out in paragraph 1 of the same Article.", "79. In view of the above, and having regard to the application of Article 4a of the [2003 Criminal Code] in conjunction with Article 7 § 1 of the European Convention, the Constitutional Court concludes that, in the present case, the application of the [2003 Criminal Code] in the proceedings conducted before the [State Court] does not constitute a violation of Article 7 § 1 of the European Convention.”", "16. The relevant part of the dissenting opinion of Judge Mato Tadić, attached to that decision, reads as follows:", "“Pursuant to Article 41 § 2 of the Rules of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina No. 60/50), I hereby give my separate dissenting opinion, in which I dissent from the opinion of the majority of the Judges of the Constitutional Court of Bosnia and Herzegovina in the aforesaid decision, for the following reasons:", "...", "It is my opinion that the more lenient law should be applied before the domestic courts, i.e. the law which was in force when the criminal offence was committed. It is not easy to give an answer as to which law is more lenient, and this legal issue is much more complex than it appears. Taking into account around ten criteria that have been developed through theory and practice, one may conclude that in the instant case the prescribed penalty is a key factor which is relevant to the question of which law is the more lenient. Given that the same criminal offence existed (Article 142 of the [1976 Criminal Code]) under the criminal legislation of the former Yugoslavia, which Bosnia and Herzegovina inherited by its 1992 Decree, and which provided for a penalty of five years’ imprisonment or the death penalty, while the new criminal legislation applied in the instant case (Article 173 of the [2003 Criminal Code]) provides for a penalty of ten years’ imprisonment or long-term imprisonment, the basic question is which law is more lenient. At first sight, the [2003 Criminal Code] is more lenient, since it does not provide for the death penalty. However, taking into account that subsequent to the entry into force of the Washington Agreement and the Constitution of the Federation of Bosnia and Herzegovina in 1994, the death penalty was abolished, as was merely confirmed by the Constitution of Bosnia and Herzegovina from 1995, and taking into account the positions of the ordinary courts in Bosnia and Herzegovina, the Entities and the Brčko District (Supreme Court of the Federation of Bosnia and Herzegovina, Supreme Court of the Republika Srpska and Appellate Court of the Brčko District) that the death penalty was not to be pronounced (this position was also taken by the Human Rights Chamber in the case of Damjanović and Herak v. Federation of Bosnia and Herzegovina ), it appears that the 1992 law is more lenient. According to the above-mentioned court positions and the law, the maximum term of imprisonment that can be pronounced for this criminal offence is 20 years.", "Reference to Article 7 § 2 of the European Convention is irrelevant in the instant case. Article 7 § 2 of the European Convention has the primary task of providing a basis for criminal prosecution for violations of the Geneva Conventions before the international bodies established to deal with such cases, for example the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and to provide a legal basis for cases pending before domestic courts where the domestic legislation failed to prescribe the actions in question as criminal offences. In other words, this is the case where the legislature failed to include all of the elements characterising the said offences as referred to in the Geneva Conventions. This case does not raise that issue. The criminal offence in question existed in the domestic legislation, both when the offence was committed and at the time of trial, and therefore all of the mechanisms of criminal law and safeguarded constitutional rights should be consistently applied, including the rights guaranteed under the European Convention. The Naletelić case is irrelevant here, because it concerned an international prosecutor who accused [the applicant] before an international tribunal which had been established on a special basis and is vested with the powers defined by the Resolution of the United Nations and its Statute; it does not apply national legislation, but rather its own procedures and sanctions/penalties. If it were otherwise, a very small number of accused persons would respond to summons for proceedings before that court. Thus, I am of the opinion that the position of the European Court of Human Rights in the Naletelić case was absolutely correct, but that this position cannot be applied in the instant case.", "I consider that extensive reference to an international court is absolutely unnecessary, such as reference to its jurisdiction, etc., since the issue here is simply the domestic court conducting a trial in compliance with national legislation, and does not involve a case which was transferred to an international tribunal.", "For the most part, the Naletelić decision deals with history (Nuremberg, Tokyo) and, generally, an international aspect which is completely unnecessary in the instant case, because our national legislation, as pointed out above, incorporated this criminal offence and, when the offence was committed, the sanction was already prescribed, unlike the Nuremberg case. Moreover, the appellant is not challenging the aforesaid. It is in fact the appellant himself who pointed out that the national legislation had the incriminated acts coded as a criminal offence and sanctioned, and the appellant is only asking that it be applied. He also stated that, on account of the failure to apply Article 142 of the inherited [1976 Criminal Code] instead of the [2003 Criminal Code], there had been a violation of the Constitution and of Article 7 § 1 of the European Convention.", "Wishing to keep this explanation brief, I will recollect the opinion of Mr Antonio Cassese, the esteemed professor of Florence State University, who was appointed President of the International Criminal Tribunal in The Hague. In a 2003 document entitled ‘Opinion on the Possibility of Retroactive Application of Some Provisions of the New Criminal Code of Bosnia and Herzegovina’, Professor Cassese concluded as follows: ‘Finally, let us deal with the issue whether the [State Court] should apply the more lenient sanction in the event of a crime for which the new criminal code prescribes a graver penalty than that envisaged by the former law. The reply to this question can only be affirmative. This conclusion rests on two legal bases: first, there is a general principle of international law according to which, if a single crime is envisaged in two successive provisions with one imposing a less strict penalty, that penalty should be determined according to the favor libertatis principle; secondly, this principle is explicitly mentioned in Article 7 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, wherein it is stated that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed. Accordingly, the [State Court] should always apply the more lenient penalty whenever there is a difference in length of penalty when the former is compared with the new criminal provision. It is clear that retroactive application of criminal code is related to the penalty only and not to other elements of this Article.’", "...", "For the aforesaid reasons, I could not agree fully with the opinion of the majority which is presented in this decision.”", "17. On 12 June 2009 the applicant completed his sentence and left the country soon afterwards.", "C. The facts concerning Mr Damjanović", "18. Mr Damjanović was born in 1966. He is still serving his sentence in Foča Prison.", "19. On 2 June 1992, in the course of the war in Bosnia and Herzegovina, he played a prominent part in the beating of captured Bosniacs in Sarajevo, in an incident which lasted for one to three hours and was performed using rifles, batons, bottles, kicks and punches. The victims were afterwards taken to an internment camp.", "20. On 17 October 2005 a Pre-Trial Chamber of the State Court decided to take over this case from the Sarajevo Cantonal Court, where it had been pending for years, in consideration of its sensitivity (the case concerned torture of a large number of victims) and the better facilities available for witness protection at the State Court (a higher risk of witness intimidation at the Entity level). It relied on the criteria set out in paragraph 40 below and Article 449 of the 2003 Code of Criminal Procedure.", "21. On 26 April 2006 the applicant was arrested.", "22. On 18 June 2007 a Trial Chamber of the State Court convicted him of torture as a war crime and sentenced him to eleven years’ imprisonment for that crime under Article 173 § 1 of the 2003 Criminal Code. An Appeals Chamber of the same court upheld that judgment on 19 November 2007. The second-instance judgment was served on the applicant on 21 December 2007.", "23. On 20 February 2008 the applicant lodged a constitutional appeal. It was dismissed as out of time on 15 April 2009." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL MATERIALS", "A. Applicable substantive law in war crimes cases", "1. General principles", "24. In accordance with its emergency powers [8], on 24 January 2003 the Office of the High Representative imposed the 2003 Criminal Code. The Code entered into force on 1 March 2003. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina [9]. Article 3 thereof provides that no punishment or other criminal sanction may be imposed on any person for an act which, at the time when it was committed, did not constitute a criminal offence under national or international law and for which a punishment was not prescribed by law. Furthermore, in accordance with Article 4 of that Code, the law that was in effect at the time when a criminal offence was committed applies to the offender; however, if the law has been amended after the commission of the offence, the law that is more lenient to the offender must be applied. In January 2005, Article 4a was added to the 2003 Criminal Code. Like Article 7 § 2 of the Convention, it stipulates that the provisions of Articles 3 and 4 of the Criminal Code must not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law.", "25. In line with those principles, the domestic courts have, in cases concerning war crimes, been applying either the 1976 Criminal Code [10] or, if it was considered to be more lenient to an offender, the 2003 Criminal Code. Since the intermediate Entities’ Codes (the 1998 Criminal Code of the Federation of Bosnia and Herzegovina [11] and the 2000 Criminal Code of the Republika Srpska [12] ) have rarely, if ever, been applied in such cases, they are irrelevant to the present applicants.", "2. The 1976 Criminal Code", "26. During the war in Bosnia and Herzegovina, the 1976 Criminal Code was in force throughout the country. It remained in force in the Federation of Bosnia and Herzegovina until 1998 and in the Republika Srpska until 2000 (when it was repealed and replaced by the Entities’ Codes mentioned in paragraph 25 above). Under that Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty; a 20-year prison term could also be imposed instead of the death penalty (see Articles 37, 38 and 142 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) were to be punished as if they themselves had committed war crimes, but their punishment could also be reduced to one year’s imprisonment (Articles 24, 42 and 43 of that Code). The relevant Articles read as follows:", "Article 24 § 1", "“Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.”", "Article 37 § 2", "“The death penalty may be imposed only for the most serious criminal acts when so provided by statute.”", "Article 38 §§ 1 and 2", "“The sentence of imprisonment may not be shorter than 15 days or longer than 15 years.", "The court may impose a sentence of imprisonment for a term of 20 years in respect of criminal acts eligible for the death penalty.”", "Article 42", "“The court may impose a sentence below the limit prescribed by statute, or impose a milder type of sentence:", "(a) when it is provided by statute that the sentence may be reduced [as in Article 24 § 1 of this Code];", "(b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.”", "Article 43 § 1", "“Where conditions exist for the reduction of sentence referred to in Article 42 of this Code, the court shall reduce the sentence within the following limits:", "(a) if a period of three or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, this may be reduced to one year’s imprisonment;", "...”", "Article 142 § 1", "“Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of five years or by the death penalty.”", "27. The death penalty could no longer be imposed after the entry into force of the Dayton Agreement on 14 December 1995. In particular, pursuant to Annexes 4 and 6 thereto, Bosnia and Herzegovina and its Entities must secure to all persons within their jurisdiction the rights and freedoms provided in the Convention and its Protocols (including Protocol No. 6 on the Abolition of the Death Penalty) and in the other human rights agreements listed therein (including the Second Optional Protocol to the International Covenant on Civil and Political Rights on the death penalty). The domestic authorities have always taken those provisions to mean that no one may be condemned to the death penalty or executed in peacetime, even in respect of criminal offences committed during the 1992 ‑ 95 war [13].", "3. The 2003 Criminal Code", "28. Under the 2003 Criminal Code, war crimes attract imprisonment for a term of 10-20 years or, in most serious cases, long-term imprisonment for a term of 20-45 years (Articles 42 and 173 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) are to be punished as if they themselves committed war crimes, but their punishment could also be reduced to five years’ imprisonment (see Articles 31, 49 and 50 of that Code). The relevant Articles read as follows:", "Article 31 § 1", "“Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.”", "Article 42 §§ 1 and 2", "“The sentence of imprisonment may not be shorter than 30 days or longer than 20 years.", "For the most serious criminal acts perpetrated with intent, imprisonment for a term of 20 to 45 years may exceptionally be prescribed (long-term imprisonment).”", "Article 49", "“The court may set the sentence below the limit prescribed by statute, or impose a milder type of sentence:", "(a) when it is provided by statute that the sentence may be reduced [as in Article 31 § 1 of this Code];", "(b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.”", "Article 50 § 1", "“Where conditions exist for the reduction of sentence referred to in Article 49 of this Code, the court shall reduce the sentence within the following limits:", "(a) if a period of ten or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, it may be reduced to five years’ imprisonment;", "...”", "Article 173 § 1", "“Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of ten years’ or long-term imprisonment.”", "4. Sentencing practices", "29. The Entity courts and the State Court have interpreted the principles outlined in paragraph 24 above differently in war crimes cases. With a few exceptions [14], the Entity courts generally apply the 1976 Code. In contrast, the State Court initially held that the 2003 Code was always more lenient and applied it in all cases. In March 2009, however, the State Court began applying a new approach, which was to establish on a case-by-case basis which of the Codes was more lenient to the offender [15]. It has since applied the 1976 Code to less serious instances of war crimes [16]. At the same time, it has continued to apply the 2003 Code to more serious instances of war crimes, which were punishable by the death penalty under the 1976 Code [17], and whenever it held that the 2003 Code was more lenient to the offender for any reason [18]. It should be noted that the new approach concerns only the appeals chambers of the State Court; the trial chambers have continued to apply the 2003 Code in all war crimes cases. According to figures provided by the Government (see paragraph 63 below), appeals chambers rendered 21 decisions in war crimes cases between March 2009, when the new approach was first applied, and November 2012. They applied the 1976 Code in five of them and the 2003 Code in 16 of them. However, the application of the 1976 Code by an appeals chamber did not always lead to a reduction of penalty (in two cases [19], the appeals chamber imposed the same penalty under the 1976 Code as the trial chamber had done under the 2003 Code; in one case [20], the penalty imposed by the appeals chamber under the 1976 Code was even heavier than that imposed by the trial chamber under the 2003 Code).", "5. Observations by other international human rights agencies", "30. It would appear that the application of different Criminal Codes in war crimes cases, as described in the previous paragraph, has led to diverse sentencing practices. According to a report published by the Organisation for Security and Cooperation in Europe (OSCE) in 2008 (“Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”), the Entity courts generally imposed lighter sentences than the State Court. The relevant part of that report reads as follows:", "“Usage of different criminal codes also leads to marked discrepancies between the sentences delivered in state and entity courts for war crimes. This stems from the wide variances in the sentences enforceable under these codes. For instance, an entity court has sentenced a defendant convicted of cruel treatment of prisoners to a term of one year and eight months’ imprisonment even as the State Court has sentenced another defendant charged with a comparable act to imprisonment for a period of ten-and-a-half years. On average, sentences delivered by the [State Court] in war crimes cases have been almost double the length of those delivered by entity courts.”", "31. In a 2011 report (“Delivering Justice in Bosnia and Herzegovina”), the OSCE held that the application of different Criminal Codes at the State- and Entity-levels could be problematic in certain types of war crimes cases. The relevant part of that report reads as follows:", "“Certainly, it is acceptable that the issue of which criminal code should be applied to war crime cases is assessed on a case-by-case basis. In many cases before entity courts, the application of the [1976] Code does not represent a serious problem in practice. In general, the cases in which the application of different codes undermines the principle of equality before the law are those in which the court, by applying the [2003] Code, could sentence the accused to a sentence higher than the 15 or 20 years maximum sentence prescribed under the [1976] Code. In these cases, the application of the [1976] Code arguably does not allow the court to deliver a sentence which is proportional to the gravity of the crimes. Nor are the sentences in those cases harmonized with practice at the state level. Another category of cases in which the application of the [1976] Code is problematic are those in which the accused’s conduct is arguably best captured under the concept of crimes against humanity or under the theory of command responsibility, which are expressly prescribed only under the [2003] Code.”", "32. The UN Human Rights Committee, in its “concluding observations” on Bosnia and Herzegovina in 2012 (CCPR/C/BIH/CO/1), expressed similar concerns (at § 7):", "“While appreciating efforts to deal with war crime cases such as the implementation of the National War Crimes Processing Strategy, the Committee remains concerned at the slow pace of prosecutions, particularly those relating to sexual violence, as well as lack of support to victims of such crimes. The Committee is also concerned at the lack of efforts to harmonise jurisprudence on war crimes among entities, and that entity-level courts use the archaic criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY) that does not, inter alia, define crimes against humanity, command responsibility, sexual slavery and forced pregnancy. The Committee is concerned that this might affect consistency in sentencing among entities (arts. 2 and 14). The State party should expedite the prosecution of war crime cases. The State party should also continue to provide adequate psychological support to victims of sexual violence, particularly during the conduct of trials. Furthermore, the State party should ensure that the judiciary in all entities strongly pursues efforts aimed at harmonising jurisprudence on war crimes and that charges for war crimes are not brought under the archaic criminal code of the former SFRY, which does not recognise certain offences as crimes against humanity.”", "33. In its Opinion on Legal Certainty and the Independence of Judiciary in Bosnia and Herzegovina (no. 648/2011), issued on 18 June 2012, the Venice Commission noted that the existence of several legal orders and the fragmentation of the judiciary made it difficult for Bosnia and Herzegovina to fulfil the requirements of, inter alia, consistency in its legislation and case-law.", "B. State Court", "34. In accordance with its emergency powers, on 12 November 2000 the Office of the High Representative imposed the State Court Act 2000 [21] establishing the State Court. The Act entered into force on 8 December 2000. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina.", "35. As part of the ICTY’s completion strategy mentioned in paragraph 9 above, war crimes chambers were established within the State Court in early 2005. During a transitional phase which ended on 31 December 2012, some international judges were included in the composition of those chambers. Initially, they were appointed by the Office of the High Representative in accordance with its 2004 agreement with the authorities of Bosnia and Herzegovina [22]. The mandate of those judges was two years and was renewable. A typical decision appointing an international judge read, in the relevant part, as follows:", "“...", "Noting the joint recommendation for the appointment of an International Judge of 22 April 2005 signed by the Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office of Bosnia and Herzegovina], President of the [State Court] and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina;", "The High Representative hereby issues the following decision on appointment of an International Judge to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]", "1. As provided by section 65 § 4, as amended, of the [State Court Act 2000] the following person is hereby appointed as International Judge of Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]:", "Pietro Spera", "2. The initial term of appointment ... shall be for two years, subject to reappointment pursuant to the [State Court Act 2000]. The [appointee] is required to reside in Bosnia in Herzegovina during the term of his appointment and cannot perform any other function that is incompatible with the judicial service or that can impede his performance of the judicial function on a full time basis. To the extent applicable, all other requirements for judicial service as set forth in the [State Court Act 2000] shall apply...", "3. The International Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office] shall notify the High Representative of any occurrence, including the ones as referred to in paragraph 2 [above], that may cause the inability of the [appointee] to perform his mandate. In the event of resignation by or inability of the [appointee] to complete his mandate, the High Representative will appoint a successor to complete the above-mentioned term of office.", "4. During the term of appointment, the appointee shall complete all training programs as directed by the President of the [State Court] and adhere to all professional conduct standards as established by the [State Court].", "5. The [appointee] shall perform the duty of judge in accordance with the Constitution and laws of Bosnia and Herzegovina, take decisions upon his best knowledge, conscientiously, responsibly and impartially to uphold the rule of law, and shall protect the freedoms and rights of individuals granted by the Constitution and the European Convention on Human Rights. Before taking up his official function, which occurs not later then 6 May 2005, the International Judge shall take a solemn declaration before the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina to that effect.", "6. This Decision shall enter into force forthwith and shall be published without delay in the Official Gazette of Bosnia and Herzegovina.”", "36. In September 2006 the Office of the High Representative and Bosnia and Herzegovina revised the procedure for the appointment of international judges to the State Court [23] : international judges were thereafter appointed by a specialised professional body, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, also for a renewable period of two years.", "C. Jurisdiction over war crimes cases", "37. Domestic war crimes cases can be divided into two categories.", "38. Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case in accordance with the criteria set out in paragraph 40 below (see Article 449 of the 2003 Code of Criminal Procedure [24] ).", "39. New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 40 below (see Article 27 of the 2003 Code of Criminal Procedure).", "40. In accordance with the Book of Rules on the Review of War Crimes Cases of 28 December 2004 [25] the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. In December 2008 the authorities adopted the National War Crimes Strategy, providing, among other things, a new set of criteria. They are, however, almost identical to those outlined above.", "D. Reopening of a criminal trial", "41. Article 327 of the 2003 Code of Criminal Procedure provides that a criminal trial may be reopened in favour of the offender where the European Court of Human Rights has found that human rights were violated during the trial and that the verdict was based on these violations. An application for the reopening of a criminal trial is not subject to deadlines. It may even be lodged after the sentence has been served (Article 329 § 2 of this Code).", "Pursuant to Article 333 § 4 of this Code, in any new trial the verdict may not be modified to the detriment of the accused (prohibition of reformatio in peius ).", "E. International humanitarian law", "42. Pursuant to the 1949 Geneva Conventions (see, for example, Article 146 of the Convention relative to the Protection of Civilian Persons in Time of War), the High Contracting Parties must enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of those Conventions. At the same time, the accused persons must in all circumstances benefit from safeguards of proper trial and defence that are not less favourable than those provided by the Convention relative to the Treatment of Prisoners of War.", "43. Pursuant to Article 99 of the Convention relative to the Treatment of Prisoners of War no prisoner of war may be tried or sentenced for an act which is not forbidden, at the time the said act was committed, by the law of the Detaining Power or by international law. The rule of non-retroactivity of crimes and punishments also appears in the Additional Protocols I and II of 1977 in almost identical terms. Article 75 § 4 (c) of the Additional Protocol I reads as follows:", "“No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "44. The first applicant, Mr Maktouf, complained that he had not been afforded a fair hearing by an independent tribunal, in violation of Article 6 § 1 of the Convention. He submitted that the adjudicating tribunal had not been independent within the meaning of that provision, notably because two of its members had been appointed by the Office of the High Representative for a renewable period of two years. Article 6 § 1, in the relevant part, reads:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. The parties’ submissions", "1. The Government", "45. The Government maintained that Bosnia and Herzegovina could not be held responsible for the conduct of the High Representative (they relied on Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al ., ECHR 2007 ‑ XII). They therefore invited the Court to declare this complaint inadmissible as being incompatible ratione personae. Even if the Court had jurisdiction ratione personae to deal with this complaint, the Government submitted that it was manifestly ill-founded. The Convention did not require that judges be appointed for their lifetime, as illustrated by Sramek v. Austria, 22 October 1984, Series A no. 84, in which the Court regarded appointment for a renewable period of three years as sufficient. Moreover, the international members of the State Court had been appointed as judges in their countries of origin by independent bodies and had been seconded to the State Court as a means of international assistance to war-torn Bosnia and Herzegovina.", "2. The applicant", "46. The applicant responded that Bosnia and Herzegovina had a duty to organise its legal system in such a way as to ensure the independence of the judiciary. He submitted that the short duration of the international judges’ mandate (two years) with the possibility of reappointment cast serious doubt on their ability to make decisions independently. He added, without relying on any particular authority, that according to accepted criteria, mandates of less than six years were not satisfactory as a guarantee of judges’ independence. Further, the international judges of the State Court were appointed, at the relevant time, by the Office of the High Representative, which could be compared to a national government. In view of all of the above, the applicant concluded that the adjudicating tribunal had not been independent within the meaning of Article 6 § 1 of the Convention.", "3. The third party", "47. The Office of the High Representative, in its third-party submissions of November 2012, asserted that the presence of international judges in the State Court had been aimed at promoting independence and impartiality, as well as the transfer of required legal knowledge. It also submitted that its decisions on appointments of international judges had been a formality, due to the fact that no domestic authority had had powers to appoint non-nationals prior to late 2006 (see paragraph 36 above). As to the duration of their mandate, the Office of the High Representative contended that this had been due to funding restrictions in the redeployment of foreign judicial officials: namely, budgetary projections and restrictions had disallowed a funding guarantee for a longer period. Lastly, the third party maintained that the international judges’ terms had been duly regulated and that they could not have been dismissed arbitrarily.", "B. The Court’s assessment", "48. The Court notes from the outset that the establishment of war crimes chambers within the State Court consisting of international and national judges was an initiative of international institutions (see paragraph 9 above). However, it is not required in the instant case to decide whether the respondent Government could nevertheless be held liable for the alleged breach of Article 6 § 1 of the Convention, since it finds that this complaint is in any event manifestly ill-founded for the reasons set out below.", "49. By way of general observation, the Court reiterates that in determining in previous cases whether a body could be considered as “independent” – notably of the executive and of the parties to the case – it has had regard to such factors as the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, for example, Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005 ‑ II). The irremovability of judges by the executive during their term of office is in general considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), appointment of judges by the executive or the legislature is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007).", "50. Turning to the present case, the Court notes that the independence of the national member of the adjudicating tribunal was not challenged. As to its international members, there is no reason to doubt their independence of the political organs of Bosnia and Herzegovina and the parties to the case. Their appointment was indeed motivated by a desire, inter alia, to reinforce the appearance of independence of the State Court’s war crimes chambers (in view of remaining ethnic bias and animosity in the population at large in the post-war period) and to restore public confidence in the domestic judicial system.", "51. Although they were appointed by the High Representative, the Court finds no reason to question that the international members of the State Court were independent of that institution. Their appointments were made on the basis of a recommendation from the highest judicial figures in Bosnia and Herzegovina (see the decision cited in paragraph 35 above). Like the national members whose independence was undisputed, once appointed, the judges in question had to make a solemn declaration before the High Judicial and Prosecutorial Council of Bosnia and Herzegovina and were required to perform their judicial duties in accordance with national law and to respect the rules of professional conduct established by the State Court. All of the requirements for judicial service as set forth in the State Court Act 2000 applied to them by analogy (see paragraph 35 above). The fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this is understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments.", "52. Against this background, the Court sees no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court was independent within the meaning of Article 6 § 1 of the Convention (see paragraph 15 above; contrast Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 45-53, 30 November 2010).", "53. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION", "54. Both applicants complained under Article 7 of the Convention that a more stringent criminal law had been applied to them than that which had been applicable at the time of their commission of the criminal offences. Article 7 provides:", "“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”", "A. Introductory remark", "55. Serious violations of international humanitarian law falling under the State Court’s jurisdiction can be divided into two categories. Some crimes, notably crimes against humanity, were introduced into national law in 2003. The State Court and the Entity courts therefore have no other option but to apply the 2003 Criminal Code in such cases (see the international materials cited in paragraphs 31 and 32 above). In this regard, the Court reiterates that in Šimšić v. Bosnia and Herzegovina (dec.), no. 51552/10, 10 April 2012, the applicant complained about his 2007 conviction for crimes against humanity with regard to acts which had taken place in 1992. The Court examined that case, inter alia, under Article 7 of the Convention and declared it manifestly ill-founded. It considered the fact that crimes against humanity had not been criminal offences under national law during the 1992-95 war to be irrelevant, since they had clearly constituted criminal offences under international law at that time. In contrast, the war crimes committed by the present applicants constituted criminal offences under national law at the time when they were committed. The present case thus raises entirely different questions to those in the Šimšić case.", "B. Admissibility", "56. The Government argued that Mr Damjanović’s complaint should be dismissed in view of his failure to lodge a constitutional appeal in a timely manner. They had no objections with regard to the admissibility of Mr Maktouf’s complaint.", "57. Mr Damjanović alleged that a constitutional appeal was not an effective remedy in respect of this complaint, as it did not offer reasonable prospects of success (he relied on the Constitutional Court’s decision in the Maktouf case, finding no breach of Article 7, and many subsequent cases in which the same reasoning had been applied).", "58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the domestic remedies, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible and capable of providing effective and sufficient redress in respect of the applicant’s complaints. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV; Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 6 May 2006; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 68-71, 17 September 2009).", "59. The Court notes that on 30 March 2007 the Constitutional Court of Bosnia and Herzegovina found no breach of Article 7 of the Convention in nearly identical circumstances in the Maktouf case, and has since applied the same reasoning in numerous cases. Indeed, the Government did not produce before the Court any decision by the Constitutional Court finding a violation of Article 7 in a similar case. Furthermore, the State Court referred in the Damjanović case to the Constitutional Court’s decision in the Maktouf case.", "60. The Court concludes that a constitutional appeal did not offer reasonable prospects of success for Mr Damjanović’s complaint under Article 7 of the Convention and dismisses the Government’s objection. As this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible.", "C. Merits", "1. The parties’ submissions", "(a) The applicants", "61. The prohibition of the retroactive application of the criminal law to the disadvantage of an accused was, according to the applicants, a well-established rule of both international and domestic law. The 2003 Criminal Code, being more severe than the 1976 Code with regard to the minimum sentences for war crimes, should not therefore have been applied in their case. In this regard, they referred to a small number of cases in which the State Court had considered the 1976 Code to be more lenient (see paragraph 29 above), criticising at the same time the State Court for not applying that Code consistently. Given that their convictions had been based exclusively on national law, they submitted that the Government’s reliance on the “general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 was misleading. They further submitted that their case should be distinguished from the cases to which the Government and the third party had referred (namely S.W. v. the United Kingdom, 22 November 1995, Series A no. 335 ‑ B, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II). In particular, the S.W. case concerned the gradual development of the criminal law through a line of case-law, over the course of several years, in order to take account of society’s changing attitudes. This was clearly different from the enactment of new legislation prescribing heavier penalties for some criminal offences, as in the present case. The applicants added that the States should not change their laws after an event so as to punish perpetrators, no matter how controversial the offence in question.", "(b) The Government", "62. The Government maintained that the 2003 Criminal Code was more lenient to the applicants than the 1976 Criminal Code, given the absence of the death penalty (they referred to Karmo v. Bulgaria (dec.), no. 76965/01, 9 February 2006). That was indeed the opinion of the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 15 above). They further argued that even if the 2003 Code was not more lenient to the applicants, it was still justified to apply it in this case, for the following reasons. First, the Government claimed that Article 7 § 2 of the Convention provided an exception to the rule of non-retroactivity of crimes and punishments set out in Article 7 § 1 (they referred to Naletilić v. Croatia (dec.), no. 51891/99, ECHR 2000 ‑ V). In other words, if an act was criminal at the time when it was committed both under “the general principles of law recognised by civilised nations” and under national law, then a penalty even heavier than that which was applicable under national law might be imposed. It was clear that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations”. As a result, the rule of non-retroactivity of punishments did not apply and, in the Government’s opinion, any penalty could have been imposed on the applicants. Secondly, the Government submitted that the interests of justice required that the principle of non-retroactivity be set aside in this case (they referred in this connection to S.W., cited above; Streletz, Kessler and Krenz, cited above; and a duty under international humanitarian law to punish war crimes adequately). The rigidity of the principle of non-retroactivity, it was argued, had to be softened in certain historical situations so that this principle would not be to the detriment of the principle of equity.", "63. As to the question whether the State Court had changed its practice with regard to sentencing in war crimes cases, the Government accepted that the 1976 Code had been applied on several occasions since March 2009 (see paragraph 29 above). However, they contended that the 2003 Code was still applied in most cases. Specifically, the State Court issued 102 decisions between March 2009 and November 2012 (59 by trial chambers and 43 by appeals chambers). The trial chambers had always applied the 2003 Code. The appeals chambers had applied that Code in all the cases concerning crimes against humanity and genocide. As to war crimes, the appeals chambers had applied the 1976 Code in five cases and the 2003 Code in 16 cases. The Government criticised the approach adopted in those first five cases and argued that the State Court should always have applied the 2003 Code in war crimes cases.", "(c) The third party", "64. The third-party submissions of the Office of the High Representative of November 2012 were along the same lines as the Government’s submissions. Notably, the third party claimed, like the Government, that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations” and that therefore the rule of non-retroactivity of punishments did not apply in this case. The Office of the High Representative also emphasised that although the 2003 Code had been applied in this case, the applicants’ sentences were nevertheless within the latitude of both the 1976 Code and the 2003 Code. Lastly, the third party referred to the UN Human Rights Committee’s “concluding observations” on Bosnia and Herzegovina (CCPR/C/BIH/CO/1), cited in paragraph 32 above.", "2. The Court’s assessment", "65. At the outset, the Court reiterates that it is not its task to review in abstracto whether the retroactive application of the 2003 Code in war crimes cases is, per se, incompatible with Article 7 of the Convention. This matter must be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether the domestic courts have applied the law whose provisions are most favourable to the defendant (see Scoppola, cited above, § 109).", "66. The general principles concerning Article 7 were recently restated in Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010:", "“The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable.", "When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II; K. ‑ H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001 ‑ II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).”", "67. Turning to the present case, the Court notes that the definition of war crimes is the same in Article 142 § 1 of the 1976 Criminal Code, which was applicable at the time the offences were committed, and Article 173 § 1 of the 2003 Criminal Code, which was applied retroactively in this case (see paragraphs 26 and 28 above). Moreover, the applicants did not dispute that their acts constituted criminal offences defined with sufficient accessibility and foreseeability at the time when they were committed. The lawfulness of the applicants’ convictions is therefore not an issue in the instant case.", "68. It is further noted, however, that the two Criminal Codes provide for different sentencing frameworks regarding war crimes. Pursuant to the 1976 Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty (see Article 142 § 1 in conjunction with Articles 37 § 2 and 38 § 1 of the 1976 Code). A 20-year prison term could have also been imposed instead of the death penalty (see Article 38 § 2 thereof). Aiders and abettors of war crimes, like Mr Maktouf, were to be punished as if they themselves had committed the crimes, but their punishment could be reduced to one year’s imprisonment (see Article 42 of the same Code in conjunction with Articles 24 § 1 and 43 § 1 thereof). Pursuant to the 2003 Code, war crimes attract imprisonment for a term of 10-20 years or, for the most serious cases, long-term imprisonment for a term of 20-45 years (see Article 173 § 1 of the 2003 Code in conjunction with Article 42 §§ 1 and 2 of that Code). Aiders and abettors of war crimes, such as Mr Maktouf, are to be punished as if they themselves had committed the crimes, but their punishment could be reduced to five years’ imprisonment (Article 49 in conjunction with Articles 31 § 1 and 50 § 1 of that Code). While pointing out that his sentence should be reduced as far as possible (see paragraph 14 above), the State Court sentenced Mr Maktouf to five years’ imprisonment, the lowest possible sentence under the 2003 Code. In contrast, under the 1976 Code he could have been sentenced to one year’s imprisonment. As regards Mr Damjanović, he was sentenced to 11 years’ imprisonment, slightly above the minimum of ten years. Under the 1976 Code, it would have been possible to impose a sentence of only five years.", "69. As regards the Government’s argument that the 2003 Code was more lenient to the applicants than the 1976 Code, given the absence of the death penalty, the Court notes that only the most serious instances of war crimes were punishable by the death penalty pursuant to the 1976 Code (see paragraph 26 above). As neither of the applicants was held criminally liable for any loss of life, the crimes of which they were convicted clearly did not belong to that category. Indeed, as observed above, Mr Maktouf received the lowest sentence provided for and Mr Damjanović a sentence which was only slightly above the lowest level set by the 2003 Code for war crimes. In these circumstances, it is of particular relevance in the present case which Code was more lenient in respect of the minimum sentence, and this was without doubt the 1976 Code. Such an approach has been taken by at least some of the appeals chambers in the State Court in recent cases (see paragraph 29 above).", "70. Admittedly, the applicants’ sentences in the instant case were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code. It thus cannot be said with any certainty that either applicant would have received lower sentences had the former Code been applied (contrast Jamil v. France, 8 June 1995, Series A no. 317 ‑ B; Gabarri Moreno v. Spain, no. 68066/01, 22 July 2003; Scoppola, cited above). What is crucial, however, is that the applicants could have received lower sentences had that Code been applied in their cases. As already observed in paragraph 68 above, the State Court held, when imposing Mr Maktouf’s sentence, that it should be reduced to the lowest possible level permitted by the 2003 Code. Similarly, Mr Damjanović received a sentence that was close to the minimum level. It should further be noted that, according to the approach followed in some more recent war crimes cases referred to in paragraph 29 above, the appeals chambers of the State Court had opted for the 1976 Code rather than the 2003 Code, specifically with a view to applying the most lenient sentencing rules. Accordingly, since there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage as concerns the sentencing, it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty, in breach of Article 7 of the Convention.", "71. The Court is unable to accept the Government’s suggestion that its decision in Karmo, cited above, offers guidance for its assessment of the case now under consideration. The circumstances are significantly different. Whilst the present applicants were sentenced to relatively short terms of imprisonment, the applicant in Karmo had been sentenced to death and the issue was whether it was contrary to Article 7 to commute the death penalty to life imprisonment following the abolition of the death penalty in 1998. The Court considered that it was not and rejected the complaint under Article 7 as manifestly ill-founded.", "72. Furthermore, the Court is unable to agree with the Government’s argument that if an act was criminal under “the general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 of the Convention at the time when it was committed then the rule of non-retroactivity of crimes and punishments did not apply. This argument is inconsistent with the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war (see Kononov, cited above, § 186). It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity. Indeed, the Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see, for example, Tess v. Latvia (dec.), no. 34854/02, 12 December 2002, and Kononov, cited above, § 186).", "73. The Government’s reliance in this regard on S.W. and Streletz, Kessler and Krenz (cited above) likewise cannot be accepted. The present case does not concern an issue of progressive development of the criminal law through judicial interpretation, as in the case of S.W. Nor does the case at hand concern a State practice that is inconsistent with the State’s written or unwritten law. In Streletz, Kessler and Krenz, the applicants’ acts had constituted offences defined with sufficient accessibility and foreseeability in the criminal law of the German Democratic Republic at the material time, but those provisions had not been enforced for a long time prior to the regime change in 1990.", "74. The Court sees no need to examine in any detail the Government’s further argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in this case. It suffices to note that the rule of non-retroactivity of crimes and punishments also appears in the Geneva Conventions and their Additional Protocols (see paragraph 43 above). Moreover, as the applicants’ sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government’s argument that the applicants could not have been adequately punished under the former Code is clearly unfounded.", "75. Lastly, while the Court in principle agrees with the Government that States are free to decide their own penal policy (see Achour v. France [GC], no. 67335/01, § 44, ECHR 2006 ‑ IV, and Ould Dah v. France (dec.), no. 13113/03, ECHR 2009), they must comply with the requirements of Article 7 in doing so.", "D. Conclusion", "76. Accordingly, the Court considers that there has been a violation of Article 7 of the Convention in the particular circumstances of the present case. This conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code should have been applied in the applicants’ cases.", "III. THE APPLICANTS’ DISCRIMINATION COMPLAINT", "77. Lastly, the applicants argued, without going into any detail, that the fact that their cases had been heard before the State Court, while many other war crimes cases had been heard before Entity courts, amounted to a breach of Article 14 of the Convention and/or Article 1 of Protocol No. 12 to the Convention.", "Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 12 provides:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "78. The Government invited the Court to follow its Šimšić case-law, cited above. They added that the distribution of war crimes cases between the State Court and Entity courts was not arbitrary: it was done by the State Court on the basis of objective and reasonable criteria. As regards Mr Maktouf’s case, the Government argued that it was sensitive and complex, as it had been one of the first cases dealing with crimes committed by foreign mujahedin (the ICTY had dealt with that issue for the first time in 2006 in Hadžihasanović and Kubura ). In addition, ritual beheadings, carried out at their camps, had caused alarm among the local population. The Government asserted that Mr Damjanović’s case was also sensitive given, inter alia, that it concerned the torture of a large number of victims. Another reason for the transfer of Mr Damjanović’s case to the State Court was that better facilities were available for the protection of witnesses at the State Court; there was thus a higher risk of witness intimidation at the Entity level.", "79. The applicants disagreed with the Government. They maintained that their cases were neither sensitive nor complex. Mr Maktouf also argued that his Iraqi nationality and his religion had been the key reason for the State Court’s decision to retain jurisdiction.", "80. The Office of the High Representative, in its third-party submissions of November 2012, agreed with the Government.", "81. The notion of discrimination has been interpreted consistently in the Court’s case-law with regard to Article 14 of the Convention. This case-law has made it clear that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. The same term, discrimination, is also used in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).", "82. In the present case, the Court first notes that given the large number of war crimes cases in post-war Bosnia and Herzegovina, it is inevitable that the burden must be shared between the State Court and Entity courts. If not, the respondent State would not be able to honour its Convention obligation to bring to justice those responsible for serious violations of international humanitarian law in a timely manner (see Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011).", "83. The Court is aware that the Entity courts imposed in general lighter sentences than the State Court at the relevant time (see paragraph 30 above), but that difference in treatment is not to be explained in terms of personal characteristics and, therefore, does not amount to discriminatory treatment. Whether a case was to be heard before the State Court or before an Entity court was a matter decided on a case-by-case basis by the State Court itself with reference to objective and reasonable criteria outlined in paragraph 40 above (contrast Camilleri v. Malta, no. 42931/10, 22 January 2013, in which such a decision was dependent only on the prosecutor’s discretion). Accordingly, in the particular circumstances of this case, there is no appearance of a violation of either Article 14 taken in conjunction with Article 7 of the Convention or of Article 1 of Protocol No. 12 (see Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000 VI, and Šimšić, cited above).", "84. The applicants’ discrimination complaint is therefore manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "86. Mr Maktouf claimed that he had been unable to run his company as a result of his trial and punishment and that he had suffered damage in the amount of 500,000 euros (EUR).", "87. The Government considered the claim to be unsubstantiated.", "88. The Court agrees with the Government and rejects this claim for lack of substantiation.", "B. Non-pecuniary damage", "89. Mr Maktouf claimed EUR 100,000 under this head. Mr Damjanović also claimed compensation for non-pecuniary damage, but failed to specify an amount which in his view would be equitable.", "90. The Government considered Mr Maktouf’s claim to be excessive.", "91. Since it is not certain that the applicants would indeed have received lower sentences had the 1976 Code been applied (contrast Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, ECHR 2001 ‑ II, and Scoppola, cited above), the Court holds in the particular circumstances of this case that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.", "C. Costs and expenses", "92. Mr Maktouf further claimed EUR 36,409 for the costs and expenses incurred before the domestic courts. Mr Damjanović was granted legal aid under the Court’s legal-aid scheme in the total amount of EUR 1,545 for his counsel’s appearance at the hearing before the Grand Chamber. He sought reimbursement of additional costs and expenses incurred before the Court in the amount of EUR 13,120.", "93. The Government considered the claims to be unsubstantiated.", "94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 10,000 each, plus any tax that may be chargeable to them, under this head.", "D. Default interest", "95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE BACKGROUND TO THE CASELegislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "Legislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "Legislative history of the judicial appointment procedure in IcelandAct no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "11. As part of the efforts to restructure the judiciary in Iceland, on 19 May 1989 the Icelandic Parliament ( Althingi ) adopted Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level. Amongst the provisions introduced by the Act was the establishment of an Evaluation Committee to evaluate the competencies and qualifications of candidates for the post of District Court judge. Originally proposed in 1976, the introduction of such a committee was – according to the preparatory material in respect of the relevant Act – meant to ensure judicial independence and to increase public confidence in an independent judiciary. The Committee, an independent administrative body, was advisory vis-à-vis the Minister of Justice and was to be composed of three members appointed by the Supreme Court, the District Courts and the Icelandic Bar Association, respectively.", "12. As regards the appointment of Supreme Court justices, the Supreme Court had been designated to act as an advisory body for that purpose at an earlier stage under Act no. 75/1973 on the Supreme Court ( Lög um Hæstarétt Íslands ).", "Judiciary Act no. 15/1998", "13. The Judiciary Act no. 15/1998 (“the former Judiciary Act”), which entered into force on 1 July 1998, originally maintained, as far as is relevant, the Evaluation Committee’s mandate, composition and advisory role. In a judgment delivered on 14 April 2011 in relation to a dispute on the appointment of a District Court judge, the Supreme Court stressed that despite the advisory role of the Evaluation Committee at the material time, the Minister of Justice, when making a proposal for a judicial appointment contrary to the Committee’s recommendation, was nevertheless bound by the principle of appointing the most qualified candidate to a public post and by the duty of “sufficient investigation” under section 10 of the Administrative Procedures Act (see paragraph 115 below for further information on this judgment).", "14. The role of the Evaluation Committee in the judicial appointment process was further reinforced in 2010 through amendments made to section 4a of the former Judiciary Act by Act no. 45/2010 (see paragraph 103 below). Amongst other important changes concerning the composition and the mandate of the Evaluation Committee, including an increase in the number of members to five and the extension of its mandate to cover the appointment of Supreme Court justices, the amendments introduced the rule that when making judicial appointments the Minister of Justice could only appoint candidates who were considered by the Committee to be the most qualified for a given post. In order to appoint a candidate who had not been considered the most qualified by the Committee, the Minister of Justice needed to obtain the approval of Parliament. This was, according to the Act’s preparatory material, intended to further ensure the independence of the judiciary. That material referred to international legal instruments and recommendations on the appointment of judges, and underlined the importance of proper procedure in judicial appointments, in the light of the judiciary’s significant role in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. It furthermore referred to an unwritten fundamental principle of Icelandic administrative law, whereby appointments to public posts had to be based on objective considerations and the most qualified candidate had to be appointed to any public post (see paragraph 114 for further information on the aforementioned unwritten administrative law principle).", "15. In view of the increased role conferred upon the Evaluation Committee in the judicial appointment process through these amendments, the Minister of Justice established a set of rules in 2010 (Rules no. 620/2010) to govern the Committee’s work (see paragraph 107 below for further information on the relevant Rules).", "Establishment of the new Court of Appeal and appointment of its judgesGeneral legal framework", "General legal framework", "General legal framework", "16. On 26 May 2016 the Icelandic Parliament enacted Judiciary Act no. 50/2016 (“the new Judiciary Act”). The new Judiciary Act came into force on 1 January 2018, whereas a number of its temporary provisions, including temporary provision IV concerning the appointment of judges to the Court of Appeal, had entered into force earlier on 14 June 2016.", "17. The new Judiciary Act introduced a new court of second instance in the Icelandic judicial system, namely the Court of Appeal ( Landsréttur ), thereby replacing the former two-tier system – consisting of District Courts and the Supreme Court – with a three-tier system.", "18. Under section 21 of the new Judiciary Act, the Court of Appeal would be composed of fifteen judges. The initial procedure for the selection and appointment of the judges to the new Court of Appeal was regulated under temporary provision IV of the new Judiciary Act. The first paragraph of temporary provision IV provided that the appointment process would be completed by 1 July 2017 and the appointed judges would take up their duties as of 1 January 2018, from which date the Court of Appeal would start operating. Referring to section 4a of the former Judiciary Act (see paragraph 14 above), the first paragraph of temporary provision IV further indicated that an Evaluation Committee would assess the qualifications of the individual candidates for the position of judge at the Court of Appeal and would provide the Minister of Justice with an evaluation report as to which candidates were considered to be best qualified to serve in that position. Pursuant to the relevant paragraph of the temporary provision, which largely reiterated section 4a of the former Judiciary Act (see paragraph 103 below), the Minister of Justice could not appoint a candidate whom the Evaluation Committee had not considered to be amongst the most qualified for the post. It also provided, however, that the Minister of Justice could depart from the assessment of the Evaluation Committee and propose a different candidate (or candidates) who had not been shortlisted by the Committee, on the condition that the proposed candidate(s) had nevertheless been found by the Evaluation Committee to fulfil all the minimum requirements set by section 21 of the new Judiciary Act (see paragraph 105 below) for appointment to the office of Court of Appeal judge, and that the proposal was accepted by Althingi.", "19. The second paragraph of temporary provision IV then provided that for the first-round of appointments to the new Court of Appeal, the Minister of Justice would submit his or her proposals on each proposed candidate to Althingi. If Althingi accepted the Minister’s proposals, they would then be sent to the President of Iceland, who would formally appoint the relevant judges. If Althingi did not accept any one of the Minister’s proposals, the Minister would then have to submit new proposals to Althingi to replace the refused candidates.", "Call for applications", "20. On 10 February 2017 a call for applications was issued for the posts of fifteen judges at the Court of Appeal. The application deadline was set at 28 February 2017. According to the information obtained from the official website of the Icelandic Government, the prospective candidates were requested to provide information on the following matters as part of their applications:", "“(1) Current occupation.", "(2) Education and further education.", "(3) Experience of judicial work.", "(4) Experience of legal practice.", "(5) Experience of administrative work.", "(6) Experience of academic work, e.g. teaching and other academic work and information concerning published, peer-reviewed articles and books, academic lectures, etc.", "(7) Experience of management.", "(8) Experience of additional work which might be useful for judicial post candidates, e.g. preparation of legislation, etc.", "(9) Information on general and special competencies.", "(10) Information concerning character and independence at work.", "(11) Information concerning two former or current colleagues or superiors who can give the committee both orally and in writing information about the work and co-working skills of the candidate.", "(12) Other information which can show the candidate’s professional qualities and skills which are important for Court of Appeal judges.”", "The prospective candidates were moreover informed that applications should be accompanied, as applicable, by:", "“(1) Copies of degree certificates.", "(2) Copies of judgments which the candidate has drafted in the last 12 months, in orally argued court cases.", "(3) Copies of written submissions which the candidate has drafted and orally argued in the last 12 months in court cases.", "(4) Copies of administrative decisions which the candidate has drafted in the last 12 months.", "(5) Published academic books and copies of articles by the candidate. It is requested that peer-reviewed articles be labelled as such.", "(6) Other documents which can demonstrate the candidate’s professional competence to work as a judge at the Court of Appeal.”", "21. Thirty-seven applications were initially received, including one from a certain A.E. However, only thirty-three of those applications were ultimately assessed by the Evaluation Committee, because three candidates withdrew their applications and one candidate did not fulfil the legal requirements for the post.", "Assessment procedure before the Evaluation Committee", "22. At a meeting held on 2 March 2017, the Minister of Justice (who, at the material time, served in that capacity under the title of Minister of the Interior) submitted the applications to the Chairman of the Evaluation Committee [1]. During the meeting, the Minister suggested to the Chairman that the Evaluation Committee provide her with a list of some twenty qualified candidates to choose from.", "23. Following the meeting with the Minister of Justice, the Evaluation Committee set in motion the assessment process. According to the testimony provided by the Chairman of the Evaluation Committee in judicial proceedings brought in the aftermath of the appointment process by two of the shortlisted candidates, namely J.R.J. and Á.H., the Committee conducted its assessment on the basis of an evaluation table devised by it (see paragraphs 60-75 below for further information on these judicial proceedings). It appears from the Chairman’s testimony that each candidate was individually evaluated and given points on the basis of twelve specific assessment criteria [2] noted on the evaluation table, which included education, judicial experience, and experience of legal practice or of public administration. The total number of points received by the candidates then determined their ranking.", "24. The Evaluation Committee interviewed the candidates between 24 and 26 April 2017 and on 2 May 2017, and also sent questionnaires to the persons indicated by the candidates as referees.", "25. On 11 May 2017 the Chairman of the Evaluation Committee submitted the Committee’s draft assessment report to the Minister of Justice. The report included a list of fifteen candidates who were considered by the Committee to be the most qualified for appointment to the Court of Appeal as judges. According to information obtained from the judicial proceedings mentioned in the previous paragraph, the Minister asked once again during this meeting whether the Committee could provide her with a list that contained more than fifteen qualified candidates, upon which the Chairman showed the Minister the evaluation table that they had worked on and from which the list of the fifteen most qualified candidates had been generated.", "26. On the same day, the Committee sent the draft assessment report to the candidates for their comments.", "27. Seventeen candidates sent in comments, which were discussed at the Committee’s meetings on 18 and 19 May 2017.", "Final assessment report prepared by the Evaluation Committee", "28. On 19 May 2017 the Evaluation Committee submitted its assessment report to the Minister of Justice, which had been finalised after the review of the comments received from the candidates in response to the draft report. According to the information provided in the report, while the comments received from the candidates had given rise to some changes in the Committee’s assessment, they had not affected its recommendations regarding the fifteen most qualified candidates.", "29. According to the testimony provided by the Minister of Justice before the District Court in a different set of judicial proceedings brought in the aftermath of the appointment process by two other candidates, namely E.J. and J.H., the Committee also submitted to the Minister on 19 May 2017, along with the assessment report, the evaluation table noted in paragraph 23 above, which showed the number of points allocated to each of the thirty ‑ three candidates under each evaluation category and their rankings (see paragraphs 91-96 below for further information on these judicial proceedings). The Government argued in their observations that the assessment table had been submitted to the Minister of Justice at a later date – that is on 28 May 2017, together with the Evaluation Committee Chairman’s letter to the Minister of Justice (see paragraph 40 below) – but they did not present any evidence in support of their argument.", "30. The 117-page assessment report was divided into six chapters. The first chapter stated the names of the candidates, the second chapter set out the assessment criteria, the third chapter explained the procedure adopted by the Committee in conducting its assessment, the fourth chapter provided general information about the candidates, and the fifth chapter contained the evaluation of the candidates. The last chapter was divided into twelve sections – corresponding to the twelve different assessment criteria noted in paragraph 23 above – where the candidates were evaluated at the end of each section according to their qualifications. In the conclusion part of the report, the Evaluation Committee provided the following explanations on its assessment process:", "“... The Evaluation Committee’s conclusion is based on a comprehensive assessment of the applicants’ merits, in which the most important aspect is that the applicants have a broad, general legal education, knowledge and ability. In assessing the extent to which applicants’ professional experience is utilised in the work of judges of the Court of Appeal, it is most important that they have solid experience of judicial work, legal practice, and administrative work related to the resolution of disputes. It also matters whether the applicants’ experiences have been varied, such as whether they have experience in applying legal rules in different areas of law. In addition, the experience of the first few years of each job is given relatively the greatest weight in this regard, so there is less reason to differentiate between applicants with lengthy work experience because one of them has held a job longer than the other.", "... In assessing general competence, and the ability to prepare and draft judgments and to preside in court, the Committee has given consideration to comments of referees, application documents, other relevant documents and the interviews held with the applicants.”", "31. The Committee found in its report that all thirty-three candidates that it reviewed were legally qualified to serve as Court of Appeal judges. However, in the conclusion of the report, it proposed a list of fifteen candidates whom it deemed to be the most qualified for the post of judge at the Court of Appeal. The assessment report, as opposed to the evaluation table on which the assessment was based, did not provide any ranking of those fifteen candidates; yet it stated explicitly that they were all more qualified for the post of judge at the Court of Appeal than the remaining eighteen candidates. A.E. was not among the fifteen candidates that the Committee considered to be the most qualified. It appears from the evaluation table attached to the assessment report that A.E. was ranked 18th among the thirty-three candidates [3].", "32. According to information that emerged during the first set of judicial proceedings brought by the candidates J.R.J. and Á.H. mentioned above (see paragraph 23), on 19 May 2017 the Evaluation Committee also submitted a memorandum to the Minister of Justice on the procedure by which it had evaluated the comments made by the candidates in response to the draft assessment report (see paragraphs 27 and 28 above).", "Procedure before the Minister of Justice", "(a) Preliminary exchange with Parliament regarding the appointment procedure", "33. By email of 12 May 2017, the Secretary-General of Parliament sent a memorandum to the Minister of Justice and the Speaker of Parliament on the procedure to be followed for the judicial appointments to the Court of Appeal and the role of Parliament in the process. The memorandum noted at the outset that the procedure before Parliament was without precedent and not entirely clear, but that it would be conducted in accordance with section 45(5) of the Parliamentary Procedures Act no. 55/1991 (see paragraph 109 below) and then provided further details in relation to the proposed procedure. Accordingly, the Minister of Justice would submit to Parliament one proposal for appointment to each of the fifteen posts. The Minister was expected to provide grounds for her proposals, stating in particular if she intended to deviate from the assessment of the Evaluation Committee. The Minister’s proposals would then be sent to the Constitutional and Supervisory Committee of Parliament (hereinafter “the CSC”), which would give its opinion on those proposals in a manner that enabled Parliament to decide on each proposed candidate. The memorandum stated that no changes could be made to the Minister’s proposals by Parliament; if any one of the proposals was not accepted by Parliament, then the procedure would have to be repeated.", "34. By email of 16 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice informed legal advisors from the Prime Minister’s office, the Ministry of Justice and the Ministry of Finance that the Minister had approved the proposed procedure set out in the memorandum of the Secretary-General of Parliament.", "(b) Proposal of the Minister of Justice concerning the appointments to the Court of Appeal", "35. In an email dated 26 May 2017, the Minister of Justice sent to two in ‑ house legal advisors the draft of the letter that she was planning to submit to Parliament concerning the appointments to the Court of Appeal and asked them to provide feedback. While the draft letter was not included in the case file for examination by the Court, it appears from further correspondence between one of the legal advisors and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraph 37 below) that the Minister intended to depart from the list prepared by the Evaluation Committee.", "36. In their response on the same day, the legal advisors informed the Minister that they had inserted some comments and suggestions in the draft letter. According to this email, their main comment was that if the Minister intended to change the Committee’s list of proposed candidates, such change had to be specifically reasoned on the basis of the qualifications of the relevant candidates. They further suggested informing the candidates of the changes, at the latest before the list was submitted to Parliament or before it was processed by it.", "37. On 28 May 2017 one of the legal advisors that the Minister had consulted sent an email to the ad hoc Permanent Secretary of the Ministry of Justice, reiterating the views noted above. He stated mainly that if the Minister of Justice considered that the Evaluation Committee’s assessment procedure or the outcome of its assessment had been flawed, then she (the Minister) had two options. The first option would be to refer the matter back to the Committee for reassessment. As a second option, the Minister could choose to remedy the flaws herself, which would require her to evaluate all the candidates in the light of the “Minister’s objectives” (the expression used in the email) and the relevant legal criteria. In such circumstances, a substantive assessment would have to be made of the qualifications of each applicant based on new grounds. In the legal advisor’s opinion, the standard procedure in these circumstances would be to request the Committee to conduct a new evaluation. He further noted that the Minister’s decision in respect of judicial appointments was an administrative act and therefore had to comply with the Administrative Procedures Act no. 37/1993 (see paragraph 108 below). He lastly proposed that it might be wise to inform the candidates about any change in the emphasis placed on one of the assessment criteria and to give them an opportunity to present new information that could be relevant for the fresh evaluation.", "38. It appears from the text of the judgments delivered by the District Court on 25 October 2018 in respect of the candidates E.J. and J.H. (see paragraphs 91-96 below) that on 28 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice sent an email to the Minister of Justice concerning the latter’s proposals for appointments to the Court of Appeal. According to the Permanent Secretary, who had reviewed the draft of the Minister of Justice’s proposal, the Minister had three options before her:", "“1. It is possible that the Minister may declare tomorrow [to Parliament] that she is unhappy with the criteria on which the Evaluation Committee based its conclusions, and propose that the entry into force of the [new Judiciary Act] be postponed until 1 October [2017]... and that the Evaluation Committee reassess the issue based on criteria which the Minister emphasises with proper reasoning ...", "2. That the Minister may send a letter to Althingi tomorrow with proposals that envisage amendments [to the Evaluation Committee’s list] based on reasoning concerning the increased weight of judicial experience. The Minister [would thus be] repairing the faults with an independent assessment, which means that the same evaluation has to be carried out in respect of all the candidates based on the reasonable and legitimate criteria upon which the Minister proceeds. This means that a substantive evaluation has to be made of the competencies of each candidate based on the new criteria. It would be best to give increased weight to the judicial experience and refer to that in respect of the whole group ... We could also say that with this amendment, the gender balance is changed, without referring to those [particular] considerations in the [Minister’s] proposal.", "3. The Minister may send [her] unamended list to Althingi (which requires work from the Minister to choose the new names, with legitimate reasoning) – not an attractive option –.”", "39. In the meantime, on 27 May 2017 the Minister of Justice asked the Evaluation Committee to provide further information and documents on its evaluation of the thirty-three candidates, and inquired in particular as to whether the Committee had discussed the grounds on which the weight of each assessment criterion had been decided, and whether any documentation relating to that decision existed. She also requested information on whether the Committee had discussed its decision to find only fifteen candidates to be the most qualified for the fifteen posts, in the light of, inter alia, Act no. 10/2008 on Equality.", "40. By a letter of 28 May 2017, the Chairman of the Evaluation Committee provided the Minister of Justice with details as to its evaluation procedure. He informed the Minister about the manner in which the Committee had given weight to each of the twelve pre-determined assessment criteria – which had been the same since the amendments introduced by Act no. 45/2010 (see paragraph 14 above) – and explained that the same method and approach had been used in all judicial appointments during his four years as Chairman of the Committee. He stated that, following the same approach, all candidates had been evaluated separately under each criterion, and the points they received were noted in the assessment table; these points then determined the candidates’ overall ranking. He stressed that the Committee had chosen to apply the same weight to each individual criterion as that applied in previous appointment procedures, noting in particular the importance of maintaining consistency in such matters. According to the Chairman, changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided.", "41. As regards the Minister’s second question as to why only fifteen names had been proposed in the Committee’ report, the Chairman explained that the Committee had not found that there had been several candidates of equal merit, nor had it encountered any difficulties in determining whether one candidate was more qualified than another. In this instance, fifteen positions had been advertised and the Committee had found that fifteen of the candidates under its review had been more qualified than the remaining ones for those positions. It had, therefore, not been necessary to propose a list of more than fifteen candidates in its report. The Committee’s evaluation table had clearly shown the ranking of the individual candidates. The Chairman continued that the Minister had asked to be able to choose from among, for example, twenty candidates for the fifteen vacant posts. If this approach were to be followed, the candidate ranked 20th in the Committee’s evaluation table could be chosen over candidates ranked 5th, 10th and so forth. According to the Chairman, this approach would contradict the purpose of Act no. 45/2010 as it had been described in the preparatory material (see paragraph 14 above). The intention behind the legislative framework requiring a separate expert committee to assess candidates for judicial posts, as opposed to leaving that assessment to the Minister of Justice alone, had been to safeguard judicial independence in the light of developments in other European countries.", "42. Lastly, with regard to the reference made by the Minister to Act no. 10/2008 on Equality, the Chairman stated that the Committee did not evaluate qualifications according to the gender of the candidate. Moreover, Act no. 10/2008, which was of relevance to the Committee’s work under Rules no. 620/2010, did not allow discrimination based on gender, whether direct or indirect. Such gender ‑ based considerations could be entertained by the Minister only if two or more candidates had been considered as equally qualified for the post by the Evaluation Committee, which was not the case in the present circumstances.", "Procedure before Parliament", "(a) Submission of the Minister of Justice’s list of candidates to Parliament", "43. In a letter dated 29 May 2017, the Minister of Justice presented to the Speaker of Parliament her proposal of fifteen candidates for appointment as Court of Appeal judges. The proposal contained only eleven of the fifteen candidates whom the Evaluation Committee had found to be the most qualified for the post of judge at the Court of Appeal. The candidates ranked 7th, 11th, 12th and 14th [4] in the Committee’s evaluation table had been removed from the list, and replaced with four other candidates ranked 17th, 18th, 23rd and 30th [5]. The Minister’s proposal therefore included A.E., who had been ranked 18th by the Evaluation Committee (see paragraph 31 above).", "44. In a separate letter sent on the same day, the Minister presented arguments for her proposals and the changes she had made in the Evaluation Committee’s list. The Minister stated at the outset that, in its comprehensive report, the Evaluation Committee had relied on the assessment factors set out in Rules no. 620/2010 (governing the work of the Committee), and the weight ascribed to each assessment factor by the Committee had had a decisive effect on the ranking of each applicant. The Minister was, however, of the opinion that the Evaluation Committee had not given “judicial experience” the weight that the post of judge at an appellate court required. The Minister further argued that the assessment of candidates for judicial posts was not an exact science; it would not be possible to separate a qualified candidate from an unqualified one by a difference of 0.025 points on a scale of 1 to 10, and nothing in Rules no. 620/2010 had called for such working practices. After reviewing the assessment report, the candidates’ comments on that report and the working documents presented to her, the Minister had concluded that a number of other candidates with many years of judicial experience should also have been included on the Evaluation Committee’s list. She thus stated that she considered a total of twenty-four candidates to be eligible for the judicial posts, including those proposed by the Committee, and that she had drawn up her list of fifteen candidates on the basis of the principles described above. The Minister did not provide any further explanation as to why she had decided specifically to replace the candidates ranked 7th, 11th, 12th and 14th with those ranked 17th, 18th, 23rd and 30th. Nor is there any information before the Court as to the names of the twenty-four candidates considered eligible by the Minister of Justice.", "(b) Procedure before the Parliamentary Constitutional and Supervisory Committee", "45. Upon receipt of the Minister’s proposals, the CSC held a meeting on 29 May 2017. It invited the Minister of Justice to the meeting, as well as the ad hoc Permanent Secretary of the Ministry of Justice, a number of experts, representatives from the Icelandic Bar Association and the Icelandic Judges’ Association, the Parliamentary Ombudsman and the Chairman of the Evaluation Committee. Although the Court is not in possession of the minutes of this meeting, it transpired from the judicial proceedings brought subsequently by J.R.J. and Á.H. that the Minister of Justice had met with some criticism during this meeting for having failed to provide justification for each of the candidates that she had proposed to Parliament.", "46. On 30 May 2017 the CSC held three meetings on the proposal of the Minister of Justice for the appointment of judges to the Court of Appeal. At the first meeting, B.N., who was the Chairman of the CSC at the material time, declared that he was the husband of one of the proposed candidates, namely A.E., and therefore stood down.", "47. At one of the meetings held on 30 May 2017, the Minister of Justice presented a memorandum to the CSC to further substantiate her proposals. In the memorandum, the Minister reiterated her view that more weight should be accorded to judicial experience in the assessment of the candidates for an appellate court, including successful courtroom experience, and stated that she had also taken into account the Equality Act (no. 10/2008) in her proposal [6]. She continued to briefly outline the careers and qualifications of the four candidates whom she had added to the proposal [7]. She concluded with the following remarks:", "“As described above, it is the substantial judicial experience of these [four] candidates which motivated the Minister’s proposal, in addition to the consideration which must be given to the Equality Act.", "The Minister is bound to propose those who are most qualified for the post of judge at the Court of Appeal. In this instance, the Minister considers that the aforementioned four candidates are also the most qualified for the post of judge at the Court of Appeal. The Minister’s assessment is based on a thorough examination of the documents of the case, including the applications, the Evaluation Committee’s report, the candidates’ comments, and the working documents of the Committee, and is made in light of the legitimate objectives discussed above.", "The Minister has not raised any objections regarding the Evaluation Committee’s preparation of this matter. She believes that the Evaluation Committee has shed sufficient light on the matter and that a satisfactory investigation has been performed for the assessment of the factors that constitute the grounds for the conclusion. The Minister considers it appropriate that more weight be given to judicial experience than that given by the Evaluation Committee. The Committee has already evaluated the candidates on the basis of this criterion and all the information about the judicial experience of the candidates is contained in the file. No new information or data has served as a basis for the Minister’s proposal.”", "48. On 30 May 2017 the CSC also met with the Chairman of the Evaluation Committee, as well as representatives from the Icelandic Bar Association and the Icelandic Judges’ Association and two academics, who answered questions put by the members of the CSC. At the close of the meeting, one of the members of the CSC – who was a member of parliament (MP) from an opposition party – requested the following statement to be entered in the official records: “In view of the limited time allowed to the Committee [the CSC], it is clear that the matter will not be dealt with in a sufficiently professional manner, and this will affect public confidence in the courts.”", "49. On 31 May 2017 the majority of the CSC, divided along party lines, proposed a parliamentary resolution, recommending that Parliament approve the Minister’s proposal. The CSC held at the outset that under the Constitution, the role of the judiciary was to supervise the other holders of State powers, and that evaluation committees, such as that which had been set up in Iceland, served the purpose of limiting the power of the executive branch in the appointment of judges, by providing professional opinion on the qualification of candidates. If the Minister of Justice wished to depart from the list of candidates proposed by the Evaluation Committee, she had to present arguments for her proposal. Moreover, the choice had to be objective and the most qualified person had to be selected for the position. The CSC noted that the Evaluation Committee had considered that all thirty-three candidates fulfilled the legal requirements to be eligible for the relevant office. On this basis, and upon a discussion of the grounds underlying the Minister’s proposal for appointment of judges to the Court of Appeal, including the deviations from the Committee’s proposal, the CSC stated that it accepted the list proposed by the Minister. It stressed that Parliament’s role in this process should be limited to reviewing whether the proper procedure had been applied by the Minister, whether an appropriate comparison of the candidates had been undertaken and whether the Minister’s evaluations had been objective.", "50. The minority, on the other hand, recommended that the proposal be dismissed, as they considered the reasons given by the Minister to be insufficient, in particular as to why she had chosen to depart from the Committee’s proposal. They argued, inter alia, that the Minister had not made it clear how the four candidates removed from the original list and the four added ones had been evaluated and compared. Moreover, the minority expressed serious reservations regarding the Minister’s compliance with principles of administrative law, including the requirement of sufficient investigation, the right of the candidates to comment and the general principle of domestic law that only the most qualified candidates should be selected for office, referring to the Supreme Court’s judgment of 14 April 2011 in case no. 412/2010 (see paragraph 13 above and 115 below). They furthermore claimed that the CSC had been unable to obtain sufficient expert opinion on the matter and had had insufficient time to review the proposal.", "(c) Vote in Parliament", "51. The resolution proposed by the majority of the CSC was scheduled to be discussed at the parliamentary session of 1 June 2017. It appears from the letter that the Secretary-General of Parliament sent to the President of Iceland on 7 June 2017 (see paragraph 57 below) that, prior to the start of the session, the Speaker of Parliament consulted with the chairpersons of the different parliamentary groups and some individual MPs regarding the voting procedure, and that the consultations revealed that all MPs would vote in the same manner on every single proposal.", "52. After opening the session, the Speaker formally informed the MPs that the candidates proposed by the Minister of Justice for appointment as Court of Appeal judges could be voted on individually or, if there were no objections, the proposals in respect of all fifteen candidates could be put to a single vote. Since there were no objections from any MPs, it was decided to proceed to a single vote.", "53. Accordingly, on 1 June 2017 Parliament first voted on and rejected the CSC minority’s proposal to dismiss the list prepared by the Minister of Justice by 31 votes to 30, strictly along party ‑ political lines. This was followed by a vote on the majority’s proposal, which was adopted – also along party-political lines –, with 31 MPs in favour, all of whom were members of the political parties composing the majority in the coalition government, and 22 MPs against, all members of opposition parties. A total of 8 MPs abstained, none of whom were members of the governing parties.", "54. In a letter of 2 June 2017, the Minister of Justice was informed that at its session on 1 June 2017 Parliament had approved the list of fifteen candidates that she had proposed to be appointed as Court of Appeal judges. The letter was signed by the Speaker and the Secretary-General of Parliament.", "55. On the same day, the Minister of Justice sent a letter to the Permanent Secretary of the Prime Minister’s Office, who was acting at that time in her capacity as Secretary to the State Council, and requested that presidential letters of appointment be issued in respect of the candidates who had been selected as Court of Appeal judges.", "Appointment of the Court of Appeal judges by the President of Iceland", "56. On 6 June 2017 the Secretary to the President of Iceland requested information from Parliament on the procedure adopted by it for the selection of judges to be appointed to the Court of Appeal, the events leading up to the voting and the discussions held in Parliament, in the light of the relevant requirements of temporary provision IV to the new Judiciary Act and the Parliamentary Procedures Act.", "57. By a letter of 7 June 2017 the Secretary-General of Parliament gave the President an account of the procedure before Parliament, and indicated that the voting had been lawful and in conformity with Parliament’s statutory and customary procedures. The letter also stated the following:", "“... It should be emphasised that the provision [temporary provision IV] does not contain further instructions on how the matter should be handled in Althingi. The matter is therefore governed by parliamentary procedure and its customary implementation. However, it is clear from the temporary provision, ..., that Althingi will, or may, take a stand on each proposed candidate [separately] for the position of judge if it so wishes.", "It is a customary practice and an old tradition for a number of issues to be taken together during a vote if it is clear that everyone will vote in the same manner or when there is no proposal for amendments on individual matters, ... This is referred to as the sections being ‘taken together’ and the voting, or its conclusion, applies to each section. Generally, the right of MPs to request a ‘separate vote’ for a specific article, articles, sections or even individual words is respected, ...", "...", "Particularly thorough preparation was made for the vote on Thursday, 1 June, ... The Althingi Secretariat prepared the vote, and before the parliamentary meeting commenced, the Speaker of Parliament sought the opinions of the leaders of the parliamentary groups and other MPs concerning the voting arrangements. The parliamentary document from the Constitutional and Supervisory Committee sets out a numbered proposal for each individual, so that the vote could be held for each person if this was desired. It was disclosed in conversations between the Speaker and leaders of parliamentary groups that MPs would all vote in the same way for each individual in the proposal and this view was confirmed by comments from various MPs when voting at the Althingi meeting. The Speaker of Althingi, furthermore, repeated formally at the meeting, at the time the voting commenced, that it [the vote] could be held for each candidate separately. There were, however, no objections to having the proposals presented as a whole, and no request for the Committee’s proposals to be voted on separately. For instance, it could have been expected that a separate vote would be requested for those four candidates who had been included in the [Minister’s proposal], ..., but that had not been the case.", "...", "The conclusion of the Secretariat is therefore that the voting is fully legitimate and in accordance with the statutory and customary procedures of Althingi, to reply specifically to the query from the Office of the President of Iceland. The principal intention and requirement of the aforementioned temporary provision ... is to enable Althingi to take a position on each prospective judge, reject individual proposals by the Minister, and not to be faced with the obligation of having to approve or reject all proposals. When dealing with this matter in Althingi, this intention was respected; ...”", "58. On 8 June 2017 the President of Iceland signed the letters of appointment in respect of the fifteen judges of the Court of Appeal, as proposed by the Minister of Justice and accepted by Parliament. The letter of appointment sent to A.E. read as follows:", "“The President of Iceland makes known: that in accordance with the Judiciary Act, I hereby appoint [A.E.] to the position of judge of the Court of Appeal, effective as of 1 January 2018. She shall respect the State’s constitutional law and Icelandic laws in general, all in accordance with a solemn declaration by her.", "...”", "59. On the same day, the President of Iceland issued a statement referring to the correspondence between Parliament and his Office (see paragraphs 56 and 57 above). The President stated that no errors had been committed in the preparation and arrangement of the voting on 1 June 2017 and that the voting procedure had been in conformity with the law, parliamentary conventions and procedures.", "Proceedings before national courts to challenge the lawfulness of the appointment procedure", "60. In June 2017 J.R.J. and Á.H. – who were among the fifteen candidates that the Evaluation Committee had considered as the most qualified to be appointed to the bench of the Court of Appeal, but had been removed from the final list proposed to Parliament by the Minister of Justice – brought separate judicial proceedings in the District Court of Reykjavik against the Icelandic State. J.R.J. and Á.H. both requested in the first place the annulment of the Minister’s decision of 29 May 2017 not to include them in the list of fifteen candidates proposed to Parliament for appointment to the Court of Appeal. They further requested the annulment of the decision not to include them on the list of fifteen candidates proposed to the President of Iceland for appointment after the vote in Parliament. In addition, they demanded compensation for pecuniary damage and 1,000,000 Icelandic krónur (ISK, approximately 9,000 euros (EUR) at the material time) for personal injury (non-pecuniary damage). They submitted that the Minister’s decision not to propose them as Court of Appeal judges had been unlawful, because she had failed to give sufficient grounds for her departure from the Evaluation Committee’s proposal and to demonstrate her proposal’s compliance with the requirement to appoint the most qualified candidate; they also claimed that she had not sufficiently investigated the matter. In their view, these violations could not be rectified by Parliament’s approval of the Minister’s proposal.", "61. In both cases, the Icelandic State requested the District Court of Reykjavik to dismiss the claims of J.R.J. and Á.H. as inadmissible for being unsubstantiated, or in the alternative, to reject those claims on the merits. It reasoned that the administrative decision not to propose them as Court of Appeal judges was not of such a nature as to be subject to annulment, that the appointing power lay not with the Minister of Justice but with Parliament and the President, and that the plaintiffs’ claims for damages were insufficiently substantiated.", "62. On 7 July 2017 the District Court dismissed the plaintiffs’ claims for annulment and pecuniary damage as inadmissible by way of a preliminary decision. The District Court held that the claim for annulment of the decision not to propose the plaintiffs as Court of Appeal judges was not one which could be adjudicated, as it was unclear what effects it would have if upheld, given that a finding for the plaintiffs in this respect would not annul the appointment of the fifteen judges proposed to Parliament. The District Court furthermore agreed with the State that the plaintiffs’ claims for pecuniary damage were insufficiently substantiated.", "63. On 10 July 2017 both J.R.J. and Á.H. appealed against the decisions of the District Court before the Supreme Court. It appears that in their appeal requests, J.R.J. and Á.H. had explained that they did not as such demand any change to the situation of those fifteen judges already appointed to the posts, but only the invalidation of the Minister’s decision to sideline them. They stated that it was not for them to decide what such invalidation might lead to, in terms of its effects on the fifteen appointed judges.", "64. On 31 July 2017 the Supreme Court upheld the District Court’s judgments in both cases, in so far as they concerned the plaintiffs’ requests for the annulment of the relevant decisions in which their names were not included among the list of fifteen candidates proposed to Parliament and the President, respectively, for appointment to the Court of Appeal. The Supreme Court held, in particular:", "“... it is not in the power of the courts to decide who should be appointed to the office of judge of the Court of Appeal. Bearing this in mind, and having received the [appellants’] ... explanation as to [the nature of their] claim, which will serve as a basis here, the [appellants] have not demonstrated that [they] have a lawful interest in obtaining a court ruling on the invalidity of decisions by the Minister of Justice.”", "The Supreme Court, however, annulled the District Court’s decisions to dismiss the claims of J.R.J. and Á.H. for pecuniary damage. The cases were therefore remitted to the District Court for a fresh examination of that matter.", "65. On 15 September 2017 the District Court found in favour of the Icelandic State and rejected the claims of J.R.J. and Á.H. for pecuniary and non ‑ pecuniary damage. According to the District Court, the plaintiffs had sufficiently proven that the procedure employed by the Minister had not been in accordance with the law. That said, the plaintiffs had failed to prove that they would necessarily have been appointed as Court of Appeal judges had the proper procedure been applied and that they had, therefore, sustained damage. The District Court also found that the voting procedure in Parliament had not breached the law.", "66. On 19 September 2017 J.R.J. and Á.H. appealed to the Supreme Court against the judgments of the District Court.", "67. On 19 December 2017 the Supreme Court upheld the District Court’s conclusions regarding the claims for pecuniary damage. However, it granted the applicants ISK 700,000 each (approximately EUR 5,700 at the material time) in compensation for non-pecuniary damage.", "68. In its judgments the Supreme Court addressed at the outset the Icelandic State’s argument that the plaintiffs had been misguided in challenging the decisions of the Minister of Justice in respect of the judicial appointments at issue, as it was the Icelandic Parliament, and not the Minister, which had the final say in deciding which candidates would be presented to the President of Iceland for appointment. In this connection, the Supreme Court reiterated that although the President of Iceland was formally the highest State official under the Constitution, in practice the Ministers were the supreme holders of executive power according to a well ‑ rooted constitutional tradition. The arrangements made under the former Judiciary Act and the new Judiciary Act entailing the involvement of the Evaluation Committee and Parliament in the process of the appointment of judges did not change this constitutional tradition. Accordingly, it was the Minister of Justice, and not Parliament, which held the power to determine who would be proposed to the President of Iceland for appointment as judge to the Court of Appeal. The Icelandic State’s argument to the contrary was therefore rejected.", "69. The Supreme Court further reiterated in both judgments the general principle of Icelandic administrative law that when making appointments to public posts, the executive was bound by the rule that only the most qualified candidates had to be selected. It referred in this connection to two of its earlier judgments, delivered on 14 April 2011 and 5 November 1998, respectively. According to the first of those judgments, which concerned a dispute over the lawfulness of an appointment of a District Court judge, section 10 of the Administrative Procedures Act on the rule of investigation required the authorities to ensure that decisions concerning appointments to public posts were not made until all the relevant and necessary information had been obtained. In the second judgment, the Supreme Court had held that the power of a Minister in respect of appointments to public posts was limited by the applicable laws and general principles of administrative law concerning such appointments and the evaluation of the competencies of the candidates. The Supreme Court stated that in the context of judicial appointments, the rule of investigation under section 10 of the Administrative Procedures Act had been transferred from the Minister to the Evaluation Committee following the establishment of such committee by Act no. 92/1982.", "70. Turning to the specific facts before it, the Supreme Court observed at the outset that in the proposal that she had made to Parliament, the Minister of Justice had decided to retain eleven of the fifteen candidates which the Evaluation Committee had deemed to be the most qualified to be appointed as Court of Appeal judge. The Supreme Court noted that the qualifications of those eleven candidates had been assessed by the Evaluation Committee, which clearly possessed the expertise to assess such matters, and had conducted its assessment in accordance with the relevant domestic laws. In these circumstances, the procedure followed in respect of those eleven candidates, including the single vote held before Parliament, did not present any irregularities, provided that an opportunity had been made available to vote separately on each candidate upon request.", "71. The Supreme Court went on to find, however, that to the extent that the Minister of Justice had decided to propose to Parliament to depart from the Evaluation Committee’s assessment in respect of four candidates, as the law had permitted, her proposal had to be based on an independent investigation of all the elements necessary to substantiate it in accordance with section 10 of the Administrative Procedures Act (see paragraph 108 below). Accordingly, the Minister had to ensure that her own investigation and assessment were based on expert knowledge, on a par with that of the Evaluation Committee, and that the instructions concerning the evaluation procedure as set out under Rules no. 620/2010 on the work of the Evaluation Committee – rules that had been put in place by the Ministry of Justice to guide the work of the Committee (see paragraph 107 below) – were taken into account in her assessment. According to the Supreme Court, this was all the more important given that under the relevant law, the assessment report prepared by the Evaluation Committee limited the powers of the Minister of Justice and prohibited her from proposing a candidate who was not considered by the Committee to be the most qualified to the post of judge, unless the Minister obtained the consent of Parliament. The Supreme Court stressed that when making appointments to judicial posts, the decision taken by the Minister did not involve a post accountable to the Minister, but rather concerned members of a different branch of the State’s government which had a monitoring role vis-à-vis the other branches and whose independence was guaranteed by Article 61 of the Constitution and section 24 of the former Judiciary Act.", "72. On the basis of these considerations, the Supreme Court held that, having regard to her duty of investigation under section 10 of the Administrative Procedures Act, the Minister of Justice should, at the very least, have compared the competencies of the four candidates that she had added to the list with the four that she had removed. Depending on the outcome of such comparison, the Minister should then have given due reasons for her decision to seek Parliament’s approval for her proposal to depart from the Committee’s conclusions. Only in this manner could Parliament have sufficiently served its role in the process and taken a position on the Minister’s assessment. Accordingly, and in keeping with the requirements of temporary provision IV of the Judiciary Act no. 50/2016, the Minister of Justice had been bound to present an independent proposal for each of the four candidates who had not been among the fifteen listed by the Evaluation Committee. In the Supreme Court’s opinion, this view was also supported by the second paragraph of temporary provision IV, under which the non-acceptance by Parliament of any of the candidates proposed by the Minister of Justice would require the Minister to submit new proposals for Parliament’s acceptance.", "73. Having regard to the information and documents presented before it, the Supreme Court found that the Minister of Justice had not conducted an independent investigation and assessment comparable to that of the Evaluation Committee when departing from that Committee’s opinion. The inadequate character of the investigation conducted by the Minister of Justice prevented her from reaching a different decision on the competencies of the candidates from that previously reached by the Evaluation Committee on the basis of the same data. Furthermore, she could not rely on considerations of gender under the Equality Act no. 10/2008 as those were only applicable in cases where two candidates of different genders had been considered equally qualified. The Supreme Court noted that neither in its initial letter addressed to Parliament on 29 May 2017, nor in the memorandum sent to the CSC the next day, had the Minister substantiated her proposals in a manner that had satisfied the minimum requirements noted above. The Minister of Justice had therefore breached the requirements of section 10 of the Administrative Procedures Act in the context of the procedure for appointment of Court of Appeal judges.", "74. The Supreme Court added that the deficiencies in the procedure before the Minister of Justice had in turn resulted in a flawed procedure before Parliament, as those deficiencies were not rectified when the matter came to a vote in Parliament.", "75. As to the plaintiffs’ claims for non ‑ pecuniary damage under section 26 of the Tort Act no. 50/1993 (see paragraph 113 below), the Supreme Court stated that although nothing suggested that the Minister had acted with the intention of causing injury to their reputation and personal honour, she should nevertheless have been aware that her actions could be to the detriment of the plaintiffs’ reputation and thus cause them personal injury. The Minister had, however, acted “in complete disregard of this obvious danger” (“ Þrátt fyrir þetta gekk ráðherrann fram án þess að skeyta nokkuð um þessa augljósu hættu ”).", "THE CIRCUMSTANCES OF THE CASEThe criminal proceedings against the applicant", "The criminal proceedings against the applicant", "The criminal proceedings against the applicant", "76. The applicant was born in 1985 and lives in Kópavogur.", "77. On 31 January 2017 the applicant was indicted for a violation of the Traffic Act no. 50/1987, on the charges of driving without a valid driving licence and driving under the influence of drugs.", "78. On 23 March 2017 the District Court of Reykjanes convicted the applicant on the charges against him. The case was processed summarily as the applicant accepted the charges and pleaded guilty. The applicant was sentenced to seventeen months’ imprisonment and his driving licence was revoked for life.", "79. On 6 April 2017 the applicant appealed against the judgment to the Supreme Court. He did not as such challenge his conviction, but requested his sentence to be reduced. The public prosecutor requested that the judgment of the District Court be upheld. Since the case was not examined by the Supreme Court before the end of 2017, it was transferred to the newly established Court of Appeal in accordance with section 78(1) of Act no. 49/2016 on Amendments to the Criminal Procedure Act and Civil Procedure Act.", "80. On 29 January 2018 the Court of Appeal notified the applicant and the prosecution of the date of the trial (6 February 2018), as well as the composition of the court that would be hearing the case. According to this letter, the Court of Appeal would be composed of three judges, including A.E., who was one of the four judges who had been proposed by the Minister of Justice for appointment to that court (see paragraph 43 above).", "81. On 2 February 2018 the applicant’s defence counsel requested that A.E. withdraw from the case, on account of the irregularities in the procedure by which she, and the other three candidates in question, had been appointed as judges to the Court of Appeal.", "82. On 6 February 2018, at a preliminary hearing before the Court of Appeal, the applicant formally lodged a procedural motion requesting that A.E. stand down from the case as required by section 6 (g) of the Criminal Procedure Act no. 88/2008 (see paragraph 110 below). Referring to his right to have his case adjudicated by a qualified, impartial, independent and lawfully constituted court, and to the relevant requirements in this respect under Articles 59 and 70 § 1 of the Icelandic Constitution and Article 6 § 1 of the Convention, the applicant claimed that he would not be given a fair trial before an impartial and independent tribunal established by law if A.E. were to participate in the proceedings, owing to the irregularities in the procedure leading to her appointment as judge of the Court of Appeal. In support of his claim, the applicant referred to the decision of the Court of Justice of the European Free Trade Association States (EFTA Court) of 14 February 2017 in case E-21/16 and the judgment of the General Court of the European Union (EU) of 23 January 2018 in case no. T ‑ 639/16 P (see paragraphs 142 and 132 below, respectively). He argued that according to those rulings, a judge whose appointment had not been in conformity with the law could not be considered to have been fully vested with judicial powers and his or her judgments would therefore have no validity. Having regard to the Supreme Court’s findings of 31 July and 19 December 2017 on the irregularities in the procedure for the appointment of Court of Appeal judge (see paragraphs 64-75 above), any judgment delivered by the Court of Appeal in his case with the participation of A.E. would therefore lack validity.", "83. On 22 February 2018 the Court of Appeal, with the participation of A.E., rejected the applicant’s motion for A.E. to withdraw from the case. The court reasoned that A.E. had fulfilled the general eligibility criteria for appointment, had been appointed for an indefinite term and had enjoyed independence in that post as guaranteed by the Constitution and the new Judiciary Act. The Court of Appeal did not, therefore, agree that there were any events or circumstances, as indicated in section 6 (g) of the Criminal Procedure Act, that would give rise to a justifiable doubt as to the eligibility of A.E. to properly handle the case. The applicant appealed against that decision on 24 February 2018.", "84. On 8 March 2018 the Supreme Court dismissed the appeal on the ground that the conditions for appeal had not been fulfilled for procedural reasons. It held that, whereas the applicant’s main request was that A.E. should withdraw because of her unlawful appointment, he had incorrectly presented that claim as a “recusal request”.", "85. Following the Supreme Court’s dismissal of the applicant’s request for the withdrawal of A.E., the proceedings before the Court of Appeal continued with the participation of A.E.", "86. In a letter of 13 March 2018, the applicant changed his pleadings before the Court of Appeal. His primary claim was that he be acquitted, on the grounds that the appointment of Court of Appeal judges had been in violation of Articles 59 and 70 of the Constitution and Article 6 § 1 of the Convention. In the alternative, he requested that his sentence be reduced.", "87. On 23 March 2018 the Court of Appeal upheld the District Court’s judgment on the merits.", "88. On 17 April 2018 the Supreme Court granted leave to appeal and on 20 April 2018 the applicant appealed against the judgment to the Supreme Court, by way of an appeal lodged by the prosecutor at his request.", "89. The applicant’s main submission before the Supreme Court was to seek the quashing of the Court of Appeal’s judgment and the remittal of his case for retrial. Alternatively, he requested to be acquitted or to be given a reduced sentence. His submissions were based on the following arguments:", "“Independent and impartial tribunals are a fundamental pillar of the rule of law. A prerequisite for the precluding of doubt regarding the independence and impartiality of tribunals is the strict observance of the laws and rules that apply to the appointment of judges.", "...", "It is of particular importance to ensure the independence of the courts of law from the executive branch of government. The fact that politicians, political parties, a certain majority of parliament, the current government or a certain minister might be owed a favour by certain judges undermines their independence and can justifiably weaken public trust in the judiciary.", "It is therefore of key importance for it to be ensured beyond reasonable doubt that the appointment of judges is determined on the basis of the professional competence of candidates and not the political views and political connections of the candidate or the arbitrary decision of the Minister of Justice ...", "Pursuant to Article 59 of the Constitution, the organisation of the judiciary can only be established by law. According to the second sentence of Article 6 § 1 of the European Convention on Human Rights, a tribunal must be established by law. This entails not only a mandatory condition that general rules on appointments to the judiciary must be clearly enshrined in statute law, but also, and no less importantly, a mandatory condition that the appointment of judges in each instance must be in compliance with the law.", "In fact, it can be maintained that the former condition, [that is] the condition on the general rules of statute law, would be worth little if the above conditions did not entail a requirement of compliance with all applicable laws and rules in each instance.”", "Relying on these arguments, as well as on the decisions of the EFTA Court and the General Court of the EU as noted above (see paragraph 82 above), and on the previous findings of the Supreme Court regarding the irregularities in the procedure leading to the appointment of A.E. as a Court of Appeal judge (see the relevant judgments noted in paragraphs 67-75 above), the applicant claimed that he had been denied the right to a fair hearing before an independent and impartial tribunal established by law, as provided under Article 70 § 1 of the Constitution and Article 6 § 1 of the Convention. He stressed in this connection that the appointment of A.E. to her post had not been in accordance with the law, as required by Article 59 of the Constitution and Article 6 § 1 of the Convention. He further contended that during the parliamentary elections held in October 2017, A.E.’s husband B.N. – a member of parliament belonging to the same political party as the Minister of Justice, namely the Independence Party ( Sjálfstæðisflokkurinn ) (also mentioned in paragraph 46 above) – had given up the first place on the party’s constituency list in Reykjavik in favour of the Minister, after the latter’s decision to include his wife in her proposal to Parliament. By that action, B.N. had effectively foregone the possibility of serving as a Minister in the new coalition government formed after the elections. In the applicant’s opinion, the deal between the Minister and B.N. had undermined, from an objective perspective, the Court of Appeal’s appearance of independence.", "90. On 24 May 2018 the Supreme Court rejected the applicant’s claims and upheld the judgment of the Court of Appeal. After setting out the facts and the procedure leading to the appointment of A.E. to the Court of Appeal, and recalling its conclusions in the judgments of 19 December 2017 in related proceedings brought by J.R.J. and Á.H., the Supreme Court made the following findings, as relevant:", "“[The applicant’s] arguments for his primary and secondary claims before the Supreme Court are inter alia that under Article 59 of the Constitution and Article 6 of [the Convention], an appointment of a judge has in all respects to be in accordance with the law. Where that is not the case and the appointment is thus unlawful ‘the judge in question is not a lawful holder of judicial power and a court’s judicial rulings in which he has participated constitute a dead letter’, as is argued in [the applicant’s] observations before the Supreme Court. The conclusion drawn from the cited words cannot be sustained unless it is considered that a person’s appointment as a judge under these circumstances would be vitiated by nullity [ markleysa ], thus not only that flaws in the appointment process would result in its annulment. It must be taken into account that in the aforementioned assessment report of the Evaluation Committee of 19 May 2017, it was concluded that all the 33 candidates fulfilled all the requirements provided for by law to hold the office of judge in the Court of Appeal, a fact that has not been challenged. The appointment of the judges was conducted in accordance with the formal procedural rules of Chapter III of Act no. 50/2016, as well as temporary provision IV of the same Act, albeit with the exception that, during the parliamentary procedure on the Minister of Justice’s proposals on the appointment of the judges, the requirements of the second paragraph of the temporary provision were not followed in that Parliament should have voted on each and every judge separately, but not all the judges at the same time, as was in fact done. This issue, however, has already been addressed in the aforementioned judgment of the Supreme Court [of 19 December 2017], where it was concluded that this was a defect of no significance. Taking this into account, as well as the fact that all the fifteen judges were appointed to office by letters signed by the President of Iceland on 8 June 2017, co-signed by the Minister of Justice, it cannot be concluded that the appointment of [A.E.] was vitiated by nullity, nor is it accepted that judicial rulings of the Court of Appeal, which she has delivered along with others, are for that reason a ‘dead letter’.", "When it is assessed whether the accused, due to [A.E.’s] participation, did not enjoy the right to a fair trial before an independent and impartial tribunal in accordance with the first paragraph of Article 70 of the Constitution (cf. Article 6 of the European Convention on Human Rights), it must be recalled that in the aforementioned judgments of the Supreme Court [of 19 December 2017] it was concluded that such flaws were in the procedure at the level of the Minister of Justice preceding the appointment of the fifteen Court of Appeal judges and that the State was liable for damages. In this case, this finding has in no way been challenged and these judgments have, therefore, evidential value in this respect in accordance with section 116(4) of the Civil Procedure Act. In this regard, it must also, in particular, be emphasised that it cannot be accepted, as was argued in the aforementioned memorandum of the Minister of Justice of 30 May 2017, that by only increasing the weight ascribed to judicial experience from that which such experience was ascribed by the Evaluation Committee in its internal table, relied upon in its assessment report of the 19th of the same month, but relying in other respects on the ‘sufficient investigation’ of the Committee as to each assessment factor, the finding could be made that four named candidates for the post of judge in the Court of Appeal, but not others, would be removed from the group of the fifteen most qualified, and four specific named candidates would be moved up into that group rather than others [ sic ]. When assessing the consequences of the said flaws in the Minister of Justice’s procedure, account must be taken of the fact that the appointment of all the fifteen judges of the Court of Appeal for an indefinite term, which has in no way been annulled by a court, became a reality upon the signing of their letters of appointment, dated 8 June 2017. As stated above, they all fulfilled the requirements of section 21(2) of Act no. 50/2016 for appointment to the office of judge, including the requirement of item 8 of the said paragraph, that is, being considered to be qualified to hold such office in the light of their professional experience and legal knowledge. From that time, the judges have held positions (cf. Article 61 of the Constitution) which preclude them from being discharged from office except by a judicial decision. From the time the appointment of these judges took effect, they have, according to the same provision of the Constitution (see section 43 (1) of Act no. 50/2016) been under the main obligation in the performance of their official duty to follow only the law. They have also been afforded, in accordance with the last mentioned provision of law, independence in their judicial work but also the duty to perform it under their own responsibility and never to follow instructions from others in their work. With reference to all of the above, there is no sufficient reason to justifiably doubt that [the applicant] enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure at the level of the Minister of Justice.”", "The Supreme Court did not specifically address the applicant’s arguments regarding the lack of independence of the Court of Appeal on account of the allegedly political motives behind the Minister of Justice’s proposals.", "Further developmentsFurther judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges", "Further judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges", "Further judicial proceedings to challenge the lawfulness of the procedure for appointment of Court of Appeal judges", "91. In February and March 2017 E.J. and J.H. – the two other candidates who were among the fifteen candidates that the Evaluation Committee had considered to be the most qualified, but had been removed from the final list proposed to Parliament by the Minister of Justice – brought judicial proceedings in the District Court of Reykjavik against the Icelandic State. E.J. requested a declaratory judgment to the effect that the State was obliged to compensate him for pecuniary damage in view of his non-appointment to the post of Court of Appeal judge on account of an unlawful decision on the part of the Minister of Justice. J.H. demanded awards in respect of pecuniary damage and non-pecuniary damage on the same grounds. He requested, in particular, an explanation as to what aspect of the assessment of qualifications had been reduced at the expense of increased weighting of judicial work and how the assessment of individual applicants was altered as a result of those changes. He also questioned why some candidates, who had less judicial experience than him or no judicial experience at all, had been added to the list or kept on the list by the Minister.", "92. In two separate judgments of 25 October 2018, the District Court of Reykjavik found for the plaintiffs. In the first judgment the District Court acknowledged E.J.’s right to compensation for pecuniary damage on the grounds that he had put forth. The District Court concluded, inter alia, that the candidate had sufficiently established that, had the procedure been conducted in a lawful manner with a reasonable assessment being made of his application and a comparison performed of his merits in relation to other candidates, it would have resulted in his appointment as judge of the Court of Appeal. In the other judgment, the District Court referred to the related Supreme Court judgments of 19 December 2017 (see paragraphs 67-75 above) and awarded the plaintiff, J.H., ISK 1,100,000 (approximately EUR 7,300 at the material time) in compensation for personal injury (non ‑ pecuniary damage). As to pecuniary damage, the District Court awarded him ISK 4,000,000 (approximately EUR 29,200 at the material time) on the basis of the same argument as that made in respect of E.J.", "93. In both cases, the District Court referred to the Supreme Court’s finding in the 19 December 2017 judgments that when deviating from the Evaluation Committee’s list, the Minister should at least have made a comparison between the qualifications of the four candidates that she removed from the list and the four that she added. According to the District Court, this finding could not be understood to mean that the Minister was limited in her comparison to those particular candidates directly concerned by her decision; if the Minister considered it appropriate to grant increased weight to judicial experience, then she should have duly assessed all candidates on the basis of that consideration. Otherwise, she would be prevented from claiming that she had selected the fifteen most qualified candidates on the basis of their experience of judicial work. The court held that neither the evidence in the case file, nor the Minister’s submissions before it, offered a clear picture as to the nature of the comparison made by the Minister between the candidates in terms of their judicial experience.", "94. Following the appeals lodged by the Icelandic State, on 27 March 2020 the Court of Appeal overturned both District Court judgments – partly in J.H.’s case and entirely in E.J.’s – by a two-to-one majority.", "95. The Court of Appeal quashed the District Court’s judgments to the extent that they concerned the claims for pecuniary damage. It held that the plaintiffs could not have taken it for granted that they would be appointed as judges to the Court of Appeal. The procedure set out under temporary provision IV had clearly provided the Minister with the possibility of deviating from the Committee’s proposal and appointing other candidates, provided that they fulfilled the basic qualifications. In these circumstances, and despite the proposal by the Evaluation Committee for their appointment, J.H. and E.J. could not be considered to have had a legal right to be appointed as judges to the Court of Appeal. The Court of Appeal upheld, however, the District Court’s findings in respect of J.H.’s claims for non-pecuniary damage. It stressed that while J.H. had been removed from the list on the grounds of the need to attach more weight to judicial experience, he actually had more judicial experience than at least four of the candidates whom the Minister had retained from the Evaluation Committee’s list.", "96. By two decisions dated 8 May 2020, a three-judge panel of the Supreme Court granted E.J. and J.H. leave to appeal against the Court of Appeal’s judgments, having regard to the precedential value of the cases. According to the latest information available to the Court, the cases are currently pending before the Supreme Court.", "Other relevant developments", "97. On 5 March 2018 a motion of no confidence was tabled in Parliament against the Minister of Justice by several members of two opposition parties, on the grounds of the breaches committed by her in the process of the appointment of Court of Appeal judges.", "98. On 6 March 2018 Parliament rejected the motion by a vote of thirty ‑ three MPs voting against the motion and twenty-nine in favour, with one MP abstaining. The thirty-three MPs rejecting the motion were all members of parties composing the majority in the coalition government. However, two other members of those parties voted in favour of the motion.", "99. On 13 March 2019, following the judgment delivered by the Chamber in the instant case (see Guðmundur Andri Ástráðsson v. Iceland, no. 26374/18, 12 March 2019), the Minister of Justice resigned from office and the operation of the Court of Appeal was completely suspended for one week. Subsequently, the Court of Appeal resumed operation with only eleven of the fifteen appointed judges – since the four judges whose appointments had been called into question decided not to sit. It appears from publicly available information that provisional arrangements were made to temporarily appoint four judges to the Court of Appeal to serve until 30 June 2020.", "100. On 17 April 2020 a new call for applications was made for a post of judge at the Court of Appeal, in response to which A.E. applied. It appears that following her recommendation for the post by the Evaluation Committee, A.E. made a request to the new Minister of Justice to be discharged from her existing (inactive) post at the Court of Appeal. On 16 June 2020 the new Minister of Justice announced that she would follow the Evaluation Committee’s opinion and would propose to the President of Iceland that A.E. be appointed to the advertised post at the Court of Appeal, with effect from 1 July 2020. It appears from publicly available information that A.E. was appointed by the President of Iceland as proposed. It further appears that following vacancies advertised on 19 June 2020, two more judges have been appointed to the Court of Appeal." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAW AND PRACTICEDomestic lawIcelandic Constitution", "Domestic lawIcelandic Constitution", "Icelandic Constitution", "Domestic lawIcelandic Constitution", "Icelandic Constitution", "Icelandic Constitution", "101. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) read as follows:", "Article 2", "“ Althingi and the President of Iceland jointly exercise legislative power. The President and other governmental authorities referred to in this Constitution and elsewhere in the law exercise executive power. Judges exercise judicial power.”", "Article 59", "“The organisation of the judiciary can only be established by law.”", "Article 60", "“Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for judicial decision.”", "Article 61", "“In the performance of their official duties, judges shall be guided solely by the law. Those judges who do not also have administrative functions cannot be discharged from office except by a judicial decision, nor may they be transferred to another office against their will, except in the event of reorganisation of the judiciary ...”", "Article 70", "“Everyone shall, for the determination of his rights and obligations or in the event of criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the determination of an independent and impartial court of law. A hearing by a court of law shall take place in public, unless the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties.", "Everyone charged with criminal conduct shall be presumed innocent until proven guilty.”", "The Judiciary Acts", "(a) Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level", "102. Section 5 of Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level ( Lög um framkvæmdarvald ríkisins í héraði ), which concerned the appointment of a committee to evaluate the competencies of candidates for posts of judge at District Courts, provided as follows:", "“...", "The Minister of Justice shall appoint a committee every four years, to evaluate the competencies of candidates for the post of District Court judge. The committee shall be composed of three members, one of whom shall be nominated by the Supreme Court and shall serve as chair of the committee. The Association of Judges shall nominate another member of the committee from amongst District Court judges and the Bar Association shall nominate the third from amongst practising lawyers. The same parties shall nominate reserve members of the committee. The committee shall give written and reasoned evaluations of the candidates to the Minister of Justice.", "The Minister of Justice shall set out more detailed rules on the work of the committee.”", "(b) Judiciary Act no. 15/1998", "103. The relevant provisions of the former Judiciary Act ( Lög um dómstóla ), as amended by Act no. 45/2010, read as follows:", "Section 4a", "“The Minister shall appoint an Evaluation Committee of five members to examine the qualifications of candidates for the office of Supreme Court judge or District Court judge. Two members shall be nominated by the Supreme Court, of whom one shall serve as chair; at least one of the two shall not be in active service as a judge. The third member shall be appointed by the Judicial Council and the fourth by the Icelandic Bar Association. The fifth member shall be elected by Althingi. ...", "The Evaluation Committee shall provide the Minister with a written and reasoned report concerning candidates for the office of Supreme Court judge. The report of the Evaluation Committee shall state the board’s view as to which candidate is best qualified for the post; the board may rank two or more candidates equally. In other respects, the Minister shall establish further rules on the functions of the board.", "No candidate may be appointed to the office of judge whom the Evaluation Committee has not designated as the most qualified of the candidates, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi adopts a motion of the Minister to appoint another named candidate who, in the opinion of the Evaluation Committee, meets all the requirements laid down in the second and third paragraphs of section 4. The Minister shall in such circumstances place the motion before Althingi within two weeks from the time of submission of the Evaluation Committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is placed before Althingi, otherwise the Minister will be bound by the opinion of the Evaluation Committee.”", "Section 12", "“3. The provisions of section 4a shall apply, mutatis mutandis, to appointments to District Court judge posts.”", "104. As already noted in paragraph 14 above, the preparatory material in respect of Act no. 45/2010 indicates that the amendments to the judicial appointment system in Iceland had aimed to further ensure the independence of the judiciary, having regard to the significant role played by the judiciary in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. The preparatory material also provides the following information on the assessment of the work experience of candidates for judicial posts, in so far as relevant:", "“... When evaluating the competencies of candidates, several factors have to be taken into account, including experience of legal work, be it judicial work, litigation, other legal practice, academic work or work in the administration, but in general a candidate should possess a broad, general legal education and expertise. Other work undertaken by the candidates on the side should also be taken into account, such as membership of administrative committees or other related experience which will come into good use for a candidate. In general, it should be considered an asset for a candidate to have varied work experience, although that has to be assessed in each case. The committee should also look to and specifically seek out testimonials of a candidate’s work and whether he or she is efficient and hard-working, whether he or she has the ability to identify key issues and to present his or her opinion in an understandable way, both in writing and verbally. In this regard, it is possible to look to academic writing, a candidate’s experience with litigation or any judgments which a candidate may have written ...”", "(c) Judiciary Act no. 50/2016", "105. The relevant provisions of the new Judiciary Act ( Lög um dómstóla ) read as follows:", "Section 11", "Evaluation Committee on the Qualifications of Candidates for Posts as Judges", "“The Minister shall appoint five principal members and as many reserve members to an evaluation committee to examine the qualifications of applicants for the office of Supreme Court judge, Court of Appeal judge or District Court judge. One member shall be nominated by the Supreme Court and shall serve as chair of the committee. One member shall be nominated by the Court of Appeal. The third member, who shall not be a serving judge, shall be nominated by the Judicial Administration and the fourth member shall be nominated by the Icelandic Bar Association. The fifth member shall be elected by Althingi. Each nominating party shall nominate a man and a woman, both as member and as reserve member, but this may be deviated from if objective reasons prevent the nomination of both a man and a woman. The nominating party shall then substantiate such impossibility. The Minister shall, when appointing members to the committee, ensure compliance with the Equality Act’s provisions on appointment to councils and committees. The term of appointment to the evaluation committee is five years, with the proviso that the term of one member shall expire each year. The same member cannot be appointed as a principal member of the board for more than two consecutive terms.", "The evaluation committee shall be based on the premises of the Judicial Administration.”", "Section 12", "The Evaluation Committee’s Opinion and the Appointment of Judges", "“The evaluation committee shall provide the Minister with a written and reasoned opinion concerning applicants for the office of judge. The opinion of the evaluation committee shall state the board’s position regarding which applicant is best qualified for the post; the board may rank two or more applicants equally. In other respects, the Minister shall establish further rules on the functions of the committee.", "No applicant may be appointed to the office of judge which the evaluation committee has not designated as the most qualified of the applicants, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi accepts a proposal by the Minister to appoint another identified applicant, provided that, in the opinion of the evaluation committee, they meet all the requirements for appointment to the post. The Minister shall in such circumstances put the motion before Althingi within two weeks from the time of submission of the evaluation committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is put before Althingi, otherwise the Minister will be bound by the opinion of the evaluation committee.”", "Section 21", "General Qualification Requirements", "“The Court of Appeal shall be composed of 15 judges, appointed for an indefinite period of time by the President of Iceland as proposed by the Minister.", "Only a person who fulfils the following conditions may be appointed to the office of Court of Appeal judge; he or she must:", "1. have attained the age of 35 years;", "2. be an Icelandic national;", "3. have the necessary mental and physical capacity;", "4. be legally competent to manage his or her personal and financial affairs, and never have been deprived of the control of his or her finances.", "5. have not committed any criminal act considered to be dishonourable in public opinion, or evinced any conduct detrimental to the trust that persons holding judicial office generally must enjoy;", "6. have completed the can.jur. examination or B.A. examination in law together with a master’s degree;", "7. have for a term of no less than three years been a district court judge, attorney before the Supreme Court, full professor or associate professor of law, commissioner of police, district commissioner, public prosecutor, permanent secretary of a ministry, director general of a department of the Minister or Althingi ’s Ombudsman, or have for such period discharged a similar function providing similar legal experience;", "8. be deemed capable of holding the office in the light of his or her career and knowledge of law.", "A person who is, or has been, married to an Appeal Court judge already in office, or a person related to such judge by blood or marriage by ascent or descent, or to the level of second cousin, may not be appointed to the Court of Appeal.”", "Section 43", "Independence of Judges", "“Judges are independent in their judicial work and shall perform such work under their own responsibility. In their resolution of a case they shall be guided solely by the law and never act under instructions from others. A judicial act will not be reviewed by others except through an appeal to a higher court.", "...”", "Section IV (temporary provision)", "“Nomination of judges of the Court of Appeal shall be completed no later than 1 July 2017 and the judges shall be appointed to office with effect from 1 January 2018. As provided for in section 4a of Act no. 15/1998 on the Judiciary, a committee shall be established to investigate for the first time the qualifications of candidates for the office of judge of the Court of Appeal. The committee shall provide the Minister with its opinion about the candidates in conformity with the second subsection of the same section and of the regulation that applies to the committee. The Minister is not authorised to appoint an individual to the office of judge whom the Evaluation Committee has not deemed to be the most qualified amongst the candidates, either separately or among others. This provision may be departed from, however, if Althingi accepts a proposal by the Minister on an authorisation to appoint to the office of judge another named candidate who, in the opinion of the Evaluation Committee, meets all the conditions of the second and third paragraphs of section 21 hereof.", "When the Minister proposes appointments to the office of judge of the Court of Appeal for the first time, he/she shall submit her proposal regarding every appointment to Althingi for approval. If Althingi accepts the Minister’s proposals, he/she shall send them to the President of Iceland, who formally appoints the judges (see section 21). If Althingi does not accept the Minister’s proposal regarding a particular appointment, the Minister shall present a new proposal to Althingi for approval.", "...”", "106. The preparatory material regarding temporary provision IV provides the following, as relevant:", "“...Secondly, it is proposed that before the Minister appoints judges to the Court of Appeal for the first time, he/she should make a proposal regarding each appointment to Parliament for approval. In the light of the fact that 15 judges will be appointed simultaneously, it is natural to ensure the participation of more than one of the public powers in that process.”", "Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee", "107. The relevant provisions of the Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee, which assesses the competencies of applicants for judicial posts ( Reglur um störf dómnefndar sem fjallar um hæfni umsækjenda um dómaraembætti ), read as follows:", "Section 3", "“When the application deadline has expired the Minister examines whether the candidates fulfil all the general conditions of qualification for the judicial office which was published in accordance with the Judiciary Act no. 15/1998. Then the applications fulfilling the conditions are sent to the Evaluation Committee for assessment.”", "Section 4", "“In its opinion the Committee shall decide who is/are the most qualified candidate/s to be appointed to the judicial office. The Committee shall make sure that in its evaluation equality is respected. The conclusion shall stem from an overall assessment based on objective considerations and on the candidates’ merits, taking account of the candidates’ education, experience, integrity, competence and professional efficiency, as described, inter alia, in more detail below:", "1. Education, career, theoretical knowledge. When evaluating the candidate’s education, career and theoretical knowledge, the Committee shall lay emphasis on the fact of the candidate having a varied background in the fields of law such as experience as a judge, litigation or other type of legal practice work, work in administration or academic work. The candidate should have general and comprehensive legal knowledge and education. It should also be considered whether the candidate has undergone further education.", "2. Secondary activities and social activities. The Committee shall also take into account the candidate’s secondary activities, such as activities in appeals committees or other activities which could be useful for a judge. The Committee can also take into account extensive participation in social activities.", "3. General competence. The Committee shall take into account whether the candidate has shown independence, impartiality, initiative and efficiency in his or her work and whether the candidate can easily extrapolate upon the key issues. It is optimal for the candidate to have management experience. The candidate shall have good knowledge of the Icelandic language and ability to communicate easily both verbally and in writing.", "4. Special competence. It is important for the candidate to have good knowledge of civil and criminal procedures and to follow the provisions of law when drafting judgments, which also requires good use of language. The candidate has to be able to conduct hearings firmly and fairly and process the cases he/she is assigned quickly and with confidence.", "5. Mental capabilities. The candidate has to be able to communicate easily, both with colleagues and other people he/she encounters at work. The candidate must have a good reputation both from his or her previous work and from outside work and must be dependable.”", "Section 5", "“The candidate’s application for the judicial office advertised, along with the rules that apply to it, shall be the basis upon which the Committee makes its evaluation.", "The Committee shall make sure that the matter is in all other aspects sufficiently investigated before giving its opinion on a candidate’s qualifications.", "In its evaluation, in accordance with section 4, the Committee can take into account all published works of the candidates, such as scholarly writing, judgments, decisions and the like, even where they have not been submitted with the application. The candidate does not need to be specifically notified in advance.", "The Committee can invite the candidates for an interview and request necessary documents in addition to those submitted with their application and the Committee can base its evaluation, under section 4, on the documents.", "The Committee can obtain knowledge of the candidate’s career from his/her former employer or others who have been in professional contact with him/her. The candidate shall have seven days to comment on the information that is collected.”", "Section 6", "“The Committee shall submit a written and reasoned report on the candidates including the following:", "(a) reasoned opinion on each candidate’s qualification;", "(b) reasoned opinion as to which candidate/s the Committee considers the most qualified for the judicial office.”", "Section 7", "“The Committee shall share its draft assessment report with the candidates and give them seven days to comment thereon. The candidates are bound by confidentiality as to the content of the draft report.”", "Section 8", "“After the Committee has reviewed the candidates’ comments and amended the report, as appropriate, it finalises the report, signs it and sends it to the Minister along with the case documents. Furthermore, the Committee sends its report to the candidates.", "Three days after the Minister and the candidates have been sent a copy of the report it shall be published on the Ministry of Justice’s website.”", "Section 9", "“The Committee shall submit a report on the candidates within six weeks after receiving the applications. This deadline can be extended under special circumstances such as in the event of a high number of candidates, etc.", "...”", "Administrative Procedures Act", "108. The relevant provision of the Administrative Procedures Act no. 37/1993 ( Stjórnsýslulög ) reads as follows:", "Section 10", "Rule of investigation", "“An authority shall ensure that a case is sufficiently investigated before a decision thereon is reached.”", "Parliamentary Procedures Act", "109. The relevant provisions of the Parliamentary Procedures Act no. 55/1991 ( Lög um þingsköp Alþingis ) read as follows:", "Section 45", "“Motions for parliamentary resolutions shall take the form of resolutions. They shall be printed and distributed to Members at a sitting of Althingi. As a rule, motions for resolutions shall be accompanied by an explanation of their substance. Deliberations may not take place until at least two nights after the distribution of the motion.", "A resolution cannot pass until it has received two readings. However, motions of no confidence in the Government or a minister, motions on the appointment of committees under Article 39 of the Constitution and motions from committees submitted pursuant to section 26(2) shall be debated and brought to a conclusion in a single debate in accordance with the rules on second readings of parliamentary resolutions. The same applies to motions for adjournment of sittings of Althingi pursuant to the second sentence of Article 23 (1) of the Constitution.", "At the end of the first reading the motion will pass to the second reading and the committee proposed by the Speaker. However, a vote shall be taken at the request of any Member, and also if another motion is made regarding the committee to which the matter should be submitted.", "The second reading shall not take place until one night after the first reading or distribution of a committee report. At this reading, individual Articles of the proposal shall be debated along with amendments to such Articles. At the close of this reading a vote shall be taken on each Article of the proposal and any amendments thereto, and finally on the proposal in its entirety. However, if there are no motions to amend, the proposal may be put to the vote in its entirety.", "If Althingi receives a submission relating to a matter on which Althingi is required to take a position under the Constitution or by law, but the submission does not constitute parliamentary business pursuant to Chapter III, the Speaker shall report the submission at a sitting. The matter is then submitted without debate to a committee on the recommendation of the Speaker. When the committee has completed its examination of the matter, the committee shall express its opinion in a report, which shall be distributed at a sitting, together with a motion for a resolution, which shall be debated and brought to a conclusion in a single sitting pursuant to the rules on second readings of parliamentary resolutions.", "Parliamentary resolutions which are distributed after the end of November may not be placed on the agenda before the Christmas recess except with the consent of Althingi, obtained in compliance with section 74. Furthermore, parliamentary resolutions which are distributed later than 1 April may not be placed on the agenda before the summer recess except with the consent of Althingi, obtained in compliance with section 27. However, this consent can only be sought when five days have passed from the distribution of the resolution; derogation from this requirement is permitted with the support of three fifths of the Members voting on the resolution.", "Constitutional requirements pursuant to Article 103 of the Agreement on the European Economic Area shall be derogated from by a parliamentary resolution, whose presentation shall comply with rules established by the Speaker.", "The Prime Minister shall in October of each year submit to Althingi a report on the implementation of resolutions passed by Althingi in the preceding year and requiring action by a Minister or the government, unless a different form of reporting to Althingi is provided for by law. The report shall furthermore address the process of matters referred by Althingi to the Government or a Minister. When the report has been submitted, it shall be referred to the Constitutional and Supervisory Committee for discussion. The committee may submit to Althingi its opinion regarding the Minister’s report at its discretion and submit proposals to Althingi regarding individual matters in the report.”", "Criminal Procedure Act", "110. The relevant provisions of the Criminal Procedure Act no. 88/2008 ( Lög um meðferð sakamála ) read as follows:", "Section 6", "“A judge, including a lay judge, shall be disqualified from sitting as judge in a case where:", "(a) he is an accused, a victim or a representative thereof;", "(b) he has represented the interests of an accused or the victim in the case;", "(c) he has testified or been called as a witness in the case for legitimate reasons or has served as an assessor or examiner in the case [with regard to the charges in question];", "(d) he is or has been the spouse of the accused or the victim, is related to them by blood or marriage in a direct line or to the level of second cousin, or related to them to the same degree by adoption;", "(e) he is related or has been connected to the representative of the accused or the victim, or counsel, in the manner stipulated in point (d);", "(f) he is connected or has been connected to a witness in the case, or to an assessor or examiner, in the manner stipulated in point (d); or", "(g) there are other circumstances or conditions that may justifiably raise questions about his impartiality.”", "111. According to the Criminal Procedure Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed against or the time limit for appeal has passed, the Committee on Reopening of Judicial Proceedings ( Endurupptökunefnd ) can approve a request of a person, who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed, to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that new evidence has come to light which could have had great significance for the outcome of the case if it had been available before the judgment was announced (point (a)), or that there were serious defects in the processing of the case which affected its outcome (point (d)). The State Prosecutor can also request reopening for the benefit of the convicted person if he considers that the conditions in section 228(1) of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be made in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning as to how the conditions for reopening are considered to be fulfilled. Pursuant to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided in the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled. A case will not be reopened in the Court of Appeal unless the time-limit to request leave to appeal to the Supreme Court has expired or the Supreme Court has rejected leave to appeal.", "112. In a recent judgment it delivered on 21 May 2019, the Supreme Court held that neither section 228(1) (d) of the Criminal Procedure Act, nor any other laws, created an automatic right to reopening to persons whose criminal convictions had resulted in findings of a violation by the European Court of Human Rights and that each case would have to be assessed on its facts. The defendants in the relevant case had been convicted of tax offences, which the Court had found to be in violation of Article 4 of Protocol No. 7 to the Convention (see Jóhannesson and Others v. Iceland, no. 22007/11, 18 May 2017). Noting that the defendants had been heard by an independent and impartial tribunal and that their case was incomparable to those where fundamental fair trial principles had been breached, the Supreme Court found that their request did not fulfil the requirements for reopening under Section 228(1) (d) of the Criminal Procedure Act.", "Tort Act", "113. Section 26(1) of the Tort Act no. 50/1993 ( Skaðabótalög ) reads:", "“A person who", "(a) deliberately or through gross negligence causes physical injury or", "(b) is responsible for unlawful injury against the freedom, peace, honour or person of another party,", "may be ordered to pay an amount in respect of non-pecuniary damage to the injured party.”", "Domestic practice", "114. It is an unwritten general principle of Icelandic administrative law that, in the appointment of persons to public posts, the appointing party is under a duty to appoint the most qualified candidate. It is furthermore considered that such appointments must be based on objective considerations. This principle has been confirmed by the Supreme Court in many of its judgments, including the judgments dated 5 November 1998 and 14 April 2011 (see paragraph 69 above), and the judgments of 19 December 2017 concerning the candidates J.R.J. and Á.H. (see paragraphs 67-75 above).", "115. As mentioned briefly in paragraph 13 above, the Supreme Court judgment of 14 April 2011 (no. 412/2010) concerned a dispute over the appointment of a District Court judge, where the Supreme Court had found the then ad hoc Minister of Justice and the Icelandic State liable for damages in relation to the appointment at issue. The appointment having been made prior to the introduction of Act no. 45/2010, at which time the Evaluation Committee’s recommendations on judicial appointments were not yet binding on the Minister of Justice, the latter had disregarded the recommendation of the Evaluation Committee and had proposed a candidate who had only been considered “qualified”, instead of one of the three who had been considered “very well qualified”. When one of the three candidates who were not appointed brought proceedings to claim damages for injury to his reputation and personal honour, the Supreme Court upheld that candidate’s claims on the basis of the following principles:", "“Under section 10 of the Administrative Procedures Act no. 37/1993, an authority making an appointment to a position or office of the State is required to ensure that issues of significance are sufficiently elucidated before a decision is made on the appointment. The previously applicable third and fourth paragraphs of section 12 of Act no. 15/1998 relieved the Minister of Justice ... to a significant extent of this duty of investigation when making appointments to positions of District Court judge, instead placing it in the hands of the Evaluation Committee, which was appointed with a view to ensuring that specialised expertise would be available there to assess the qualifications of applicants for a position as District Court judge ... Although the Evaluation Committee’s opinion was not binding on the Minister, ..., it must be kept particularly in mind that its investigation replaced by law an investigation which the Minister would otherwise have been obliged to carry out. As a result, if the Minister considered there to be a reason to deviate from the opinion of the Evaluation Committee when appointing a District Court judge, then his/her decision would have to be based on further investigation under section 10 of the Administrative Procedures Act, taking into account among other things his own instructions in Rules no. 693/1999 on matters relating to the assessment of the applicants’ qualifications, while at the same time ensuring that comparable expert knowledge was exercised as in the case of the Evaluation Committee’s work. In this regard, it needed also to be taken into consideration that when making an appointment to the office of judge, the Minister was not deciding on a post under the Minister’s own authority, but an office pertaining to another branch of government and subject to special rules on independence, as provided in the first sentence of Article 61 of the Constitution and section 24 of Act no. 15/1998.”", "116. In his annual report for 2016, the Icelandic Parliamentary Ombudsman made the following remarks on the evaluation procedures followed by the authorities in appointments to public posts, as pertinent:", "3.1.2 Matters concerning public servants", "“...", "According to an unwritten principle of administrative law, it is a general obligation to recruit the most competent candidate for a public post. Thus, an evaluation of candidates must be carried out on the basis of their professional competencies in the light of the legitimate criteria applicable, consideration being given to the law and to the nature of the post. The principle also entails that, in general, it is impermissible to take into account unrelated criteria such as political views or amity/animosity. In cases where public servants are to be recruited or appointed, authorities – or the recruitment companies they employ – increasingly appear to use a method whereby the criteria through which candidates are to be evaluated are enumerated and each criterion given a certain weight. Candidates are then awarded points for each criterion and their total score is calculated. The candidate who achieves the highest score is generally considered the most competent by the appointing authority. Deciding on the applicable criteria and their weight before evaluating candidates is in general in compliance with the appointing authority’s task to evaluate candidates based on their professional competencies.", "However, I have noticed in recent years that the above-described method is employed too strictly and absolutely, without properly assessing substantively the candidates’ knowledge and experience. Thus, the candidates’ experience is assessed only in terms of years, how many courses they have finished or how many academic articles they have published, without that experience apparently being substantively assessed, including as to how well the candidate has performed and how the experience will assist the candidate in the performance of the post in question. In other instances, the criteria have been divided into categories, i.e. different categories of professional experience, where each category can only give a certain maximum number of points. The result is often that the candidate who has done the highest number of jobs, and thus obtains points from the most categories, achieves a higher score than a candidate who has mastered a certain professional experience, without any substantive assessment as to whether the long experience of the latter candidate constitutes better preparation for the post than the varied experience of the former.", "While noting that it is not, in general, illegitimate to look for varied professional experience when recruiting candidates for a post, the above-described methods often seem automatically to lead to a lack of substantive comparison of the qualities of candidates and thus of their competencies. This results in genuine uncertainty about whether the most qualified candidate for a post obtained the highest score and thus is eliminated from consideration [ sic ]. In this regard, I emphasise that the evaluation procedures followed by the authorities should enable them to meaningfully and substantively evaluate candidates, in order to recruit the most qualified candidate for each post. In general, I believe that in the light of the evaluative nature of the choice of candidate for a public post and the criteria on which such a choice can be based, care should be taken when making that choice on the basis of points, as described above.”", "INTERNATIONAL MATERIALUnited Nations", "United Nations", "United Nations", "117. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide in their relevant part as follows:", "Qualifications, selection and training", "“10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.”", "118. In its General Comment no. 32 on Article 14 of the International Covenant on Civil and Political Rights (ICCPR) – which was ratified by Iceland on 22 August 1979 – concerning the right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32 published on 23 August 2007), the UN Human Rights Committee stated as follows:", "“4. Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees.", "...", "19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.", "20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.”", "119. The relevant parts of the thematic report by the UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Leandro Despouy, on “Guarantees of judicial independence / Major developments in international justice” (UN Human Rights Council, document A/HRC/11/41 of 24 March 2009), read as follows:", "III. GUARANTEES OF JUDICIAL INDEPENDENCE", "A. Institutional independence: elements having an impact on the independence of the judiciary", "“17. In this chapter, the Special Rapporteur will analyse features having an impact on the independence of the judiciary as an institution.", "...", "3. Selection and appointment", "23. The Basic Principles on the Independence of the Judiciary prescribe that judges be selected on the basis of integrity and ability and that any method of judicial selection should include safeguards against judicial appointments for improper motives [footnote: Principle 10]. This key principle is also established by a number of regional standards [Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe, principle I (2) (c); Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (4) (h); Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, principles 11, 12 and 15]. Furthermore, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa highlight the importance of transparency and accountability in the selection and appointment procedures [footnote: Principles and Guidelines in Africa, A (4) (h)].", "24. The Special Rapporteur takes note of the variety of existing systems for the selection and appointment of judges worldwide. One can broadly distinguish political appointments (selection by the legislative or executive branches of power), appointments by popular elections, corporative appointments (by bodies composed of judges only), selection by judicial councils with plural representation, or a variety of mixed systems where the nominating body is of one type (e.g. judicial council) and the one in charge of appointments is of a different nature (e.g. a political appointing body) ...", "...", "30. In addition to the composition of the selecting body, it is also important to determine the extent of powers given to this organ, as this element has a great impact on the degree of independence of judges, not only from political power, but also from the selecting body itself ... In order to secure the independence of judges and the selection of the most suitable candidates, the Special Rapporteur highlights the importance of the establishment and application of objective criteria in the selection of judges. The principle of objective criteria was also highlighted by the Human Rights Committee and by the Committee against Torture. These objective criteria should relate particularly to qualifications, integrity, ability and efficiency. The Special Rapporteur emphasizes that selection of judges must be based on merit alone, a key principle also enshrined in Recommendation No. R (94) 1228 and the Statute of the Ibero-American Judge ...", "...", "33. Where an organ of the executive or legislative branch is the one formally appointing judges [footnote omitted] following their selection by an independent body, recommendations from such a body should only be rejected in exceptional cases and on the basis of well-established criteria that have been made public in advance. For such cases, there should be a specific procedure by which the executive body is required to substantiate in a written manner for which reasons it has not followed the recommendation of the above-mentioned independent body for the appointment of a proposed candidate. Furthermore, such written substantiation should be made accessible to the public. Such a procedure would help enhance transparency and accountability of selection and appointment.”", "120. In accordance with its obligation under Article 40 of the ICCPR, the Government of Iceland submitted its fifth periodic report on the implementation of the ICCPR to the UN Human Rights Committee on 27 April 2010 (UN Doc. CCPR/C/ISL/5). The relevant parts of the report, concerning the procedure for the appointment of judges, read as follows:", "“130. In the recent years there has been growing concern that the rules relating to the selection and appointment of judges, both in the district courts and the Supreme Court, do not sufficiently guarantee the independence of the judiciary. This debate has centred on the role of the ministers, who have sole responsibility for appointing judges, and have on occasions disregard[ed] the recommendations of a special evaluation committee concerning the appointment of district court judges and the opinion of the Supreme Court concerning the appointment of Supreme Court Judges. A response has now been made to this criticism, and the Minister of Justice has submitted a bill to the Althingi on amendments to the Judiciary Act, No. 15/1998. Under the amendments proposed, the aim is that the Minister of Justice would appoint a five-man selection committee to examine the qualifications and competence of applicants for the position of both Supreme Court and district court judges ... This selection committee would submit to the Minister of Justice written and reasoned comments on applicants for positions as Supreme Court judges. In its comments, the committee would adopt a position as to which applicant was the best qualified to be appointed to the position, but would be able to name two or more as being equally well qualified.", "131. The most significant element in these proposals is that the minister would not be able to appoint as a judge a person that the evaluation committee did not consider to be the best qualified, either absolutely or tying with one or more others, among the applicants. Exemptions could be made from this rule, however, if the Althingi approved an application by the Minister of Justice for permission to appoint to the position another applicant, whose name was specified, who in the opinion of the selection committee met all the [relevant] conditions ...”", "Council of EuropeCommittee of Ministers", "Committee of Ministers", "Committee of Ministers", "121. The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities” provides in its relevant parts as follows:", "Chapter I – General aspects", "Judicial independence and the level at which it should be safeguarded", "“3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence.", "4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.”", "Chapter II − External independence", "“11. The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law.”", "Chapter VI - Status of the judge", "Selection and career", "“44. Decisions concerning the selection and career of judges should be based on objective criteria pre ‑ established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.", "...", "46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.", "47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.", "48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.”", "The Explanatory Memorandum to this recommendation further provides as follows:", "“13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.”", "Venice Commission", "122. In its Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007), the European Commission for Democracy Through Law (Venice Commission) held as follows (footnotes omitted):", "“3. International standards in this respect are more in favour of the extensive depolitisation of the [judicial appointment] process. However no single non-political “model” of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary.", "...", "5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.", "6. New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges.", "7. In Europe, methods of appointment vary greatly according to different countries and their legal systems; furthermore they can differ within the same legal system according to the type of judges to be appointed.”", "123. The relevant extracts from the Rule of Law Checklist (CDL ‑ AD(2016)007), adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016) [8], read as follows:", "“45. A basic requirement of the Rule of Law is that the powers of the public authorities are defined by law. In so far as legality addresses the actions of public officials, it also requires that they have authorisation to act and that they subsequently act within the limits of the powers that have been conferred upon them, and consequently respect both procedural and substantive law [footnote omitted].", "...", "53. Although full enforcement of the law is rarely possible, a fundamental requirement of the Rule of Law is that the law must be respected. This means in particular that State bodies must effectively implement laws. The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced [footnote omitted]. The duty to implement the law is threefold, since it implies obedience to the law by individuals, the duty reasonably to enforce the law by the State and the duty of public officials to act within the limits of their conferred powers.", "...", "66. Abuse of discretionary power should be controlled by judicial or other independent review. Available remedies should be clear and easily accessible.", "...", "68. The obligation to give reasons should also apply to administrative decisions [footnote omitted].", "...", "74. The judiciary should be independent. Independence means that the judiciary is free from external pressure, and is not subject to political influence or manipulation, in particular by the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. Judges should not be subject to political influence or manipulation.", "...", "79. It is important that the appointment and promotion of judges is not based upon political or personal considerations, and the system should be constantly monitored to ensure that this is so.”", "Consultative Council of European Judges", "124. In its Opinion no. 1 (2001) on “standards concerning the independence of the judiciary and the irremovability of judges” the Consultative Council of European Judges (CCJE) made the following observations, the relevant parts of which read as follows (footnotes omitted):", "The rationales of judicial independence", "“10. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial ... Their [judges’] independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice.", "11. This independence must exist in relation to society generally and in relation to the particular parties to any dispute on which judges have to adjudicate. The judiciary is one of three basic and equal pillars in the modern democratic state. It has an important role and functions in relation to the other two pillars. It ensures that governments and the administration can be held to account for their actions, and, with regard to the legislature, it is involved in ensuring that duly enacted laws are enforced, and, to a greater or lesser extent, in ensuring that they comply with any relevant constitution or higher law ... To fulfil its role in these respects, the judiciary must be independent of these bodies, which involves freedom from inappropriate connections with and influence by these bodies. Independence thus serves as the guarantee of impartiality. This has implications, necessarily, for almost every aspect of a judge’s career: from training to appointment and promotion and to disciplining.", "12. ... judicial independence is an elaboration of the fundamental principle that ‘no man may be judge in his own cause’. This principle also has significance well beyond that affecting the particular parties to any dispute. Not merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary. A judge must thus not merely be free in fact from any inappropriate connection, bias or influence, he or she must also appear to a reasonable observer be free therefrom. Otherwise, confidence in the independence of the judiciary may be undermined.", "13. The rationale of judicial independence, as stated above, provides a key by which to assess its practical implications – that is, the features which are necessary to secure it, and the mean by which it may be secured, at a constitutional or lower legal level, as well as in day-to-day practice, in individual states.”", "Basis of appointment or promotion", "“17. ... There is, therefore, general acceptance both that appointments should be made ‘on the merits’ based on ‘objective criteria’ and that political considerations should be inadmissible.", "...", "25. Any ‘objective criteria’, seeking to ensure that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’, are bound to be in general terms. Nonetheless, it is their actual content and effect in any particular state that is ultimately critical. The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’. Once this is done, those bodies or authorities responsible for any appointment or promotion will be obliged to act accordingly, and it will then at least be possible to scrutinize the content of the criteria adopted and their practical effect.", "...", "45. Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards [regarding appointments and promotions of judges]. In other states, ..., the need is pressing ...”", "Tenure – irremovability and discipline", "“57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: ...”", "125. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant paragraphs read as follows:", "“ Rule of law and justice", "1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner.", "Judicial Independence", "2. Judicial independence and impartiality are essential prerequisites for the operation of justice.", "3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence.", "4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment,", "Guarantees of independence", "5. Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence.", "...", "8. Initial and in-service training is a right and a duty for judges. It shall be organised under the supervision of the judiciary. Training is an important element to safeguard the independence of judges as well as the quality and efficiency of the judicial system.”", "126. In another opinion on the “Position of the judiciary and its relation with the other powers of state in a modern democracy” dated 16 October 2015 (Opinion no. 18/2015), the CCJE made findings, the relevant parts of which read as follows (footnotes omitted):", "III. Independence of the judiciary and separation of the powers", "“10. The judiciary must be independent to fulfil its role in relation to the other powers of the state, society in general, and the parties to litigations. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. Judicial independence is the means by which judges’ impartiality is ensured. It is therefore the pre ‑ condition for the guarantee that all citizens (and the other powers of the state) will have equality before the courts. Judicial independence is an intrinsic element of its duty to decide cases impartially. Only an independent judiciary can implement effectively the rights of all members of society, especially those groups that are vulnerable or unpopular. Thus, independence is the fundamental requirement that enables the judiciary to safeguard democracy and human rights.”", "IV. The legitimacy of judicial power and its elements", "...", "B. Different elements of legitimacy of judicial power", "...", "(2) Constitutional or formal legitimacy of individual judges", "“14. In order to perform the judicial functions legitimised by the constitution, each judge needs to be appointed and thus become part of the judiciary. Each individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy. It is implicit in this appointment in accordance with constitutional and legal rules that individual judges are thereby given the authority and appropriate powers to apply the law as created by the legislature or as formulated by other judges. The legitimacy conferred on an individual judge by his appointment in accordance with the constitution and other legal rules of a particular state constitutes an individual judge’s ‘constitutional or formal legitimacy’.", "15. The CCJE has noted the different methods of appointment of judges in the member states of the Council of Europe. These include, for example: appointment by a council for the judiciary or another independent body, election by parliament and appointment by the executive. As the CCJE has pointed out, each system has advantages and disadvantages. It can be argued that appointment by vote of Parliament and, to a lesser degree, by the executive can be seen to give additional democratic legitimacy, although those methods of appointment carry with them a risk of politicisation and a dependence on those other powers. To counter those risks, the CCJE has recommended that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. The CCJE has also recommended the participation of an independent authority with substantial representation chosen democratically by other judges in decisions concerning the appointment or promotion of judges ...”", "127. On 7 February 2018 the CCJE published a report on “Judicial independence and impartiality in the Council of Europe member States in 2017”. The relevant parts of this report read as follows (footnotes omitted):", "II. Overview of relevant European standards", "A. Functional independence: appointment and security of tenure of judges", "“13. The above-mentioned European and international documents underline that candidates for judicial office should be selected according to objective criteria based on merit, and that the selection should be undertaken by an independent body. If a person or body outside the judiciary, such as the head of state, has the authority to appoint judges, the proposal of the independent body should generally be followed by the appointing authority.", "14. The independence of judges requires the absence of interference by other state powers, in particular the executive power, in the judicial sphere ...", "15. The ECtHR and the CCJE have recognised the importance of institutions and procedures guaranteeing the independent appointment of judges. The CCJE has recommended that every decision relating to a judge’s appointment, career and disciplinary action should be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, to ensure that it is not taken other than on the basis of such criteria. Political considerations should be inadmissible irrespective of whether they are made within Councils for the Judiciary, the executive, or the legislature.", "16. There are different appointment procedures of judges in the member States. These include, for example: appointment by a Council for the Judiciary or another independent body, election by parliament and appointment by the executive. Formal rules and Councils for the Judiciary have been introduced in the member States to safeguard the independence of judges and prosecutors. However, as welcome as such developments may be, formal rules alone do not guarantee that appointment decisions are taken impartially, according to objective criteria, and free from political influence. The influence of the executive and legislative powers on the appointment decisions should be limited in order to prevent appointments for political reasons ...”", "GRECO", "128. At its 59th plenary meeting held from 18 to 22 March 2013 in Strasbourg, the Council of Europe Group of States Against Corruption (GRECO) adopted its Fourth Evaluation Report on Iceland, concerning corruption prevention in respect of members of parliament, judges and prosecutors (Greco Eval IV Rep (2012)8E). The report published on 28 March 2013 made the following relevant remarks on the appointment of judges:", "“75. Generally speaking, the GET [GRECO evaluation team] found the judiciary in Iceland to be of a high standard. Steps have been taken to address public criticism as regards appointment and recruitment to the judiciary, an area where misgivings have been expressed in the past as to appointments to office being politically motivated rather than based on merit ... The GET wishes to highlight that judges must not only be independent, but also seen to be independent. This is of particular relevance in Iceland where opinion polls in recent years have shown that only about 30% of the public expresses confidence in the judicial system as a whole [footnote: Sustainable Governance Indicators (SGI) (2011) Iceland Report by Bertelsmann Stiftung] – a striking figure, all the more so since the professionalism and competence of judges do not appear to be questioned by the population. Further consideration could be paid by the judiciary to the additional measures which could be developed to tackle this negative public perception and thereby strengthen public trust and confidence in this sector ...", "76. The rules for the appointment of judges were changed in May 2010, pursuant to Act No. 45/2010 amending Act No. 15/1998 ...", "77. Appointment criteria are examined for each applicant by an evaluation committee consisting of five members ... The most suitable candidate is then appointed as a judge by the Minister of the Interior ... No applicant may be appointed to the office of judge without the endorsement of the evaluation committee. However, the provisions allow an exception to this rule: the Minister of the Interior can appoint a candidate from the list of suitable candidates, who meets all the requirements but has not been ranked as the most suitable candidate by the evaluation committee, if the Althingi adopts, by simple majority, such a motion by the Minister.", "78. However, the exception described above, which requires an appropriate justification by the Minister, has not applied since the new rules on judicial appointments came into force in 2010. The GET heard that, before the new system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process ... The GET was also told that the exception provided by law is meant to work more as a safety measure to ensure some sort of review mechanism for the decisions made by the evaluation committee (in the event, for example, of criticisms of corporatism).", "...", "82. The GET welcomes the measures taken in recent years to further regulate and strengthen the appointment and recruitment procedures in the judiciary (see paragraphs 77 and 78) to respond to concerns that had been raised previously in Iceland... The interlocutors met on-site agreed that the reforms undertaken in this field have provided greater safeguards against improper political influence and have decisively improved the general transparency of the system ...”", "The European Charter on the Statute for Judges", "129. The relevant extract from the European Charter on the Statute for Judges of 8-10 July 1998 [9] reads as follows:", "2. SELECTION, RECRUITMENT, INITIAL TRAINING", "“2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, (...).", "2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.”", "The European Charter on the Statute for Judges provides as follows in its Explanatory Memorandum:", "“1.1 The Charter endeavours to define the content of the statute for judges on the basis of the objectives to be attained: ensuring the competence, independence and impartiality which all members of the public are entitled to expect of the courts and judges entrusted with protecting their rights. The Charter is therefore not an end in itself but rather a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection.", "These safeguards on individuals’ rights are ensured by judicial competence, in the sense of ability, independence and impartiality ...”", "European UnionThe European Commission", "The European Commission", "The European Commission", "130. The European Commission’s 2011 Progress Report on Iceland published on 12 October 2011 (SEC(2011) 1202 final) made the following observations regarding the independence of the judiciary in Iceland:", "“The independence of the judiciary was strengthened. In May 2011, the process of appointing three judges in the Supreme Court took place according to the rules of the amended Judiciary Act. However, the implementation of the new rules on appointing judges and prosecutors still requires further monitoring.”", "Case-law of the European Union courts", "(a) Judgment of the General Court (Appeal Chamber) in the case of FV v Council dated 23 January 2018 (T ‑ 639/16 P, EU:T:2018:22)", "131. The case concerned an appeal brought by F.V., an official of the Council of the European Union at the material time, against a judgment delivered on 28 June 2016 by the Civil Service Tribunal of the European Union. F.V. claimed, inter alia, that the judgment under appeal had been delivered by a Chamber which had been improperly constituted, having regard to the flaws in the procedure for the appointment of one of the judges on the bench. He complained, in particular, that the judge in question had been appointed to the Civil Service Tribunal through an appointment procedure that had been initiated to fill two other positions in that tribunal.", "132. By a decision dated 23 January 2018, the General Court found that the Chamber of the Civil Service Tribunal which delivered the judgment in question had been improperly constituted. It held, in particular, that the Council had failed to comply with the legal framework laid down by the relevant public call for applications, because it had used the list of candidates drawn up following that call – which had been made for the appointment of two judges only – to fill a third post. As the constitution of the relevant Chamber of the Civil Service Tribunal was considered improper on this ground alone, the judgment under appeal was set aside in its entirety. The relevant parts of the General Court’s judgment read as follows:", "“65. ..., it is therefore necessary to examine whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal.", "66. In that context, it must be borne in mind that, according to the case-law of the Court, when the proper constitution of the court which delivered the judgment at first instance is contested and the challenge is not manifestly devoid of merit, the appeal court is required to verify that the court was properly constituted. A ground alleging the irregular constitution of the panel of judges is a ground involving a question of public policy, which must be examined by the appeal court of its own motion, even if this irregularity was not invoked at first instance (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C ‑ 341/06 P and C ‑ 342/06 P, EU:C:2008:375, paragraphs 44 to 50).", "67. As is apparent from the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, one of the requirements concerning the composition of the Chamber is that courts must be independent, impartial and previously established by law.", "68. The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions (see, to that effect, judgment of 13 December 2012, Strack v Commission, T ‑ 199/11 P, EU:T:2012:691, paragraph 22).", "...", "72. According to the case-law of the European Court of Human Rights (‘the ECtHR’), the principle of the lawful judge enshrined in the first sentence of Article 6(1) of the ECHR reflects the principle of the rule of law, from which it follows that a judicial body must be set up in accordance with the intention of the legislature (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 103, and 20 October 2009, Gorguiladzé v. Georgia, ..., Paragraph 67).", "73. According to the ECtHR, a court must thus be established in accordance with the legal provisions on the establishment and competence of judicial bodies and with any other provision of national law that would render, if it is not complied with, the involvement of one or more judges in the examination of the case improper. This includes in particular provisions relating to the mandates, incompatibilities and disqualification of judges (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 104, and 20 October 2009, Gorguiladzé v. Georgia, ..., paragraph 68).", "74. As it is apparent from the case-law of the ECtHR, the principle of the lawful judge requires compliance with the provisions governing the procedure for the appointment of judges (see, to that effect, ECtHR, 9 July 2009, Ilatovskiy v. Russia, ..., paragraphs 40 and 41).", "75. Indeed, it is not only essential that judges are independent and impartial, but also that the procedure for their appointment appears to be so. It is for that reason that the rules for the appointment of a judge must be strictly adhered to. Otherwise, the confidence of litigants and the public in the independence and impartiality of the courts might be eroded (see, to that effect, decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs, E-21/16, paragraph 16).", "76. The question whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal must be considered in the light of those principles.", "77. In that regard, it must be stated that it is apparent [...], that the Council was fully aware that the list of candidates at issue had not been established with a view to appointing a judge to the post held by Ms [R.P.]. It nevertheless decided to use the list for that purpose. It therefore follows from the appointment itself that the Council deliberately disregarded the legal framework laid down by the public call for applications of 3 December 2013 and the rules governing the appointment of judges to the Civil Service Tribunal.", "78. Accordingly, having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.”", "133. The proposal for the review of this judgment made by the First Advocate General was dismissed by the Court of Justice (Reviewing Chamber) on 19 March 2018 (C-141/18 RX), as the formal conditions under the Statute of the Court of Justice of the European Union on whether a judgment should be reviewed were not met in this case.", "(b) Judgments of the General Court (Appeal Chamber) and the Court of Justice of the European Union (Grand Chamber) in the cases of Simpson v Council and HG v Commission", "(i) Judgment of the General Court (Appeal Chamber) dated 19 July 2018 (cases T-646/16 P and T ‑ 693/16 P)", "134. The cases of Simpson v Council and HG v Commission concerned appeals lodged with the General Court in September 2016 against judgments delivered by the Civil Service Tribunal in respect of Mr Simpson and Mr H.G., staff members at the Council of the European Union and the European Commission, respectively, at the material time. Both judgments of the Civil Service Tribunal had been delivered by the same panel of judges whose composition had been considered to be irregular by the General Court in the judgment in FV.", "135. Relying on its findings in the case of FV, on 19 July 2018 the General Court held that the judgments of the Civil Service Tribunal under review had to be set aside in their entirety on the grounds of infringement of the principle of the right to a judge assigned by law.", "136. Upon a request from the First Advocate General, in a decision of 17 September 2018 (EU:C:2018:763) the Reviewing Chamber of the Court of Justice of the European Union (CJEU) decided that the General Court’s judgments in the cases of Simpson and HG should be reviewed, in order to determine whether, having regard, in particular, to the general principle of legal certainty, they affected the unity or consistency of European Union law. The Reviewing Chamber held as follows:", "“The review shall involve, in particular, the question whether, ..., the appointment of a judge may form the subject matter of a review of indirect legality or whether such a review of indirect legality is – by principle or after the passage of a certain period of time – excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata.”", "(ii) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 26 March 2020 (Joined Cases C ‑ 542/18 RX-II and C ‑ 543/18 RX-II, EU:C:2020:232)", "137. On 26 March 2020 the Grand Chamber of the CJEU delivered its judgment in the cases of Simpson and HG. While the CJEU upheld the General Court’s finding regarding the irregularity in the judicial appointment procedure at issue, it disagreed with that court’s conclusion as to the effect of that irregularity on the parties’ right to a “tribunal established by law”. The relevant extracts from the judgment read as follows:", "“50 As regards the answer to the question to be reviewed in this case, it is necessary to begin by examining whether, having regard, in particular, to the general principle of legal certainty, the General Court erred in law by setting aside the contested decisions on the ground that the composition of the panel of judges of the Civil Service Tribunal which had delivered those decisions had been irregular because of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter.", "51 In the context of that examination, it is necessary to determine, first, in what circumstances the appointment of a judge may, like acts covered by Article 277 TFEU, form the subject matter of an incidental review of legality. Secondly, the Court must verify whether, in so far as the irregularity concerning the appointment procedure is established, as determined by the General Court, that irregularity did indeed lead to an infringement of the first sentence of the second paragraph of Article 47 of the Charter, justifying the setting aside of those decisions.", "...", "72 Since the first sentence of the second paragraph of Article 47 of the Charter corresponds to the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those laid down by that convention. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 ECHR, as interpreted by the European Court of Human Rights (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, paragraph 118 and the case-law cited).", "73 According to the settled case-law of the European Court of Human Rights, the reason for the introduction of the term ‘established by law’ in the first sentence of Article 6(1) ECHR is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned (see, to that effect, ECtHR, 8 July 2014, Biagioli v. San Marino, CE:ECHR:2014:0708DEC000816213, §§ 72 to 74, and ECtHR, 2 May 2019, Pasquini v. San Marino, CE:ECHR:2019:0502JUD005095616, §§ 100 and 101 and the case-law cited).", "74 Likewise, the European Court of Human Rights has already had an opportunity to observe that the right to be judged by a tribunal ‘established by law’ within the meaning of Article 6(1) ECHR encompasses, by its very nature, the process of appointing judges (ECtHR, 12 March 2019, Ástráðsson v. Iceland, CE:ECHR:2019:0312JUD002637418, interim judgment, § 98).", "75 It follows from the case-law cited in paragraphs 71 and 73 of the present judgment that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system.", "76 It is in the light of those principles that the Court must examine whether the irregularity committed in the appointment procedure at issue resulted in this instance in an infringement of the parties’ right to a hearing by a tribunal previously established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter.", "...", "79 In that context, the mere fact that the Council used the list drawn up following the public call for applications of 3 December 2013 to fill the third post is not sufficient to establish an infringement of a fundamental rule of the procedure for appointing judges to the Civil Service Tribunal that is of such a kind and of such gravity as to create a real risk that the Council made unjustified use of its powers, undermining the integrity of the outcome of the appointment process and thus giving rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge appointed to the third post, or of the Chamber to which that judge was assigned.", "80 In that respect, the irregularity in the appointment procedure at issue is distinguishable from that at issue in the decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs (E ‑ 21/16), mentioned in paragraph 75 of the judgment of 23 January 2018, FV v Council (T ‑ 639/16 P, EU:T:2018:22). The latter irregularity consisted in the appointment of a judge to the EFTA Court for, exceptionally, a three-year term of office instead of a six-year term, and thus concerned, unlike the irregularity examined in the present cases, the infringement of a fundamental rule in relation to the duration of judges’ mandates at that court which was intended to protect their independence.", "81 It follows from the foregoing that the Council’s disregard for the public call for applications of 3 December 2013 does not constitute an infringement of the fundamental rules of EU law applicable to the appointment of judges to the Civil Service Tribunal that entailed an infringement of the applicants’ right to a tribunal established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter.", "82 Consequently, and since the judgments under review do not contain anything else that might cast doubt on compliance with the first sentence of the second paragraph of Article 47 of the Charter, it must be held that the General Court made an error of law in ruling, in those judgments, that that provision had been infringed. The irregularity referred to in the preceding paragraph could not, therefore, by itself justify the setting aside of a judicial decision adopted by the panel of judges to which the judge appointed to the third post was assigned.”", "(c) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18, EU:C:2019:982)", "138. On 19 November 2019 the Grand Chamber of the Court of Justice of the European Union delivered a preliminary ruling in response to requests from the Labour and Social Insurance Chamber of the Supreme Court of Poland. The requests mainly concerned the question whether the newly established Disciplinary Chamber of the Supreme Court of Poland satisfied, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required under Article 47 of the Charter of Fundamental Rights of the European Union. Recalling that the interpretation of Article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, the Court of Justice underlined the following principles, as relevant:", "“120 [The] requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, ...", "...", "123 Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it ...", "124 Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive ...", "125 In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned ...", "...", "127 According to settled case-law of [the European Court of Human Rights], in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141).", "128 As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 145, 147 and 149 and the case-law cited).", "...", "133 In that regard, as far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C ‑ 175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited).", "134 However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 111).", "135 In that perspective, it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements set out in paragraph 125 above.”", "(d) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland dated 24 June 2019 (Case C-619/18, EU:C:2019:531)", "139. On 24 June 2019 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland, which mainly concerned the lowering of the retirement age for Supreme Court judges to 65 and which applied to judges of the court appointed before the date on which the relevant law had entered into force. Under the law in question, it would be possible for Supreme Court judges to continue in active judicial service beyond the age of 65 subject to certain conditions, including an authorisation by the President of the Republic of Poland, who would not be bound by any criterion and whose decision would not be subject to any form of judicial review. After emphasising the cardinal importance of maintaining the independence of national courts in order to ensure effective judicial protection, the Court of Justice made the following remarks regarding the role played by the principle of irremovability of judges in guaranteeing the independence of the judiciary:", "“75 In particular, that freedom of the judges from all external intervention or pressure, which is essential, requires, as the Court has held on several occasions, certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited).", "76 The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality ...", "78 In the present case, it must be held that the reform being challenged, which provides that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) is to apply to judges already serving on that court, results in those judges prematurely ceasing to carry out their judicial office and is therefore such as to raise reasonable concerns as regards compliance with the principle of the irremovability of judges.", "79 In those circumstances, and having regard to the cardinal importance of that principle, recalled in paragraphs 75 to 77 above, such an application is acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.”", "Following an examination of the facts at issue on the basis of the foregoing principles, the Court of Justice found that the application of the measure lowering the retirement age of the Supreme Court judges to the judges currently serving in that court had undermined the principle of irremovability of judges, which was essential to their independence.", "Court of Justice of the European Free Trade Association States (EFTA Court)", "140. The Court of Appeal of the Principality of Liechtenstein requested an advisory opinion from the EFTA Court in respect of the Agreement on the European Economic Area (EEA Agreement) and the Solvency II Directive 2009/138/EC, and referred three questions to the EFTA Court in that regard. The third question, which was conditional on the entertainment of the first two questions by the EFTA Court after 16 January 2017, concerned the principle of loyalty laid down in Article 3 of the EEA Agreement and the possibility for the EFTA States to question the validity of the decisions of the EFTA Court. In essence the question raised the issue as to whether, from 17 January 2017, the EFTA Court would be lawfully composed in a manner that ensured its independence and impartiality. The reason for the question was that by an ESA/Court Committee Decision of 1 December 2016, the regular judge of the EFTA Court in respect of Norway had been reappointed for a three-year term of office as of 17 January 2017. However, Article 30 § 1 of the Agreement between the EFTA States, on the Establishment of a Surveillance Authority and Court of Justice (SCA), provided that the judges of the EFTA Court would be appointed for a term of six years.", "141. On 13 January 2017 the ESA/Court Committee delivered a new decision, whereby it reappointed the judge in respect of Norway for a term of six years and repealed its first decision.", "142. On 14 February 2017, in case no. E-21/16, the EFTA Court replied to the Court of Appeal’s third question, the relevant part of which reads as follows:", "“16. Any assessment of the lawfulness of the Court’s composition, particularly concerning its independence and impartiality, requires that due account is taken of several important factors. First, the principle of judicial independence is one of the fundamental values of the administration of justice. ... Second, it is vital not only that judges are independent and fair, they must also appear to be so. Third, maintaining judicial independence requires that the relevant rules for judicial appointment, as set out in Article 30 SCA, must be strictly observed. Any other approach could lead to the erosion of public confidence in the Court and thereby undermine its appearance of independence and impartiality.”", "143. The EFTA Court concluded that it had to take into account the new decision repealing the previous decision and re-appointing the judge in respect of Norway for a term of six years. The new decision was unambiguous and provided for a term that was in accordance with Article 30 of the SCA. Therefore, there could be no doubt as to the lawfulness of the court’s composition as from 17 January 2017.", "The Inter-American Court of Human Rights", "144. In the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, judgment of 23 August 2013, concerning the removal of twenty-seven judges of the Supreme Court of Justice of Ecuador through a parliamentary resolution, the Inter-American Court of Human Rights made the following remarks on the independence of the judiciary:", "“144. In its case law, the Court has indicated that the scope of judicial guarantees and effective judicial protection for judges must be examined in relation to the standards on judicial independence. In the case of Reverón Trujillo v. Venezuela, the Court emphasized that judges, unlike other public officials, enjoy specific guarantees due to the independence required of the judiciary, which the Court has understood as ‘essential for the exercise of the judiciary.’ The Court has reiterated that one of the main objectives of the separation of public powers is to guarantee the independence of judges. The purpose of protection is to ensure that the judicial system in general, and its members in particular, are not subject to possible undue restrictions in the exercise their duties by bodies outside the Judiciary, or even by judges who exercise functions of review or appeal. In line with the case law of this Court and of the European Court of Human Rights, and in accordance with the United Nations Basic Principles on the Independence of the Judiciary (hereinafter ‘Basic Principles’), the following guarantees are derived from judicial independence: an appropriate process of appointment, guaranteed tenure and guarantees against external pressures.", "...", "154. Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole ...”", "Other international texts", "145. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, adopted on 19 June 1998 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association, provided as follows:", "II. Preserving Judicial Independence", "1. Judicial appointments", "“Jurisdictions should have an appropriate independent process in place for judicial appointments. Where no independent system already exists, appointments should be made by a judicial services commission ... or by an appropriate officer of state acting on the recommendation of such a commission.", "The appointment process, whether or not involving an appropriately constituted and representative judicial services commission, should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary.", "Judicial appointments to all levels of the judiciary should be made on merit ...”", "146. The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999. Its Article 9 on appointments reads as follows:", "“The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.”", "147. In May 2012 the General Assembly of the European Network of Councils for the Judiciary adopted a declaration (the Dublin Declaration), setting minimum standards regarding the recruitment, selection, appointment and promotion of members of the judiciary. The relevant extracts of the declaration read as follows:", "“1. Judicial appointments should only be based on merit and capability.", "There requires to be a clearly-defined and published set of selection competencies against which candidates for judicial appointment should be assessed at all stages of the appointment process.", "2. Selection competencies should include intellectual and personal skills of a high quality, as well as a proper work ethic and the ability of the candidates to express themselves.", "...", "8. Diversity in the range of persons available for selection for appointment should be encouraged, avoiding all kinds of discrimination, although that does not necessarily imply the setting of quotas per se, adding that any attempt to achieve diversity in the selection and appointment of judges should not be made at the expense of the basic criterion of merit.", "9. The entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected.", "10. An unsuccessful candidate is entitled to know why he or she failed to secure an appointment; and there is a need for an independent complaints or challenge process to which any unsuccessful applicant may turn if he or she believes that he/she was unfairly treated in the appointment process.", "11. If the Government or the Head of State plays a role in the ultimate appointment of members of the judiciary, the involvement of a Minister or the Head of State does not in itself contend against the principles of independence, fairness, openness and transparency if their role in the appointment is clearly defined and their decision-making processes clearly documented, and the involvement of the Government or the Head of State does not impact upon those principles if they give recognition to decisions taken in the context of an independent selection process. Besides, it was also defined as a Standard in this field that where whoever is responsible for making the ultimate appointment (the Government or Head of State) has the right to refuse to implement the appointment or recommendation made in the context of an independent selection process and is not prepared to implement the appointment or recommendation it should make known such a decision and state clearly the reason for the decision.”", "COMPARATIVE-LAW MATERIAL", "148. The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in forty States Parties to the Convention (namely Albania, Andorra, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, North Macedonia, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom) on the Convention requirement of a “tribunal established by law”.", "149. According to the information available to the Court, the concept of a “tribunal established by law” is recognised in the legal systems of all States surveyed, although the terminology used to designate it and the methods of its recognition differ. For instance, while in some States the concept is explicitly recognised in basically identical terms, some other States use the concept of a “lawful” or a “natural” judge or court.", "150. The scope of the requirement of a “tribunal established by law” differs amongst the member States surveyed: in almost all the States concerned, the “established by law” requirement clearly involves the question of the composition of a court or tribunal; in thirty-seven member States that requirement relates to the jurisdiction and competence of a court or tribunal to rule in a particular case (in Belgium, Luxembourg and Malta the “established by law” requirement does not seem to cover this matter specifically); and in twenty-nine member States, it specifically relates to the consideration as to whether there is a legal basis for the existence of a court or tribunal.", "151. The Court notes, as particularly relevant to the present case, that in nineteen (out of forty) of the States surveyed (namely Andorra, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, France, Georgia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Montenegro, Norway, Russia, Sweden and the United Kingdom), it is sufficiently established in domestic law and/or practice that the requirement of a “tribunal established by law” also covers the consideration as to whether the legal procedure for the appointment – to the post of judge – of its judges was complied with. As for the remaining twenty-one member States, it appears that it is not sufficiently clear under their domestic law and practice whether the “established by law” requirement also extends to the process of the appointment of judges.", "152. The Court further notes that in those nineteen States where the requirement of a “tribunal established by law” clearly extends to the rules relating to the appointment of judges, the legal consequences regarding a judgment given by (or with the participation of) a judge who was appointed in breach of the relevant rules vary. In most of those States, it is possible in certain circumstances to request the annulment or quashing of the judgments adopted by such a judge: nevertheless, in a number of States, such as Austria, Belgium, Georgia, Norway, and Sweden, it is clear from the case-law of the domestic courts that the breach of the domestic law at issue has to be of a particular gravity – the degree of which differs from State to State – for the relevant judgments to be annulled or quashed. Similarly, in certain States, such as Croatia, France, Italy and the United Kingdom, it appears from the domestic law and/or practice that if judicial appointments are quashed or annulled due to the irregularities in the appointment procedure, it would not necessarily mean that all acts or judgments adopted by the judge in question would be annulled or quashed.", "153. Lastly, in almost all member States where the requirement of a “tribunal established by law” extends to the procedure for the appointment of judges (that is, nineteen out of forty States as mentioned in paragraph 151 above), the reopening of proceedings is a possibility, and in some instances an obligation, where a judgment has been annulled or quashed due to an irregularity in the appointment of a judge who participated in its delivery (see paragraph 152 above).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW", "154. The applicant complained under Article 6 § 1 of the Convention that one of the three judges on the bench of the newly constituted Court of Appeal which had upheld his criminal conviction, namely A.E., had not been appointed in accordance with the relevant domestic law and that, therefore, the criminal charges against him had not been determined by a “tribunal established by law”, within the meaning of that provision.", "The first sentence of Article 6 § 1 of the Convention reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”", "The Chamber judgment", "155. After reiterating the general principles under the Court’s case-law concerning the right to a “tribunal established by law”, the Chamber proceeded with its analysis on the premise that the concept of “establishment” in the first sentence of Article 6 § 1 of the Convention encompassed, by its very nature, the process of appointing judges within the domestic judicial system. According to the Chamber, the principle of the rule of law required that the judicial appointment process be conducted in compliance with the applicable rules of national law in force at the material time.", "156. The Chamber further noted that the test of a “flagrant breach of domestic law”, which was ordinarily applied when examining whether national courts had correctly interpreted and applied the provisions of domestic law, should also apply where the alleged breach of domestic law was attributed to another branch of government and the breach had been acknowledged by the domestic courts. The Chamber held in this connection that only those breaches of applicable national rules in the establishment of a “tribunal” that were of a fundamental nature, and that formed an integral part of the establishment and functioning of the judicial system, could be considered to constitute a “flagrant breach of domestic law” in this context.", "157. Having thus laid down the main principles that would guide its examination, the Chamber had to determine whether the breaches of the relevant national rules in the procedure for the appointment of certain judges – including A.E. – to the Court of Appeal, as already recognised by the Supreme Court of Iceland, had been “flagrant” and, therefore, had had the result of denying the applicant the right to a hearing before a “tribunal established by law”, having regard to the presence of Judge A.E. on the bench which upheld his conviction.", "158. The Chamber noted in the first place that the Supreme Court, which had found that the applicant had enjoyed a fair trial before an independent and impartial “tribunal”, in spite of the irregularities in the appointment of one of the judges on the bench of the Court of Appeal, had not examined as such whether the appointment at issue had constituted a “flagrant” breach of the relevant domestic rules in the light of the Court’s case-law under Article 6 § 1. It noted secondly that, contrary to the argument of the respondent Government, a violation of the principle that a “tribunal” be established by law, as of the closely related principles under the same provision that a “tribunal” be independent and impartial, did not require a separate examination as to whether the breach of that principle had had the effect of rendering a trial unfair. The Chamber considered, thirdly, that having regard to their nature and gravity, the breaches of the national law in the instant case by the Minister of Justice had been of a fundamental nature, as they lay at the core of the appointment process. The Chamber moreover noted – in the light of the factual findings of the Supreme Court – that in addition to constituting a fundamental defect in objective terms, the breaches in question had also demonstrated the Minister’s manifest disregard for the applicable rules in force at the material time. The Chamber lastly noted that the failure of Parliament – as confirmed by the Supreme Court – to adhere to the rule of separate voting on each candidate had also amounted to a serious defect in the appointment procedure, given that the relevant rule had been introduced to minimise the risk of party-political interests unduly influencing the process of appointments to the newly established Court of Appeal.", "159. In the light of the foregoing findings, and having particular regard to the importance of securing compliance with applicable rules of national law in a democratic society governed by the rule of law, the Chamber found that the infringements of the domestic law, on account of the executive’s exercise of undue discretion in the judicial appointment process, had amounted to a flagrant breach of the relevant rules applicable at the material time. It therefore concluded, by five votes to two, that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right to a “tribunal established by law” by reason of the unlawful presence of A.E. on the bench of the Court of Appeal which had upheld his criminal conviction (see paragraphs 97-123 of the Chamber judgment). Having regard to the conclusions reached in relation to the applicant’s right to a tribunal established by law, the Chamber further considered that it was not necessary to examine his complaint in relation to the absence of independence and impartiality of the Court of Appeal panel which heard his appeal (see paragraph 126 of the Chamber judgment).", "Submissions before the Grand ChamberThe parties", "The parties", "The parties", "(a) The applicant", "160. The applicant invited the Grand Chamber to follow the approach of the majority in the Chamber and find a violation of Article 6 § 1 on the grounds that the criminal charges against him had not been determined by a “tribunal established by law” on account of A.E.’s presence on the bench of the Court of Appeal which had heard his case, in spite of the irregularities in the process of that judge’s appointment, as established by the domestic courts.", "161. The applicant, at the outset, provided an overview of the history of the legislative developments in Iceland concerning the judicial appointment procedure, along the same lines as the information noted in paragraphs 11 ‑ 19 above, all of which, he argued, had sought to reinforce the independence of the courts of law vis-à-vis the executive and to combat political corruption and abuse of power in judicial appointments – examples of which had been seen in Iceland in the past – so as to enhance public confidence in the judiciary. He also submitted, however, that legislation designed to ensure an independent and impartial judiciary would be useless if that legislation was circumvented in the process of appointment of judges, which was precisely the issue in the instant case when the Minister of Justice had decided to disregard the conclusions of the Evaluation Committee. The applicant argued in this regard that despite the number of legislative reforms to counter political corruption in judicial appointments, the Minister of Justice had acted out of political considerations in the proposals that she had made regarding the appointments to the new Court of Appeal.", "162. The applicant claimed that the Supreme Court judgment delivered on 24 May 2018, in response to his challenges against the composition of the Court of Appeal in his case, had been defective. This was because it not only contradicted the judgments adopted earlier by the Supreme Court on 19 December 2017, but also wrongly referred to the December 2017 judgments as stating that the deficiency in the voting procedure in Parliament had not been “significant”, whereas no such claim had been made by the Supreme Court in the judgments at issue. The judgment of 24 May 2018 had, moreover, failed to comprise any scrutiny as to whether the criteria established in the Court’s case-law in respect of the “tribunal established by law” requirement had been fulfilled in the present case, or even to examine independently whether the breaches at issue had been serious or not. The Supreme Court’s approach to the case suggested that there would be nothing to obstruct the Minister’s proposals, even if she wished to depart completely from the list prepared by the Evaluation Committee and to propose the fifteen least qualified candidates according to the Committee’s rankings.", "163. The applicant attributed the Supreme Court’s unwillingness to duly assess the legal effects of A.E.’s presence on the bench of the Court of Appeal to the small size of the legal community in Iceland. He stated that all four judges who had been appointed to the Court of Appeal upon the proposal of the Minister of Justice, including A.E., had served as alternate judges at the Supreme Court during the period from 5 March to 25 May 2018, when the applicant’s case was pending before the Supreme Court, a situation which, he claimed, constituted a conflict of interest. The applicant added that the annulment of a judicial appointment by a court of law, by reason of irregularities in the appointment process, was unprecedented in Iceland.", "164. In the applicant’s opinion, the breaches of the law in the appointment of judges to the Court of Appeal, as identified by the Supreme Court on numerous occasions, had been very serious in nature. He argued in this connection that despite the advice provided by her own legal staff and the clear precedent set by the Supreme Court judgment of 14 April 2011 (see paragraphs 36 and 115 above), the Minister of Justice, who was a lawyer herself, had ignored the legal obligations that had been incumbent on her in the process of judicial appointments to the Court of Appeal. The Supreme Court had similarly found in its judgments of 19 December 2017 that the Minister had acted “in complete disregard” of the obvious danger to the reputational interests of the plaintiffs – namely the two non-appointed candidates – in that case. The applicant contended, on the basis of the aforementioned elements, that the Minister had breached the relevant laws with intent or with such gross negligence, that it bordered on intent. Referring, once again, to his arguments regarding the close political relations between the Minister of Justice and A.E.’s husband B.N. (see paragraph 89 above), the applicant argued that the Minister’s decision had been motivated by political considerations and had amounted to abuse of power. He also argued in this connection that two of the candidates removed from the list by the Minister had been associated with left-wing parties in different capacities, and that candidate number 30 proposed by the Minister had been the husband of a friend and former colleague of hers.", "165. The applicant further argued that the explanations provided by the Minister in support of her decision to depart from the Evaluation Committee’s list – which had allegedly been motivated by considerations of gender equality and judicial experience – were unconvincing. He claimed firstly that one of the rejected candidates was a District Court judge who had been ranked higher than all of the four District Court judges whom the Minister had chosen to appoint instead. Secondly, she had appointed a male District Court judge who had been ranked 30th on the Evaluation Committee’s list, but had chosen to ignore a female District Court judge ranked 22nd. In the applicant’s submission, these examples demonstrated that the Minister had not been justified in her decision and suggested an abuse of power.", "166. As regards the breaches of the law committed by Parliament, the applicant stated that no plausible explanation had been given as to why Parliament had decided to contravene the clear and unequivocal letter of the law and to submit a single motion on all the candidates for acceptance or rejection. According to the applicant, this was a conscious decision on the part of Parliament, aimed at ensuring the approval of all four candidates who had not been on the Evaluation Committee’s list, and as such it had constituted a breach of a very serious nature. To illustrate his point, the applicant explained that if the proposals had not been put to a single vote, Parliament would then have had to take separate a vote to reject, for instance, the candidate ranked in 7th place in favour of a candidate ranked 30th, who was among the four proposed by the Minister. It was therefore evident that Parliament had failed to act as a check on executive power and had thus neglected a legal duty vested in it for these exact circumstances. The applicant further argued that the explanations given by Parliament to justify the single vote were not satisfactory, as parliamentary custom could not take precedence over statute law. Like any other institution, Parliament had to abide by the law, particularly when the law in question was specifically designed to ensure due process in the appointment of judges and to curb the powers of the executive in that regard by assigning a supervisory function to Parliament.", "167. The President of Iceland had, moreover, “given his blessing” to the breach committed by Parliament by signing A.E.’s letter of appointment and declaring, without having procured any independent investigation or legal advice, that no error had been committed in the conduct of the relevant vote in Parliament. All the principal pillars of government had, therefore, failed during the process of the appointment of the Court of Appeal judges.", "168. The applicant argued that the breaches in question could not be considered minor for the purposes of the “tribunal established by law” principle under Article 6 § 1. He stressed in this connection the nature of the laws breached, which were intended to ensure the independence of the judiciary through an objective appointment process, and the consequences of those breaches, which, as noted by the District Court in its judgments of 25 October 2018 (see paragraph 92 above), had resulted in a composition of the Court of Appeal including judges other than those who would have been appointed had the appointment process been conducted lawfully. To hold otherwise would render that principle ineffective for failure to afford any meaningful protection.", "169. The applicant stressed that the central issue at stake in the present case was the continued meaningful protection of the right to a “tribunal established by law”, which he considered to be a requirement independent from the other rights protected under Article 6 § 1 and “probably the most important” amongst them. He contended that without any real protection of that principle, the rest of the rights under Article 6 § 1 would be “terminally undermined”. He added that the “established by law” principle must be understood not only to mean that a court is to be established by law in a strictly formal and narrow sense, but also – and possibly more importantly – to require that any acts undertaken in the course of establishing a court be lawful in the fullest relevant substantive sense.", "170. He further argued that the principle of “legal certainty” would not apply when there had been a “flagrant breach” of the domestic law such as in the present case. He referred in this connection to the relevant paragraphs of the opinion delivered by Advocate General Sharpston in the cases of Simpson and HG (C-542/18 and C-543/18, see Opinion delivered by the Advocate General on 12 September 2019, EU:C:2019:977; see also paragraphs 134 ‑ 137 above for further details on the cases of Simpson and HG ). He also emphasised that the judgments of the Supreme Court dated 19 December 2017, which had established the irregularities in the appointment procedure, had been delivered some ten days prior to the date on which the appointments to the Court of Appeal had come into effect (see paragraphs 67-75 above). In other words, the Icelandic State had proceeded with the appointments notwithstanding the findings of the Supreme Court, which therefore prevented the Government from relying, in good faith, on legal certainty in the present case.", "171. In response to an allegation by the Government that the Evaluation Committee had recently changed its assessment practice in a manner consistent with the Minister’s original request to that Committee (see paragraph 190 below), the applicant argued that that allegation had no basis. While the Evaluation Committee had effectively proposed three candidates for one advertised post at the Supreme Court, as argued by the Government, it had done so only because those three candidates had been found to be equally qualified, and not because it had changed its assessment practice. In any event, even if the Evaluation Committee were to be criticised for its assessment method, that would not justify the serious violations of the domestic law by the Minister and Parliament in the present case.", "172. As to the Government’s argument that his allegations of a political deal between the Minister and A.E.’s husband B.N. did not make sense chronologically (see paragraph 191 below), the applicant stated that the chronological order did not matter and that the facts spoke for themselves; it was apparent in his view that the Minister had done B.N. a favour, which the latter had repaid four months later.", "(b) The Government", "173. The Government of Iceland invited the Grand Chamber to reject the applicant’s complaints and the Chamber majority’s conclusion in relation to those complaints, and to follow the reasoning adopted in the dissenting opinion, according to which the breaches of some of the rules relating to the appointment of judges to the Court of Appeal were not such as to result in that court’s lacking the required legal basis to subsequently hear cases with the participation of one or more of the four judges proposed by the Minister of Justice. In the Government’s view, the majority judgment suffered from a number of fundamental errors, as indicated below.", "174. They noted firstly that in the judgment the majority had disregarded one of the core principles of the Convention system, that is, the principle of subsidiarity, by setting aside the assessment of the highest domestic court of Iceland as to the scope of the relevant rules of domestic law on the lawfulness of a “tribunal”. The Government claimed, by reference to the Court’s relevant case-law, that the majority had failed to acknowledge that the consequences of a violation of domestic law was to be assessed by domestic courts and that it was open to the Court to take a different view only where it found that the domestic courts’ assessment of the law had been “manifestly unreasonable or arbitrary or blatantly inconsistent with fundamental principles of the Convention” (they referred to the example of Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004 ‑ VIII).", "175. The Government argued, secondly, that the majority in the Chamber had disregarded the fact that the right to a “tribunal established by law” was a right to a competent “tribunal” established previously by law. It had instead treated the term “established by law” in Article 6 § 1 as having the same meaning as “in accordance with” any and all rules, as long as those rules only “related to” the establishment and competence of judicial organs, and regardless of whether the flaw was only procedural in nature with no legal effect on the competence of the “tribunal”. In the Government’s opinion, the difference between the two terms was significant: a defect in the procedure by which a judge had been appointed could mean that the appointment procedure had not been “in accordance with the law”. That did not, however, mean that the purported establishment of the tribunal itself was void; domestic law could still regard it as validly constituted notwithstanding the procedural non ‑ compliance with the appointment procedure.", "176. Thirdly, the test of a “flagrant violation of domestic law” established by the majority as a test to be applied by the domestic courts was contrary to the Court’s case-law. The correct approach would have been to ask whether, as a matter of domestic law, the deficiencies in the selection process were such as to render the subsequent appointment of the individual judge invalid. If they were not, the “tribunal” would then be comprised of appointed judges, bound by their legal obligations as holders of judicial office, and would therefore be “established by law”. Under the Court’s previous case-law, the “flagrant violation” test would only allow it to override a domestic court’s finding that a “tribunal” was “established by law” when it was plain and obvious that it was not so established according to domestic law; whereas in the present case, the majority had held that the word “flagrant” related to the “nature and gravity of the alleged breach”, and not to the flagrance of any error in the domestic court’s analysis of domestic law. This approach was inconsistent with the Court’s settled case-law, and with the principle of subsidiarity, and the test proposed was too broad and vague. Moreover, the only cases cited by the majority in support of their approach had been cases of the EFTA Court and of the General Court of the European Union, which concerned very different procedural flaws in very different legal contexts, and raised no issues of subsidiarity.", "177. The proposed “flagrant violation” test was also unworkable, in the Government’s opinion. Any violation, no matter what it involved or when it had taken place, would be subject to the test. Accordingly, the judgments delivered by a judge appointed even thirty years ago following a flawed procedure could be contested, if the flaws were considered serious enough by the Court. The Government argued on the basis of this example that the consequences of the proposed test would be worse than, and entirely disproportionate to, the deficiencies it purported to address.", "178. Fourthly, while the majority had acknowledged that a test of “flagrant violation of domestic law” could only be met where the breach of law at issue was of a “fundamental nature ... [forming] an integral part of the establishment and functioning of the judicial system” (paragraph 102 of the Chamber judgment), they had failed to have regard to various factors which made it impossible to hold that a “flagrant” violation had taken place in the present circumstances. These factors included the fact that the Court of Appeal, as an institution, had been established by law; that A.E. had been found by the Evaluation Committee, the statutory body designated to make such assessments, to be fully qualified and eligible for appointment as a Court of Appeal judge; that in proposing candidates to Althingi for approval, the Minister of Justice was not required by law to follow the Evaluation Committee’s recommendations in all circumstances; that in taking the course she did, the Minister had acted in good faith at all times and had been driven by entirely legitimate considerations relating to judicial experience and gender balance; that the appointment of A.E., alongside the fourteen other judges, had been approved by Parliament, which had had occasion to scrutinise the Minister’s proposals before the CSC and subsequently in full session and which had not sought to hold individual votes on each candidate despite having the power to do so; that the President of Iceland had formally appointed A.E. as a judge; that from the time when A.E. had taken up office as a judge, she had also undertaken all legal obligations arising from her post pursuant to Article 61 of the Constitution and had enjoyed the Constitutional protection of irremovability from office – which effectively meant that the defects in the appointment process had no effect on the judicial powers or status of A.E. when she participated in the applicant’s case –; that there was no evidence that A.E. had ever acted in any way other than in an exemplary manner as a judge, in the applicant’s case or otherwise; and that the Supreme Court had expressly found that, as a matter of domestic law, such technical flaws as it had identified in the process leading up to A.E.’s presentation for parliamentary approval and subsequent appointment were insignificant and were not such as to invalidate her appointment.", "179. At the hearing before the Grand Chamber, the Government advanced some further reasons as to why the breaches at issue could not be considered to be “flagrant”. They argued in particular that, having regard to the unprecedented nature of the appointment process, any errors subsequently identified were not likely to be easily characterised as “flagrant”, unless bad faith could be shown – which had not been the case; that in the proceedings brought by J.R.J. and Á.H., the District Court had not initially found a breach of the law, which showed that any error was less than flagrant; and that the domestic courts had made no finding of bad faith against the Minister. The Government emphasised in this regard that the Supreme Court’s finding in its judgments of 19 December 2017 regarding the danger to the reputation of J.R.J. and Á.H. had been taken out of its context in the Chamber judgment. Those findings were relevant to whether damages should be awarded by reference to conventional questions of foreseeability and remoteness of loss, and they did not concern any deliberate breach of the law. On the contrary, the Supreme Court had stated explicitly in its judgments that it was not finding that the Minister had deliberately set out to harm anyone’s reputation.", "180. Fifthly, and lastly, the majority had failed to have regard to the far ‑ reaching implications of their approach. In this connection, the majority had found that any procedural deficiency at any stage of a judicial selection process, however technical or ancient, would be sufficient to render void any subsequent appointment, and any decision delivered by a judge so appointed, even where, as here, there had been express parliamentary approval for the appointment and the appointment had been formally made by the President, and even where everyone involved in the process had acted in good faith and the judge was manifestly qualified. Such an approach would have extremely adverse consequences for the rule of law, judicial independence and legal certainty, and was irreconcilable with the need for security of judicial tenure, which had not been taken into account in the Chamber judgment. Upholding the majority’s reasoning could have the consequence of invalidating not only every Court of Appeal decision involving A.E., but all Court of Appeal decisions, having regard to the critique of the single vote held in Parliament for all fifteen nominees.", "181. The implications of such reasoning would, moreover, not be confined to Iceland; any technical deficiency in a judicial selection process would render court decisions susceptible to challenge across the Council of Europe States, regardless of any other safeguards accompanying the appointment process or the remoteness of the defect from the substantive decision under challenge, regardless of domestic court decisions declaring the validity of the appointment, and also regardless of the quality of the candidates appointed and the general safeguards in place for judicial competence and independence. In the Government’s opinion, a procedural deficiency in a judicial selection process should be taken to raise an issue under the “established by law” requirement only if the deficiency in question led to the appointment of an unqualified or ineligible person as a judge, which was not the case on the present facts.", "182. In addition to these arguments, the Government contended that the appointment procedure had, overall, been open and transparent. They considered it important to stress that the initial proposal submitted by the Evaluation Committee had met with criticism in Parliament, both from the opposition and from the coalition parties. The criticism had been two-fold: first, it was considered that the Evaluation Committee’s proposal had disregarded gender equality, since of the fifteen candidates proposed, only five were women; second, it was considered that the Evaluation Committee had not given adequate weight to judicial experience. The list proposed by the Evaluation Committee would, therefore, have needed to be changed in any event and in her proposal to Parliament, the Minister of Justice had taken the relevant concerns into account. The Government further stressed that section 4 of the Minister of Justice’s Rules no. 620/2010 listed the objective factors on which the Committee was expected to base its assessment, but it did not say anything about the weight to be accorded to each assessment factor. The Committee had taken it upon itself to give judicial experience the same weight as litigation and administrative experience. The four candidates removed from the Evaluation Committee’s list by the Minister of Justice had received 0.5, 1.0, 3.5 and 5.5 for judicial experience according to the Committee’s assessment table, whereas the four candidates added to the list had received 9.5, 8.5, 7.0 and 6.0. A.E., who was among the female candidates proposed by the Minister, had a thirty-two year judicial career and had more judicial experience that any of the four candidates excluded from the list. That said, the proposal made by the Minister had not been based on objective numerical values; when she had proposed that more weight be given to judicial experience, this did not involve merely comparing the years of experience of the candidates, but also a subjective evaluation of their quality and capabilities. As to the gender equality considerations, the Government did not contest that such considerations only came into play under the Equality Act where candidates of different genders were “equally qualified”, but argued that, contrary to the findings of the Evaluation Committee, the Minister had considered more than fifteen candidates to be equally qualified for the post.", "183. Having regard to the foregoing, the Government contended that the Minister’s approach had been entirely rational, even if it suffered from the technical flaws identified, and it had been subject to the safeguards provided by the requirements of parliamentary approval and Presidential appointment. While the requirements of the “sufficient investigation” rule under section 10 of the Administrative Procedures Act, which sought to ensure the factual accuracy of administrative decisions, applied strictly in the field of judicial appointments – given the importance of considerations such as the separation of powers and independence of judges – the Government argued that it was not absolutely certain what that requirement entailed in this specific field. In the present case, the Minister had provided reasoning for her proposals in good faith, yet that reasoning had been deemed insufficient by the Supreme Court.", "184. A proper understanding of the Supreme Court judgment dated 24 May 2018 was essential in determining the correct approach to the present proceedings. It had been established in that judgment that A.E. was fully vested with legal office, that she had participated in the applicant’s case “in accordance with domestic law” and the Court of Appeal was, in determining that case, “established by law”. There was nothing arbitrary or manifestly unreasonable in the Supreme Court’s ruling that, even if there were shortcomings in the procedure preceding A.E.’s appointment, this did not entail that the Court of Appeal lacked competence to decide on the applicant’s case. It was therefore important not to confuse the legal effects of the procedural flaw in question regarding the other candidates (that is, the candidates who were removed from the list by the Minister of Justice) with the legal effects of the same flaw on the status of A.E. or on the applicant’s case. That procedural flaw was remote from the proceedings in that case. The Supreme Court had found that, as a matter of domestic law, A.E.’s status had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” as a result of A.E.’s presence. According to the Government, its competence in this sense was solely decided by the interpretation of domestic law. The Government argued that while the Chamber had accepted the Supreme Court’s conclusion as to the existence of flaws in the appointment procedure, it had disregarded the same court’s conclusion regarding the lack of any significant legal consequence of the flaw. The approach adopted by the majority implied that the legal effects of breaches of domestic law should not be assessed according to domestic law itself, but immediately and directly according to independent criteria laid down by the Chamber, and this would have the effect of detaching the violation of national law from its legal effects under national law. Referring in particular to the Supreme Court judgments concerning the candidates J.R.J. and Á.H., the Government stressed at the hearing before the Grand Chamber that A.E.’s appointment had been considered valid and effective as a matter of law. If the procedural defects identified had no implications or significance for A.E., then the logical conclusion was that they could not have any effect for the applicant either.", "185. Contrary to the circumstances which had in the past led the Court to find a violation of the requirement of a “tribunal established by law”, the procedural rules that had been breached in the present case neither directly regulated the participation of Judge A.E. in the applicant’s case, nor had immediate effects for her presence on the bench. Therefore, A.E.’s participation in the examination of the applicant’s case had not been “irregular” according to the meaning given to that term in the Court’s case-law. The Government also underlined that the Supreme Court judgments of December 2017, on which the majority had relied so heavily, had not been delivered as part of the criminal proceedings against the applicant and had not concerned the question whether the Court of Appeal had been a “tribunal established by law”.", "186. The Government further argued that, contrary to the majority’s finding, in its judgment of 24 May 2018 concerning the applicant the Supreme Court had not limited its examination to determining whether Judge A.E.’s appointment had been a “nullity” and whether the applicant’s trial had been fair despite the flaws in the procedure for the appointment of A.E., but had addressed all relevant matters, such as whether Judge A.E.’s appointment had been invalid and whether the applicant’s case had been heard by a “tribunal established by law”. Although the Supreme Court’s conclusion had been based on the Article 6 requirements of independence and impartiality, it no doubt also covered the “established by law” requirement under that provision.", "187. The Government also explained, however, that while in theory it was possible for an Icelandic court to evaluate the lawfulness of a judicial appointment and to set aside a ruling in which an unlawfully appointed judge had participated, in practice the procedural flaws of the nature found in the present case would result in an award of damages to the candidates who had not been appointed as a result of the relevant flaws. There had not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment.", "188. In the Government’s view, the right to a “tribunal established by law” was distinct from the “right to an independent tribunal”, as it was a right specifically and directly related to domestic law. In contrast to the case-law relied upon by the majority in the Chamber, the present case was not about the assigning of a particular case to a particular judge – which could raise objective concerns of independence and impartiality – but concerned the general process of the appointment of a judge, with no link to any particular case. Unlike the other cases that the majority had cited, the procedural irregularities established by the Supreme Court here had happened long before the judge in question had taken part in the applicant’s case, they bore no connection with that case, and they carried no implications for the independence or the impartiality of the judge concerned. According to the case-law of the Court, a central issue in cases concerning the right to a “tribunal established by law” was whether the legal defect in any given case was relevant to any of the substantive protections of fairness, independence or impartiality in that case.", "189. The Government argued moreover that, given the intervening role of Parliament, the relevant judicial organisation could not be said to have been dependent on the discretion of the executive. They explained in this connection that the special voting procedure before Parliament, as provided for under temporary provision IV, had sought to secure the credentials of the judges to be appointed and to seek consensus as to their appointment, in order to strengthen the legitimacy of those appointments and of the Court of Appeal as such. The legislative developments in the field of judicial appointments over recent decades had all sought to limit ministerial discretion in appointments, which had previously been a point of criticism in Iceland. While the Supreme Court had found that Parliament had failed to observe the voting procedure indicated in temporary provision IV, the Government contended that this was a matter of interpretation and that the flaw in question had not had any effect on the integrity of the process or on the results of the voting. The Government explained that the single vote held in Parliament had in any event been in accordance with the customary practice, and that no member of parliament had requested separate voting. There was, furthermore, no evidence to support the applicant’s allegation that the vote en bloc had been part of a conspiracy to force through the appointment of A.E., nor was there evidence to suggest that the result would have been any different had the proposals been voted on separately.", "190. At the hearing before the Grand Chamber the Government put forward some additional arguments. They underlined that, as the Court of Appeal was a new court, there had been no established precedent at the material time as to the procedure to be followed when submitting proposals to Parliament for appointments to that court, or as to how Parliament would vote on such proposals. The Government further argued that recent developments in Iceland had shown that the Evaluation Committee had changed its assessment procedure since 2017 and had now adopted the practice of proposing more candidates than the number of advertised posts, which is what the Minister of Justice had requested from the Committee in the present case (see paragraphs 22 and 25 above). They referred in this connection to an assessment report delivered by the Evaluation Committee on 9 December 2019 in the context of an appointment to the office of Supreme Court judge, where the Committee had proposed three candidates as being the most qualified for one advertised post.", "191. The Government also submitted affidavits from B.N. and the Minister to rebut the applicant’s allegations that the Minister’s decision had been driven by ulterior political motives. They argued, in particular, that the applicant’s unfounded allegations concerning the Minister and B.N. made no sense chronologically because at the time when the process for judicial appointments to the Court of Appeal was underway in May 2017, the next parliamentary elections were scheduled to be held in October 2020. It was only as a result of unforeseen developments that general elections were called on 15 September 2017, and that the elections were held prematurely in October 2017 – that is, some three years prior to the initially scheduled date. In these circumstances, it could not be argued that the Minister had proposed B.N.’s wife A.E. to the post of a Court of Appeal judge as part of a political deal to secure her Ministerial post in the new government. The Government added that not only was there a complete absence of material to support the applicant’s extraordinary allegations of bad faith against a wide range of persons and institutions, but also that none of those allegations had been made at the domestic level, which meant that the principle of exhaustion of domestic remedies prevented him from raising them before the Court now.", "192. In response to a question put by the Court at the hearing as to the relationship of the right to a “tribunal established by law” with other requirements of a fair hearing, in particular with those of independence and impartiality, the Government submitted (as part of its written responses sent on 20 February 2020 – see paragraph 10 above) that there was a degree of relationship between all elements of a fair trial under Article 6 § 1. Accordingly, the “tribunal established by law” requirement was a facet of the overarching object of Article 6. In the Government’s view, the “established by law” requirement could be construed in one of two ways. Under the first approach, the function of the term “established by law” would be to emphasise that Article 6 required access to a body which had jurisdiction to take legally binding decisions, in that (i) the “tribunal” itself had a proper foundation in domestic law, and (ii) the bench trying a particular case was validly constituted as a matter of domestic law. Under the second approach, the term “established by law” would be construed as importing an additional requirement that there be no legal defect relating to a judge’s appointment that would “destroy the essence of the right to a fair hearing before an independent and impartial tribunal”. The Government argued that the first of these approaches was more consistent with the “ordinary meaning” interpretation rule under Article 31 of the Vienna Convention of 1969 on the Law of Treaties. The second approach, on the other hand, was not necessary in order to achieve the aims of Article 6: importing considerations of fairness, independence and impartiality into the “established by law” requirement would arguably duplicate protections provided elsewhere in Article 6, and obscure the specific function of that requirement. According to the Government, that function – reflected in the first approach identified above – was to ensure that the body hearing a case was legally competent to issue a binding determination in that particular case.", "193. The Government lastly stated, in response to the comments received from third parties (see paragraphs 194-204 below), that the present case was wholly different from the kinds of situations mentioned in those interventions. In contrast to the alleged situation in Poland or Georgia, the approach of the Icelandic authorities in the present case had posed no conceivable threat to judicial independence.", "The third-party interveners", "(a) The Government of Poland", "194. The Government of Poland stated at the outset that the case at issue concerned a matter of fundamental constitutional importance relating to the competence of State bodies in the context of judicial appointments. They argued that the practice of appointment of judges by the executive was widely accepted in Europe, and that such practice did not per se pose a problem under the case-law of the Court or that of the Court of Justice of the European Union.", "195. The Government of Poland stressed the significance of the principle of subsidiarity in the Convention mechanism, and argued that the Chamber judgment had disregarded that principle and the margin of appreciation enjoyed by the respondent State’s authorities in implementing their relevant Convention obligations. They argued that the Court should not replace national authorities in determining the correct interpretation of national legislation, which is what the Chamber had done in the instant case by dismissing the findings of the Supreme Court of Iceland in respect of the applicant. The Chamber had, moreover, acted without due consideration for the enormous implications of its decision on the Icelandic judicial system, and on the judicial systems of other member States. They argued in this regard that in cases involving the right to a “tribunal established by law”, the Court’s practice had so far been limited to finding violations only where the breach of the domestic rules on judicial appointments had more serious consequences, such as where the bench had included a person who did not have the status of judge or who could not have been appointed to such office.", "(b) The Commissioner for Human Rights of the Republic of Poland", "196. The Commissioner for Human Rights of the Republic of Poland (“the Polish Commissioner”), Mr Adam Bodnar, submitted that the expression “established by law” in Article 6 § 1 of the Convention should inevitably incorporate the process of judicial appointments. The Commissioner contended that not only should the legal basis, the jurisdiction and the composition of a tribunal be regulated in advance by law, but the law in question should also determine the criteria and the procedure for the appointment of judges, and the appointments should in turn be conducted in compliance with those provisions. Strict observance of such provisions was essential to prevent unlawful interference with the appointment procedure by other branches of government, in particular the executive, and thus to ensure the independence and impartiality of judges. Such strict compliance would also serve to build public trust in the administration of justice and thereby to enhance the democratic legitimacy of the judiciary. The Polish Commissioner considered that it was essential not only that judges be independent and impartial, but also that the procedure for their appointment appeared to be so.", "197. The Polish Commissioner indicated his agreement with the Chamber that a flagrant breach of the domestic rules on the appointment of judges constituted a clear violation of Article 6 § 1 of the Convention. A finding of such flagrant breach would render redundant any further examination of the fair trial requirements under Article 6 § 1, since there could be no fair trial before an authority that lacked the attributes of a court of law. The Commissioner further supported the notion that instances of flagrant violation had to be fundamental in nature and form an integral part of the appointment process. Accordingly, only those breaches that had a substantial impact on the conduct and/or outcome of the process would pass the “flagrant breach” threshold. The intentional nature of the breach was also an important factor to be taken into consideration in this regard, as the European Union courts had also acknowledged.", "198. The Polish Commissioner stressed that it fell to the Court in the present case to clarify the implications, from the perspective of legal certainty, of a finding that a domestic court had not been “established by law”. In the Commissioner’s view, the deliberate interference by the executive – or by the legislature, as the case may be – with the status of a judge in a manner incompatible with the Convention should override any arguments relating to the principle of legal certainty or irremovability of judges. This was particularly so if there was no mechanism available to review the lawfulness of a judicial appointment prior to the act of appointment. The Commissioner stated that acts aimed at intentionally circumventing or breaching applicable laws must not be rewarded by the acceptance of the situation thus created ( ex iniuria ius non oritur ).", "199. As for the discussions concerning the principle of subsidiarity and the States’ margin of appreciation, the Polish Commissioner stated that the right to be tried by an independent and impartial tribunal established by law was an essential element of the right to a fair trial, and that the Convention standard in this regard was autonomous, in the sense of being independent from the relevant national standards established in respective member States. The Court therefore had the authority to assess whether that standard had been applied in a Convention compliant manner by the national authorities and courts, and such assessment did not per se contravene the principle of subsidiarity or the margin of appreciation doctrine. Denying the Court the authority to carry out its own review in this respect would render the very guarantee of Article 6 illusory.", "200. The Polish Commissioner lastly submitted that the ruling of the Grand Chamber in the present case would be highly relevant for assessing the compliance of the current practice of judicial appointments in Poland with the Convention standards. The Commissioner drew the Court’s attention to the cases before the Court of Justice of the European Union in this regard, in particular to the judgment delivered by that Court on 19 November 2019 in the case of C ‑ 624/18 (noted in paragraph 138 above). The Commissioner informed the Court that relying on the findings in that judgment, the Polish Supreme Court (Chamber of Labour and Social Security) had found on 5 December 2019 that the National Council of the Judiciary – which had been tasked with making proposals to the President of the Republic for appointments to the Disciplinary Chamber of the Supreme Court – was not an independent and impartial body and that the Disciplinary Chamber could not be considered to be a “court”. In the Commissioner’s opinion, the judgment of the Court of Justice of the European Union had made it clear that the subsequent act of appointment by the President of Republic could not by itself repair a pre-existing deficiency in the appointment process, especially in the case of an ultra vires or improper exercise of authority, error of law, or manifest error of assessment.", "(c) The Public Defender (Ombudsman) of Georgia", "201. The Public Defender of Georgia (“the Public Defender”), Ms Nino Lomjaria, provided an overview of the recent process for the selection and appointment of judges to the Supreme Court of Georgia, which had been subject to criticism both by her office and by various international bodies. The criticisms mainly centred around the lack of transparency of the appointment procedure and the absence of objective selection criteria, which seriously undermined the possibility of merit-based appointments. The Public Defender indicated that she had recently challenged the constitutionality of this process before the Constitutional Court of Georgia. While the Constitutional Court was yet to examine the merits of that claim, it had already confirmed that the right to a fair trial enshrined in the Constitution implied the right of a person to apply to a court composed in accordance with constitutional standards.", "202. Referring to a number of international sources, and to the relevant case-law of the Court, the Public Defender stated that the method of selection and appointment of judges played a fundamental role in ascertaining the independence of a “tribunal”. She submitted that there could be no public trust in the judiciary when the judicial selection process was flawed, especially where such flaws called into question the independence of the judiciary. The Public Defender added that the requirement of a “tribunal established by law” would not be satisfied where the breach of the applicable domestic rules raised doubts as to whether a court would have been composed differently but for the breach at issue. The endorsement of these principles by the Grand Chamber was of crucial importance not only for the parties to the present case but for the Council of Europe member States as a whole.", "(d) Helsinki Foundation for Human Rights", "203. The Helsinki Foundation for Human Rights (“the Helsinki Foundation”), a non-governmental organisation based in Poland, similarly submitted that the Grand Chamber’s ruling in the present case would have a considerable impact not only in Iceland, but also on other member States, including Poland. They referred in this connection to what they regarded as the “judiciary crisis” in Poland, which had arisen from the judicial reform procedure undertaken by the Polish Parliament between 2015 and 2018 and which had generated significant criticism at home and abroad, including before the Court of Justice of the European Union.", "204. The Helsinki Foundation submitted that according to the Court’s case-law, as followed by the Court of Justice of the European Union, the manner in which judges were appointed was a factor which guided the assessment of judicial independence. Any violations of the rules of appointment, consisting in the increased involvement of political bodies in the judicial appointment process, could put the independence of the judiciary at risk. Such violations could, moreover, undermine the judiciary’s legitimacy, given that in a democratic State, the legitimacy of judges heavily depended on public confidence in their neutrality, objectivity and lack of political affiliation. Accordingly, violations of the rules on judicial appointments by the legislature and the executive seeking to achieve their political objectives could cause serious disruption to a national judicial system, as manifested by the recent developments in Poland. The Helsinki Foundation underlined that only strict adherence to the rules governing the judicial appointment process, in particular to those rules that sought to safeguard against improper political interference by other branches of the State, could ensure respect for the right to an independent and impartial “tribunal”. Tolerance for breaches of the rules on judicial appointment – such as on the ground that any flaws in the earlier stages of the appointment process could be cured subsequently by the official act of appointment – would risk paving the way for abuse of the process for political reasons and would be incompatible with the principle of the rule of law.", "The Court’s assessmentScope of the applicant’s complaint as regards the right to a “tribunal established by law”", "Scope of the applicant’s complaint as regards the right to a “tribunal established by law”", "Scope of the applicant’s complaint as regards the right to a “tribunal established by law”", "205. The Grand Chamber considers that it must first determine the scope of the applicant’s complaint concerning the right to a “tribunal established by law”.", "206. At the outset it should be pointed out that the present case does not raise an issue as to the lawful existence of the newly established Court of Appeal. It is indeed not disputed between the parties that the Court of Appeal was established by a law emanating from Parliament, namely the new Judiciary Act, the quality of which – in terms of its accessibility and foreseeability – has not been contested by the applicant.", "207. The Grand Chamber is similarly not called upon to review the judicial appointment system that is in place in Iceland. As pointed out by the Venice Commission and the CCJE (see paragraphs 122 and 126 above), there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. The Court reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, appointment of judges by the executive or the legislature is permissible under the Convention, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013). The question is always whether, in a given case, the requirements of the Convention are met (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 193, ECHR 2003 ‑ VI, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010).", "208. Nor is there any need for the Grand Chamber to determine whether the relevant domestic law on judicial appointments had been contravened during the process of Judge A.E.’s appointment to the newly constituted Court of Appeal. It notes in this connection that, in two separate judgments delivered on 19 December 2017 (see paragraphs 67-75 above), the Supreme Court of Iceland has already established that the relevant law had not been complied with in so far as the appointment of the four judges proposed by the Minister, including A.E., was concerned. Firstly, by replacing four of the candidates – whom the Evaluation Committee had considered to be among the fifteen best qualified for appointment to the Court of Appeal – with four others – who had not made it to the top fifteen according to the Evaluation Committee’s assessment – without carrying out an independent evaluation of the facts or providing adequate reasons for her decision, the Minister of Justice had breached section 10 of the Administrative Procedures Act. In this connection, she had also disregarded the well-established general principle of Icelandic administrative law that only the most qualified candidates should be selected to public posts. Secondly, the Icelandic Parliament had not held a separate vote on each individual candidate proposed by the Minister of Justice, as required under temporary provision IV of the new Judiciary Act. These findings were, moreover, repeated in the judgment delivered subsequently by the Supreme Court in the applicant’s case (see paragraph 90 above).", "209. Reiterating that it is primarily for the national authorities, in particular the courts, to interpret and assess compliance with domestic law (see, for instance, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 186, 6 November 2018), the Court considers that there is no need to call into question the Supreme Court’s above-mentioned findings. The Grand Chamber should accordingly proceed on the basis that the process by which A.E. was appointed to the Court of Appeal breached some of the relevant rules of domestic law on judicial appointments. It otherwise notes that the legality of the appointments of the remaining eleven judges – who were considered the most qualified on the list submitted by the Evaluation Committee and were subsequently also included on the list of the Minister of Justice submitted before Parliament – is not at issue in the present case.", "210. The task of the Grand Chamber in relation to the present complaint is, therefore, limited to determining the consequences of the above-mentioned breaches of domestic law for the purposes of Article 6 § 1, in other words to ascertaining whether Judge A.E.’s presence, in spite of the established irregularities in her appointment, on the bench of the Court of Appeal which heard the applicant’s appeal, deprived the applicant of the right to be tried by a “tribunal established by law”.", "Scope of the requirement of a “tribunal established by law”", "(a) General principles and overview of the Court’s existing case-law", "(i) The notion of a “tribunal established by law”", "211. The Court reiterates that under Article 6 § 1 of the Convention, a court or tribunal must always be “established by law”. This expression reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and the Protocols thereto, and which is expressly mentioned in the Preamble to the Convention (see, for example, Jorgic v. Germany, no. 74613/01, § 64, ECHR 2007-III). As the Court has previously held, a tribunal that is not established in conformity with the intentions of the legislature will necessarily lack the legitimacy required in a democratic society to resolve legal disputes (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002).", "212. The Court further reiterates that “law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009; and Kontalexis v. Greece, no. 59000/08, § 38, 31 May 2011). This includes, in particular, provisions concerning the independence of the members of a court, the length of their term of office and their impartiality (see, for example, Gurov v. Moldova, no. 36455/02, § 36, 11 July 2006; DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 59, 5 October 2010; and Miracle Europe Kft v. Hungary, no. 57774/13, § 48, 12 January 2016).", "213. In other words, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by that tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Richert v. Poland, no. 54809/07, § 43, 25 October 2011, and Ezgeta v. Croatia, no. 40562/12, § 38, 7 September 2017).", "(ii) The purpose of the requirement that a “tribunal” be “established by law”", "214. The Court observes that under its case ‑ law, the object of the term “established by law” in Article 6 § 1 of the Convention is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament (see Zand v. Austria, no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports 15, p. 70, § 69, and Miracle Europe Kft, cited above, § 51).", "215. At the same time, although the Court has emphasised the growing importance attached to the notion of separation of powers and the importance of safeguarding the independence of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 165, 23 June 2016), it has also noted that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144). In the Court’s opinion, a certain interaction between the three branches of government is not only inevitable, but also necessary, to the extent that the respective powers do not unduly encroach upon one another’s functions and competences. The question is, once again, whether in a given case the requirements of the Convention are met (see Kleyn and Others, and Henryk Urban and Ryszard Urban, both cited above).", "(iii) Review of the Court’s case-law", "216. The Court has held that, in principle, a violation by a “tribunal” of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1 and that, therefore, it has jurisdiction to examine whether the domestic law has been complied with in this connection. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court has also found that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, Lavents, § 114, and Kontalexis, § 39, both cited above).", "217. A review of the Court’s existing case-law reveals that compliance with the requirement of a “tribunal established by law” has so far been examined in a variety of contexts – under both the criminal and civil limbs of Article 6 § 1 – including, but not limited to, the following:", "(i) a court acting outside its jurisdiction (see Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 107-09, ECHR 2000 ‑ VII, and Sokurenko and Strygun, cited above, §§ 26-28);", "(ii) the assignment or reassignment of a case to a particular judge or court (see DMD GROUP, a.s.,, cited above, §§ 62-72; Richert, cited above, §§ 41 ‑ 57; Miracle Europe Kft, cited above, §§ 59-67; Chim and Przywieczerski v. Poland, nos. 36661/07 and 38433/07, §§ 138-42, 12 April 2018; and Pasquini v. San Marino, no. 50956/16, §§ 103 and 107, 2 May 2019);", "(iii) the replacement of a judge without providing an adequate reason as required under the domestic law (see Kontalexis, cited above, §§ 42-44);", "(iv) the tacit renewal of judges’ terms of office for an indefinite period after their statutory term of office had expired and pending their reappointment (see Gurov, cited above, § 37, and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 152-56, ECHR 2013);", "(v) trial by a court where some members of the bench were disqualified by law from sitting in the case (see Lavents, cited above, § 115, and Zeynalov v. Azerbaijan, no. 31848/07, § 31, 30 May 2013);", "(vi) trial by a bench the majority of which was composed of lay judges despite the absence of a legal basis in domestic law for the exercise of judicial functions as a lay judge (see Gorguiladzé, § 74, and Pandjikidzé and Others, § 110, both cited above);", "(vii) the participation of lay judges in hearings in contravention of the relevant domestic legislation on lay judges (see Posokhov v. Russia, no. 63486/00, §§ 39-44, ECHR 2003 ‑ IV);", "(viii) trial by lay judges who had not been appointed in compliance with the procedure established by the domestic law (see Ilatovskiy v. Russia, no. 6945/04, §§ 38-42, 9 July 2009);", "(ix) delivery of a judgment by a panel which had been composed of a smaller number of members than that provided for by law (see Momčilović v. Serbia, no. 23103/07, § 32, 2 April 2013, and Jenița Mocanu v. Romania, no. 11770/08, § 41, 17 December 2013);", "(x) conduct of court proceedings by a court administrator who was not authorised under the relevant domestic law to conduct such proceedings (see Ezgeta, cited above, § 44).", "(b) Refining the case-law principles", "218. The instant case provides the Grand Chamber with an opportunity to refine and clarify the meaning to be given to the concept of a “tribunal established by law”, and to analyse its relationship with the other “institutional requirements” under Article 6 § 1 of the Convention, namely, those of independence and impartiality. The Court will therefore first analyse the individual components of that concept and discuss how the terms “tribunal”, “established” and “by law” should be interpreted so as to best reflect its purpose and, ultimately, to ensure that the protection it offers is truly effective. It will then examine the interaction between the requirement of a tribunal established by law and the conditions of independence and impartiality.", "(i) “Tribunal”", "219. According to the Court’s settled case-law, a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, such as “independence, in particular of the executive; impartiality; duration of its members’ terms of office; ...” (see, for example, Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132).", "220. In the Court’s view, in addition to the above, it is inherent in the very notion of a “tribunal” that it be composed of judges selected on the basis of merit – that is, judges who fulfil the requirements of technical competence and moral integrity to perform the judicial functions required of it in a State governed by the rule of law.", "221. The Court notes, in this regard, the emphasis that is placed on these qualities of technical competence and moral integrity of judges in various prominent international texts as an aspect of the right to a fair trial before an independent and impartial “tribunal” established by law. It would refer in this connection to paragraph 25 of Opinion no. 1 (2001) of the CCJE, which recommends that “the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’” (see paragraph 124 above). It further takes into account the international material cited in paragraphs 117, 129, and 145-147 above.", "222. The Court is mindful that neither the characterisation of the Court of Appeal as a “tribunal”, nor the merits of the judges appointed to that court, are as such contested in the present case. It nevertheless emphasises the paramount importance of a rigorous process for the appointment of ordinary judges to ensure that the most qualified candidates – in terms of both technical competence and moral integrity – are appointed to judicial posts. It goes without saying that the higher a tribunal is placed in the judicial hierarchy, the more demanding the applicable selection criteria should be. It is further evident that non-professional judges could be subject to different selection criteria, particularly when it comes to the requisite technical competencies. In the Court’s view, such merit-based selection not only ensures the technical capacity of a judicial body to deliver justice as a “tribunal”, but it is also crucial in terms of ensuring public confidence in the judiciary and serves as a supplementary guarantee of the personal independence of judges [10].", "(ii) “Established”", "223. The Court reiterates that according to its settled case-law, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by the court or tribunal with the particular rules that govern it and the composition of the bench in each case (see the cases cited in paragraph 213 above). The scope of application of the requirement of a “tribunal established by law” may, therefore, not be confined to instances where a judicial body lacked the competence to act as a court or tribunal under domestic law, as argued by the Government in paragraph 175 above.", "224. The Court further observes, as the Government have also indicated (see paragraphs 185 and 188 above), that its case-law on the requirement of a “tribunal established by law” has so far predominantly concerned breaches of domestic rules directly regulating the competence of a tribunal to rule on a particular case, or of those rules which had immediate effects on the composition of a tribunal hearing an applicant’s case. The question that needs to be answered for the purposes of the present case is whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge to serve at a particular court may also be liable to violate the right to a “tribunal established by law”.", "225. The Court notes in this connection that there is some precedent in its case-law pointing in that direction, such as the case of Ilatovskiy (cited above, §§ 39-42). That case concerned the conviction of an applicant (in 2002) by a district court composed of one professional judge and two lay judges, who had been appointed as lay judges in 1991 and 1999, respectively. Having established that the appointment of the lay judges in question had not been in compliance with the relevant domestic procedure in force at the material time, the Court concluded that the district court which had given the judgment against the applicant with those lay judges’ participation could not be regarded as a “tribunal established by law”. The judgment in Ilatovskiy, despite its differences from the present case, provides a clear example of a situation where irregularities in the appointment procedure may compromise the legitimacy of a court or tribunal, in which the appointed judges later participate, as one “established by law”.", "226. This correlation between the procedure for the appointment of a judge and the “lawfulness” of the bench on which such a judge subsequently sits also finds support in the purpose of the “established by law” requirement, as explained in paragraph 214 above. That requirement reflects the principle of the rule of law and seeks to protect the judiciary against unlawful external influence, from the executive in particular (see paragraph 211 above), although it cannot be excluded that such unlawful interference may also emanate from the legislature or from within the judiciary itself. It moreover encompasses any provision of domestic law –including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court is aware that the process of appointment of judges may be open to such undue interference, and finds that it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case “irregular”.", "227. As the CCJE observed in an opinion issued in 2015, “[e]ach individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy” (see paragraph 126 above), therefore suggesting that a judge appointed in contravention of the relevant rules may lack the legitimacy to serve as a judge. Having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the Court considers that the process of appointing judges necessarily constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law”, and an interpretation to the contrary would defy the purpose of the relevant requirement. The Court reiterates in this connection that the Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, for instance, Coëme and Others, § 98, cited above).", "228. The Court also emphasises in this connection that, according to the results of the comparative survey that it has carried out, nearly half of the States surveyed (that is, nineteen out of forty) interpret the requirement of a “tribunal established by law” as clearly encompassing the process of the initial appointment of a judge to office. There is, therefore, already a considerable consensus among the States surveyed in this regard and this cannot be overlooked by the Court. The results further show that in many other States this matter remains undetermined; it cannot, therefore, be excluded that if a similar question were to arise in those States as well, the domestic courts could, in principle, interpret the requirement of a “tribunal established by law” as covering the process of judicial appointment. The Court lastly refers in this connection to the judgment delivered on 26 March 2020 by the CJEU in the cases of Simpson and HG, where it was acknowledged (by reference to the Chamber judgment in the present case) that the right to a “tribunal established by law” encompassed the process of appointing judges (see paragraphs 74 and 75 of the CJEU judgment noted in paragraph 137 above).", "(iii) “By law”", "229. The nature and scope of the cases that have so far come before the Court in respect of the “tribunal established by law” requirement have mostly called for a determination as to whether a court overseeing a case had any legal basis in domestic law and whether the requirements arising from the relevant domestic law had been complied with in the constitution and functioning of that court. The Court wishes to clarify in this connection that, contrary to the Government’s arguments (see paragraph 175 above), it has interpreted the requirement of a “tribunal established by law” also to mean a “tribunal established in accordance with the law” (see, mutatis mutandis, Ilatovskiy, § 39; Momčilović, § 29; and Jenița Mocanu, § 37, all cited above). It considers this interpretation to be consonant with the general object and purpose of the relevant requirement and sees no reason to depart from it.", "230. The Court would also like to emphasise at this juncture that the requirement that a tribunal be established “by law” in no way seeks to impose uniformity in the judicial appointment practices of the member States. As indicated above (see paragraph 207), the Court is well aware that there are varying judicial appointment systems across Europe, and the mere fact that the executive, in particular, has decisive influence on appointments – as is the case in many States Parties, where the restraints on executive powers by legal culture and other accountability mechanisms, coupled with a long-standing practice of selecting highly qualified candidates with an independent state of mind, serve to preserve the independence and legitimacy of the judiciary – may not as such be considered to detract from the characterisation of a court or tribunal as one established “by law”. The concern here relates solely to ensuring that the relevant domestic law on judicial appointments is couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process, including by the executive.", "(iv) Interrelationship between the requirements of “independence”, “impartiality” and “tribunal established by law”", "231. Although the right to a “tribunal established by law” is a stand ‑ alone right under Article 6 § 1 of the Convention, a very close interrelationship has been formulated in the Court’s case-law between that specific right and the guarantees of “independence” and “impartiality”.", "232. In this connection, and as stated above (see paragraph 219), the Court has held that a judicial body which does not satisfy the requirements of independence – in particular from the executive – and of impartiality may not even be characterised as a “tribunal” for the purposes of Article 6 § 1. Similarly, when determining whether a “tribunal” is “established by law”, the reference to “law” comprises any provision of domestic law – including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court moreover notes that in order to establish whether a court can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144), which, as discussed above (see paragraphs 224-228), pertains to the domain of the establishment of a “tribunal”.", "233. Accordingly, while they each serve specific purposes as distinct fair-trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see in this regard the object of the right to a “tribunal established by law”, as noted in paragraphs 214 and 215 above). In the Court’s view, the recognition of this close connection and common purpose does not, as the Government have argued (see paragraph 192 above), lead to the obscuring of their specific functions or to their duplication, but serves only to reinforce their respective objects and effects.", "234. The Court takes the view, against this background, that the examination under the “tribunal established by law” requirement must not lose sight of this common purpose and must systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the above-mentioned fundamental principles and to compromise the independence of the court in question. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see, mutatis mutandis, Khrykin v. Russia, no. 33186/08, §§ 28 ‑ 30, 19 April 2011).", "Whether the irregularities in the present case amounted to a violation of the right to a “tribunal established by law”: the threshold test", "235. Having confirmed the scope of the right to a tribunal established by law, the requirements that follow from that right and its relationship to the principles of independence and impartiality, it now falls on the Court to determine whether the irregularities encountered in the judicial appointment procedure at issue had the effect of depriving the applicant of his right to a “tribunal established by law”. Examination of that matter in turn raises the basic question whether any form of irregularity in a judicial appointment process, however minor or technical that irregularity may be, and regardless of when the breach may have taken place, could automatically contravene that right.", "(a) Is there a need to set a threshold test?", "236. The Court considers at the outset that, having regard to the potential implications of finding a violation, and to the important countervailing interests at stake, the right to a “tribunal established by law” should not be construed in an overly expansive manner, whereby any and all irregularities in a judicial appointment procedure would be liable to compromise that right. A degree of restraint should instead be exercised when dealing with this matter.", "237. The Court reiterates in this regard that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. As noted in paragraph 211 above, the right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. That said, the principle of the rule of law also encompasses a number of other equally important principles, which, although interrelated and often complementary, may in some circumstances come into competition.", "238. The Court firstly refers in this connection to the principle of legal certainty, which is implicit in all the Articles of the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 56, 20 October 2011; see also the Rule of Law Checklist prepared by the Venice Commission, paragraph 123 above, where legal certainty is identified as one of the benchmarks of the rule of law). Under Convention law, the principle of legal certainty manifests itself in different forms and contexts, such as requiring the law to be clearly defined and foreseeable in its application (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 80, ECHR 2010, in the context of Article 5 of the Convention), or requiring that where the courts have finally determined an issue, their ruling should not be called into question (see, for instance, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII). This latter aspect of legal certainty presupposes, in general, respect for the principle of res judicata, which, by safeguarding the finality of judgments and the rights of the parties to the domestic proceedings – including any persons involved as victims – serves to ensure the stability of the judicial system and contributes to public confidence in the courts. According to the Court’s settled case-law, while the requirements of the principle of legal certainty, and the force of res judicata, are not absolute (see, for an example in the criminal-law sphere, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 62, 11 July 2017), a departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as the correction of fundamental defects or a miscarriage of justice (see, for instance, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX, and OOO Link Oil SPB v. Russia (dec.), no. 42600/05, 25 June 2009). These notions do not, however, lend themselves to precise definition; the Court has to decide, in each case, to what extent the departure from the principle of legal certainty is justified (see, for instance, Sutyazhnik v. Russia, no. 8269/02, § 35, 23 July 2009).", "239. The Court secondly notes as relevant the principle of the irremovability of judges during their term of office. This principle is in general considered as a corollary of judges’ independence – which is a prerequisite to the rule of law – and thus included in the guarantees of Article 6 § 1 (see the principles on the irremovability of judges emerging from the Court’s case-law under Article 6 § 1 in Maktouf and Damjanović, cited above, § 49; Fruni v. Slovakia, no. 8014/07, § 145, 21 June 2011; and Henryk Urban and Ryszard Urban, cited above, § 53; see also paragraph 20 of General Comment no. 32 of the UN Human Rights Committee cited in paragraph 118 above; paragraph 57 of Opinion no. 1 (2001) of the CCJE, cited in paragraph 124 above; and Baka, cited above, §§ 72-87, for other relevant international material). However, as recently confirmed by the Grand Chamber of the CJEU in the case of Commission v. Poland (C ‑ 619/18), the principle of the irremovability of judges is similarly not absolute, although an exception to that principle would only be acceptable “if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it” (see paragraph 139 above).", "240. A finding that a court is not a “tribunal established by law” may, evidently, have considerable ramifications for the principles of legal certainty and irremovability of judges, principles which must be carefully observed having regard to the important purposes they serve. That said, upholding those principles at all costs, and at the expense of the requirements of “a tribunal established by law”, may in certain circumstances inflict even further harm on the rule of law and on public confidence in the judiciary. As in all cases where the fundamental principles of the Convention come into conflict, a balance must therefore be struck in such instances to determine whether there is a pressing need – of a substantial and compelling character – justifying a departure from the principle of legal certainty and the force of res judicata (see, for instance, Sutyazhnik, cited above, § 38) and from the principle of irremovability of judges, as relevant, in the particular circumstances of a case.", "241. The Grand Chamber notes that, while it did not spell it out as such, the Chamber indeed attempted to strike such a balance by introducing a “flagrant breach” test, whereby only the gravest breaches of the judicial appointment rules would amount to a violation of the right to a tribunal established by law, thereby raising a high threshold before an infringement of such rules could give rise to a violation of Article 6 § 1 of the Convention (see paragraphs 101 et seq. of the Chamber judgment and paragraphs 156-159 above).", "242. While the Grand Chamber endorses the logic and the general substance of the test introduced by the Chamber, which it will further develop below (see paragraphs 243-252 above), it should state at the outset that it will not apply the same “flagrant breach” concept here. It observes in this connection that the concept of a “flagrant breach” has so far been used by the Court in a variety of different contexts, including, as pertinent, to determine whether the Court may depart from a domestic court’s interpretation as to whether there had been a breach of the domestic law in the first place, as part of its assessment under the “tribunal established by law” requirement (see, for instance, Posokhov, §§ 39-44, and Kontalexis, § 44, both cited above). Transposing that concept to a context such as the present one – where the breach of the domestic law has already been established by domestic courts in an unequivocal manner – for the purpose of determining the consequences of that breach for the applicant’s right to a “tribunal established by law” may give rise to some ambiguity, as has been noted both in the dissenting opinion annexed to the Chamber judgment and in the Government’s submissions (see paragraph 176 above).", "(b) The threshold test developed by the Grand Chamber", "243. The Court is mindful of the difficulties involved in devising a comprehensive balancing test to cater to the possible irregularities that may arise in the judicial appointment processes in different jurisdictions across Europe – all with their own rules and practices – and notes that many States have introduced various mechanisms or standards to deal with this complex matter domestically (see the findings of the comparative-law survey noted in paragraph 152-153 above). The Court further considers that the Contracting States should be afforded a certain margin of appreciation in this connection, since the national authorities are in principle better placed than the Court to assess how the interests of justice and the rule of law – with all its conflicting components – would be best served in a particular situation. It nevertheless considers that the following criteria, taken cumulatively, provide a solid basis to guide the Court – and ultimately the national courts – in an assessment of whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law and of whether the balance between the competing principles has been struck fairly and proportionately by the relevant State authorities in the particular circumstances of a given case.", "(i) The first step of the test", "244. The Court considers in the first place that there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable as such. The Court notes, as mentioned in paragraphs 209 and 216 above, that it will in general cede to the national courts’ interpretation as to whether there has been a breach of the domestic law, unless the breach is “flagrant” (see Lavents, cited above, § 114) – that is, unless the national courts’ findings can be regarded as arbitrary or manifestly unreasonable (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018).", "245. The Court emphasises, however, that the absence of a manifest breach of the domestic rules on judicial appointments does not as such rule out the possibility of a violation of the right to a tribunal established by law. There may indeed be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of that Convention right (see, mutatis mutandis, DMD GROUP, a.s.,, cited above, §§ 62-72). In such circumstances, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a “tribunal established by law” within the meaning of the Convention.", "(ii) The second step of the test", "246. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement.", "247. The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right (see paragraph 102 of the Chamber judgment). In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time” (see paragraph 103 of the Chamber judgment).", "(iii) The third step of the test", "248. Thirdly, the Court considers that the review conducted by national courts, if any, as to the legal consequences – in terms of an individual’s Convention rights – of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law”, and thus forms part of the test itself.", "249. The Court finds it noteworthy to emphasise that if, as argued by the Government (see paragraphs 176 and 184 above), the national courts’ findings were considered to be fully dispositive of the assessment under the “tribunal established by law” requirement, regardless of the nature, scope and quality of the review conducted by those courts – that is, if the Court was not entitled to assess for itself whether the consequences of the breach of the domestic judicial appointment rules were such as to violate Article 6 – then this autonomous Convention right would be devoid of any real protection in the present context.", "250. In this connection, the Court is mindful of its fundamentally subsidiary role in the supervisory mechanism established by the Convention, whereby the Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see, for instance, Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017). It also notes, however, that the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply the domestic law in a manner that gives full effect to the Convention (see, in particular, the references to the İzmir and Brighton conferences and declarations in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., §§ 120-22, 12 October 2017). It therefore follows that while it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, it falls ultimately on the Court to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see, for instance, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 191, ECHR 2006 ‑ V, and Carbonara and Ventura v. Italy, no. 24638/94, § 68, ECHR 2000 ‑ VI).", "251. Evidently, as mentioned in paragraph 244 above, when examining whether there has been a breach of the relevant domestic rules in a given case, the Court will in principle defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable. However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its assessment for that of the national courts (see, mutatis mutandis, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). Accordingly, while the national courts have discretion in determining how to strike the relevant balance, as mentioned in paragraph 243 above, they are nevertheless required to comply with their obligations deriving from the Convention when they are carrying out that balancing exercise.", "252. The Court lastly points out that while it is not within its competence to set a specific time-limit before which an irregularity in the appointment procedure could be challenged by an individual relying on the “tribunal established by law” right, it does not agree with the Government that the absence of such time-limit would in practice have the effect of rendering the appointments open to challenge indefinitely (see the Government’s argument in paragraph 180 above). This is because, with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the individual litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out. Needless to say, account must also be taken of the evidential difficulties that would arise with the passage of time and of the relevant statutory time-limits that may be applicable in the domestic law of the Contracting Parties to challenges of such nature.", "(c) Application of the test to the circumstances of the present case", "253. It now falls on the Court to determine whether the facts of the present case gave rise to a violation of the right to a “tribunal established by law”, in the light of the three-step test formulated above.", "(i) Whether there was a manifest breach of the domestic law", "254. The Court observes, as already noted in paragraph 208 above, that the Supreme Court of Iceland found in its judgments of 19 December 2017 and 24 May 2018 that the domestic law had not been complied with in two respects during the process of appointment of the Court of Appeal judges: firstly, by reason of the Minister of Justice’s failure to carry out an independent evaluation of the facts or to provide adequate reasons for her departure from the Evaluation Committee’s proposal, which had been contrary to section 10 of the Administrative Procedures Act; and secondly, because of the non-compliance of Parliament with the special voting procedure set out in temporary provision IV of the new Judiciary Act. The Court reiterates its position that there is no reason to call into question the Supreme Court’s interpretation of the domestic law in this regard, which is also not disputed by the parties, and finds therefore that the first condition of the test is clearly satisfied.", "(ii) Whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges", "255. As noted in paragraph 246 above, when determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a “tribunal established by law”, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive with the judiciary, and whether the breach in question undermined the very essence of the right to a “tribunal established by law”. With this in mind, the Court will commence its examination under this head by exploring the relevant legal framework in Iceland governing the judicial appointment procedure, with the aim of identifying its object and purpose.", "256. A review of the legislative developments concerning the judicial appointment process in Iceland demonstrates that, following a number of reform procedures, an elaborate judicial appointment system was put in place progressively, whereby an Evaluation Committee – an administrative committee acting independently of the executive and composed of five [11] members appointed by the Minister of Justice – tasked with assessing the qualifications of the candidates and determining those most qualified for the post, played a central role. Under the latest legislative changes, the Evaluation Committee, which initially had advisory status only, was subsequently granted the power to issue binding recommendations for judicial appointments to courts at all three levels. While the law did allow the Minister, exceptionally, to deviate from the Committee’s assessment to a certain extent, use of such discretion was always subject to the control of Parliament (see paragraphs 19 and 105 above).", "257. It appears from the preparatory material in respect of Act no. 92/1989 and Act no. 45/2010 (see paragraphs 11 and 14 above), as well as from the submissions of the parties before this Court and information obtained proprio motu from international sources (see paragraphs 161, 189, 120 and 128 above respectively), that the main aim behind the establishment of such mechanism was to limit the influence of the executive in the appointment of judges and thereby to strengthen the independence of the judiciary in Iceland. In their 2010 report submitted to the United Nations Human Rights Committee on the implementation of the ICCPR, the government of Iceland expressly stated that the relevant legislative changes had come about as a response to the growing concerns in that State that the rules governing the selection and appointment of judges did not sufficiently guarantee the independence of the judiciary, on account of the role played by ministers in the appointment process (see paragraph 120 above). Similarly, in its evaluation report on Iceland published in 2013, GRECO pointed out that “before the new [appointment] system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process” (see paragraph 128 above).", "258. The Court notes that, as a supplementary guarantee against arbitrariness, the Supreme Court had made it clear as early as 2011 – at which point in time the Evaluation Committee enjoyed only an advisory role – that when using the statutory right to depart from the Committee’s assessment, the Minister of Justice had to base his or her decision on sufficient investigation and assessment, in accordance with the requirement under section 10 of the Administrative Procedures Act and the general principle of Icelandic administrative law calling for the appointment of the most qualified candidates to public posts (see paragraph 115 above).", "259. In the light of the foregoing explanations, it now falls to the Grand Chamber to determine whether the breaches in the procedure for the appointment of the four judges proposed by the Minister, including A.E., were of such gravity as to impair the legitimacy of the appointment process and to undermine the very essence of the right to a “tribunal established by law”.", "(α) The breaches committed by the Minister", "260. According to the explanations that she provided to Parliament (see paragraphs 44 and 47 above), the Minister’s decision to depart from the Evaluation Committee’s assessment was mainly motivated by the need to accord more weight to judicial experience in the assessment of the candidates – including subjective elements such as successful courtroom experience – and to achieve gender balance among the appointees.", "261. The Court notes, by way of a preliminary remark, that the Evaluation Committee’s decision to accord the same weight to judicial experience as to litigation and administrative experience had been in line with the relevant legislation, which had highlighted the desirability of varied professional experience (see the relevant references in the preparatory material in respect of Act no. 45/2010 and section 21 of the new Judiciary Act in paragraphs 14 and 105 above), as well as with the continuous practice followed by the committee up to that date, for at least the past four years (see the remarks by the Chairman of the committee in paragraph 40 above). The Chairman had emphasised in this regard that changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided (ibid.).", "262. The Court further notes that the committee’s assessment method had also been in compliance with the gender balance requirements of the Equality Act (no. 10/2008). It observes in this connection that the Supreme Court of Iceland clearly stated in its judgments of 19 December 2017 that the Minister of Justice could not rely on considerations of gender under the Equality Act, as those were only applicable in cases where two candidates of different genders had been considered equally qualified, and that the inadequate investigation by the Minister was not such as to allow her to reach such a decision (see paragraph 73 above).", "263. However, even supposing that the Evaluation Committee’s assessment had been flawed in these areas – or that the method used was too technical (see the Parliamentary Ombudsman’s report of 2016 cited in paragraph 116 above, which cautioned against the use of overly technical assessment methods in appointments to public posts in general) – and that, therefore, the Minister of Justice departed from the Committee’s opinion on legitimate grounds, the thrust of the Supreme Court’s finding in its December 2017 judgments was that the Minister had simply failed to explain why she had picked one candidate over another, as she was required to do under section 10 of the Administrative Procedures Act. The Minister’s disagreement with the Committee’s assessment method did not, therefore, absolve her from the obligation to provide solid reasons for her decision to depart from that neutral assessment.", "264. The Court notes that the Government placed much emphasis in their observations on the argument that, according to the Committee’s assessment table, all four of the candidates introduced to the list by the Minister of Justice, including A.E., had scored more points in judicial experience than the four removed (see paragraph 182 above). While that is true, the Court agrees with the Supreme Court that this information alone does not suffice to explain why those four particular candidates were removed from the list, or why the other four particular candidates were added. It notes in this regard that in the original list prepared by the Evaluation Committee, there were candidates who had scored lower in judicial experience than the four removed – including two candidates who had not scored any points at all – who the Minister nevertheless decided to keep on the list. Similarly, among the eighteen candidates who had not been recommended by the Committee, there were those – including a female candidate – who had scored higher in judicial experience than some of the four eventually chosen by the Minister [12]. The Government explained that the Minister’s assessment had not been based on a purely mathematical exercise and that she had had regard to subjective factors such as the “success” of a candidate in his or her career. However, the absence of any further explanation as to how she had measured “success”, or any comparison of all the candidates from that perspective, calls into question the objectivity of the selection process.", "265. In the Court’s opinion this uncertainty surrounding the Minister’s motives raises serious doubts of irregular interference by the Minister in the judiciary and thus taints the legitimacy of the whole procedure. This is particularly so considering that the Minister was a member of one of the political parties composing the majority in the coalition government, by whose votes alone her proposal was adopted in Parliament (see paragraph 53 above). Moreover, the Court cannot ignore, in this connection, the applicant’s allegations regarding the overall political context within which the Minister made her proposals (see paragraphs 46 and 89 above). While the Court would not affirm that the Minister acted out of political motives, as alleged by the applicant, it considers that the Minister’s actions were of such a nature as to prompt objectively justified concerns to that effect, and this is sufficient also to detract from the transparency of the selection process.", "266. The Minister’s failure to comply with the relevant rules was all the more serious considering that she had been reminded of her legal obligations in this regard on a number of occasions, by her own legal advisers, the Chairman of the Evaluation Committee and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraphs 36, 40-42 and 38 respectively above). The Court also refers in this connection to the Supreme Court’s finding in its December 2017 judgments that the Minister had acted “in complete disregard of [the] obvious danger” to the reputational interests of the shortlisted candidates whose names had been removed (see paragraph 75 above). It is therefore fair to conclude that the Minister’s actions seem to have been taken in full awareness of her obligations under the applicable domestic law.", "267. Having regard to the breaches committed by the Minister of Justice, and to the circumstances in which they took place, the Court considers that they may not be downplayed as mere technical or procedural irregularities, as argued by the Government, but constitute grave irregularities that go to the essence of the right to a “tribunal established by law”.", "(β) The shortcomings in the procedure before Parliament", "268. The Court observes that the former Judiciary Act, as amended by Act no. 45/2010, gave Parliament a key role in the procedure for the election of judges (see paragraphs 14 and 103 above). This role was further strengthened by the new Judiciary Act in the process of the first round of appointments of the new Court of Appeal judges, whereby Parliament was tasked with approving each of the fifteen candidates proposed by the Minister of Justice, regardless of whether the Minister had deviated from the Evaluation Committee’s proposals or not (see paragraphs 19 and 105 above).", "269. In the instant case the Court considers, as also noted by the Supreme Court in its December 2017 judgments, that Parliament could have taken an informed position on the Minister’s proposal, and thus have performed a meaningful supervision of the appointment process, only if the Minister had given due reasons – based on adequate investigation and assessment – for her proposal to depart from the Evaluation Committee’s opinion, which she failed to do. However, contrary to the spirit of its statutory duty to safeguard the legitimacy of the appointment process, Parliament chose to overlook this important shortcoming. Consequently, “the deficiencies in the procedure before the Minister of Justice had in turn resulted in a flawed procedure before Parliament, as those deficiencies were not rectified when the matter came to a vote in Parliament” (see paragraph 74 above), as held by the Supreme Court.", "270. The Court further notes that not only did Parliament fail to demand that the Minister provide objective reasons for her proposals to enable it to perform its duty effectively, but also – as the Supreme Court has acknowledged – it did not comply with the special voting rules set out in temporary provision IV of the new Judiciary Act by putting the Minister’s proposal to a vote en bloc, instead of voting on each candidate separately. Arguably, this failure on the part of Parliament would not, on its own, have amounted to a violation of the right to a “tribunal established by law”, particularly bearing in mind that the members of parliament had been offered the opportunity to request separate voting (see paragraphs 51-52 above; see also the Supreme Court’s finding noted in paragraph 70 above that the vote en bloc did not pose an irregularity in respect of the eleven candidates retained from the Committee’s original list). That said, the voting procedure surely compounded the grave breach already committed by the Minister of Justice in respect of the four candidates she had proposed and undermined Parliament’s role as a check against the exercise of undue executive discretion in judicial appointments. Accordingly, the applicant’s belief that Parliament’s decision was driven primarily by party political considerations may not be considered to be unwarranted.", "271. The Court therefore considers that while the special parliamentary voting procedure provided for under the new Judiciary Act had sought to strengthen the legitimacy of the appointments to the newly established Court of Appeal (see the Government’s argument to this effect in paragraph 189 above), the intervention of Parliament did not produce the desired effect, on the instant facts – that is, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointments procedure as regards the four candidates in question.", "(γ) Concluding remarks under the second step of the test", "272. In the light of the foregoing, the Court considers that there has been a grave breach of a fundamental rule of the procedure for appointing judges to the Court of Appeal in the instant case. The Court will therefore turn to the third step of the test, namely that of the review conducted by the domestic courts.", "(iii) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts", "(α) The review conducted by the Supreme Court in the applicant’s case", "273. As noted in detail in paragraph 89 above, the applicant argued before the Supreme Court that he had been denied the right to a fair hearing before an independent and impartial “tribunal established by law” on account of the irregularities in the appointment of Judge A.E., who had sat on the bench of the Court of Appeal in his case. He maintained in this connection, inter alia, that the requirement both under the Icelandic Constitution and the Convention for a court to be established by law entailed “not only a mandatory condition that general rules on appointments to the judiciary must be clearly enshrined in statute law, but also, and no less importantly, a mandatory condition that the appointment of judges in each instance must be in compliance with the law”. Contrary to the Government’s allegations (noted in paragraph 191 above), the applicant also raised before the Supreme Court his concerns about the political motivations behind the Minister’s proposals, and expressly mentioned his suspicions regarding her involvement with B.N. (see paragraph 89 above).", "274. The Court notes that the Supreme Court dismissed the applicant’s appeal following two main lines of argument (see paragraph 90 above). It first found that although the vote held in Parliament had not complied with the special voting procedure set out in temporary provision IV of the new Judiciary Act, this defect was not significant and the appointment process had otherwise been conducted in accordance with the formal procedures set out in that Act and that temporary provision. Bearing this in mind, and noting in addition that all thirty ‑ three candidates had fulfilled the legal requirements to hold the office of judge at the Court of Appeal, and that fifteen of those candidates had moreover been appointed to such office by letters signed by the President of Iceland and co-signed by the Minister of Justice, the Supreme Court held that it could not be concluded that the appointment of A.E. had constituted a “nullity” ( markleysa ) or that the judgments delivered with her participation had been a “dead letter”.", "275. Secondly, the Supreme Court acknowledged that the procedure followed by the Minister of Justice in the appointment process had not complied with certain national rules on judicial appointments, as already established in its judgments of 19 December 2017. It held, nevertheless, that the appointment of all fifteen judges to the Court of Appeal, for an indefinite term, had “become a reality” upon the signing of the letters of appointment by the President, and from that time onwards, they had been under an obligation to follow only the law in the performance of their duties and to perform those duties independently. In those circumstances, the Supreme Court found no sufficient reason to justifiably doubt that the applicant had enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure attributable to the Minister of Justice.", "276. In his observations submitted to the Court, the applicant argued that the judgment in question had been defective because the Supreme Court (i) had contradicted its earlier findings in the judgments of December 2017 and (ii) had failed to carry out a proper review of the Court of Appeal’s compliance with the “established by law” requirement in the light of the relevant principles established in the Court’s case-law, or to examine independently whether the breaches at issue had been “serious” or not (see paragraph 162 above).", "277. The Government, for their part, stated that the Supreme Court had examined and addressed all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a “tribunal established by law”. Following such examination, the Supreme Court had found that, as a matter of domestic law, A.E.’s status as a lawfully appointed judge had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” by virtue of A.E.’s presence on its bench. It was essential in this regard not to confuse the legal effects of the procedural flaw in question regarding the other candidates with the legal effects of the same flaw on the status of A.E. as a judge or on the applicant’s case. The Government contended that the principle of subsidiarity required the Court to follow the Supreme Court’s findings in this connection (see paragraphs 174, 184 and 186 above).", "(β) The Court’s analysis of the review conducted by the Supreme Court", "278. The Court notes that the Supreme Court had the power to address and remedy the effects of the above-mentioned irregularities on the applicant’s fair-trial rights by declaring that he had not been tried by a “tribunal established by law” – on account of the participation of Judge A.E. in his case at the Court of Appeal level – and by quashing the relevant Court of Appeal judgment. It is uncontested that in its judgment of 24 May 2018 concerning the applicant, the Supreme Court endorsed its earlier findings regarding the breaches committed by the Minister and Parliament in the process of appointments to the Court of Appeal. The Court agrees with the applicant, however, that when subsequently examining the impact of those breaches on his right to a “tribunal established by law”, the Supreme Court appears to have failed to draw the necessary conclusions from its own findings and to assess the matter in a Convention-compliant manner.", "279. In this connection, while the Government contest that finding (see paragraph 186 above), a review of the Supreme Court’s judgment strongly suggests that the Supreme Court limited its examination to finding (i) that the appointment of A.E. had not constituted a “nullity” under Icelandic law and (ii) that despite the flaws in the appointment procedure, the applicant had nevertheless enjoyed a fair trial before an independent and impartial “tribunal” (see paragraphs 113 and 114 of the Chamber judgment). In reaching these findings, the Supreme Court seems to have placed a great deal of emphasis on the mere fact that the appointments had become official upon signature by the President and that, from that point onwards, there was no reason to doubt that the fifteen Court of Appeal judges, all of whom had been found to be legally qualified for the post by the Evaluation Committee, would perform their tasks independently and in accordance with the law.", "280. The Court has no reason to doubt that the appointments at issue did not, technically speaking, constitute a nullity ( markleysa ) under Icelandic law or that, once appointed, the individual judges would endeavour to observe the fair-trial requirements. However, none of those findings address as such the question whether the irregularities in the process leading to the appointment of A.E. had, by and of themselves, interfered with the applicant’s right to a “tribunal established by law” as a distinct Article 6 safeguard, as interpreted by the Court.", "281. The Court observes, as noted in paragraphs 89 and 273 above, that the applicant had raised some very specific and highly pertinent arguments as to why he considered the breaches at issue to violate, inter alia, the requirement that he be tried by an independent and impartial tribunal and one “established by law”. The Supreme Court did not, however, respond to any of those allegations – including the allegations about political connections between the Minister of Justice and Judge A.E.’s husband, B.N. To the extent that the Government have argued that “the Supreme Court had examined all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a tribunal established by law”, the Court notes that such examination is not reflected in the judgment, and as such it remains unknown what that examination entailed and on what legal and factual grounds the Supreme Court reached the conclusion that it did. In other words, it is not clear from the Supreme Court’s judgment why the procedural breaches it had identified in its earlier judgments (dated 19 December 2017) were not of such a nature as to compromise the lawfulness of the appointment of A.E. and, consequently, of her subsequent participation in the applicant’s case.", "282. In the Court’s opinion, the way in which the Supreme Court’s judgment was constructed, and the particular emphasis on the fact that the appointments of the fifteen judges, including A.E., had “bec[o]me a reality upon the signing of their letters of appointment” (see paragraph 90 above), suggests an acceptance, or even a resignation, on the part of that court that it had no real say over the matter once the appointments had become official. This understanding in fact finds support in the Government’s submissions: it appears from their statement that, although, in theory, the Icelandic courts had the power to verify the lawfulness of judicial appointments and to quash judgments in which unlawfully appointed judges had participated, procedural breaches of the type encountered in the present case would, in practice, only result in an award of damages to the unsuccessful candidates. Thus there had “not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment” (see paragraph 187 above).", "283. The Court therefore notes that the restraint displayed by the Supreme Court in examining the applicant’s case – and the failure to strike the right balance between preserving, in particular, the principle of legal certainty on the one hand, and upholding respect for the law on the other – was not specific to the facts of the instant case, but it was the Supreme Court’s settled practice. The Court finds that this practice poses problems for two main reasons. It considers in the first place that it undermines the significant role played by the judiciary in maintaining the checks and balances inherent in the separation of powers. It notes secondly that, having regard to the significance and the implications of the breaches in question – as discussed above – and to the fundamentally important role played by the judiciary in a democratic State governed by the rule of law, the effects of such breaches may not justifiably be limited to the individual candidates who have been wronged by non-appointment, but necessarily concern the general public. The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties (see, for instance, Morice v. France [GC], no. 29369/10, § 128, ECHR 2015; Baka, cited above, § 164; and Denisov v. Ukraine [GC], no. 76639/11, § 63, 25 September 2018). The Court also refers in this connection to Opinion no. 1 (2001) of the CCJE, where it was stated that “[n]ot merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary” (see paragraph 124 above).", "284. As regards the balance that should have been struck by the Supreme Court between the competing interests at play, the Court deems it important to stress that while the passage of a certain period of time after an allegedly irregular judicial appointment process may in principle tip the balance in favour of “legal certainty” (as stated in paragraph 252 above), that was not the case on the present facts. It notes in this connection that as a result of the proceedings brought by two of the unsuccessful candidates in June 2017 (very shortly after the signing of the appointment letters by the President), the irregularities in the appointment procedure were established by the Supreme Court as early as 19 December 2017, barely two weeks prior to the date on which the fifteen selected candidates even took office. Moreover, the applicant in the present case requested the withdrawal of A.E. on 2 February 2018, that is only one month after she had begun serving, and the final judgment of the Supreme Court in his case was rendered on 24 May 2018, less than four months later. In other words, the appointment of A.E. and the other three candidates in question was contested at the national level immediately after the finalisation of the appointment procedure and the irregularities that vitiated their appointment had been established even before they took office. In these circumstances, the Court considers that the Government cannot reasonably rely on the principles of legal certainty or the security of judicial tenure to argue against a violation of the right to a “tribunal established by law” on the present facts.", "285. On a related note, the Court also rejects the argument that the irregularities at issue were too “remote” from the applicant’s case to have had any impact on his right to a tribunal established by law. The Government claimed in this regard that the irregularities had occurred long before Judge A.E. had sat in the applicant’s case, bore no connection with his case and carried no implications for the independence or impartiality of A.E. (see paragraph 188 above). In the Court’s opinion the requisite “proximity” between the irregularities at issue and the applicant’s case was attained when, and only when, the irregularly appointed judge, A.E., sat on the bench of the Court of Appeal which heard his case. The Court notes that the applicant presumably had not had any legal interest, or standing, to contest A.E.’s appointment at an earlier stage. Moreover, the question whether the irregularities at issue had any actual implications for A.E.’s independence or impartiality, this being at the centre of the Supreme Court’s examination of the applicant’s case, did not as such have a direct bearing on the assessment of his separate complaint under the “tribunal established by law” requirement, as already noted in paragraph 280 above.", "286. Having regard to the foregoing, the Court, as the ultimate authority on the application and interpretation of the Convention, cannot accept the review undertaken by the Supreme Court in the applicant’s case, as it had no regard to the question whether the object of the safeguard enshrined in the “established by law” concept had been achieved (for other examples where the Court rejected the domestic courts’ assessment regarding compliance with the “tribunal established by law” requirement, see, inter alia, Miracle Europe Kft, § 65, and Chim and Przywieczerski, §§ 138-42, both cited above).", "(iv) Overall conclusion as to whether there has been a breach of Article 6 § 1 of the Convention as regards the right to a tribunal established by law", "287. Over the past decades, the legal framework in Iceland governing judicial appointments has seen a number of important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power were further intensified in connection with the process for the appointment of the judges to the newly established Court of Appeal, where Parliament was tasked with approving every candidate proposed by the Minister of Justice, whether that proposal followed the Evaluation Committee’s assessment or not, in order to enhance the legitimacy of that new court.", "288. However, as established by the Supreme Court of Iceland, that legal framework was breached during the process for the appointment of the new Court of Appeal judges, particularly by the Minister of Justice. While the Minister was authorised under the relevant law to depart from the Evaluation Committee’s proposal – subject to certain conditions – she had, on the present facts, disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This procedural rule was an important safeguard to prevent the Minister from acting out of political or other undue motives that would undermine the independence and the legitimacy of the Court of Appeal, and its breach in the present circumstances was tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees brought by successive legislative reforms. The Court notes that there were further legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the ultimate safeguard of judicial review of the procedure before domestic courts; however, as discussed above, all those safeguards proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment remained unfettered.", "289. In the light of the foregoing and having regard to the three-step test set out above, the Court considers that the applicant has been denied his right to a “tribunal established by law”, on account of the participation in his trial of a judge whose appointment procedure was vitiated by grave irregularities that impaired the very essence of the right at issue.", "290. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention in this regard.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS the RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL", "291. The applicant complained that he had been denied the right to an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention, having regard to the presence of A.E. on the bench of the Court of Appeal which ruled on his case, in spite of the deficiencies in her appointment.", "The Chamber judgment", "292. The Chamber declared this complaint admissible in its judgment of 12 March 2019, but did not deem it necessary to examine it separately on the merits, in view of the conclusion it had reached in respect of the applicant’s other complaint – concerning the right to a “tribunal established by law” – under the same provision (see paragraph 126 of the Chamber judgment).", "The parties’ submissions", "293. The applicant mainly argued that, in assessing whether a tribunal satisfied the requirement of independence under Article 6 § 1, it was necessary to examine, inter alia, the manner of appointment of its members and to determine whether the tribunal presented an appearance of independence. Having regard to the irregularities in the procedure leading to the appointment of A.E., it could not be held that the Court of Appeal which ruled in his case had had the appearance of an independent and impartial tribunal. During the proceedings before the Grand Chamber, he supported this allegation with some supplementary arguments – such as the instrumental role allegedly played by the irregularly appointed judges in the election of the Court of Appeal’s current president, who enjoyed full discretion in the allocation of the cases within that court – which, in his opinion, further demonstrated the lack of independence and impartiality of the Court of Appeal.", "294. The Government argued, by reference to the criteria for an independent and impartial tribunal as set out under the Court’s case-law, that neither the procedural flaw identified by the Supreme Court in the appointment process, nor any other aspect of her appointment, could be taken to cast doubt on A.E.’s independence or impartiality as a judge. They noted in this regard that A.E. was a professional judge who had been recognised by the Evaluation Committee to be eligible for appointment. They further noted that according to the Court’s settled case-law, the appointment of judges by the executive or the legislature was permissible, provided that appointees were free from influence or pressure when carrying out their adjudicatory role (see, for instance, Maktouf and Damjanović, cited above).", "The Court’s assessment", "295. The Court notes that, in the present case, the complaints under the “tribunal established by law” and “independence and impartiality” requirements stem from the same underlying problem, that is, the irregularities in the appointment of A.E. as a judge of the Court of Appeal. As the Court has found above, the irregularities in question were of such gravity that they undermined the very essence of the right to be tried by a tribunal established in accordance with the law. Having made that finding, the Court concludes that the remaining question as to whether the same irregularities have also compromised the independence and impartiality of the same tribunal does not require further examination (see, mutatis mutandis, Zeynalov, § 28, and Miracle Europe Kft, §§ 57-67, both cited above).", "APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION", "296. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "297. Article 46 of the Convention provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "Article 41 of the ConventionDamage", "Damage", "Damage", "298. Before the Chamber the applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. The Government objected to that claim as excessively high, and argued that the finding of a violation would in itself constitute just satisfaction for any non-pecuniary damage sustained by the applicant.", "299. The Chamber agreed with the Government that the finding of a violation of Article 6 § 1 of the Convention constituted in itself sufficient just satisfaction.", "300. In the proceedings before the Grand Chamber the applicant did not alter his submissions under this head. The Government, for their part, did not comment on this point before the Grand Chamber.", "301. The Grand Chamber considers that a finding of a violation can be regarded as sufficient just satisfaction in the present case, and thus rejects the applicant’s claim under this head.", "Costs and expenses", "302. In the Chamber proceedings the applicant claimed EUR 26,795 for the costs and expenses incurred before the domestic courts, including the legal fees awarded by the Court of Appeal in the amount of approximately EUR 3,590. He also claimed EUR 20,150 for the costs and expenses incurred before the Court. The Government submitted in response that the legal fees awarded by the Court of Appeal had been paid by the Treasury in accordance with the Criminal Procedure Act and that the applicant had not submitted any invoice demonstrating that he had reimbursed the Treasury for that amount. The Government further asserted that the costs claimed before the domestic courts and the Court were excessively high.", "303. The Chamber considered it reasonable to award the applicant the sum of EUR 15,000 covering costs under all heads.", "304. Before the Grand Chamber the applicant repeated his claim for the costs and expenses incurred before the domestic courts (EUR 26,795). He also claimed EUR 95,472 for the costs and expenses incurred before the Court (that is, EUR 20,150 in respect of the Chamber proceedings and EUR 75,322 in respect of the Grand Chamber proceedings). The costs and expenses incurred before the Court included, in particular, lawyer’s fees in the amount of approximately EUR 86,200, as well as translation costs of approximately EUR 6,760 and travel expenses of approximately EUR 1,250.", "305. In support of his claims, the applicant submitted invoices issued by his representative, showing that the latter had carried out a total of 387 hours’ work on the case (112 hours before the domestic instances and 275 hours on the application submitted to the Court, at an hourly rate of approximately EUR 255, plus 24% value-added tax), together with invoices documenting the translation and travel expenses. He did not, however, submit any proof to counter the Government’s earlier allegation that he had not reimbursed the Treasury for the legal fees awarded by the Court of Appeal.", "306. The Government did not comment on the applicant’s claim for costs and expenses in the Grand Chamber proceedings.", "307. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010).", "308. The Court notes at the outset that the applicant’s costs and expenses before the domestic courts were incurred only partially to prevent or rectify a violation of a Convention right in the instant case; it further notes that the costs before the Court of Appeal were met in part by the Treasury and that the costs before the District Court bore no relation to the violation found. The Court further finds that the number of hours claimed and the total amount of legal costs requested – both domestically and in connection with the proceedings before the Court – appear excessive (see, for instance, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 190, 17 May 2016).", "309. In the light of the above considerations, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 20,000 covering costs and expenses under all heads.", "Default interest", "310. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "Article 46 of the Convention", "311. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012).", "312. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV), provided that such means are compatible with the conclusions and spirit of the Court’s judgment (see, for instance, Scozzari and Giunta, cited above, § 249, and Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, §§ 148-49, 29 May 2019). However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (see, for instance, Ilgar Mammadov, cited above, § 153).", "313. Turning to the facts before it, the Court notes that the applicant’s representative was expressly asked at the hearing whether the applicant would seek the reopening of the criminal proceedings against him in the event of a finding of a violation of Article 6 in the instant case, and the representative responded in the negative. While the applicant’s representative has subsequently requested – in his written response to the questions from judges at the hearing (see paragraph 10 above) – to retract that statement, the Court considers that this subsequent request may not be taken into account in the absence of sufficient justification to explain the change in the applicant’s previous position.", "314. The Court further considers that in accordance with its obligations under Article 46 of the Convention, it falls upon the respondent State to draw the necessary conclusions from the present judgment and to take any general measures as appropriate in order to solve the problems that have led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the Court would emphasise that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Icelandic law." ]

[ "2. The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome.", "3. The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Muçaj of the State Advocate ’ s Office.", "The Background TO THE CASE", "4. In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (“the Assessment Report”). The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks – mainly with the involvement of a “middleman”, such as a family member, friend or lawyer – was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania.", "5. The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (“the Reform Strategy”). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, ( i ) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties.", "6. As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms “Re-evaluation of Judges and Prosecutors Act” and “Vetting Act” are used interchangeably. Likewise, the terms “vetting process/proceedings” and “re-evaluation process/proceedings” are used interchangeably.", "7. The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion.", "The circumstances of the case", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. The applicant ’ s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court.", "10. In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant.", "Proceedings before the Independent Qualification Commission", "11. Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets ( deklarata e pasurisë ). She and her partner disclosed that they co-owned three properties: ( i ) a flat measuring 101 sq. m which had been acquired by means of a contract for an off-plan purchase (“an off-plan contract”) entered into on 8 March 2005 ( blerë më 8 mars 2005 [me] kontratë sipërmarrje ) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 ( kontratë sipërmarrje datë 5.10.2010 ) and (iii) a plot of land measuring 221.9 sq. m. They both also gave a detailed description of the sources of their income and savings. The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration ( deklarata për kontrollin e figurës ) and a professional self-appraisal form ( formulari i vetëvlerësimit professional ) (see also paragraphs 133 and 134 below).", "Administrative investigation", "12. On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (“IQC”) decided to launch an in-depth administrative investigation ( hetim administrative të thelluar ) into the three declarations that she had filed.", "13. On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly.", "14. Between 15 December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26 December 2017 and 6 March 2018.", "15. On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated ( i ) that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant ’ s financial situation ( likuiditetet ), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint.", "16. Pursuant to section 52 of the Vetting Act and Article D § 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses.", "17. On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6 January to 5 December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”), the Classified Information Security Directorate (“CISD”) and the Inspectorate of the High Council of Justice (“IHCJ”), had given a favourable opinion in relation to all of the applicant ’ s declarations.", "18. On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence.", "19. On 16 April 2018, following the applicant ’ s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined.", "20. On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings.", "21. On 25 April 2018 the IQC adjourned without taking a decision in the applicant ’ s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing.", "The IQC ’ s decision", "22. On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant ’ s case. The operative provisions had been made public on 3 May 2018.", "(a) Findings regarding the evaluation of assets", "(i) As regards the flat measuring 101 sq. m", "23. The IQC, having examined the evidence in the case file relating to the flat measuring 101 sq. m which belonged to the applicant and her partner, found that “there [was] a lack of legal supporting documents as required by law, false declaration and concealment of income in connection with the lawfulness of the source of income disclosed as having served as the basis for acquiring the flat ( në lidhje me ligjshmërinë e burimit të deklaruar të të ardhurave që kanë shërbyer për blerjen e këtij apartamenti, ka mungesë dokumentacioni justifikues ligjor, deklarim të rremë dhe fshehje të të ardhurave )”.", "24. In drawing this conclusion, the IQC held that there was an inconsistency between the applicant ’ s vetting declaration of assets and her partner ’ s declaration of assets filed in 2003 and 2005 in relation to the source of income which had been used for the acquisition of the asset. The applicant ’ s vetting declaration of assets indicated that the source of income used for the acquisition of the flat had been her partner ’ s income from gainful employment in Italy and scholarship money he had received. However, her partner ’ s declaration of assets filed in 2005 stated for the first time that the flat had been purchased with the proceeds of sale of another flat measuring 93 sq. m, topped up by annual savings. His declaration of assets filed in 2003 stated that the flat measuring 93 sq. m had been bought with the proceeds obtained from the sale of another flat and savings from his employment in Italy. Consequently, according to the IQC, the flat measuring 101 sq. m had been bought with the proceeds secured from the earlier sale of a flat measuring 93 sq. m.", "25. The IQC further referred to an off-plan contract ( kontratë sipërmarrje ) concluded before a notary public on 7 March 2005, according to which the applicant and her partner had agreed to transfer ownership of the flat measuring 93 sq. m to a third party who, in turn, had paid the sale price in full. The contract stated that both the applicant and her partner had received the sale price. It contained the following statement: “on 31 March 2003 the building company entered into an off-plan contract with [the applicant and her partner] in respect of a flat ... measuring 93 sq. m”. Relying on this contract, the IQC concluded that both the applicant and her partner had acquired the flat measuring 93 sq. m. Even though the applicant and her partner had not been living together at the material time, the IQC held that the applicant could not have been absolved from the obligation to disclose in the 2003 declaration of assets the off-plan contract to which she had been a party and on the basis of which she had acquired property rights and made a payment in respect of the flat. Whereas the transaction had been effected by means of an off-plan contract, the goal of such a transaction was the sale and purchase of real property. Therefore, the true source of funds for the acquisition of the flat measuring 101 sq. m had been the proceeds of sale of an earlier flat measuring 93 sq. m which both the applicant and her partner had bought in 2003 through an off-plan contract. The IQC held that she had been co-owner of the flat and that she had failed to disclose the flat measuring 101 sq. m in any of the annual declarations of assets between 2005 and 2011 (see paragraph 11 above). According to the IQC, “the [applicant ’ s] concealment of the notarial deeds [entered into between 2003 and 2005] demonstrate[d] the failure to disclose truthfully the source [of funds used] for the creation of the asset being re-evaluated ( fshehja e veprimeve noteriale nga ana e subjektit të rivlerësimit pasqyron mosdeklarimin me vërtetësi të burimit të krijimit të pasurisë -vetting )”.", "26. As regards the applicant ’ s claim that she had contributed towards the purchase of the flat, the IQC, making an assessment of the evidence in the case file, held that the applicant had not possessed sufficient liquid assets: in 2003 her liquid assets had amounted to 783,964 Albanian leks (ALL 6,251 euros (EUR), at the current exchange rate) and in 2004 to ALL 25,000 (EUR 200). Furthermore, she had been burdened with loans obtained in 2003 and 2004.", "27. The IQC further rejected the applicant ’ s claim that the flat had been purchased with her partner ’ s income while he had been studying, working and living in Italy from 1992 to 2001. Making an assessment of the evidence in the case file, the IQC, having regard to the fact that only income subject to tax could be considered lawful, held that her partner ’ s financial situation had been negative. Notwithstanding this, the IQC carried out another assessment on the basis of his disclosed income and reached the conclusion that his net income (ALL 206,399 – EUR 1,646) had been insufficient to purchase the flat. The IQC only took into account the earnings obtained from her partner ’ s employment as a waiter. In the absence of any supporting documents, the IQC disregarded any earnings which would have been calculated as commission under a contract he had concluded with an Italian company. In determining the living expenses, the IQC based its estimates on information published by the Italian Institute of Statistics for the period 2002 to 2004.", "28. The IQC stated that the applicant had not submitted any supporting documents to justify her partner ’ s inability to provide documents dating from the 1990s in accordance with section 32(2) of the Vetting Act. She had not informed the IQC that, in view of the relationship her partner had had with the bank with which he had had an account in Italy, the Italian company which was still operating or the Italian National Institute of Social Security, supporting documents had gone missing, had been lost or could not be reproduced in any other way. Lastly, the IQC found that there were no documents in the case file to demonstrate that the scholarship money, which the Italian Ministry of Foreign Affairs had awarded her partner, had been transferred to his account. The IQC considered that the scholarship money, which had been awarded for a particular purpose, could not have given rise to considerable savings that could be used to buy a flat. It further held that the income which the applicant ’ s partner claimed to have earned by working on the black market was “not a convincing source for justifying this asset” ( nuk janë burime të bindshme për justifikimin e kësaj pasurie ).", "(ii) As regards a flat measuring 58.75 sq. m", "29. The IQC found that the applicant had not possessed sufficient lawful income in 2010 ( të ardhura të ligjshme të mjaftueshme ) to buy a flat measuring 58.75 sq. m through an off-plan contract ( fituar me anë të kontratës së sipërmarrjes ).", "(iii) As regards a plot of land measuring 221.9 sq. m", "30. The IQC held that the applicant had benefitted from a bigger plot of land (that is, 221.9 sq. m) than her entitlement by law (that is, 128.89 sq. m) as a result of the transfer of ownership of a plot of land in 2013.", "(iv) As regards the financial situation of the applicant and her partner", "31. The IQC, after determining the sources of assets and liabilities of the applicant and her partner, found that the applicant had lacked lawful financial sources of income ( ka mungesë të burimit të ligjshëm financiar ) to justify her liquid assets [1] in 2007, 2009 and 2015 of a total amount of ALL 1,972,969 (EUR 15,750). In determining the financial situation, the IQC had regard to the carryover cash balance of the applicant and her partner at the start of each year and their documented income. Liabilities comprised living expenses which had been determined by HIDAACI, travel expenses which had been calculated with reference to EUR 180 for a low-cost airline ticket, EUR 300 for a full service carrier ticket and EUR 50 for daily expenses, mortgage repayments which had been calculated on the basis of documents furnished by commercial banks and other encumbrances.", "32. In its determination of liquid assets, the IQC, relying on the supporting documents which the applicant had submitted, accepted the justification of certain income and expenses, for example income earned by her partner, certain travel expenses borne by her employer and educational expenses for her child. It also rejected certain other claims made by the applicant because of a lack of supporting documents.", "33. The IQC further considered that the fact that her partner had held EUR 15,000 in cash at home had been contrary to a provision of the Asset Disclosure Act, which had required him to deposit the cash in a bank account before filing the annual declaration of assets (see paragraph 202 below).", "(v) As regards a mortgage of 40,000 United States dollars (USD)", "34. The IQC held that the applicant had concealed the true nature of a mortgage of USD 40,000 which she had obtained in 2003 and that the taking of the mortgage had been fictitious.", "(vi) As regards a plot of agricultural land measuring 666 sq. m", "35. The IQC found that, on the basis of the documents in the case file, the applicant had made an inaccurate disclosure ( deklarim të pasaktë ) in 2003 as regards her share of a plot measuring 666 sq. m, which, according to the sale contract and property certificate, had been registered solely in the name of her mother.", "(vii) As regards a flat measuring 89.16 sq. m", "36. The IQC held that the applicant had made a false disclosure ( deklarim të rremë ) as regards the proceeds she had obtained, as co-owner, from the sale of a flat in 2003.", "(b) Findings regarding the evaluation of other criteria", "37. The IQC endorsed the positive findings of the IHCJ in relation to the applicant ’ s ethics and professional competence.", "38. The IQC further found that, following a complaint made by a member of the public under section 53 of the Vetting Act (see paragraph 148 below), the applicant had failed to disclose a conflict of interest and recuse herself from the examination of a constitutional complaint relating to the outcome of a set of civil proceedings before the lower courts in accordance with section 36(1)(c) of the Constitutional Court Act and Article 72 § 6 of the Code of Civil Procedure (see paragraphs 199 and 197 below). According to the IQC, the conflict of interest lay in the fact that the applicant ’ s father had been the rapporteur of an appellate court bench which had examined the issue of statutory limitations in a separate set of criminal proceedings against third parties, a complaint which had been brought by the same person who had lodged the constitutional complaint with the Constitutional Court. In that set of criminal proceedings, the appellate court had decided that the prosecution was time-barred. Those third parties had also been an interested party in the constitutional proceedings.", "39. As regards the applicant ’ s conduct, the IQC considered that she had cooperated during the re-evaluation proceedings and had provided explanations, as requested. However, it considered that the documents she had provided were of a declaratory nature.", "(c) Overall conclusion", "40. The IQC, having regard to the findings concerning the evaluation of the applicant ’ s assets and her failure to disclose a conflict of interest, decided by a majority to order her dismissal from office under section 61(3) and (5) of the Vetting Act (see paragraph 151 below).", "(d) Dissenting opinion", "41. A member of the IQC (G.T.) appended a dissenting opinion which stated that the inconsistencies in the declarations of assets as regards the flat measuring 101 sq. m (see paragraph 24 above) could not constitute sufficient evidence to warrant the applicant ’ s dismissal from office; nor could inaccuracies in the declaration of assets be regarded as insufficient disclosure of assets. In the dissenter ’ s view, it had been proven that the flat measuring 101 sq. m had been purchased with the proceeds obtained from the sale of another flat, which, in turn, had been acquired in 2003 with the income from the applicant ’ s partner ’ s employment in Italy and his scholarship money. Consequently, the income had originated from her partner ’ s funds and could not have given rise to inconsistencies in the declarations filed in different years.", "42. As her partner had earned the income over twenty years earlier, it had been objectively impossible for the applicant to obtain and submit documents to verify the source thereof. The financial assessment made in respect of her partner had disregarded the income he had received in 1996, 1998 and 1999 while working on the black market in Italy. It was widely acknowledged that Albanian students in Italy or elsewhere abroad had to work on the black market to earn an income in addition to any scholarship awarded to them. Indeed, the Vetting Act favoured lawful income subject to tax. Still, the spirit of the law, read together with the Annex to the Constitution, was in favour of a person whose total assets were up to twice the amount of lawful assets ( favorizon subjektet duke legjitimuar deri ne dyfishin e pasurise se ligjshme ). The applicant ’ s total assets had not exceeded twice the amount of lawful assets. The dissenter did not share the majority ’ s view as regards the money from the scholarship; nor did the dissenter endorse the majority ’ s findings concerning the notarial deed entered into in 2003, in so far as the IQC had not obtained any evidence to show that the applicant had contributed to the acquisition of or benefitted from the sale of that flat.", "43. As regards the applicant ’ s liquid assets in 2007, 2009 and 2010, the dissenter considered that the inaccuracies in completing the declaration of assets could not be regarded as false disclosure or a lack of lawful income. Furthermore, in the dissenter ’ s view, the mortgage of USD 40,000 had been directly paid into the building company ’ s bank account. This fact sufficed to demonstrate that the mortgage had been obtained for the purchase of the flat, and the applicant could not be blamed for material errors in the notarial deed. On the whole, the dissenter concluded, referring to the principle of proportionality, that the applicant had amassed credible assets.", "44. Lastly, the applicant had not been faced with a conflict of interest in connection with the complaint made by the member of the public in relation to her father ’ s participation in a criminal case as a member of an appellate court bench.", "Proceedings before the Appeal ChamberThe applicant ’ s appeal", "The applicant ’ s appeal", "The applicant ’ s appeal", "45. On 19 June 2018 the applicant lodged a 42-page appeal against the IQC ’ s decision with the Special Appeal Chamber (“the Appeal Chamber”), making two strands of arguments: the first related to allegations concerning procedural or substantial breaches of the law, and the second challenged the IQC ’ s findings. The applicant reiterated the same arguments in her further written submissions of 21 September and 15 October 2018.", "(a) Allegations regarding procedural and substantial breaches of the law", "46. The applicant contended that she had not been given the opportunity to defend herself in respect of the IQC ’ s ultimate findings that there had been concealment and false or inaccurate disclosure of assets by her, no such findings having been made at the conclusion of the administrative investigation.", "47. The IQC had played an active role in collecting facts, evidence and information, going beyond the standard role of a tribunal which would usually give a decision upon hearing all of the parties ’ arguments. It had subsequently failed to secure the procedural guarantees, such as equality of arms, in the proceedings against her. It had been selective in the evidence it had used and relied upon against her and had not considered the analysis, evidence and arguments that she had submitted in response to the findings of the administrative investigation.", "48. The IQC had not had any powers to interpret the previous declarations of assets that she had filed in accordance with the Asset Disclosure Act, which had been assessed positively by HIDAACI. For this reason, she argued that the IQC had retroactively applied section 31 of the Vetting Act to the 2003 declaration of assets.", "49. The IQC had unreasonably shifted the burden of proof onto her for facts in respect of which she had not been obliged to submit any supporting documents. Furthermore, it had not considered the objective impossibility for the applicant to obtain all the supporting documents needed to substantiate the source of her partner ’ s income.", "50. Lastly, the IQC had not held that she had amassed more than twice the amount of her lawful assets, which would have warranted her dismissal from office in accordance with Article D § 4 of the Annex to the Constitution. In fact, her assets had been half the amount of her lawful income.", "(b) Allegations regarding erroneous findings in respect of the re- evaluation criteria", "51. As regards the flat measuring 101 sq. m, the applicant made three strands of arguments. Firstly, she argued that the IQC had misinterpreted the law by equating the conclusion of a legal transaction ( veprim juridik ) – with reference to the 2003 and 2005 off-plan contracts – to the acquisition of an “asset”. There had been no obligation for her to disclose legal transactions, including the off-plan contracts which had not contributed to the acquisition of an asset, under the Asset Disclosure Act and the Vetting Act.", "52. Secondly, the applicant ’ s partner had carried out all the legal transactions in 2003 and 2005, the applicant not having been a party to them. He had disclosed the properties he had acquired, including the origin of income used, in the 2003 and 2005 declarations of assets, with no concealment thereof. She had disclosed their co-ownership in the 2011 declaration of assets, after her partner had decided to name her as joint owner with a 50% share of the flat in the registration of that property with the authorities. In this connection, she appended to her appeal a certificate issued by the Albanian company with which her partner had entered into an off-plan contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001.", "53. Thirdly, as regards the calculation of her partner ’ s living expenses in Italy from 1992 to June 1995, the IQC had relied on figures corresponding to the period 2002 to 2004, when the cost of living had increased as a result of inflation caused by the replacement of the Italian lira with the euro. Furthermore, her partner had been lawfully employed from July 1995 to July 2000, as evidenced by copies of his employment contract and some salary slips. According to an empirical assessment of her partner ’ s income and expenditure, he had saved ALL 3,444,871.32 (EUR 27,586), which justified the acquisition of the flat in 2003.", "54. As regards liquid assets, the IQC had not considered the fact that the expenses of certain business trips had been borne by her employer or host institutions or that the expenses of certain personal trips had been borne by host families. It had unjustly attributed all those expenses to her. Making her own assessment for 2007, 2009 and 2015, she argued that she had had sufficient income to cover all the necessary expenses.", "55. As regards the complaint made by a member of the public, the applicant submitted that the member of the public had lodged a criminal complaint with the prosecutor ’ s office against two private individuals for alleged forgery of official documents. Following the institution of criminal proceedings by the prosecutor ’ s office, to which the member of the public had not been a party, in 2011 a Court of Appeal bench, of which her father had been a member, had decided that the prosecution of the private individuals was time-barred and had not examined the merits of the case.", "56. The constitutional proceedings, which had been examined by a Constitutional Court bench, of which the applicant had been a member, had concerned a request submitted by the same member of the public about the outcome of a set of civil proceedings relating to the invalidation of a sale contract concluded between that person and a legal entity in 1999. As the constitutional proceedings had had no connection whatsoever with the criminal proceedings, she had not been faced with a conflict of interest so as to warrant the finding that she had undermined public trust in the justice system, as stipulated in section 61(5) of the Vetting Act.", "57. In view of the above arguments, the applicant maintained that her dismissal from office had been disproportionate and that the proceedings before the IQC had been conducted in breach of the principles of lawfulness, fairness, impartiality, equality before the law and proportionality.", "The Appeal Chamber ’ s decision", "58. On 16 July 2018 lots were drawn for the composition of the five-member panel of the Appeal Chamber and the applicant was notified accordingly. She was subsequently informed that her appeal would be examined in camera on 24 October 2018.", "59. On 24 October 2018 the Appeal Chamber gave its decision, examining the applicable procedure before it as well as the applicant ’ s grounds of appeal. She was notified of the decision on 23 November 2018.", "(a) Preliminary findings", "60. By way of general observation, the Appeal Chamber confirmed that the proceedings before it were governed by section 65 of the Vetting Act and, amongst others, sections 47, 49 and 51 of the Administrative Courts Act ( see paragraphs 153, and 194 - 96 below). Pursuant to sections 47 and 49(2) of the Administrative Courts Act, the Appeal Chamber declined to admit new evidence submitted by the applicant to the case file. It reasoned that she had not put forward any reasons for her inability to submit the new evidence to the IQC. It also declined to admit further evidence submitted on 15 October 2018, in accordance with section 49(6)(a) of the Vetting Act (see paragraph 146 below). The Appeal Chamber decided not to accept additional complaints made by other members of the public following the delivery of the IQC ’ s decision, as there were no grounds for an investigation.", "61. Even though the applicant had not requested a public hearing in her appeal, the Appeal Chamber considered that it was not necessary to hold one as ( i ) the IQC had made an accurate and comprehensive assessment of the facts, (ii) there was no need to accept new evidence or assess new facts, (iii) the IQC had not committed any serious procedural breaches or provided an erroneous or incomplete statement of facts and (iv) there was no need to readmit the evidence which had been accepted by the IQC.", "62. The Appeal Chamber clarified that the vetting bodies were empowered by sections 30, 32 and 33 of the Vetting Act as well as Article Ç § 4 and Article D of the Annex to the Constitution to consider an individual ’ s declarations of assets made since 2003 in order to verify whether the person being vetted owned more assets than he or she could lawfully possess or whether the person had made an accurate and complete disclosure of his or her assets and of assets belonging to other related persons. Since the statutory provisions had given a probative value to the annual declarations of assets, they could be regarded as having the same importance as the vetting declaration of assets. The IQC and Appeal Chamber would consider these declarations, together with other evidence, as a whole, in order to determine the circumstances of the case and make a just decision. The IQC would also examine the report drawn up by HIDAACI in order to determine its probative value and accuracy ( provueshmërinë dhe vërtetësinë ).", "63. The Appeal Chamber further clarified that upon the closure of the administrative investigation, the IQC had informed the applicant of its preliminary findings in respect of each asset and shifted the burden of proof onto her. Final findings relating to concealment or inaccurate disclosure of assets were to be made after the person being vetted had submitted arguments and evidence in his or her defence. In this connection, the person being vetted was required to convincingly demonstrate the lawful source of his or her assets and income and to not conceal or inaccurately disclose assets in his or her possession or use. The re-evaluation process was an administrative/disciplinary procedure (never akin to a criminal process) ( proccesi i rivlerësimit është një procedurë administrative/ sanksionuese ( dhe asnjëherë një proces penal), which aimed at affording all the guarantees relating to the right to a fair hearing.", "64. In the applicant ’ s case, the Appeal Chamber noted that the conclusion of the administrative investigation had related solely to the preliminary findings made by the IQC, in the absence of any arguments put forward by the applicant. The IQC had informed her of its findings and invited her to submit arguments and evidence to the contrary, following which it had continued the investigation. The IQC had adjourned the hearing of 25 April 2018 in order to fully examine the additional written submissions which she had submitted on the same date, as well as other supporting evidence which she had made available on 18 April 2018. This course of action had guaranteed the applicant ’ s right to a fair hearing. The IQC could not take a decision concerning concealment or false disclosure of assets during the administrative investigation, in so far as the proceedings had still been pending before it, a hearing had been due to take place and the applicant had had the right to present evidence and submissions. Had it done so, the IQC would have prejudiced the outcome of the case following the shifting of the burden of proof onto the applicant, who had been invited to submit evidence to the contrary.", "65. The Appeal Chamber held that the IQC had removed the applicant from office for insufficient disclosure of assets and the fact that she, following the overall examination of the proceedings, had undermined public trust in the justice system ( ka cenuar besimin e publikut te sistemi i drejtësisë ). She had not been removed from office on account of having amassed total assets of more than twice the value of her lawful assets ( nuk e ka shkarkuar subjektin e rivlerësimit për efekt të kalimit të dyfishit të pasurisë së ligjshme ). Furthermore, the fact that she had received a positive assessment of her integrity background check did not call into question the inappropriateness of the false, inaccurate and insufficient disclosure of assets she had made. Section 61(3) of the Vetting Act did not require both these criteria to be negatively evaluated, as they each constituted a separate ground for dismissal from office.", "66. Lastly, it observed that the IQC had secured the applicant ’ s right of access to the documents obtained during the administrative investigation; her case had been heard publicly within a reasonable time and by an independent and impartial tribunal. The IQC had taken its decision, after obtaining the applicant ’ s arguments, documents and evidence. For this reason, her right to a fair hearing had been respected.", "(b) Findings regarding the evaluation of assets", "(i) As regards the flat measuring 101 sq. m", "67. The Appeal Chamber held that, by means of the off-plan contracts, the applicant had acquired rights in rem ( të drejtat reale ) to the flat which was the subject matter of the contract. Domestic law provided that the conclusion of a legal contract was a way of acquiring a property or rights in rem. The IQC had correctly concluded, following an examination of the documents in the case file, that the 2003 and 2005 off-plan contracts had concerned the transfer of rights in rem to a flat which would be constructed in the future against the payment of a price. The applicant and her partner, who had both signed the 2003 and 2005 off-plan contracts which had specified the object and price that had subsequently been paid, had acquired the rights in rem upon its conclusion. The applicant should therefore have disclosed the acquisition of this particular property at the relevant time, that is, in the 2005 declaration of assets, instead of waiting to disclose it in the 2011 declaration of assets after her partner had named her as joint owner with a 50% share of the flat.", "68. Following an assessment of the documents in the case file, such as bank receipts, salary slips and payments relating to the scholarship in Italy, the Appeal Chamber observed that her partner had not convincingly demonstrated the lawfulness of his income ( nuk ka provuar bindshëm ligjshmërinë e të ardhurave ) for the period 1992 to 2000 in order to buy the flat in 2003. The IQC had not erred in the calculation of her partner ’ s expenses while he was a foreign student in Italy.", "69. As regards the applicant ’ s partner ’ s income from his gainful employment in Italy during the period 1995 to 2000, the applicant had not submitted sufficient supporting documents or other evidence to justify that the income had been lawful, that is, subject to the payment of taxes, not least because her partner had worked on the black market. There was no information on how the income had been transferred to Albania, and the applicant had not been faced with an objective impossibility which could justify the destruction or loss of supporting documents proving the existence of lawful income. The applicant ’ s statements relating to the source of income remained of a declaratory nature and could not serve as proof of lawful income ( mbesin në nivel deklarativ dhe nuk justifikohet ligjshmëria e tyre ).", "70. Lastly, considering the statements made by the applicant ’ s partner and taking into account all income that he had allegedly earned during his stay in Italy, his savings could not have been sufficient to buy the flat. Nor had the applicant had sufficient financial means in 2003 to contribute to its purchase. The applicant had not advanced any arguments challenging the authenticity of the 2003 off-plan contract or the payment of the sum indicated therein.", "71. The Appeal Chamber concluded that the applicant and her partner had not had sufficient funds to buy the flat measuring 101 sq. m with lawful income, as declared by them. The applicant had therefore made a false declaration and concealed the asset.", "(ii) As regards the flat measuring 58.75 sq. m", "72. The Appeal Chamber found that, having regard to the applicant ’ s financial situation, as evidenced by the 2009 declaration of assets, she had had sufficient income to acquire this property. It held that the IQC ’ s finding in respect of this asset was ill-founded.", "(iii) As regards the plot measuring 221.9 sq. m", "73. The Appeal Chamber held that the applicant could not be blamed for having benefitted from the regularisation of a bigger plot of land, the size of which and corresponding price had been determined by the relevant public authority in 2013, when she had in fact requested that her property rights be regularised in respect of a smaller plot of land. It found that the IQC ’ s finding in respect of this asset was ill-founded.", "(iv) As regards the financial situation", "74. At the outset, the Appeal Chamber emphasised that the applicant had not challenged before the IQC or Appeal Chamber the methodology applied by the IQC for the determination of the financial situation. Nor had she submitted any arguments challenging the calculation of living expenses.", "75. The Appeal Chamber upheld the IQC ’ s decision to not accept a notarised statement which had been drawn up abroad, as the statement did not contain the elements required to be considered valid under domestic law and used in the proceedings against the applicant. As regards certain travel expenses, the Appeal Chamber held that the applicant had not submitted supporting documents to convincingly demonstrate the legitimate source used to cover the expenses. As regards other travel expenses, the Appeal Chamber held that the IQC had not considered them in the determination of the expenses borne by the applicant. As regards the cash (EUR 15,000) that her partner had not disclosed over the years, the Appeal Chamber found that he had acted in breach of his statutory obligations.", "76. The Appeal Chamber carried out a reassessment of the applicant ’ s and her partner ’ s assets and liabilities for 2007, 2009, 2015 and 2016, the results of which differed from the IQC ’ s findings and the applicant ’ s submissions. It still found that the applicant had lacked lawful sources of income to justify her liquid assets of a total amount of ALL 1,288,258.27 (approximately EUR 10,277, and, also compare with the IQC ’ s finding in paragraph 31 above).", "77. The Appeal Chamber further pointed to the existence of two foreign bank accounts held by the applicant and her partner in 2015 and 2016 (see paragraph 11 above), stating that it was not apparent how the money had been deposited or transferred, there having been no disclosure of those accounts in the periodic annual declarations of assets. The applicant and her partner had therefore been unable to convincingly demonstrate how they had opened the accounts and conducted financial transactions.", "78. The Appeal Chamber concluded that: “the applicant [has] not convincingly explain[ed] the lawful source of these monetary amounts; she [has] attempt[ed] to conceal and present the liquid assets inaccurately; and, she and [her partner] have not justified the lawfulness of the income for these monetary amounts ( nuk shpjegon bindshëm burimin e ligjshëm të këtyre shumave monetare, përpiqet të fshehë dhe të paraqesë në mënyrë të pasaktë pasurinë në likuiditete, si dhe ajo vetë dhe personi i lidhur me të nuk kanë justifikuar ligjshmërinë e të ardhurave për këto shuma monetare )”.", "(v) As regards the mortgage of USD 40,000", "79. The Appeal Chamber found that the mortgage had been disbursed for its intended purpose, and held that the IQC ’ s finding in this respect was ill-founded.", "(vi) As regards the plot measuring 666 sq. m", "80. The Appeal Chamber upheld the IQC ’ s finding that the applicant had made an incorrect disclosure in 2003 as regards her share in the plot measuring 666 sq. m, which had belonged solely to her mother.", "(vii) As regards the flat measuring 89.16 sq. m", "81. The Appeal Chamber held that, as regards the flat measuring 89.16 sq. m, there had been an inaccurate disclosure in the declaration submitted by the applicant ( jemi përpara pasaktësisë në deklarim ) instead of a false disclosure as the IQC had found.", "(c) Findings regarding the evaluation of professional competence", "82. The Appeal Chamber upheld the IQC ’ s finding that, following a complaint by a member of the public, the applicant had failed to recuse herself from proceedings before the Constitutional Court. It appears from the Appeal Chamber ’ s decision that the applicant, as a member of the Constitutional Court ’ s bench, had examined a constitutional complaint lodged by a member of the public of unfairness in a set of civil proceedings concerning the invalidation of a sales contract entered into between the member of the public and a legal entity. The member of the public had made available to the Constitutional Court a decision given in 2011 by a bench of the Tirana Court of Appeal, of which the applicant ’ s father had been the rapporteur, which had decided that the criminal proceedings against two individuals, who had been convicted of forgery of an administrative property decision by the first-instance court, were time-barred. Those individuals had been an interested party in the constitutional proceedings ( kanë qenë persona të interesuar në gjykimin kushtetues ).", "83. While at first glance there were two separate sets of proceedings, one criminal and the other civil, the parties to the proceedings were almost the same but in different procedural positions. The subject matter of both sets of proceedings appeared to be different; however, the primary cause thereof was the privatisation of a building and the validity of the property title of a plot of land, in respect of which criminal proceedings against some individuals had been instituted and subsequently declared time-barred. The applicant had not recused herself from examining the constitutional complaint, even though a copy of the decision given by the Court of Appeal, in the composition of which the applicant ’ s father had been the rapporteur, had been included in the Constitutional Court ’ s case file. The applicant ’ s failure to recuse herself from the proceedings had not ensured respect for the principle of impartiality and had given rise to doubts as regards the objective test, as a result of which public trust in the justice system had been undermined. In the Appeal Chamber ’ s view, the applicant ’ s recusal would not have hampered the examination of the constitutional complaint by a quorum of the Constitutional Court, as required by law.", "(d) Conclusion", "84. The Appeal Chamber upheld the IQC ’ s decision as regards the applicant ’ s dismissal from office.", "(e) Separate opinion", "85. A judge of the Appeal Chamber (I.R.) appended a separate opinion ( mendim paralel ), which did not affect her vote in favour of the applicant ’ s dismissal from office. She mainly referred to the findings in respect of the flat measuring 101 sq. m. In her view, the off-plan contracts, which had not been disputed by the applicant, constituted solid evidence that that asset had not been acquired solely with the income of her partner. As a result, the applicant had endeavoured to make an incorrect disclosure of the asset and had made a false disclosure of the source used for its creation. However, the judge departed from the Appeal Chamber ’ s findings in respect of the issues described below.", "86. As regards the applicant ’ s financial situation, the separate opinion stated that the Appeal Chamber had not considered a number of her submissions concerning certain travel expenses she had incurred over the years. Those expenses, which had not been borne by the applicant and in respect of which she had submitted evidentiary support, had been wrongly attributed to her. Those expenses had to be deducted from the total amount determined by the Appeal Chamber (see paragraph 76 above), and the resulting amount would have been ALL 478,392 (approximately EUR 3,849) or less. Consequently, in view of the relatively low value and the length of the applicant ’ s professional experience, the argument concerning a lack of income to justify her liquid assets could not constitute a solid basis ( premisë të qendrueshme ) to regard it as a reason for dismissal from office, within the meaning of Article D of the Annex to the Constitution and section 61(3) and 33(5)(ç) of the Vetting Act.", "87. The separate opinion accepted the Appeal Chamber ’ s reclassification as “inaccurate disclosure” for the plot measuring 666 sq. m and the flat measuring 89.16 sq. m. However, it did not consider that those findings, which pertained to the 2003 and 2004 declarations of assets, were sufficient to constitute grounds for the applicant ’ s removal from office, in so far as there had been no intention to conceal the asset or make a false disclosure.", "88. The separate opinion did not accept the Appeal Chamber ’ s findings as regards the evaluation of the applicant ’ s professional competence. Upon making an analysis of section 36(1)(c) of the Constitutional Court Act and Article 72 of the Code of Civil Procedure, the separate opinion argued that, having regard to the special nature of proceedings before the Constitutional Court, which was called upon to examine solely an alleged lack of impartiality in a set of civil proceedings and not the application of substantive law, domestic law did not provide for a situation like the one at hand, in which the applicant had had a conflict of interest in relation to the criminal proceedings in which her father had acted as rapporteur and at the end of which it had been decided that the criminal proceedings were time-barred. The member of the public had not raised any complaints about the applicant ’ s participation in the Constitutional Court ’ s bench. No private interests pertaining to the applicant or her father had been affected as a result of the outcome of the constitutional proceedings in which the applicant had sat as a member of the Constitutional Court ’ s bench.", "89. In view of the reasoning that there had been no conflict of interest, the separate opinion considered that the conclusion that public trust in the justice system had been undermined was ill-founded. The separate opinion went on to state that “the fact that a party to a set of proceedings is dissatisfied, dismayed or in disbelief with a decision given by a bench of which the applicant was a member, does not necessarily constitute a sufficient element to regard it as undermining public trust, which ... should encompass a large number of individuals who should not fall into the category of parties to that set of proceedings ... ”.", "Events subsequent to the communication of the case", "90. On 16 July 2020 the applicant informed the Court that criminal proceedings for forgery of documents had been opened against L.D. for having concealed important information during the process leading to his appointment as member of the Appeal Chamber. L.D. was a member of the bench of the Appeal Chamber which had examined the applicant ’ s appeal.", "91. On 24 July 2020, following the institution of the criminal proceedings against L.D., the Appeal Chamber ordered his suspension from office [2].", "92. In the meantime, it appears that on 1 December 2020 [3] the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of false disclosure of documents and sentenced him to six months ’ imprisonment, converted into twelve months ’ probation. L.D. has reportedly filed an appeal against that decision." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic materialsThe Constitution", "The Constitution", "The Constitution", "93. In implementation of the Assessment Report and the Reform Strategy, Parliament intended to adopt constitutional amendments, which would cover several areas, including the transitional re-evaluation of judges and prosecutors (“vetting”).", "Venice Commission opinion", "94. Further to a request for an opinion on the compatibility of the draft constitutional amendments with international standards, which was made by the chairman of the ad hoc parliamentary committee, on 14 March 2016 the European Commission for Democracy Through Law (the “Venice Commission”) adopted a final opinion on the revised draft constitutional amendments (Opinion no. 824/2015 – CDL-AD (2016)009), after issuing an interim opinion on 21 December 2015 (CDL-AD (2015)045).", "95. The Venice Commission considered appropriate the proposed institutional structure for carrying out the vetting process, stressing that it was for the national legislator to design checks and balances, since a system affected by widespread corruption might need more external control mechanisms than a healthier system. The Venice Commission found that the draft constitutional amendments were by and large coherent and compatible with European standards, as they contained sound proposals for the future institutional design of the Albanian judiciary.", "96. With regard to the extraordinary measures to vet judges and prosecutors, the Venice Commission remained of the opinion that such measures “[were] not only justified but [were] necessary for Albania to protect itself from the scourge of corruption which, if not addressed, could completely destroy [the] judicial system”. The Venice Commission made a general remark as regards the mandate of the members of the IQC and Appeal Chamber. The proposed term of nine years, without the right of reappointment, was long, considering that vetting was “an extraordinary and strictly temporary measure” and that the entire vetting process was “supposed to last 11 years or less if Albania join[ed] the European Union on an earlier date”. The Venice Commission further stated that the vetting structures should not replace ordinary constitutional bodies; while they might co-exist with them for some time, they should not turn into parallel quasi-permanent mechanisms. Following the winding up of the vetting bodies, ordinary institutions and courts might assume any residual function of deciding on the vetting procedures which had not been concluded.", "97. The Venice Commission welcomed the creation of a separate appellate body, namely the Appeal Chamber, which was in line with its recommendation in the interim opinion. It stated as follows:", "“This body is evidently a sort of a specialised court which is not an ad hoc extraordinary judge – because it is not created in view of a single specific case – and it is supposed to stay in activity during the whole duration of the vetting [process].”", "98. As the Appeal Chamber became a clearly distinct body from the IQC, the Venice Commission recommended, amongst other things, that judges of the Appeal Chamber should be able to integrate the judiciary automatically at the end of their mandate.", "99. In the interim opinion, the Venice Commission had stated that:", "“to the extent that ... re-evaluation is a general measure, applied equally to all judges, decided at the constitutional level, and accompanied by certain procedural safeguards and not related to any specific case a judge might have before him or her, the Venice Commission does not see how this measure may be interpreted as affecting the judge ’ s independence to an extent incompatible with Article 6 [of the Convention]. This does not, however, exclude the possibility that the vetting procedure might on a particular occasion be abused in order to influence the judge ’ s position in a particular case: if such allegations were proven, this might require the reopening of that particular case since the judge would not be an ‘ independent tribunal ’ .”", "Ad hoc Parliamentary Committee report on the draft constitutional amendments [4]", "100. The ad hoc parliamentary committee ’ s report on the proposed constitutional amendments stated that the transitional re-evaluation of judges and prosecutors constituted one of the measures to achieve professionalism and make the justice system immune from the influence of political interests, corrupt practices and organised crime.", "Overview of constitutional amendments", "101. On 22 July 2016 Parliament unanimously passed a number of constitutional amendments (Law no. 76/2016). Of relevance to the present case are Article 179/b of the Constitution and the Annex to the Constitution.", "(a) Article 179/b of the Constitution", "102. Article 179/b provides for the establishment of a re-evaluation system of all judges, including Constitutional Court judges and Supreme Court judges, as well as of all prosecutors, including the Prosecutor General, with a view to “guaranteeing the functioning of the rule of law, the independence of the justice system, and the restoration of public trust in the institutions [of that system]”. Legal advisors and assistants are to be automatically subject to re-evaluation. Failure to pass the re-evaluation process will constitute a reason for immediate termination of employment ( mbarim të menjëhershëm të ushtrimit të detyrës ), in addition to the grounds provided for in the Constitution. Judges and prosecutors who pass the re-evaluation process will remain in office or be appointed judge or prosecutor, as the case may be.", "103. Under Article 179/b, re-evaluation is to be carried out by an Independent Qualification Commission (“IQC”) at first instance and a Special Appeal Chamber (“the Appeal Chamber”), attached as a separate chamber to the Constitutional Court, which will hear appeals against IQC decisions. Both the IQC and Appeal Chamber will be independent and impartial. The IQC members and the Public Commissioners, who represent the public interest, will serve for a five-year term, whereas the term of office of the Appeal Chamber ’ s members will be nine years.", "(b) Annex to the Constitution", "104. The Annex to the Constitution, which is entirely devoted to the transitional re-evaluation of judges and prosecutors, consists of ten Articles named after the letters of the Albanian alphabet. Article A provides that a number of constitutional provisions, notably those relating to the right to respect for private life and the burden of proof, would be partly restricted. Persons who pass the re-evaluation process will be subject to a permanent system of accountability, as provided for in the Constitution and other statutes.", "105. Article B governs the establishment of an International Monitoring Operation (“IMO”), led by the European Commission, to support, monitor and supervise the re-evaluation process. The IMO will appoint international observers after giving notice to the Government. International observers will have the right to ( i ) give recommendations to Parliament on the qualification and selection of candidates for the position of members of the vetting bodies or the position of Public Commissioner, (ii) make findings and give opinions on matters being considered by the vetting bodies, (iii) make recommendations to the Public Commissioner to file an appeal against the IQC ’ s decision and (iv) access and obtain all information needed to monitor the re-evaluation proceedings in their entirety. They may also ask the vetting bodies to obtain new evidence or may submit new evidence for their consideration.", "106. Article C provides that the IQC will be composed of four panels, each consisting of three members. Two Public Commissioners, who will represent the public interest, may appeal against an IQC decision. The work of the IQC and Appeal Chamber will be guided by the “principles of accountability, integrity and transparency in order to establish an independent and professional justice system, free of corruption”. The IQC members and Public Commissioners will enjoy the status of Supreme Court judges, and the Appeal Chamber members the status of Constitutional Court judges. Under Article C § 4, the members of the vetting bodies and the Public Commissioners and staff members thereof would sign an authorisation subjecting themselves to an annual audit of their assets, regular monitoring of their financial transactions and bank accounts and restrictions on their right to confidentiality of communications during their mandate.", "107. Under Article Ç § 1, re-evaluation will consist of an evaluation of assets, an integrity background check and an evaluation of professional competence. Article Ç § 2 provides that the IQC and Appeal Chamber will publish all their decisions. Any information, including complaints, from members of the public will be accepted by ensuring respect for the principle of proportionality, privacy and the need to carry out the investigation, as well as by guaranteeing the right to a fair hearing. The IQC or Appeal Chamber will evaluate the declarations (to be) filed by persons to be vetted, interview the persons named in the declarations or other persons/entities, and cooperate with national or international institutions in order to verify the truthfulness and accuracy of the declarations. Under Article Ç § 5, under certain circumstances, the burden of proof may be shifted to the person being vetted, only in so far as the re-evaluation process is concerned, to the exclusion of any other process, in particular criminal proceedings.", "108. Article D, which governs the evaluation of assets, reads as follows:", "Article D – Evaluation of assets", "“ 1. Persons to be vetted shall disclose their assets, and have them evaluated, in order to identify persons who possess or use more assets than can be lawfully justified, or those who have failed to make an accurate and full disclosure of their assets and those of related persons.", "2. The person to be vetted shall file a new and detailed declaration of assets in accordance with the law. The High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest shall verify the declaration of assets and provide the [IQC] with a report concerning the lawfulness of the assets, as well as the accuracy and completeness of the asset disclosure.", "3. The person being vetted shall provide convincing explanations concerning the lawful source of his or her assets and income. For the purposes of this law, assets will be considered lawful if the income has been declared and subject to the payment of taxes. Additional elements of lawful assets shall be determined by law.", "4. If the person being vetted has [total] assets greater than twice the value of lawful assets, the person shall be presumed guilty ( fajtor ) of a disciplinary breach, unless [he or she] submits evidence to the contrary.", "5. If the person to be vetted does not file the declaration of assets within the time-limit prescribed by law, [he or she] shall be dismissed from office. If the person being vetted endeavours to conceal or make an inaccurate disclosure of assets in his or her ownership, possession or use, a presumption in favour of the disciplinary sanction of dismissal from office ( shkarkim ) shall apply and the person will be required to prove the contrary.”", "109. Article DH § 1 requires persons to be vetted to file an integrity background declaration in order to identify “inappropriate contact with individuals involved in organised crime”. The integrity background check is based on the integrity background declaration and other evidence, including decisions of the domestic and foreign courts. Under Article DH § 2, the integrity background declaration will be filed with the IQC and covers the period from 1 January 2012 to the date on which the person to be vetted submits the declaration. The declaration will only be used as evidence in the vetting process and may under no circumstances be used in criminal proceedings. Under Article DH § 3, if a person being vetted is found to “have inappropriate links with persons involved in organised crime, a presumption in favour of the disciplinary sanction of dismissal from office shall apply and the person will be required to prove the contrary”. Article DH § 4 states that if the person to be vetted does not file the integrity background declaration within the time-limit prescribed by law, he or she will be dismissed from office.", "110. Article E provides that persons to be vetted will also undergo an evaluation of their professional competence in order to identify persons who are not qualified to perform their tasks or persons who lack professional knowledge which can be remedied through further education. The evaluation of professional competence will be carried out by the institutions responsible for the ethical and professional performance appraisal of judges and prosecutors. Under Article E § 3, if the person being vetted is found to have manifested poor knowledge, skills, judgment or aptitude, or to have adopted working methods incompatible with his or her position, these will constitute professional shortcomings. In such cases, a presumption in favour of the imposition of the disciplinary sanction of suspension from office, accompanied by the obligation to attend an education programme, will apply and the person being vetted will be required to prove the contrary. Under Article E § 4, if the person being vetted is found to have manifested inadequate knowledge, skills, judgment or aptitude or adopted working methods incompatible with his or her position which cannot be remedied through a one-year education programme, a presumption in favour of the imposition of the disciplinary sanction of dismissal from office ( shkarkim ) will apply.", "111. Article Ë § 1 provides that on the conclusion of proceedings the IQC or Appeal Chamber may impose one of the following disciplinary sanctions: suspension from office for one year accompanied by mandatory education, or dismissal from office ( shkarkimin nga detyra ). The decision will be reasoned. Under Article Ë § 3, dismissal from office will not constitute a reason for reopening cases which may have been decided by a judge or investigated by a prosecutor, unless the reopening request was based on other grounds prescribed by law.", "112. Under Article F, the Appeal Chamber will consist of seven members and will be the only judicial body responsible for examining appeals against IQC decisions, which may be lodged by the person being vetted or the Public Commissioner. The Appeal Chamber will sit in formations composed of five members. Under Article F § 3, the Appeal Chamber may request that additional facts or evidence be obtained and may remedy procedural faults ( gabim procedural ) committed by the IQC. The Appeal Chamber will decide on the appeal and will not remit the case to the IQC for re-examination. Article F § 7 provides that the Appeal Chamber may uphold, amend or quash the IQC ’ s decision, by giving a reasoned decision in writing.", "113. Article G provides that a person to be vetted may resign. In this case, re-evaluation will be discontinued ( ndërpritet ) and the person “shall not be reappointed to work as a judge or prosecutor ... for a period of fifteen years”.", "The Transitional Re-evaluation of Judges and Prosecutors Act (Law no. 84/2016 – “The Vetting Act”)", "114. Pursuant to Article 179/b of the Constitution, on 30 August 2016 Parliament passed the Vetting Act, which, following its publication in the Official Journal, entered into force on 8 October 2016.", "Ad hoc parliamentary committee report [5]", "115. The ad hoc parliamentary committee report stated that the draft law was necessary in order to provide detailed regulation of the constitutional provisions found in Article 179/b of the Constitution and the Annex to the Constitution. The draft law was to lay down the principles for carrying out the re-evaluation process of judges and prosecutors, the methodology and standard procedures for the re-evaluation process, the organisation and functioning of the vetting bodies, as well as the role of the International Monitoring Operation (“IMO”). It was submitted as part of a set of six essential statutes in relation to the implementation of the constitutional amendments.", "116. The main goal of the draft law was to ensure the functioning of the rule of law, the independence of the justice system and the restoration of public trust in the justice system. This would be achieved by carrying out a transitional re-evaluation of all serving judges and prosecutors with a view to establishing an independent, efficient, trustworthy and honest justice system, which would operate with integrity and free of external influence from organised crime and politics.", "Explanatory report [6]", "117. The explanatory report to the draft law stated that the reform of the justice system, as described in the Assessment Report, had been chiefly prompted by the need to address the high prevalence of corruption in the justice system. The existence and prevalence of corruption was not only a matter of public perception and that of court users, but also a fact acknowledged by judges, who considered that the justice system was not free of external influence. Other reasons related to the unsatisfactory performance of judges and prosecutors, as well as the non-functioning of existing effective mechanisms to appraise their performance and hold them accountable for breaches of the law.", "118. The aim of the draft law was to lay down special rules for the re-evaluation of all serving judges and prosecutors, as well as other persons who would be subject to re-evaluation pursuant to Article 179/b of the Constitution. This process would serve the purpose of evaluating their professional performance, moral integrity and identifying their level of independence from the influence of organised crime, corruption and politics. The draft law would lay down the principles for the carrying out of, and procedures for, re-evaluation. The re-evaluation process would be carried out effectively without impinging on the standards of the right to a fair hearing, so that the outcome of the process would serve as the cornerstone for establishing an independent judicial system, which would operate efficiently and trustworthily and embody the highest standards of honesty, integrity, professionalism and transparency.", "119. Owing to its exceptional nature, this would be a special statute with time-limited effect lasting until the conclusion of the re-evaluation process of all serving judges, prosecutors and other functions provided for in the Constitution. The draft law would set up a number of institutions which would carry out the comprehensive re-evaluation of judges and prosecutors.", "Overview of the Vetting Act", "120. Section 1 states that the purpose of the Vetting Act is “ to determine specific rules for carrying out the transitional re-evaluation of all persons to be vetted, in order to guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system ... ”.", "121. Section 3 contains some definitions, the most relevant of which for the purpose of this judgment are the following:", "“ ‘ Asset ’ shall mean all real estate and movable properties in the Republic of Albania and abroad, as described in section 4 of the [Asset Disclosure Act - see paragraph 202 below], as amended, which are in the ownership, possession or use of the person to be vetted;", "‘ Related persons ’ shall mean the circle of individuals related to the person to be vetted, public commissioner or judge, consisting of the spouse, live-in partner, adult children, as well as any other individual whose name appears on the family certificate as provided by the civil registry office to the person to be vetted, commissioners, public commissioners or judges for the period of re-evaluation;", "‘ Other related persons ’ shall mean any natural or legal person who appears to have or to have had links of interest with the person to be vetted, commissioners, public commissioners or judges, resulting from any proprietary interest or business relationship.”", "(a) Vetting bodies", "122. Section 5 specifies the bodies involved in the vetting process: an Independent Qualification Commission (“IQC”), a Special Appeal Chamber (“Appeal Chamber”), Public Commissioners and an International Monitoring Operation (“IMO”).", "123. Section 6 sets out the eligibility criteria that a person must satisfy in order to apply for and be appointed as a member of the vetting bodies. An Albanian national may be appointed as a member of the vetting bodies, provided that he or she, inter alia : ( i ) has completed a second-cycle (master ’ s) degree in law at university; (ii) has acquired at least fifteen years ’ professional experience as a judge, prosecutor, lawyer, professor of law, senior-level civil servant or other recognised experience in the field of administrative law or in other fields of law; (iii) has not held political office in the public administration or a leadership position in a political party during the last ten years; (iv) is not under criminal investigation and has not been convicted of a crime [or] wilful criminal misdemeanour by a final court decision ...; (v) has not been subject to the disciplinary sanction of dismissal from office or any other disciplinary sanction still in force under the law at the time it was imposed; (vi) has not been a judge, prosecutor, legal advisor or assistant during the two years preceding the application; and (vii) has a very good command of English.", "124. Sections 7 to 12 regulate the procedure for the application, preselection, interviewing and election of candidates. The members of the vetting bodies are to be elected by Parliament.", "125. Section 4(2) provides that the IQC and Appeal Chamber are the institutions which will decide on the final re-evaluation of persons to be vetted. Under section 4(5), both the IQC and Appeal Chamber will exercise their functions as independent and impartial institutions, on the basis of the principles of equality before the law, constitutionality, lawfulness, proportionality and other principles guaranteeing the right to a fair hearing of the person being vetted. Under section 4(6), the vetting bodies may apply the procedures provided for in the Code of Administrative Procedure or the Administrative Courts Act whenever those procedures are not referred to in the Constitution or the Vetting Act. Section 27 provides that members of the vetting bodies are to declare and avoid any situation of conflict of interest. Section 28 provides that their electronic communications and declaration of annual income will be monitored subject to a privacy waiver being signed by them.", "126. Section 14 provides that the IQC will be composed of twelve members, who are to hear cases in panels composed of three members each. Cases will be allocated by drawing lots and a rapporteur will be assigned to each case. Section 15 provides that the Appeal Chamber will hear cases in panels composed of five members, who are to be drawn by lots. A rapporteur will be assigned to each case.", "127. Section 16 specifies the grounds of disciplinary liability of members of the vetting bodies, and section 17 sets out the procedure for their removal as a result of an alleged disciplinary breach. The decision in favour of a disciplinary sanction is to be taken by a three-member panel of the Appeal Chamber.", "128. Section 18 provides that the vetting bodies have discretion to decide on their organisational structure and employment of personnel. Under section 19, they propose their annual draft budget to Parliament, which decides on it as an integral part of the State budget. Under section 22, a legal service unit is to be set up within the IQC and Appeal Chamber to help its members in the decision-making process.", "(b) IMO", "129. Under section 45(2), the international observers, who are members of the IMO, may seek information during the administrative investigation. Under section 50(7), they may also request international cooperation in reliance on international agreements or by way of diplomatic channels. Under section 33(3), they have a right of access to all information in the possession of HIDAACI. Under section 50, they also have the same right of access to information as the vetting bodies.", "130. Under section 49(10), the international observers may file findings with the vetting bodies, which will admit them as evidence. The findings have the procedural value of an expert report and can be rejected by way of a reasoned decision. A written opinion given by an international observer may affect the decision-making process, but it has no evidentiary value.", "131. Section 55 states that the international observers are informed when a public hearing is to be held before the IQC. Their presence is required in the deliberations, and they may append a separate opinion to the IQC ’ s decision. Under section 65(2), a panel composed of three international observers may recommend that the Public Commissioner file an appeal against the IQC ’ s decision.", "132. Section 17 states that the international observers may also institute disciplinary proceedings against members of the vetting bodies, including the Public Commissioners.", "(c) Re-evaluation criteria", "133. Under section 4(1), the transitional re-evaluation is to be carried out on the basis of three criteria: an evaluation of assets, an integrity background check and an evaluation of professional competence. Section 4(2) provides that a decision will be taken on the basis of “only one criterion or several criteria, an overall evaluation of all three criteria or the overall conduct of the proceedings ( ose në vlerësimin tërësor të procedurave )”.", "134. Persons to be vetted are required to file, within three months of entry into force of the Vetting Act, a declaration of assets as per Annex 2 to the Act, an integrity background declaration as per Annex 3 to the Act and a professional self-appraisal form as per Annex 4 to the Act. The declaration of assets consists of information relating to the person ’ s assets and their origin, a description of the person ’ s income and liabilities, and a list of other related persons. The integrity background declaration comprises information relating to the person ’ s particular details, address history, education and other qualifications, employment history and questions concerning links to organised crime. The professional self-appraisal form contains information about the person ’ s employment history and questions concerning a description of his or her duties, statistical figures relating to the number of cases processed, training attended and qualifications attained.", "(i) Evaluation of assets", "135. Section 30 states that the objective of the evaluation of assets is the disclosure and audit of assets, the lawfulness of the source used for their acquisition or creation, the fulfilment of financial obligations, including private interests, of the person being vetted and related persons. Under section 31(1), the person to be vetted must file a declaration of assets, as per Annex 2 to the Act, within thirty days of its entry into force, with the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”).", "136. Section 32 states as follows:", "“1. The person being vetted as well as related persons shall submit all supporting documents justifying the truthfulness of their statements concerning the lawfulness of the source [used for] the creation of assets.", "2. If the person being vetted faces an objective impossibility ( është në pamundësi objektive ) to submit supporting documents justifying the lawfulness of the creation of assets, the person shall certify to the vetting body that the supporting document is missing, lost or cannot be reproduced or obtained in any other way. The vetting bodies shall decide whether the absence of supporting documents is justified ...", "...", "4. The person being vetted and related persons, or other persons, who have been named as donors, lenders or borrowers, are obliged to justify the lawfulness of the source [used for] the creation of assets.", "5. The IQC and Appeal Chamber may use as evidence prior annual asset disclosure declarations submitted to HIDAACI.", "137. Section 33 states that HIDAACI is the institution responsible for verifying the declaration of assets. Under section 33(5), HIDAACI, upon completion of the evaluation, will draw up a reasoned and detailed report stating whether ( i ) the disclosure has been accurate, in compliance with the law and with lawful financial sources, and whether there is any conflict of interest; (ii) there is a lack of lawful financial sources to justify the assets; (iii) there has been a concealment of assets; (iv) the person being vetted has made a false declaration; (v) the person being vetted has been involved in a conflict of interest.", "(ii) Integrity background check", "138. Section 34 states that the objective of the integrity background check is the verification of statements in order to identify persons who have had inappropriate contact with individuals involved in organised crime, as provided for in Article DH of the Annex to the Constitution. Under section 35(1), the person to be vetted will file, within thirty days of entry into force of the Vetting Act, an integrity background declaration, as per Annex 3, with the Classified Information Security Directorate (“CISD”).", "139. Under section 36(1), the vetting bodies, in cooperation with CISD, are responsible for administering the integrity background checks. Section 36(2) provides that a working group composed of representatives from CISD, the State Intelligence Service and the Internal Affairs Audit and Complaints Service of the Ministry of the Internal Affairs, will be set up to carry out the integrity background checks. Section 36(3) states that CISD, at the request of the working group, has the right to obtain information from other countries about individuals involved in organised crime or individuals suspected of involvement in organised crime.", "140. Section 38 states that the integrity background check will be based on accurate evidence, confidential information as well as other available intelligence.", "141. Under section 39, CISD will submit a report to the IQC stating ( i ) whether the person being vetted has completed the integrity background declaration accurately and truthfully, and (ii) whether there is information in the integrity background declaration, or which has been obtained otherwise, indicating that the person being vetted has had inappropriate contact with individuals involved in organised crime, including a finding relating to his or her suitability to continue or not in the position. Information will not be disclosed if it poses a risk to the safety of the source, or would contravene a non-disclosure undertaking imposed by a foreign government.", "(iii) Evaluation of professional competence", "142. Section 41(1) requires the person to be vetted to file, within thirty days of entry into force of the Vetting Act, a professional self-appraisal form with the responsible authority. Section 41(3) states that the period for the evaluation of professional competence will cover the last three years of the person ’ s professional experience. However, section 41(4) states that, depending on whether there is available information about the ethics and professional competence of the person being vetted, the period for the evaluation of professional competence may commence from 1 January 2006.", "143. Under section 43, the evaluation of professional competence is carried out in accordance with the legislation governing the status of judges and prosecutors. Under section 44, a report is submitted to the IQC, the rapporteur of which proposes to find that the person being vetted is competent, lacking in competence or unfit for work ( i aftë, me mangësi, ose i papërshtatshëm ).", "(d) Conduct of re-evaluation proceedings", "144. Under section 45(1), the IQC, the Appeal Chamber and the international observers investigate and examine all facts and circumstances necessary for the re-evaluation proceedings. Under section 45(2), they may request information from any public authority. They administer documents attesting to the existence of actions, facts or another situation necessary for the conduct of the administrative investigation. Under section 46, the Vetting Act prioritises communication by email with the person being vetted.", "145. Section 47 provides that the rights of the person being vetted are governed by Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure. Under section 48, the person being vetted must cooperate with the vetting bodies, which will take his or her availability and behaviour into account during the decision-making process.", "146. Under section 49(1), the vetting bodies will obtain legal documents, collect statements from the person being vetted, witnesses, experts and members of the public, and receive other written documents in order to determine the facts and circumstances of each case. Under section 49(6)(a), the vetting bodies may decline to admit new evidence if, for example, obtaining it is unnecessary. Under section 49(8), the vetting bodies will provide reasons for rejecting a request to obtain new evidence. Under section 51, if the person being vetted fails to submit any evidence or the evidence made available is incomplete, the vetting bodies may decide on the basis of the evidence made available to them.", "147. Section 52 requires the vetting bodies to be governed by the principles of objectivity and proportionality. If they reach the conclusion that the evidence, which has been collected during the administrative investigation in accordance with section 45, has a probative value ( kanë nivelin e provueshmërisë ), the person being vetted has the burden of proof to submit evidence or give other explanations to the contrary.", "148. Under section 53, any member of the public who becomes aware of facts or circumstances which may constitute evidence related to the re-evaluation criteria has the right to directly inform the vetting bodies, which will investigate any allegations made against the person being vetted.", "149. Section 55 provides that a public hearing will take place before the IQC. IQC members and the international observer may put questions to the person being vetted.", "(e) Disciplinary sanctions", "150. At the conclusion of the re-evaluation proceedings, the IQC gives a reasoned decision, confirming the person being vetted in his or her position, suspending him or her from office for a one-year period with an obligation to attend a training programme run by the School of Magistrates, or dismissing him or her from duty.", "151. Under section 61, dismissal from office may be ordered if it appears that:", "“1. the person being vetted has declared [total] assets greater than twice the value of lawful assets belonging to him or her and related persons;", "2. there are serious concerns about the integrity background check, because the person being vetted has had inappropriate contact with individuals involved in organised crime which render it impossible for him or her to continue in his or her position;", "3. the person being vetted has made an insufficient disclosure of assets and integrity background [declaration] under sections 39 and 33 of this Act;", "4. as regards the evaluation of professional competence, the person being vetted is professionally unfit;", "5. on the basis of the overall conduct [of the proceedings], within the meaning of section 4(2) ... the person being vetted has undermined public trust in the justice system and it is impossible to remedy the deficiencies by means of a training programme.”", "(f) Right to appeal", "152. Under section 63, all IQC decisions are amenable to appeal by the person being vetted and/or the Public Commissioner within fifteen days of their notification. The complaint is lodged with the IQC in accordance with the Administrative Courts Act.", "153. Section 65(1) states that judicial proceedings before the Appeal Chamber are governed by sections 47, 48, 49, 51 and 55 of the Administrative Courts Act. Section 65(3) provides that in the event of an appeal lodged by the Public Commissioner, the Appeal Chamber will hold a public hearing.", "154. Section 66 provides that the Appeal Chamber may, by giving a reasoned decision, decide to uphold, amend or quash the IQC ’ s decision.", "Proceedings before the Constitutional Court", "155. In October 2016 a petition for an abstract constitutional review of the Vetting Act was lodged with the Constitutional Court. The complainants, namely members of parliament belonging to the main opposition party, alleged that the Vetting Act: ( i ) violated the principles of separation and balance of powers and the independence of the judiciary, as it had displaced the control and investigation of the process of re-evaluation of judges from the independent and impartial bodies created by the constitutional amendments to the existing institutions allegedly under government control, such as HIDAACI, CISD, the School of Magistrates, the General Directorate for the Prevention of Money Laundering and the Ministry of Internal Affairs; (ii) breached the principle of legal certainty as the wording of its provisions was unclear, ambiguous and contradictory; (iii) provided for unjustified restrictions on fundamental human rights, in particular as regards the continuous surveillance of private life and restrictions on the right to file a constitutional petition with the Constitutional Court; and (iv) did not provide for any specific procedural rules guaranteeing the right to a fair hearing, the right to appeal and respect for the principle of equality and fundamental human rights, in particular the admissibility of evidence obtained from members of the public, as provided for in sections 53 and 54 of the Vetting Act.", "(a) Venice Commission amicus curiae brief", "156. On 25 October 2016 the Constitutional Court, having regard to serious and irreparable consequences for the fundamental freedoms and rights of persons to which the Vetting Act would apply and the observance of the rule of law, decided to suspend its implementation.", "157. Further to an invitation by the President of the Constitutional Court to the Venice Commission to provide an amicus curiae brief on the compliance of the Vetting Act with international standards, including the Convention, on 12 December 2016 the Venice Commission issued the amicus curiae brief (Opinion no. 868/2016 – CDL-AD (2016)036).", "158. The Venice Commission stated that both vetting bodies possessed the characteristics of judicial bodies, and would operate and decide independently and impartially. The IQC members and Public Commissioner would have the status of Supreme Court judges. The Appeal Chamber would function as a chamber of the Constitutional Court and its members would have the status of Constitutional Court judges. The members of the vetting bodies would be subject to an annual disclosure of assets which would be made public, as well as constant monitoring of their financial accounts and a waiver of the privacy of their communications related to their work. They would incur disciplinary liability in accordance with the Act, which had also provided for the disclosure of conflicts of interest and their dismissal.", "159. The conditions for appointment to the IQC and Appeal Chamber seemed to be equivalent to those for judicial appointment and appeared to be at least as rigorous as those in place for appointments to permanent judicial office. The arrangements for making the appointments appeared to be designed to ensure so far as practicable the appointment of suitably qualified candidates who met the criteria. Procedures had been put in place to allow for appointments by qualified majority in Parliament with an anti-deadlock mechanism. Other than the fact that these would not be permanent institutions, it seemed that the intent of the constitutional and legal provisions was to confer on them the essential characteristics of courts of law. On the expiry of their terms of office any pending cases would be thenceforth dealt with by the permanent judicial and prosecutorial institutions.", "160. According to the Venice Commission, under the Vetting Act, the evaluation and assessment of any information or evidence collected by executive bodies would rest with the IQC and Appeal Chamber, which would draw their own conclusions independently. In its view, it was normal and in line with European standards that evidence presented to a court of law would initially be obtained by executive bodies such as the police or prosecutor. This would not amount to an interference with the judicial power provided its evaluation, that is, the assessment of its veracity and the weight to be attached to it, was a matter for judicial determination. Furthermore, the IQC and Appeal Chamber would have extensive powers to investigate and verify matters themselves. That executive bodies were involved in the re-evaluation process seemed to have instrumental and subservient functions aimed at helping the vetting bodies to carry out their mandate. Decision-making power in all cases appeared to remain with the IQC and Appeal Chamber, established for this purpose in accordance with the provisions of the Constitution as independent and impartial judicial bodies.", "161. As to whether the Vetting Act guaranteed the right to a fair trial, the Venice Commission stated that the rules concerning the qualifications for and methods of appointment of the members of the vetting bodies were designed to secure that they would be independent and impartial tribunals. Furthermore, the vetting bodies would apply the procedures provided for in the Code of Administrative Procedure and the Administrative Courts Act for the adjudication of individual cases. Furthermore, Article Ç § 2 of the Annex to the Constitution expressly imposed on the IQC and Appeal Chamber a duty to guarantee the right to a fair trial. Although in the re-evaluation proceedings, a presumption in favour of the disciplinary sanction of dismissal would be established in some cases, which the person being vetted would have the burden to dispel, Article Ç § 5 of the Annex to the Constitution clearly provided that this would only apply to the vetting proceedings and not to other proceedings, in particular criminal proceedings. Both vetting bodies would act with transparency; they would establish facts and circumstances in each case for which hearings would be held in public, and their decisions would be reasoned and in writing.", "162. As to whether the integrity background check would constitute an unjustified interference with the right for respect of private life, the Venice Commission stated that the existence of inappropriate contact between judges and organised criminals would be contrary to the interests of national security, contrary to public safety, likely to encourage rather than prevent disorder or crime, and likely to threaten rather than protect the rights and freedoms of others. The integrity background declaration would serve as the basis for carrying out the integrity background check. It was important to note that the integrity background declaration would not be used in any criminal proceedings. While a working group was to have the main role in conducting the background check, the use of the assessment would be under the supervision and control of the IQC and Appeal Chamber. In the Venice Commission ’ s view, that some information would not be disclosed would only be reasonable if it was favourable to the person being vetted. It was essential that the rapporteur of a case had access to all documents and material in the possession or control of the working group and that his or her representative attended meetings of the working group.", "(b) Constitutional Court decision no. 2/2017", "163. By decision no. 2 of 18 January 2017 the Constitutional Court decided that, even though its judges would be automatically subject to the vetting process laid down in the Vetting Act, it was competent to examine the request submitted by the opposition party ’ s MPs in so far as the Vetting Act did not preclude the Constitutional Court judges, who would act in good faith, from exercising their duties in interpreting the statutory provisions.", "(i) As regards an alleged breach of the principle of separation of powers", "164. As regards an alleged breach of the principle of separation of powers, the Constitutional Court noted that Article 179/b of the Constitution had expressly empowered the IQC to carry out the re-evaluation of judges and prosecutors at first instance, with the possibility of appealing to the Appeal Chamber attached to the Constitutional Court. The transitional re-evaluation process had been set up as “an extraordinary and temporary measure” to be carried out by the vetting bodies specified in the Constitution. Whereas the Constitution could not lay down exhaustive and detailed provisions relating to the organisation of social and political life, the application thereof would be stipulated in a separate implementing act. The legislature had broad discretion to determine the matters to be governed by a separate implementing act. The Constitutional Court went on to examine each criterion separately.", "165. Turning to the evaluation of assets, the Constitutional Court held that Article D of the Annex to the Constitution had empowered HIDAACI to verify the declaration of assets which would be filed by the person to be vetted, regard being had to HIDAACI ’ s expertise, existing infrastructure and responsibilities. The details concerning the exercise of the verification process had been laid down in the Vetting Act, which was not contrary to constitutional provisions. Furthermore, the Constitutional Court valued HIDAACI ’ s independence in collecting and verifying the information provided by the person to be vetted.", "166. As regards the evaluation of professional competence, the declaration concerning professional competence (professional self-appraisal form), as completed and filed by the person to be vetted, would be subject to re-evaluation by the responsible body in accordance with Article E of the Annex to the Constitution. Apart from designating the School of Magistrates as responsible for carrying out the testing of legal advisors and assistants, the Constitution had not determined other bodies responsible for evaluating professional competence. Those bodies, which were determined by other statutes, would draw up a detailed and reasoned report and submit it to the IQC, which would have ultimate supervision over the process and determine whether the person being vetted was “competent”, “lacking in competence” or “unfit”.", "167. The integrity background assessment would be based on a declaration completed by the person being vetted and other evidence, such as domestic or foreign court decisions, and would be carried out in accordance with Article DH of the Annex to the Constitution. Under section 36(1) of the Vetting Act, the vetting bodies, in cooperation with CISD, would be responsible for the integrity background check. The Constitutional Court accepted that the institutions mentioned in sections 36 of the Vetting Act would play an active role in carrying out the integrity background assessment. It therefore referred to the Venice Commission amicus curiae brief, which stated as follows:", "“ ... if the process of vetting is conducted or controlled by the executive, the entire process of vetting may be compromised. Therefore, it is important to ensure that the involvement of the executive, in law and in practice, is limited to the extent that is strictly necessary for the effective functioning of the vetting bodies.”", "168. Having examined Article Ç § 4 of the Annex to the Constitution and sections 45, 50 and 51 of the Vetting Act, the Constitutional Court concluded that the vetting bodies would maintain the authority to have supervision over the integrity background check. The working group to be established in accordance with section 36 would not give rise to any issues provided that representatives of the IQC were members. This could be secured by the presence of legal advisors who might be asked by the rapporteur of an individual case to attend such meetings.", "169. The Constitutional Court therefore concluded that the other bodies involved in the vetting process would assist the vetting bodies in fulfilling their mandate. In all circumstances, with reference to section 4(2) of the Vetting Act and Article 179/b § 5 of the Constitution, decision-making would rest with the IQC and Appeal Chamber, which would be established as independent and impartial institutions. The vetting bodies would perform supervisory and evaluating functions and would not be bound by the findings made by other auxiliary institutions. In so far as law enforcement agencies had an auxiliary role and their activity was subject to supervision by and control of the vetting bodies, they would not be able to commence their activities without the prior constitution of the vetting bodies.", "170. Thanks to their purpose, functioning, expertise and tasks, the auxiliary institutions would help the vetting bodies in exercising their constitutional functions and fulfilling their mission in the name of the principle of cooperation, interaction and coordination of all institutions involved in the vetting process. They would not perform their tasks beyond the scrutiny of the IQC and Appeal Chamber. This was all the more important to avoid any potential interference by the executive power with the vetting process, notably as regards the integrity background check, a concern also shared by the Venice Commission.", "171. According to the Constitutional Court, the vetting bodies were the only bodies empowered to remove a judge or prosecutor from office. Only they could determine whether the declarations had been filed within the prescribed time-limit. At the end of the proceedings, they would give a reasoned decision describing the entire decision-making.", "(ii) As regards an alleged breach of the principle of legal certainty", "172. The Constitutional Court held that, pursuant to section 42 of the Vetting Act, all serving judges, including those of the Supreme Court and the Constitutional Court, legal advisors and assistants, as well as all serving prosecutors, including the Prosecutor General, would be subject to professional evaluation, which would be carried out by the same institution. The legislation relating to the status of judges and prosecutors would apply, as appropriate.", "173. Irrespective of the institutions involved in the vetting process, the Constitutional Court held that the legal provisions did not give rise to ambiguities, misinterpretation or misapplication. At the conclusion of the vetting proceedings, the IQC would give a reasoned decision, containing the evidence serving as the basis for its outcome. In its view, it was essential that an unfavourable evaluation would only be made in cases of fundamental and serious errors and/or when there was clear and consistent pattern of erroneous judgments that indicated a lack of professional competence.", "174. The Constitutional Court further clarified that, as a rule, the timespan related to professional evaluation would cover the last three years of professional experience. However, under section 41(4) of the Vetting Act, the vetting bodies could exceptionally decide to have the timespan commence as early as 1 January 2006. In such cases, the information would be examined if the rapporteur or the international observer considered it essential for the evaluation process.", "(iii) As regards unjustified restrictions on fundamental human rights", "175. As regards the restrictions imposed by the Constitution on members of the vetting bodies, the Constitutional Court held that they could not be subject to constitutional review. As regards restrictions imposed by the Vetting Act, the Constitutional Court held that the interference was justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others. The court stressed that it was incumbent on the vetting bodies to observe European standards and case-law.", "176. In response to the allegation that there was a breach of the right to appeal, the Constitutional Court held that the Constitution and the Vetting Act provided for the right to appeal against an IQC decision to the Appeal Chamber, which was a special body set up to ensure the wide range of rights and guarantees accorded to persons being vetted, as had also been noted in the Venice Commission amicus curiae brief (see paragraph 161 above). It considered that, having regard to their functioning, the election of their members and powers, the vetting bodies appeared to secure the guarantees required by the right to a fair hearing. Moreover, the Appeal Chamber would decide cases on the merits, as a last resort, and could not remit the case to the IQC for re-examination. As such, the right to appeal could be said to have been adequately secured.", "177. As regards a restriction on the right to constitutional petition, the Constitutional Court held that this allegation could not be subject to constitutional scrutiny in so far as it had been provided for in the constitutional amendments. However, taking note of the powers of the Appeal Chamber, which could review decisions taken by the IQC, it considered that this process would be subject to supervision from a constitutional viewpoint.", "(iv) As regards an alleged breach of the right to a fair hearing", "178. The Constitutional Court stated that, pursuant to section 4 of the Vetting Act, the IQC and Appeal Chamber would be independent and impartial and would operate on the basis of the principles of lawfulness and proportionality, as well as other principles guaranteeing the right to a fair hearing of persons being vetted. They would also apply the provisions of the Code of Administrative Procedure and the Administrative Courts Act. Furthermore, the Vetting Act made provision for guaranteeing and respecting the rights of the person to be vetted in its sections 35 to 40, 45 to 47, 55, 57, 63 and 65.", "179. While the Vetting Act had not laid down any specific time-limits for the examination of individual cases, the vetting bodies would have a duty to do so within a reasonable time. Re-evaluation was a general measure which would apply equally to all serving judges and prosecutors, without leading to inequalities before the law.", "180. In accordance with Article Ç § 2 of the Annex to the Constitution, proportionality between the right for respect of private life and the duty to investigate, as well as the right to a fair hearing, would be observed whenever information was obtained from members of the public under sections 53 and 54 of the Vetting Act.", "(v) Conclusion", "181. The Constitutional Court, having regard to the lawful procedure followed for the enactment of the Vetting Act, as well as the reasons described above, decided by a majority to reject the grounds raised in the petition made by the complainants.", "(vi) Dissenting opinion", "182. Two judges of the Constitutional Court (B.I. and G.D.) appended a dissenting opinion. In their view, the statutory provisions had shifted the investigation and control of the vetting process from the vetting bodies to existing institutions which were controlled by the executive. In support of this argument, they noted that section 35 of the Vetting Act required persons to be vetted to file their integrity background declaration with CISD, whereas Article DH § 2 of the Annex to the Constitution demanded that those persons file that declaration with the IQC. Furthermore, CISD and other bodies, which were controlled by the executive, would commence the verification of the integrity background declarations when the vetting bodies had not yet been constituted. CISD would thus carry out a de facto verification of the integrity background declaration without supervision or control by the vetting bodies.", "183. Furthermore, the dissenters took issue with the statutory provisions providing for the dismissal of a person being vetted in the event that he or she failed to file a declaration of assets or the integrity background declaration within thirty days of entry into force of the Vetting Act. In so far as the vetting bodies had not yet been formed, it was unclear how those provisions would apply and how a decision could be taken. For this reason, they argued that the phrase “within thirty days of entry into force” used in sections 31, 35 and 41 of the Vetting Act, should have been repealed.", "184. Lastly, the dissenters considered that the fact that the period for the evaluation of professional competence could be extended up to ten years, or longer, gave rise to serious doubts as to respect for the principle of legal certainty. This could also lead to unequal treatment of the persons being vetted.", "The Appeal Chamber ’ s case-law", "185. The summary of the following decisions, which were given by the Appeal Chamber prior to the delivery of the decision in the applicant ’ s case, has been limited to a description of procedural matters in order to avoid prejudicing the outcome of the domestic proceedings in respect of which the persons who were vetted have lodged an application with this Court.", "(i) Decision no. 3 of 17 July 2018 (no. 3/2018)", "186. In its first vetting decision on the merits (no. 3/2018), the Appeal Chamber, pursuant to section 47 of the Administrative Courts Act, declined to admit the appellant ’ s additional evidence to the case file, stating that he had failed to advance any reasonable grounds for his failure to submit that evidence to the IQC. The same finding was also made in decision no. 7/2008, in which the Appeal Chamber further stated, referring to section 49(6) of the Vetting Act, that the additional evidence was not important for the decision-making process. In decision no. 3/2018, the Appeal Chamber decided to dispense with a public hearing.", "187. The Appeal Chamber held that, even though the re-evaluation proceedings were to be carried out on the basis of the assessment of the three criteria laid down in the Vetting Act, the final decision could be limited only to one of them. This approach was allowed by the wording of section 4(2) of the Vetting Act and there was no other statutory provision precluding such a course of action. In the appellant ’ s case, the IQC had considered that, on the basis of the evidence in the case file, the re-evaluation could be concluded in respect of the evaluation of assets, there being no need to proceed with the re-evaluation of the remaining criteria. Such a finding was also made in decisions nos. 4/2018 and 8/2018.", "188. The Appeal Chamber further held, referring to Article Ç § 4 of the Annex to the Constitution and section 32(5) of the Vetting Act, that the IQC was empowered to use as evidence all prior annual asset declarations submitted by the appellant to HIDAACI in order to verify the truthfulness and accuracy of the vetting asset declaration. This finding was also repeated in decision no. 8/2008. Any prior thorough investigation carried out by HIDAACI in 2011, which could not be said to have acquired the force of res judicata for the purposes of the Vetting Act ( nuk mund të përbëjë gjë të gjykuar në kuadër të ligjit 84/2016 ), did not preclude the IQC from carrying out an in-depth investigation into the three criteria prescribed by the Vetting Act (see also paragraph 191 below).", "189. As regards the complaint that no methodology for the determination of income had been determined, the Appeal Chamber held that it was not necessary to determine the application of a methodology, since, under Article D § 3 of the Annex to the Constitution, the appellant had to provide convincing explanations concerning the lawful source of assets and income, which he should have disclosed and in respect of which he should have paid taxes. As the appellant had not been able to demonstrate the existence of such lawful income for the period 1994 to 2003, no prescribed methodology was to apply.", "(ii) Decision no. 4 of 26 July 2018 (no. 4/2018)", "190. In decision no. 4/2018, the Appeal Chamber, in accordance with section 49 of the Administrative Courts Act, decided to dispense with a public hearing in the appellant ’ s case, stating ( i ) that the facts had been fully and accurately established, (ii) that there had been no serious procedural breaches and (iii) that it was not necessary to reopen the judicial examination and administer new evidence. The same finding was also made in decision no. 7/2018.", "191. The Appeal Chamber rejected the appellant ’ s argument that the positive audit of his assets in 2013 by HIDAACI had acquired the force of res judicata, stating that the evaluation of assets had been permitted by lex specialis, namely the Vetting Act, which had laid down a methodology and procedure different from prior audits. This evaluation would only be administered once by a different body, such as the IQC, which was empowered to take a decision in each individual case.", "Code of Administrative Procedure (Law no. 44/2015)", "192. Articles 35 to 40 relate to the representation of parties before a public authority. Article 45 enshrines the right of parties to have access to the case file. Article 46 provides that restrictions may be imposed on the parties ’ right under Article 45, and Article 47 guarantees the right of parties to express opinions, give explanations, submit evidence or make proposals about facts, circumstances, legal issues and the outcome of the case.", "Administrative Courts Act (Law no. 49/2012 on the organisation and functioning of the administrative courts and the adjudication of administrative disputes, as amended)", "193. The Administrative Courts Act lays down rules relating to the jurisdiction and competence of administrative courts, as well as the principles and procedure for the adjudication of administrative disputes.", "194. Section 47 states that an appellant may not submit new facts or request new evidence on appeal, unless the appellant can demonstrate that, through no fault of his or her own, it was not possible to submit those new facts or request new evidence, within the time-limits prescribed by the Act, during the examination of the case at first instance.", "195. Section 49(1) states that the examination of an appeal is carried out in camera on the basis of the documents submitted. Under section 49(2), the president of the court bench, after fixing the date for the examination of the appeal in camera, informs the parties. It is open to the parties, up to five days prior to the examination of the case, to make written submissions in respect of the grounds of appeal and counter appeal.", "196. Under section 51(1), the appellate court will decide in private to hold a public hearing if it considers that the parties ’ arguments are necessary to determine ( i ) that new facts should be considered or new evidence should be taken in order to establish the factual circumstances in a comprehensive and accurate manner; (ii) that the decision against which an appeal has been lodged was based on serious procedural breaches or on factual circumstances which had been established erroneously or inaccurately; or (iii) that the collection of some or all evidence should be carried out afresh in order to establish the correct factual circumstances.", "Code of Civil Procedure (“the CCP”) (Law no. 8116 of 29 March 1996, as amended)", "197. Under Article 72 § 6 of the CCP, a judge may recuse him or herself from civil proceedings, by making a request to the president of the court, if (1) he or she has an interest in the proceedings or in any other dispute connected to the impugned proceedings; (2) he or she or his or her spouse are second-degree relatives or in-laws of, or have adoption obligations towards, or live permanently with, one of the parties to the proceedings or their representatives; (3) he or she or his or her spouse have a dispute or animosity with, or have taken a loan from, one of the parties to the proceedings or their representatives; (4) he or she has given advice or made public his or her views about the impugned proceedings or has participated in the examination of the case at another instance of the proceedings, has been questioned as a witness, expert or representative of one of the parties to the proceedings; (5) he or she is a guardian, employer of one of the parties to the proceedings, administrator or holds office in a legal entity, association, company or other institution which has an interest in the proceedings; (6) “it has been demonstrated, in view of the circumstances, that there are other serious reasons of partiality”.", "198. In addition, Article 74 provides that a party to proceedings may request that a judge recuses him or herself from examining the case.", "Constitutional Court Act (Law no. 8577 of 10 February 2000 on the organisation and functioning of the Constitutional Court, as amended by Law no. 99/2016)", "199. Section 36(1) of the Constitutional Court Act, as in force until 22 November 2016, stated that a judge of the Constitutional Court was required to withdraw from the examination of a case if: (a) he or she had participated in the preparation of the constitutional complaint, (b) his or her objectivity was called into question owing to kinship or another relationship with any of the parties to the proceedings, or (c) other instances gave rise to serious grounds of partiality. Under section 37, any of the parties had the right to request that a judge be excluded from sitting in a case for one of the reasons laid down in section 36 if the judge had not withdrawn from examining the case.", "200. Until 22 November 2016 the Constitutional Court Act did not contain any provisions relating to disciplinary liability. Section 10, following amendments introduced on 23 November 2016, specifies the cases which may give rise to disciplinary liability on the part of a Constitutional Court judge. Under section 10/b, the following disciplinary sanctions may be imposed on a Constitutional Court judge: a written reprimand, a public reprimand, a temporary reduction of up to 50% of his or her salary for a period of up to one year, suspension from office for a period of between three and six months and dismissal from office.", "Asset Disclosure Act (Law no. 9049 of 10 April 2003 on the disclosure and audit of assets and financial obligations of elected officials and certain public servants, as amended from 2006 to 2018)", "201. Following the entry into force of the Asset Disclosure Act in 2003, judges and prosecutors were, pursuant to section 6, required to file an initial asset disclosure declaration. Section 9 provides that this requirement also applies to judges and prosecutors taking up their functions for the first time. Pursuant to the Prevention of Conflicts of Interest in the Exercise of Public Functions Act, which entered into force on 26 May 2005 (“Prevention of Conflicts of Interest Act” - Law no. 9367/2005, as amended), judges and prosecutors are required to disclose all instances of conflicts of interest, as defined therein. Since amendments to the Asset Disclosure Act in 2012, the subsequent annual declaration of assets and conflicts of interest only has to indicate changes to the initial or preceding declarations, as the case may be. Under section 9/1, introduced in 2012 (by Law no. 85/2012), each declaration is to be accompanied by a special authorisation empowering the appropriate bodies to perform checks within and outside the country and to contact any person who they deem necessary.", "202. The annual declaration of assets is filed with HIDAACI by 31 March of each calendar year, in respect of assets and liabilities for the period from 1 January to 31 December of the preceding year. Section 4 lists the assets that should be disclosed, such as real estate and movable properties, items of special value exceeding a specific threshold, the values of shares and securities as well as the number of shares held, cash savings, bank accounts, treasury bills and loans, annual personal income, licences and patents generating income, gifts and preferential treatment exceeding a specific value, engagements in profit-making activities or other activities generating income, and private interests based on and originating from family or cohabitation relationships. In addition, the sources used for their creation, any expenditure exceeding a specific threshold, financial obligations and liabilities, including those belonging to family members and related persons, are to be disclosed. Section 4/1, as introduced by Law no. 45/2014 which entered into force in 11 June 2014, requires all officials and public servants holding cash exceeding ALL 1.5 million (EUR 11,990) at home to deposit it to a bank account prior to filing the annual declaration of assets.", "203. Section 22 provides that asset disclosure declarations are subject to preliminary checks by HIDAACI, which entails verifying that the declaration (and its annexes) has been completed properly and correctly. They may also be subject to a full audit, consisting of numerical and logical checks. According to the 2012 amendments, a full audit is carried out every two years in respect of judges of the Supreme Court and Constitutional Court and every three years in respect of appellate court judges. Since the 2014 amendments (brought about by Law no. 45/2014), first-instance court judges have been subject to a full audit every four years (prior to that, they used to be subject to random audits, which covered at least 4% of the total number of declarations filed with HIDAACI).", "204. Under section 5, refusal to disclose assets and conflicts of interest results in dismissal from office and applicable criminal liability, upon notice served by HIDAACI to the responsible employing body. Under section 38, false disclosure of assets ( deklarim i rremë ) constitutes a criminal offence under the applicable criminal law (Article 257/a of the Criminal Code). The Act initially provided that failure to file an asset disclosure declaration within the time-limit and without good cause was punishable by an administrative fine of ALL 25,000 (EUR 199), which could be doubled in case of repeated failure. In 2012, the fine was increased, and ranges from ALL 50,000 (EUR 399) to ALL 100,000 (EUR 798).", "205. As regards first-instance court and appellate judges, section 32(2)(ç) of the Judiciary Act 2008 (Law no. 9877/2008 on the organisation and functioning of the judiciary, as amended), which entered into force on 15 March 2008, provided, inter alia, that “refusal or failure to disclose assets, concealment of assets and false disclosure of assets” constituted “very serious” disciplinary breaches, entailing dismissal from office in accordance with section 33(3) thereof. The Judiciary Act 2008 was repealed as a result of the entry into force of the Judiciary Act 2016 (Law no. 98/2016) on 22 November 2016.", "Status of Judges and Prosecutors Act (Law no. 96/2016, as amended)", "206. The Status of Judges and Prosecutors Act, which entered into force on 22 November 2016, lays down the rules for appointment as a judge. Under section 28(dh), a person has the right to apply for admission to the initial training course if he or she has not been dismissed from office on disciplinary grounds and there is no valid disciplinary sanction in force. Former judges may also be reappointed provided that they satisfy, amongst other things, the requirement laid down in section 28(dh). Section 150(3) states that the disciplinary sanction of dismissal from office imposed on judges and prosecutors will not be extinguished or erased from the register of disciplinary sanctions kept by the responsible authorities.", "207. Section 166(6) states that members of the Appeal Chamber will be appointed to the post of appellate court judge upon the expiry of their term, unless a disciplinary sanction has been imposed on them.", "Lawyers ’ Act (Law no. 55/2018 on the profession of lawyers)", "208. Under section 13(1), a person will be qualified to act as a lawyer if he or she has obtained the title of “advocate” and has been admitted as an advocate on the strength of a certificate (licence) issued by the Chamber of Advocates (namely the Bar Association). Section 13(2) lists a number of general requirements that have to be satisfied in order for a person to be admitted as an advocate, the most relevant, for the purposes of this case, being that “a person shall not have been removed from duty or a public function, on account of [a breach of] ethical integrity, by a final decision of the competent authority, save for cases where the disciplinary sanction has been extinguished by virtue of a specific law”.", "209. Section 51 of the Lawyers ’ Act states that the First Instance Administrative Court is competent to hear complaints against disciplinary decisions given by the responsible bodies of the Chamber of Advocates.", "Relevant international materialsMaterials relating to the judiciary", "Materials relating to the judiciary", "Materials relating to the judiciary", "210. Relevant Council of Europe texts, such as extracts from the Committee of Ministers ’ Recommendation (2010) 12, the Magna Carta of Judges (Fundamental Principles) and the European Charter on the Statute of Judges, can be found in Baka v. Hungary ([GC], no. 20261/12, §§ 77, 78 and 81, 23 June 2016).", "211. Relevant international texts, such as extracts from the Bangalore Principles of Judicial Conduct, can be found in Rustavi 2 Broadcasting Company Ltd and Others v. Georgia (no. 16812/17, § 224, 18 July 2019), and Harabin v. Slovakia (no. 58688/11, § 107, 20 November 2012).", "Materials relating to the fight against corruptionUnited Nations materials", "United Nations materials", "United Nations materials", "212. The United Nations Convention Against Corruption entered into force in respect of Albania on 25 May 2006, having been signed on 18 December 2003. Its main purpose is to promote and strengthen measures to prevent and combat corruption more efficiently and effectively. In this connection, Article 8, which calls on States Parties to apply codes of conduct for public officials, states amongst other things that a State Party should “establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials” and “take disciplinary or other measures against public officials who violate the codes or standards”.", "Council of Europe materials", "(a) Legal instruments", "213. The Criminal Law Convention on Corruption (ETS No. 173) entered into force in respect of Albania on 1 July 2002. It aims at the coordinated criminalisation of a large number of corrupt practices, as outlined in its Articles 2 to 14. Its implementation will be monitored by the Group of States against Corruption (“GRECO”) which had been established in 1999.", "214. The Civil Law Convention on Corruption (ETS No. 174) entered into force in respect of Albania on 1 November 2002. It requires Contracting Parties to provide in their domestic law “for effective remedies for persons who have suffered damage as a result of acts of corruption, to enable them to defend their rights and interests, including the possibility of obtaining compensation for damage”. Its implementation will be monitored by GRECO.", "215. Committee of Ministers Recommendation No. R (2000)10 on codes of conduct for public officials, which was adopted on 11 May 2000, recommends the adoption of national codes of conduct for public officials based on the model code of conduct annexed to the Recommendation. Under Article 14 of the model code, a public official “who occupied a position in which his or her personal or private interests are likely to be affected by his or her official duties should, as lawfully required, declare upon appointment, at regular intervals thereafter and whenever any changes occur the nature and extent of those interests”. Under Article 28, a breach of the provisions of the model code of conduct may result in disciplinary action.", "(b) GRECO evaluation reports", "216. The Group of States against Corruption (GRECO) monitors States ’ compliance with the Council of Europe ’ s anti-corruption standards. It works in cycles, known as evaluation rounds, each covering specific themes. Following an on-site visit, the GRECO evaluation team (“GET”) produces an evaluation report, which may include recommendations requiring action to be taken by the State to ensure compliance therewith.", "217. In the first evaluation round concerning the independence, specialisation and means of national bodies engaged in the prevention and fight against corruption, which was carried out in Albania from 8 to 12 April 2002, the GET stated in the section of its evaluation report headed “The phenomenon of corruption and its perception in Albania”, in so far as the judiciary was concerned, the following:", "“13. Surveys (referred to by the Government) carried out with the support from the international community, show that the judiciary, the Customs, the Privatisation Agency and the Health service are among the most corrupt. ... The authorities consider that the most common form of corruption in Albania is bribery. Civil servants or other officials are inclined to accept bribes to expedite service delivery, to refrain from using punishment foreseen in law/regulation or judges who may be ready to change court decisions, etc. Surveys also show that it is very common that private enterprises pay bribes to public officials to avoid taxes and regulations, or that court and arbitrage decisions are being bought.”", "218. The analysis section of the evaluation report, in so far as the courts were concerned, stated the following:", "“156. ... the independence of the judiciary is of paramount importance under the rule of law, however, such independence is not without limits and must be connected to a system of accountability. The Albanian Constitution provides for the independence of the judiciary and the authorities are struggling to put in place an accountability mechanism of the judges. The GET recognises the difficulties linked to this, considering that the judicial system in Albania appears to be suffering from a general lack of public confidence. Furthermore, this is an area where the Albanian authorities consider anti-corruption measures to be very important. It was also noted, however, that it seems that the judiciary consists of dedicated officials working under difficult conditions”.", "219. In the second evaluation round concerning, amongst other things, public administration and corruption, which was carried out in Albania from 11 to 15 October 2004, the GET stated in its report the following relevant information:", "“34. A new control body, the High Inspectorate for Declaration and [Audit] of Assets, is operating in Albania. It is an independent institution with a duty to verify obligatory declaration of assets required of individuals particularly exposed to corruption. Medium, higher and elected public officials including at local level, as well as judges, prosecutors, etc. are obliged to report all kinds of assets, financial obligations, income, etc. to this body. Their family members and close associates are also subject to this obligation. Failure to do so may lead to disciplinary, administrative and/or criminal sanctions. Control of their financial statement is carried out by requesting information from banks, registers, etc. which hold pertinent information. Responding correctly to such requests is an obligation. Suspicious cases have already been examined. In one case, a person has been dismissed. The case was also reported to the prosecutor ’ s office.”", "220. GRECO ’ s fourth evaluation round, which was carried out in Albania from 28 October to 1 November 2013, focused on prevention of corruption in respect of MPs, judges and prosecutors. Its evaluation report stated, in so far as judges were concerned, the following relevant information:", "“13. According to the 2013 Global Corruption Barometer, the perception of corruption within the judiciary is the highest (81% of respondents). In the opinion of the Heritage Foundation, a culture of impunity and political interference has made it difficult for the judiciary to deal with high-level and deeply rooted corruption, and the implementation of deeper institutional reforms to increase judicial independence and eradicate lingering corruption remains critical. The seriousness of judicial corruption has also been reiterated in the reports of the European Commission and of the Commissioner for Human Rights of the Council of Europe.", "...", "53. The discussions on-site highlighted the clear priority given to asset declaration by officials and the regular in-depth monitoring carried out by the HIDAA. The asset disclosure regime extends to a large number of officials (currently some 4,670 persons) as well as their family members, “trusted persons” and “partners/cohabitees”. The GET was informed that, due to the HIDAA ’ s limited capacity to process all declarations and carry out checks in a timely fashion, the [Asset Disclosure Act] was amended in 2012 introducing a differentiated treatment for various categories of officials. ( ... )", "...", "75. ... the recently introduced system for ethical and professional evaluation of judges cannot be considered effective and efficient due to the significant time lapse between evaluation and the reference period. GRECO does not share the opinion of the authorities who assert that such evaluation cannot be managed in real time as the average duration of trial before the three instances is up to three years. A well-conceived system of periodic assessments allows not only for the monitoring of a judge ’ s performance and its progression over time but also for the early detection of problems, such as the high caseload and backlog which many judges confront and which can and should be addressed at an earlier stage. In light of the high public perception of corruption in the judiciary, another source of concern to which consideration needs to be given is the apparent lack of well-formulated criteria for periodic evaluation of a judge ’ s ethical qualities (as a continuation of the integrity checks that are carried out before appointment).", "Declaration of assets income, liabilities and interests", "95. As previously stated, the asset disclosure regime is widely regarded as an important tool for combating corruption and achieving greater transparency of private interests of officials, including judges. Nevertheless, the shortcomings that arise from the absence of the timely on-line publication of MPs ’ asset declarations have the same effect in respect of all categories of judges and contribute to diminished public trust in the judiciary. That being said, the risks generated by this delayed public disclosure are mitigated to a certain extent by the length of a judge ’ s service which is not time-barred. For this reason, GRECO foregoes issuing a separate recommendation on this matter; still it encourages the authorities to ensure the timely publication of asset declarations by judges on an official web site, having regard to the privacy and security of judges and their family members who are subject to a reporting obligation.", "...", "Supervision over declarations of assets, income, liabilities and interests", "97. The supervision of judges ’ asset declarations is also assigned to the HIDAA. It is carried out in a manner identical to that applied in respect of MPs, except that the declarations of the [Supreme] Court justices and judges who are HCJ [High Council of Justice] members are to be audited every two years, those of appellate judges – every three years, and finally, the declarations of district court judges are subject to annual random audits. In case of refusal or failure to declare, concealment or false declaration of assets, the HIDAA refers the case to the Prosecution Service for criminal proceedings, and to the HCJ and the Minister of Justice – for disciplinary [sanctions] of dismissal from office.", "...", "99. As mentioned above, judges are disciplinarily liable for violations of law and commission of acts and conduct discrediting their reputation and integrity. “Very serious” violations (e.g. non-compliance with incompatibility rules; refusal to declare, failure to declare, hiding or false declaration of assets; obtaining, directly or indirectly, gifts, favours, promises or preferential treatment, in the exercise of duties; failure to withdraw from a trial; the absolute absence of reasoning in a judicial decision) are sanctioned by removal from office. “Serious” violations (e.g. repeated and unjustified procedural delays; interference with or any kind of other influence exerted on another judge; violation of ethical norms in relations with parties, colleagues, court president and staff, experts, prosecutors and lawyers) are punishable by a transfer for one to two years to a lower instance or same level court outside the judicial district of a judge ’ s appointment. Finally, “minor” violations lead to a reprimand or a reprimand with a warning.", "100. Disciplinary proceedings are carried out by the HCJ. The period of limitation is one year from the date the violation is found by/reported to the Minister of Justice and five years from the date of its commission.”", "(c) Venice Commission report", "221. On 9 December 2020 the Venice Commission released an urgent opinion on the constitutional situation created by a decision of the Constitutional Court of Ukraine, which had declared unconstitutional certain statutory provisions in the sphere of anti-corruption, including a criminal-law provision which provided for criminal liability for submitting false assets declarations or failure to submit a declaration. The relevant parts of the Venice Commission ’ s opinion read as follows:", "“ 34. Since the central argument of the [Constitutional Court of Ukraine] is the alleged ‘ lack of proportionality ’ of [the ‘ criminal - law ’ provision], more tailor-made sanctions may be provided in the revised provision: for example, the sanction of imprisonment may be reserved only for cases above a certain threshold and for perpetrators acting with deliberate intent. That being said, in the [Venice] Commission ’ s view, the level of monetary fines and other sanctions should be sufficiently high as to act as [a] deterrent and as to ensure a punishment which is proportionate to the importance which the fight against corruption has in Ukraine. The sanction of imprisonment should be maintained for the most serious violations ... ”", "Case-law of the Court of Justice of the European Union (the “CJEU”) Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "222. In response to an action concerning alleged breaches of European Union law arising from the enactment of a new domestic law on the Supreme Court of Poland, brought by the European Commission against Poland (case of Commission v. Poland (Independence of the Supreme Court), C ‑ 619/18), on 24 June 2019 the Grand Chamber of the CJEU held that Poland had failed to fulfil its obligations under European Union law, first, by providing that the measure consisting in lowering the retirement age of Supreme Court judges to 65 was to apply to judges in post who had been appointed to that court before the date on which the relevant law had entered into force and, second, by granting the President of the Republic discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age. The CJEU held that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court was not justified by a legitimate aim and undermined the principle of irremovability of judges, which was essential to their independence.", "223. In response to an action concerning alleged breaches of European Union law arising from the introduction of amendments to the Polish law on the ordinary courts, brought by the European Commission against Poland (case of Commission v. Poland (Independence of ordinary courts), C ‑ 192/18), on 5 November 2019 the CJEU ’ s Grand Chamber held that Poland had failed to fulfil its obligations under European Union law, first, by establishing a different retirement age for men and women who were judges or public prosecutors in Poland and, second, by lowering the retirement age of judges of the ordinary courts while conferring on the Minister for Justice the power to extend the period of active service of those judges. As regards the power held by the Minister of Justice, the CJEU found that the national statutory provisions which laid down the substantive conditions and detailed procedural rules governing the adoption of decisions by the Minister of Justice gave rise to “reasonable doubts, inter alia, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interest that may be the subject of argument before them”. The CJEU further held that the power held by the Minister of Justice failed to comply with the principle of irremovability, which was inherent in judicial independence.", "224. In so far as is relevant for the purposes of the present case, the CJEU referred in both judgments to, inter alia, the following general principles:", "“The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (references omitted).", "In that latter respect, it is apparent, more specifically, from the [CJEU ’ s] case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in ... the Charter [of Fundamental Rights of the European Union], in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies ’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary.”", "Judgment in the case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18 and C-625/18)", "225. In response to three requests for a preliminary ruling concerning the independence of the newly established Disciplinary Chamber of the Supreme Court of Poland, made by the Labour and Social Insurance Chamber of the Supreme Court of Poland (case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C-624/18 and C-625/18), on 19 November 2019 the CJEU ’ s Grand Chamber held that the referring court had to ascertain whether the new Disciplinary Chamber of the Supreme Court was independent in order to determine whether that chamber had jurisdiction to rule on cases where judges of the Supreme Court were retired, or in order to determine whether such cases had to be examined by another court which would meet the requirement that courts must be independent.", "226. In doing so, the referring court had to assess the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the Polish National Council of the Judiciary (“NCJ”) in making proposals for appointment to the President of the Republic of Poland. In particular, the referring court had to examine the following specific factors, which the CJEU had identified, in order to ascertain whether the new Disciplinary Chamber of the Supreme Court offered sufficient guarantees of independence: ( i ) compliance with the substantive conditions and detailed procedural rules governing the appointment of judges of the new Disciplinary Chamber, (ii) the degree of independence enjoyed by the Polish NCJ from the legislature and the executive in exercising the responsibilities attributed to it under national law, (iii) the way in which the Polish NCJ exercised its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it did so in a way which was capable of calling into question its independence from the legislature and the executive, (iv) the effectiveness of the judicial review of a resolution of the Polish NCJ, including its decisions concerning proposals for appointment to the post of judge of the Supreme Court, which would, at the very least, be capable of examining whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment.", "227. In addition, the referring court had to examine other features which more directly characterised the new Disciplinary Chamber, such as ( i ) its exclusive jurisdiction to rule on a specific number of matters which previously fell within the jurisdiction of the ordinary courts, (ii) its composition of solely newly appointed judges, thereby excluding judges already serving in the Supreme Court, and (iii) its particularly high degree of autonomy compared to the other chambers of the Supreme Court.", "228. As a general point, the CJEU reiterated at several points that, although each of the factors examined, taken in isolation, were not necessarily capable of calling into question the independence of the Disciplinary Chamber, that could, however, be the case once they were taken together.", "229. Subsequent to the CJEU ’ s judgment, the Labour and Social Insurance Chamber of the Supreme Court of Poland delivered three judgments in cases that had been referred for a preliminary ruling to the CJEU (one on 5 December 2019 and two on 15 January 2020). The judgment of 5 December 2019 contained extensive grounds and applied the indications as to the applicable standards given by the CJEU. The Labour and Social Insurance Chamber of the Supreme Court concluded that the NCJ was not an authority that was impartial and independent from legislative and executive branches of power. Moreover, it concluded that the newly established Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and the Convention.", "THE LAW", "alleged violation of article 6 § 1 of the Convention", "230. The applicant complained that the vetting bodies lacked independence and impartiality, as required by Article 6 § 1 of the Convention, for the following reasons: ( i ) the vetting bodies were composed of non-judicial members who lacked the requisite professionalism and experience; (ii) the members of the vetting bodies were appointed by parliament without any involvement of the judiciary; (iii) the vetting bodies carried out the preliminary administrative investigation, framed the “accusation” and decided on the merits of the “accusation”.", "231. She also complained under Article 6 § 1 of the Convention of unfairness in the proceedings in her case, for the following reasons: ( i ) she had been denied the right to refute the main reason for her dismissal and defend herself; (ii) the IQC had shifted an unreasonable burden of proof onto her in relation to circumstances which had arisen decades ago; (iii) the Vetting Act had not prescribed any limitation periods; (iv) the decisions in her case had lacked reasoning in relation to her arguments; (v) the vetting bodies had applied double standards compared to other cases; (vi) the Appeal Chamber had dismissed her request to submit further exculpatory evidence; (vii) she had not had sufficient time and facilities to prepare her defence; (viii) the Appeal Chamber had failed to hold a public hearing; and (ix) the vetting bodies had breached the principle of legal certainty and legitimate expectation in so far as they had disregarded the positive audit of her assets carried out by HIDAACI.", "232. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”", "Admissibility", "233. The Court, having regard to the parties ’ submissions, will now determine matters regarding the applicability of Article 6 § 1, the exhaustion of domestic remedies and compliance with the six-month time-limit.", "Applicability of Article 6 § 1", "(a) The parties ’ submissions", "234. The Government conceded that Article 6 § 1 of the Convention applied under its civil limb. In view of the administrative nature of the vetting proceedings, they contested the applicability of Article 6 § 1 of the Convention under its criminal limb.", "235. The applicant maintained that Article 6 applied under its civil limb. She further argued, with reference to Matyjek v. Poland (( dec. ), no. 38184/03, ECHR 2006 ‑ VII), that Article 6 applied under its criminal limb for the following reasons: ( i ) the IQC, which had carried out the preliminary investigation and adopted a decision at first instance, was vested with powers similar to those of a public prosecutor; (ii) her position in the vetting proceedings had been like that of an accused in criminal proceedings; (iii) the nature of the offence, namely the production of untrue statements in the declaration of assets, was analogous to that of perjury, which would be liable to criminal prosecution; and (iv) the nature and degree of severity of the penalty at stake, namely dismissal from office, allegedly entailed an indefinite ban on applying for a large number of public posts.", "(b) The Court ’ s assessment", "(i) Applicability of Article 6 § 1 under its civil head", "236. The Court notes that the parties did not contest the applicability of Article 6 § 1 of the Convention under its civil limb. In this connection, the Court points out that labour disputes between civil servants and the State may fall outside the civil limb of Article 6 provided that two cumulative conditions are fulfilled. In the first place, the State in its national law must have expressly excluded access to the courts for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest (see, for example, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II, hereafter “the Vilho Eskelinen test”).", "237. Although the judiciary is not part of the ordinary civil service, it is considered part of typical public service. Therefore, Article 6 § 1 has been applied to proceedings relating to the dismissal of judges chiefly on account of the fact that judges had access to the national courts to challenge their dismissal (see, for example, Olujić v. Croatia, no. 22330/05, §§ 42-43, 5 February 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 90-91, ECHR 2013; Poposki and Duma v. the former Yugoslav Republic of Macedonia, nos. 69916/10 and 36531/11, § 37, 7 January 2016; and Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017).", "238. Turning to the present case, and with regards to the first condition laid down in the Vilho Eskelinen test, the Court notes that, further to the institution of the vetting proceedings, the IQC, at first instance, and the Appeal Chamber, on appeal, dismissed the applicant from her post as a judge of the Constitutional Court. Indeed, domestic law did not exclude her right to challenge the dismissal.", "239. However, as the Court has to determine for the first time whether the IQC and Appeal Chamber are to be considered a “tribunal established by law”, it considers that the applicability of Article 6 § 1 of the Convention under its civil head must be joined to the merits of this complaint.", "(ii) Applicability of Article 6 § 1 under its criminal head", "240. The Court notes that the parties disagreed on whether Article 6 § 1 was applicable under its criminal head.", "241. The Court points out that the two aspects, civil and criminal, of Article 6 § 1 are not necessarily mutually exclusive (see Albert and Le Compte v. Belgium, 10 February 1983, § 30, Series A no. 58). The concept of a “criminal charge” in Article 6 § 1 is an autonomous one. The Court ’ s established case-law sets out three criteria, commonly known as the “Engel criteria”, to be considered in determining whether or not there was a “criminal charge” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among other authorities, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018, and the references cited therein).", "242. In Matyjek (cited above, §§ 49-58 ), in holding that Article 6 was applicable under its criminal head to lustration proceedings under Polish law, the Court had regard to the fact that the Polish Code of Criminal Procedure was applicable to the proceedings, that the nature of the act for which the applicant had been subject to lustration, namely making a false declaration, was akin to the criminal offence of perjury, and that the sanction imposed on him, a ban on occupying a range of public posts for ten years, was severe.", "243. Turning to the present case, as regards the first of the Engel criteria, namely the domestic classification of the offence, the Court observes that the vetting proceedings against the applicant, which were of a disciplinary nature, were governed by the Vetting Act, in conjunction with the rules laid down in the Code of Administrative Procedure, the Administrative Courts Act or the Code of Civil Procedure, as applicable. No reference or mention was ever made to the application or interpretation of criminal law or criminal procedure law. The vetting proceedings were conducted by a specially established body, the IQC, subject to a subsequent appeal to the Appeal Chamber, and neither the prosecuting authorities nor the criminal courts were involved in determining their outcome. Furthermore, Article Ç § 5 of the Annex to the Constitution only provides for a shifting of the burden of proof in vetting proceedings, it being expressly excluded during any separate criminal proceedings, and Article DH § 2 of the Annex to the Constitution explicitly bars the use of the integrity background declaration in any criminal proceedings (see paragraphs 107 and 109 above). For these reasons, the Court cannot accept the applicant ’ s argument that her position had been like that of an accused in criminal proceedings or that the IQC ’ s powers were similar to those of a public prosecutor.", "244. As to the second criterion – the very nature of the offence – the Court notes that the applicable statutory provisions were aimed solely at a specific category, namely judges, prosecutors and legal advisors, and not at the public in general. The provisions were designed to protect the professions ’ conduct, honour and reputation and to maintain public trust in the judiciary. They were purely of a disciplinary nature and not vested with elements of a criminal nature. That the applicant may be subject to criminal proceedings in the future on account of false disclosure of assets does not suffice to bring the vetting proceedings within the criminal sphere. In this connection, the fact that an act which can lead to a disciplinary sanction also constitutes a criminal offence is not sufficient to consider a person responsible under disciplinary law as being “charged” with a crime (see Müller- Hartburg v. Austria, no. 47195/06, § 44, 19 February 2013, and Biagoli v. San Marino ( dec. ), no. 64735/14, § 56, 13 September 2016 ). It would only be in the context of any future, separate criminal proceedings which might be instituted against the applicant that Article 6 § 1 may be found to apply under its criminal head.", "245. With regard to the third criterion, that is, the degree of severity of the penalty, the Court notes that the applicant ’ s dismissal is a sanction characteristic of a disciplinary offence and cannot be confused with a criminal penalty. No fine was imposed on her subsequent to her dismissal. The Court further notes that the Vetting Act does not impose a permanent ban on applying for posts in the justice system. However, the Status of Judges and Prosecutors Act has barred judges and prosecutors who have been dismissed from office from rejoining the justice system (see paragraph 206 above). Be that as it may, this bar, in any event, would not in itself be decisive to regard the vetting proceedings as criminal for the following reasons. The bar is not set out in criminal law. It cannot be considered a sanction that is criminal in nature. The purpose of the bar from rejoining the justice system does not appear to be to impose a punishment in relation to the dismissal from office, but is rather aimed at ensuring and preserving public trust in the justice system. Even though, in itself, the bar appears to be a rather severe consequence, many non-penal measures of a preventive nature may have a substantial impact on the person concerned. The mere fact that the bar is of a permanent nature does not suffice to regard it as a penalty (see, mutatis mutandis, Rola v. Slovenia, nos. 12096/14 and 39335/16, § 66, 4 June 2019). The same finding would also apply to any claim that the applicant is ineligible to join the civil service, a speculative claim which she has not challenged before the national courts.", "246. In these circumstances, the Court considers that, the elements above, taken alternatively or cumulatively, are insufficient to reach a conclusion that Article 6 is applicable under its criminal limb (see, amongst other authorities, Ramos Nunes de Carvalho e Sá, cited above, §§ 124-27; Kamenos v. Cyprus, no. 147/07, § 51, 31 October 2017; Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 121, 21 January 2016; and Oleksandr Volkov, cited above, §§ 93-95 ).", "Exhaustion of remedies", "247. The Government submitted that the applicant had not complained before the IQC or on appeal before the Appeal Chamber that the IQC had framed the “accusation” and decided on the merits of the “accusation”.", "248. The applicant submitted that she had availed herself of all domestic remedies and had submitted her complaints to the Appeal Chamber.", "249. The Court points out that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court ’ s case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court ’ s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant ’ s legal arguments, for the purposes of determining whether the complaint submitted to the Court had indeed been raised beforehand, in substance, before the domestic authorities (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 117, 20 March 2018, and the references cited therein).", "250. Turning to the circumstances of the present case, the Court notes that on 9 June 2018 the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber, making numerous complaints of a procedural and substantive nature. Indeed, the appeal pointed to the alleged failure by the IQC to secure procedural guarantees, and took issue with its active concurrent roles of collecting evidence and information and deciding on the merits of the case. The Court considers that the allegation made in the applicant ’ s appeal is akin to arguments to the same or like effect that she has raised before this Court of a lack of impartiality on the part of the IQC on the grounds that it had framed the “accusation” and decided on its merits. In the Court ’ s view, she raised this ground of the complaint “at least in substance” before the Appeal Chamber, which, with reference to Article F of the Annex to the Constitution and section 63 of the Vetting Act (see paragraphs 112 and 152 above), is a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention.", "251. Accordingly, the Court finds that the Government ’ s objection in this regard should be dismissed.", "Compliance with the six-month time-limit", "252. In her observations on the admissibility and merits of the case submitted on 10 January 2020, the applicant complained that ( i ) three members of the Appeal Chamber ’ s bench had not satisfied the statutory eligibility criteria to be shortlisted and, subsequently, appointed as members of the Appeal Chamber and (ii) another member of the Appeal Chamber had not disclosed a conflict of interest concerning the conviction of that member ’ s sibling in 1997 by an appellate court bench, of which the applicant ’ s father had been a member. The applicant alleged that she had learned of this latter development on 25 November 2019, after it had been brought to her attention by another judge of the Constitutional Court who had been dismissed from office as a result of vetting proceedings.", "253. The Court notes that even though the Government did not raise any objection to the applicant ’ s failure to comply with the six-month time-limit, it is not open to the Court to set aside the application of the six-month rule on that ground (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III, and, subsequently, Ramos Nunes de Carvalho e Sá, cited above, § 98). The Court must therefore ascertain whether those allegations were part of the initial complaints, the introduction of which interrupted the running of the six-month period.", "254. In the initial application, the applicant complained that the vetting bodies had not been independent and impartial, for the reasons set out in paragraph 230 above. She did not raise in substance or even implicitly the allegation that three members of the Appeal Chamber had not complied with the statutory eligibility criteria. She did not claim to have faced any difficulties in obtaining reliable – or indeed official – information on those members ’ eligibility with the statutory criteria, prior to such allegations coming to light, and in any event following the communication of the case of Sevdari v. Albania (no. 40662/19) on 22 November 2019 in which specific questions were put to the parties regarding the outcome of domestic proceedings against certain members of the Appeal Chamber for alleged non-compliance with the statutory eligibility criteria. In such circumstances, the Court is not convinced that the applicant was prevented from coming into possession of such material in the course of the domestic proceedings and from voicing any suspicions as to the members ’ compliance with the eligibility criteria before the Appeal Chamber. Furthermore, she did not take any steps to challenge the alleged non-compliance of certain members of the Appeal Chamber with the statutory eligibility criteria before the relevant national authorities subsequent to lodging her application with the Court and prior to the Court taking a decision on its admissibility. Moreover, the domestic proceedings concerning fulfilment by those members of the statutory eligibility criteria are currently pending before the national authorities.", "255. Nor did the applicant complain in the initial application that a fourth member of the Appeal Chamber had failed to disclose a conflict of interest and recuse herself from the proceedings. That she allegedly learned of this development on 25 November 2019, without substantiating the fact that she could not have become aware of the 1997 appellate court decision prior to that date, cannot serve to absolve her from the obligation to have acted with due diligence in the course of the domestic proceedings, obtained official information and raised an objection to that member ’ s participation in the bench before the Appeal Chamber. Against this background, the Court is not convinced that it was impossible for the applicant to learn of this element in the course of the domestic proceedings.", "256. That the applicant invoked Article 6 of the Convention in her application and that notice of the application was given to the respondent Government under that Article does not suffice to justify the introduction of subsequent complaints under that provision where no indication was initially given to the factual basis of the grounds of the complaint in the application form. As the scope of Article 6 of the Convention is very broad, the Court ’ s examination is necessarily delimited by the specific grounds of the complaint that the applicant initially submitted to it (see Ramos Nunes de Carvalho e Sá, cited above, § 103-04).", "257. In these circumstances, the Court concludes that the applicant only raised these complaints for the first time on 10 January 2020, more than six months after notification of the Appeal Chamber ’ s decision to her on 23 November 2018 (see paragraph 59 above). The Court has previously found a new complaint submitted for the first time in the applicant ’ s observations on the admissibility and merits of the case to have been introduced outside the six-month time-limit, in breach of Article 35 § 1 of the Convention (see, amongst other authorities, Fábián v. Hungary [GC], no. 78117/13, § 98, 5 September 2017, and Majski v. Croatia, no. 33593/03, § 34, 1 June 2006 ). Consequently, this complaint has been lodged out of time and must be rejected pursuant to Article 35 § 1 and 4 of the Convention.", "Conclusion as regards admissibility", "258. The Court notes that, save for the ground of the applicant ’ s complaints under Article 6 § 1 declared inadmissible in paragraph 257 above, the remaining complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "Merits", "259. In view of the applicant ’ s numerous complaints, the Court will first consider the complaint alleging that the vetting bodies lacked independence and impartiality. It will subsequently examine the complaint of unfairness in the proceedings and the complaint regarding the lack of a public hearing before the Appeal Chamber, and will conclude by considering the complaint alleging a breach of the principle of legal certainty.", "Compliance with the principle of “an independent and impartial tribunal established by law”", "(a) The parties ’ submissions", "(i) The applicant", "260. The applicant submitted that, contrary to the requirements laid down in a number of international documents, such as the European Charter on Statutes of Judges and the Magna Carta of Judges, the vetting bodies were composed of (almost entirely) non-judicial members. None of the members commanded the necessary legal and/or judicial experience and skills for examining complex matters of fact and law.", "261. The members of the vetting bodies were entirely elected by Parliament, after a preselection procedure carried out by an ad hoc parliamentary committee, there having been no involvement of the judiciary. In the applicant ’ s view, the role of the IMO was confined to supervising the application process, making recommendations in respect of the candidates and submitting the list of candidates for Parliament ’ s approval. There was a lack of transparency in the selection process as the candidates had not made public their professional qualifications and competence. Furthermore, some candidates had been employed by State institutions or involved in politics.", "262. Furthermore, the mandate of the members of the vetting bodies was limited to five years for the IQC members and nine years for the Appeal Chamber members. According to the applicant, this limited term of office made them vulnerable to external influence, which cast doubt on their independence. She further submitted that the work of the vetting bodies was under the constant scrutiny of the Government, which, in 2018, had awarded them a “performance bonus”. There was no formal recognition of their irremovability in the law.", "263. The applicant argued that the ultimate effect of the preliminary investigation which the IQC had carried out had been prejudicial to her case. This was accentuated by the fact that the burden of proof had rested automatically and exclusively with her.", "264. She further alleged that, since taking office in 2013, the Government had launched frontal and fierce attacks on the judiciary, frequently and publicly accusing judges of corruption and incompetence, as well as branding them as “criminals”. The Prime Minister had even taken issue with the composition of the Justice Appointment Council. She submitted a news item from a television internet portal dated 2 May 2018 reporting the Prime Minister as saying as follows:", "“vetting has already started. [E]ach day [ ... ] you have witnessed the results which will continue to intensify. Corrupt judges and prosecutors will be removed from the system. Anyone who is unable to establish the legitimacy of his or her wealth, who is unable to demonstrate the integrity of previous decision-making, who is unable to prove the ability to remain in the new justice system, will no longer be a member. This is a good reason to remain optimistic about the future.”", "265. The applicant alleged that the Appeal Chamber did not have any constitutional review powers, which were exclusively vested with the Constitutional Court.", "(ii) The Government", "266. The Government submitted that the vetting process had a legal basis in the Constitution and the Vetting Act. The fact that the establishment of the vetting bodies was provided for in the Constitution was a guarantee of their independence from undue interference by the executive and the legislature.", "267. The members of the vetting bodies were selected by means of a competitive and transparent procedure in accordance with the criteria prescribed by law. The restrictions imposed by the selection criteria were a further guarantee to preclude current judges, prosecutors and legal advisors who had a clear conflict of interest, or other individuals who had held public office in the administration or had been in leadership positions in political parties in the last ten years, from becoming members of the vetting bodies.", "268. The election of the members followed the procedure prescribed by law and guaranteed an impartial and consensual process of appointment. The process was monitored by the People ’ s Advocate and the IMO, while the ad hoc parliamentary committee was composed of MPs from both the ruling party and the opposition. The involvement of constitutional bodies in the selection of candidates was aimed at avoiding the politicisation of the process and ensuring their independence and impartiality. That Parliament was involved in their election was consistent with its role under the Constitution in electing members of constitutional bodies, as had been the case previously. The discharge of their duties was incompatible with any other function. The Vetting Act had introduced the obligation for members of the vetting bodies to declare and avoid any conflicts of interest in the examination of a given case. No such conflicts of interest had been disclosed in the applicant ’ s case and she had not raised any complaints or made requests for the recusal of any member. The composition of the bench in both instances had been drawn by lots, as had their presidents and rapporteurs.", "269. The Government contended that the IQC had not prejudiced the outcome of the applicant ’ s case. It had not informed the applicant of an early or premature imposition of a disciplinary sanction. Its preliminary findings had been examined together with the evidence the applicant had submitted, thus ensuring adversarial proceedings. Its members had not taken any action which would raise doubts as to their impartiality. Furthermore, the IQC, in view of the specific nature of the vetting proceedings, was not an ordinary disciplinary body which investigated alleged disciplinary breaches committed by judges and prosecutors. Instead, it carried out an independent assessment of the three criteria laid down in the Constitution and the Vetting Act. It did not take the initiative to bring any charges. The involvement of the IQC and the scope of investigation were determined by law, including the manner of obtaining information. Its activity was equivalent to that of a quasi-judicial body. The fact that the IQC had decision-making powers, after examining all the evidence in the case file, was an inherent feature of this type of special administrative disciplinary procedure. In no circumstances had the IQC predetermined the outcome of the applicant ’ s case. The applicant had appealed to the Appeal Chamber which, in turn, had had full jurisdiction over questions of fact and law.", "(b) The third-party interveners", "270. The Court will set out below the submissions received from the third parties which were granted leave to intervene in the case, there being no need to separate them in respect of each of the applicant ’ s complaints.", "(i) The European Commission", "271. The European Commission, representing the European Union, submitted that the comprehensive justice reform adopted by Albania in 2016, which aimed at restoring public trust and confidence in the justice system, consisted of two pillars: firstly, the institutional restructuring of the entire judiciary and prosecution services and, secondly, the setting up of the vetting process by amending the Constitution and enacting the Vetting Act.", "272. The aim of the vetting process was to fight widespread corruption, unprofessionalism and links with organised crime amongst judges and prosecutors, re-establish an independent and impartial judicial system and restore public trust in it. The involvement of the international community was considered crucial for the credibility of the process, which had been anchored in the Constitution. Whereas it noted that the vetting process could create significant tension within a country ’ s judiciary, the European Commission considered that its temporary nature was justified given the cumulative fulfilment of the following circumstances: the level of corruption and political influence in the judiciary was extremely high, the proposed measure enjoyed broad political and public support, and the existing tools and mechanisms to ensure integrity and fight corruption of judicial office holders had been exhausted. For those reasons, the European Commission maintained that the vetting process was indispensable for the reform process and was to be pursued thoroughly until its completion, under the continued close and independent supervision of the IMO.", "273. According to the European Commission, the essential elements of the vetting process were threefold: ( i ) the IQC was composed of independent and qualified personnel and had the necessary investigative and decisional powers to carry out its functions; (ii) the Appeal Chamber was set up as a court of law and acted as an independent tribunal, responsible for examining appeals against IQC decisions on questions of fact and law; and (iii) the IMO and the international observers were in a position to monitor and report on the vetting process in complete independence.", "274. The European Commission submitted that the vetting process provided sufficient guarantees for conducting a due process and respecting fundamental rights for the following four reasons. Firstly, the legal framework, namely Article 179/b of the Constitution and sections 4(5), 47 and 55 of the Vetting Act, laid down principles to ensure respect for the right to a fair hearing and for the fundamental rights of persons to be re-evaluated. Secondly, both the Constitution and the Vetting Act gave far-reaching independence to the vetting bodies. The Appeal Chamber was attached to the Constitutional Court, and the IQC members enjoyed the status of Supreme Court judges. The Constitution and the Vetting Act granted them a high level of personal protection against threats to life, health and property. The members of the vetting bodies were subject to disciplinary proceedings which, for the sake of avoiding undue external pressure, would be carried out by the Appeal Chamber. Thirdly, the legal framework provided for the right to appeal against the IQC ’ s findings to the Appeal Chamber, which was the only judicial body responsible for examining appeals on questions of fact and law. The proceedings before the Appeal Chamber were governed by the provisions of the Administrative Courts Act. Fourthly, the establishment and role of the IMO, the secretariat of which was funded by the European Commission, provided important additional safeguards for ensuring respect for the right to a fair hearing and fundamental rights.", "275. Lastly, the European Commission maintained that, despite the general conformity with the guarantees of a fair hearing and respect for fundamental rights, any shortcoming that might be identified in the conduct of proceedings in individual cases was not to call into question the essential elements of the vetting process.", "(ii) Respublica", "276. Respublica, a non-governmental organisation promoting the protection of and respect for human rights, has been granted leave to intervene in all vetting-related applications in respect of which notice has been given to the Government. The observations submitted in the context of the present application were a continuation of written comments they had submitted in the context of two other pending similar cases: Gashi and Gina v. Albania (no. 29943/18, communicated on 7 September 2018) and Nikehasani v. Albania (no. 58997/18, communicated on 25 January 2019). For this reason, all the written comments they submitted in respect of these applications have been summarised below.", "277. Respublica contended that the Government, other than relying on a series of public perception surveys whereby the majority of respondents had replied that they considered corruption in the judiciary to be endemic, as well as on findings by international bodies, had not presented clear and compelling arguments attesting to the need for such a drastic overhaul of the justice system. The vetting model appeared to be predicated on the unsubstantiated premise that a large number of justice system officials were corrupt, without taking into consideration the high level of politicisation of the judiciary, which was very problematic and had become its main threat.", "278. Respublica submitted that only three members of the Appeal Chamber had worked as judges in the (rather distant) past, the other members having been either lawyers, legal consultants or legal advisors. It would have been preferable for at least half of its members to have had a solid judicial background. None of the members of the Appeal Chamber appeared to have had expertise in the complicated and highly technical field of disciplinary proceedings against judges. In its view, disciplinary proceedings against judges ought to be carried out by essentially judicial bodies, as this would guarantee that the members of the vetting bodies had the requisite professional background. In addition, Respublica expressed concerns whether the limited mandate of the members raised doubts as to their vulnerability from outside political influence, particularly in the light of the highly politicised nature of the entire vetting process. A 2018 Government decision awarding an end-of-year bonus to members of the vetting bodies raised further doubts as to their objective impartiality.", "279. In Respublica ’ s view, there was a lack of clear guidance from the vetting bodies on how to apply the concept of lawful income and lawful assets. The Vetting Act failed to set a meaningful standard that would allow persons to be vetted to foresee the shifting of the burden of proof onto them. As a result, the vetting bodies imposed an impossible burden of proof on the persons being vetted without setting out the evidence that had led to their findings. They further submitted that the vetting bodies had failed to develop a coherent line of case-law concerning other issues, such as the failure of related persons to justify assets. To this, they argued, should be added the failure of the legislature to provide a more graduated range of sanctions instead of the effectively binary outcome (confirmation against dismissal).", "(c) The Court ’ s assessment", "280. Before determining whether the vetting bodies are independent and impartial, the Court will have to establish whether they constitute a “tribunal established by law” to which the applicant had access for the purposes of the Vilho Eskelinen test (see paragraph 239 above).", "(i) Whether the vetting bodies constitute a ‘ tribunal established by law ’", "(1) General principles", "281. The Court reiterates the general principles on the notion of a “tribunal established by law” as laid down in the recent Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, §§ 124-27, 211-13, 219-21, 223 and 229, 1 December 2020 ).", "282. The Court further reiterates that an authority which is not classified as one of the courts of the State may, for the purposes of Article 6 § 1, fall within the concept of a “tribunal” in the substantive sense of this expression. According to the Court ’ s settled case-law, a “tribunal” is characterised in that substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, “such as independence, in particular of the executive, impartiality, duration of its members ’ terms of office ... ” (see Guðmundur Andri Ástráðsson, cited above, § 219, and the reference cited therein). A power of decision is inherent in the very notion of “ tribunal” (see Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, § 139, 2 October 2018, and the references cited therein).", "(2) Application to the case", "283. The Court notes that, further to the Assessment Report and the Reform Strategy, the Albanian authorities introduced a number of constitutional amendments and enacted a set of essential statutes to implement the reform in the justice sector. Consequently, all serving judges, prosecutors, legal advisors and assistants were to be subject to a transitional re-evaluation process, which would be carried out by the IQC at first instance and the Appeal Chamber on appeal.", "284. The establishment and functioning of the IQC and Appeal Chamber are set forth in Article 179/b of the Constitution, as further supplemented by Articles C and F of the Annex to the Constitution and the Vetting Act, which were enacted by Parliament. In the Court ’ s view, they provide a sufficiently clear legal basis for the establishment of the vetting bodies which would be responsible for carrying out the transitional re-evaluation of judges, prosecutors, legal advisors and assistants (see paragraphs 103, 106, 112, and 122 - 28 above). That the vetting bodies were solely set up with the aim of carrying out the transitional re-evaluation process was also stated in decision no. 2/2017 of the Constitutional Court (see paragraph 169 above). In this connection, the Court points out that, for the purposes of Article 6 § 1, a tribunal need not be a court of law integrated within the standard judicial machinery. It may be set up to deal with a specific subject matter which can be appropriately administered outside the ordinary court system (see Mutu and Pechstein, cited above, § 139 ).", "285. The Court further notes that, pursuant to the Vetting Act, the IQC is empowered to deal with all questions of fact and law. It conducts the proceedings in accordance with the Vetting Act, the Code of Administrative Procedure and the Administrative Courts Act (see paragraphs 145, 152, 153 and 178 above). At the end of the proceedings, it takes a decision on the merits of the case. The decision becomes final and binding in the absence of an appeal. If the person being vetted or the Public Commissioner appeals against the IQC ’ s decision, the Appeal Chamber decides on the appeal, considering all matters of fact and law raised in the grounds of appeal. This was further reiterated by the Constitutional Court in its decision no. 2/2017 (see paragraph 176 above).", "286. In the present case, the composition of the IQC and Appeal Chamber panels was established in accordance with the law, that is, by drawing lots. The applicant did not make any specific complaint about the procedure relating to the formation of the judicial panels. The IQC, following the examination of all matters of fact and law, made a determination of the applicant ’ s case. On appeal, the Appeal Chamber examined the applicant ’ s grounds of appeal and had full jurisdiction over questions of fact and law.", "287. Lastly, both Article 179/b of the Constitution and the Vetting Act, as further evidenced by decision no. 2/2017 of the Constitutional Court, provide that the IQC and Appeal Chamber would exercise their functions independently (see paragraphs 103, 125 and 169 above).", "288. In these circumstances, the Court concludes that, having regard to the fact that both the IQC and Appeal Chamber were set up and composed in a legitimate way satisfying the requirements of a “tribunal established by law”, the applicant had access to a “court”, within the meaning of the first condition of the Vilho Eskelinen test. Article 6 § 1 of the Convention therefore applies under its civil head.", "(ii) Whether the vetting bodies are “independent and impartial”", "(1) General principles", "‒ As regards independence", "289. The Court notes that the term “independent” refers to independence vis-à- vis the other powers (the executive and the Parliament) and also vis-à-vis the parties. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence (see, amongst other authorities, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 190, ECHR 2003 ‑ VI; Oleksandr Volkov, cited above, § 103; and Denisov v. Ukraine [GC], no. 76639/11, § 60, 25 September 2018).", "290. The Court reiterates that a very close interrelationship exists between the guarantees of an “independent and impartial” tribunal and the right to a “tribunal established by law”. While they each serve specific purposes as distinct fair trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see Guðmundur Andri Ástráðsson, cited above, §§ 231 and 233).", "291. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both ( i ) a state of mind, which denotes a judge ’ s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other state powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (ibid., § 234).", "‒ As regards impartiality", "292. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and that its existence or otherwise can be tested in various ways. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to ( i ) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009 ).", "293. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal ’ s impartiality from the point of view of the external observer (the objective test), but may also go to the issue of the judge ’ s personal conviction (the subjective test) (see Kyprianou, cited above, § 119). In some cases where it may be difficult to obtain evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996 ‑ III, and Otegi Mondragon v. Spain, nos. 4184/15 and 4 others, § 54, 6 November 2018). In this connection, even appearances may be of a certain importance, or in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015).", "(2) Application to the present case", "294. In the present case, the Court, having regard to the applicant ’ s complaint of a lack of independence and impartiality on the part of the vetting bodies (see paragraph 230 above), will examine whether the requirements of an “independent and impartial” tribunal were complied with by both vetting bodies (see, for example, Clarke v. the United Kingdom ( dec. ), no. 23695/02, 25 August 2005, and Rustavi 2 Broadcasting Company Ltd and Others, cited above, § 329-64). In addition, the Court will determine whether the Appeal Chamber was a judicial body which had full jurisdiction.", "‒ The IQC", "295. To start with the IQC ’ s independence, the applicant took issue with the manner of appointment of the members of the IQC, namely their election en bloc by Parliament. The Court considers that there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. It reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, election or appointment of judges by the executive or the legislature is permissible under the Convention, provided that, once elected or appointed, they are free from influence or pressure and exercise their judicial activity with complete independence (see Sacilor-Lormines v. France, no. 65411/01, § 67, ECHR 2006 ‑ XIII; Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007; Thiam v. France, no. 80018/12, § 80, 18 October 2018; and Guðmundur Andri Ástráðsson, cited above, § 207 ).", "296. While the Court has no reason, in general, to call into question the manner in which the members of the IQC were appointed, it nevertheless remains for it to assess whether, in the present case, the IQC possessed the “appearance of independence” required by the Court ’ s case-law in terms of safeguards against extraneous pressure. The applicant failed to demonstrate that the members of the IQC which dealt with her case had received any instructions or had been subject to any pressure from the executive. The material in the case file does not disclose any evidence of such instruction or pressure being exerted on the panel by the executive. That on the eve of the IQC ’ s announcement of the operative provisions in her case the Prime Minister made a general statement about the progress of the vetting process in general, without any specific link to or mention of her case, could not be taken as an instruction or pressure exerted by the executive on the vetting bodies (see paragraphs 22 and 264 above). The Prime Minister ’ s statement contained general remarks about the ongoing developments of the vetting process and was not directed against a particular case or individual.", "297. Turning to the term of office of members, the Court notes that, pursuant to domestic law, members of the IQC have a non-renewable five-year term of office. The Court finds no issue with the fixed duration of the term of office of members of the vetting bodies. Assuming that the fixed period of time was relatively short, this is understandable given the extraordinary nature of the vetting process, as further highlighted by decision no. 2/2017 of the Constitutional Court (see paragraph 164 above).", "298. The Court further points out that what matters is the irremovability of members during their term of office, which is considered to be a corollary of their independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 80, Series A no. 80, and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013 (extracts), albeit in the context of a criminal case; see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above). The absence of any formal recognition of the irremovability of judges in the Vetting Act does not in itself imply a lack of independence, provided that it is recognised in fact and that the other necessary guarantees are present (see Sacilor-Lormines, cited above, § 67). It can be seen from the provisions of the Vetting Act that this is indeed the case. Neither the legislature nor the executive can require the resignation or removal from office of the members of the vetting bodies. Section 17 of the Vetting Act specifies the limited cases where they may be removed from office (see paragraph 127 above). The fact that they can only be removed in the event of the commission of a disciplinary breach, in accordance with the procedure prescribed by law, does not call into question the necessary guarantees for their irremovability, which are present in this case.", "299. As regards the non-representation of serving judges in the IQC, the Court has indeed pointed to the need for substantial representation of judges within the relevant disciplinary body (see Oleksandr Volkov, cited above, § 109). This need is all the more important in ordinary disciplinary proceedings against judges and prosecutors. However, the Court must take account of the extraordinary nature of the vetting process of judges and prosecutors in Albania. This process was introduced in response to the urgent need, as assessed by the national legislature, to combat widespread levels of corruption in the justice system. It consists of the assessment of three criteria and precisely targets all serving judges and prosecutors. It is for this reason that the vetting process of judges and prosecutors in Albania is sui generis and must be distinguished from any ordinary disciplinary proceedings against judges or prosecutors.", "300. In the Court ’ s view, the fact that members of the IQC did not come from amongst serving professional judges was consistent with the spirit and goal of the vetting process, namely to avoid any individual conflicts of interest and ensure public confidence in the process. The Court further refers to the strict eligibility requirements that members of the IQC were expected to satisfy (see paragraph 123 above). It notes that those members were elected by Parliament in accordance with the procedure prescribed by law (see paragraph 124 above). Furthermore, the status of IQC members is the same as that of Supreme Court judges (see paragraph 106 above).", "301. That the Government awarded the IQC an end-of-year bonus in 2018 in recognition of their work is not sufficiently capable, in the Court ’ s view, of calling into question their members ’ independence. The Court notes that the IQC has a statutory obligation to decide the merits of each case independently (see paragraphs 103 and 125 above), and that, as stated above, the applicant failed to demonstrate that its members had not acted independently in her case.", "302. The Court further emphasises the importance of the guarantees laid down in the domestic legislation, namely that the IQC has complete discretion in deciding on its organisational structure and personnel; it does not take instructions or directions from the executive. In addition, it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above).", "303. Lastly, the Venice Commission and the Constitutional Court concluded that the IQC embodied the characteristics of an independent judicial body (see paragraphs 158 and 169 above).", "304. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence on the part of the IQC.", "305. Turning to its impartiality, the Court notes that the applicant did not contest the IQC members ’ subjective impartiality. The Court finds no reason to hold otherwise. According to the applicant, the fear of a lack of impartiality was based on the fact that the IQC carried out the preliminary investigation and subsequently decided on the merits of her case. The Court appreciates that this situation might have given rise to certain misgivings on the part of the applicant as to the impartiality of the IQC, and considers that the case must be examined from the perspective of the objective impartiality test. More specifically, it must address the question of whether the applicant ’ s complaint of a lack of IQC impartiality may be regarded as objectively justified in the circumstances of her case.", "306. The Court notes that, unlike ordinary disciplinary proceedings, the vetting proceedings did not commence upon the filing of a complaint or a charge of misconduct. As a result of the automatic operation of the Vetting Act (see paragraph 144 above), the IQC opened an investigation into the three declarations that the applicant had filed (see paragraph 12 above) rather than on the basis of its own findings that disciplinary proceedings had to be brought against her. As a matter of fact, the IQC did not assume the role of a prosecutor by bringing any charges or accusations against the applicant ( compare and contrast Kamenos, cited above, § 105). Its tasks were thus exclusively limited to the re-evaluation of the three criteria laid down in the Annex to the Constitution and the Vetting Act. At the end of the investigation, the IQC made preliminary findings, without drawing any conclusions, and confronted the applicant with those findings, in response to which she was invited to put forward her defence.", "307. When giving a decision at the conclusion of the proceedings, the IQC assessed whether the evidence that had been obtained, including the arguments and documents that the applicant had provided in reply, sufficed to confirm her in her position or impose a disciplinary sanction in accordance with the Vetting Act (see paragraph 150 above, and compare and contrast Kamenos, cited above, § 107). A preliminary finding based on the available information, without the benefit of the applicant ’ s defence, cannot by itself be regarded as entailing any prejudice on the final conclusion to be drawn after the applicant’s arguments have been presented at an oral hearing. What is important is for the final decision to be taken on the basis of all the available elements, including the evidence produced and the arguments made at the hearing (see, for example, Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Morel v. France, no. 34130/96, § 45, ECHR 2000 ‑ VI ).", "308. There is therefore no confusion between the IQC ’ s statutory obligation to open the investigation, in which no charges or findings of misconduct were made against the applicant, and its duty to take a decision on the applicant ’ s disciplinary liability. Such a procedural arrangement is not uncommon in disciplinary or other administrative proceedings in European legal systems. In the Court ’ s view, the mere fact that the IQC made preliminary findings in the applicant ’ s case is not sufficient to prompt objectively justified fears as to the IQC ’ s impartiality.", "‒ The Appeal Chamber", "309. Turning to the Appeal Chamber, the Court notes that the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber. Subsequently, she made additional elaborate submissions challenging each finding made by the IQC. In its decision, the Appeal Chamber, having regard to the applicant ’ s submissions, addressed each of the grounds of her appeal. It even reversed some of the IQC ’ s findings, following a fresh assessment of the evidence in the case file and consideration of the applicant ’ s submissions, thus substituting its own findings of fact for those of the IQC. The Vetting Act and the Annex to the Constitution further empower the Appeal Chamber to quash an IQC decision in its entirety (see paragraphs 112 and 154 above). In these circumstances, the Court is satisfied that the Appeal Chamber, following the examination of the applicant ’ s written appeal and submissions, had full review jurisdiction and gave a detailed decision addressing each of the grounds of her appeal.", "310. Lastly, the Court will examine whether the Appeal Chamber complied with the requirements of independence and impartiality.", "311. As regards the “appearance of independence” of the Appeal Chamber, the applicant did not put forward any facts capable of calling into question its independence from the executive and the legislature.", "312. The Court notes that the members of the Appeal Chamber are appointed, in accordance with the procedure prescribed by the Vetting Act, for a non-renewable term of nine years, which is longer than the term of office of IQC members. The members of the Appeal Chamber enjoy the same status as Constitutional Court judges (see paragraph 106 above). Domestic law further guarantees that members of the Appeal Chamber are appointed as appellate court judges at the end of their term of office (see paragraph 207 above).", "313. The irremovability of members of the Appeal Chamber from office, despite the absence of any formal recognition thereof, is also guaranteed by the Vetting Act in the same way as for IQC members. They can be dismissed from office, in accordance with the procedure prescribed by law, in the event of a disciplinary breach. The fact that members of the Appeal Chamber are subject to disciplinary proceedings and bound by rules of judicial discipline and ethics is not in itself a reason to doubt their independence (see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above).", "314. As regards the non-representation of judges in the Appeal Chamber, the Court refers to its findings in paragraphs 299 - 300 above. It also refers to its findings in paragraph 301 above regarding the end-of-year bonus awarded in 2018. It further takes note of the statutory safeguards which likewise apply to the Appeal Chamber, namely that ( i ) it decides the merits of each case independently, (ii) it has complete discretion in deciding on its organisational structure and personnel; (iii) it does not take instructions or directions from the executive, and (iv) it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above). The conduct of the proceedings is further monitored by international observers, which would appear to constitute an additional safeguard (see paragraphs 105, 129 and 130 above). It goes without saying that members of the vetting bodies are subject to the law in general and to the rules of professional ethics in particular (see paragraph 125 above).", "315. As regards an alleged lack of impartiality, the applicant failed to adduce any arguments capable of being examined on the merits.", "316. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence and impartiality on the part of the Appeal Chamber.", "‒ Conclusion", "317. It follows that both the IQC and Appeal Chamber were independent and impartial. Accordingly, there has been no violation of Article 6 § 1 of the Convention in this respect.", "Compliance with the requirement of fairness", "(a) The parties ’ submissions", "318. The applicant contended that the proceedings before the IQC had lacked the minimum procedural safeguards: she had not been properly informed of the “accusation” made by the IQC and had not had sufficient time to prepare an adequate defence. The IQC had not mentioned any issues relating to the inaccuracy of annual declarations of assets or to possible concealment of assets as part of the findings of the administrative investigation.", "319. As the main point of contention of her appeal related to her partner ’ s lawful income for the purchase of the flat measuring 101 sq. m, the applicant had appended two items of evidence to her appeal to the Appeal Chamber, namely a certificate issued by the Albanian company with which her partner had entered into a conditional sales contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001 (see paragraph 52 above). Even though both pieces of evidence had been significant for the outcome of the case, the Appeal Chamber had refused to admit the evidence to the case file, giving vague and insufficient reasons in its decision.", "320. Lastly, the applicant alleged that the IQC appeared to have questioned representatives of the company with which her partner had entered into the 2003 conditional sales contract, but had failed to disclose this in the proceedings, thus giving rise to a breach of the principle of equality of arms.", "321. The Government submitted that the applicant ’ s new pieces of evidence had not been admitted to the case file as they had not complied with the provisions of section 49(2) of the Administrative Courts Act. She had also failed to argue under section 47 of the Administrative Courts Act that she had been unable to submit the evidence to the IQC. Furthermore, the Appeal Chamber had refused to include the evidence, in accordance with section 49(6) of the Administrative Courts Act.", "322. In the Government ’ s view, the Appeal Chamber had had full jurisdiction over questions of fact and law. Not only had the Appeal Chamber had jurisdiction to review the case decided by the IQC, it had also exercised constitutional review powers in order to guarantee the applicant ’ s right to an effective appeal before a court. Having regard to its powers, the Appeal Chamber could either uphold or quash the IQC ’ s decision, by giving a reasoned ruling in writing. Both the Venice Commission and the Constitutional Court had highlighted this role.", "323. The Government maintained that the applicant had been represented by a lawyer of her own choosing before the Appeal Chamber. She had not advanced any arguments before the Appeal Chamber that she had lacked adequate time or sufficient facilities to mount her defence. Nor had she made any requests to be granted additional time to familiarise herself with the evidence or present new evidence.", "(b) The Court ’ s assessment", "(i) General principles", "324. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011).", "325. Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‐I). It is for the national courts to assess the relevance of proposed evidence, its probative value and the burden of proof (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 198, ECHR 2012, and Lady S.R.L. v. the Republic of Moldova, no. 39804/06, § 27, 23 October 2018).", "326. The Court notes that the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to judicial proceedings to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is, duly considered by the domestic courts. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004 ‑ I).", "327. While Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based, it does not require a detailed answer to every argument put forward by a complainant. This obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A).", "328. In view of these relevant general principles, the Court will determine whether the proceedings, taken as a whole, were fair.", "(ii) Application to the present case", "329. The Court notes that, owing to the applicant ’ s inclusion on a priority list of individuals to be subject to transitional re-evaluation, the IQC launched the administrative investigation into the three declarations that the applicant had filed pursuant to the Vetting Act (see paragraph 12 above). The commencement of the investigation was in accordance with the Vetting Act (see paragraph 144 above). At the conclusion of that investigation, the IQC informed the applicant of its preliminary findings. The report expressly stated that preliminary findings had been made to the effect that there had been, amongst other things, ( i ) inconsistencies in relation to the source of income of assets, (ii) a lack of supporting documents relating to the sources of funds which had been used for the acquisition of assets, (iii) insufficient lawful income to justify the excessive amount of liquid assets during certain years, and (iv) inconsistencies in relation to the applicant ’ s share in certain assets (see paragraph 15 above).", "330. The IQC made the preliminary findings having examined all the documents it had obtained from various institutions as well as explanations and information that the applicant had provided in reply to its questions. Furthermore, the report referred to the documents which had served as the basis for those findings. In the Court ’ s view, the information that the applicant obtained following the conclusion of the administrative investigation should have enabled her to comprehend the seriousness of the preliminary findings with a view to putting up an adequate defence.", "331. That the applicant alleged that the IQC had withheld certain evidence is mere conjecture which has been introduced tardily and has not been substantiated by any evidence.", "332. Throughout the proceedings before the IQC, in particular after the shifting of the burden of proof onto the applicant to rebut its preliminary findings, she submitted extensive arguments in her defence and filed numerous written submissions. She was granted access to the case file and to the methodology used to calculate expenses in order to mount a defence. She was given time to submit her pleadings (see paragraph 16 above). There is no indication that she lacked the time and facilities to prepare an adequate defence, as it would appear that she did not make a request or raise concerns to this effect before the IQC or Appeal Chamber.", "333. Lastly, the Court observes that the IQC had full jurisdiction over all matters of fact and law. It was specifically set up to interpret and apply the Vetting Act. The assessment of the facts indeed required specialised knowledge or specific professional experience, which is why the Vetting Act indicated the auxiliary bodies that would assist the IQC in discharging its duties (see paragraphs 135 - 42 above). This was also emphasised in the decision of the Constitutional Court, which furthermore added that the ultimate decision-making would lie with the IQC (see paragraphs 169 - 70 above). In the applicant ’ s case, the IQC gave a decision stating adequate reasons for her dismissal from judicial office.", "334. Following notification of the IQC ’ s decision, the applicant, who continued to be represented by a lawyer of her own choosing, lodged an extensive appeal with the Appeal Chamber, challenging, amongst other things, the factual evidence that had served as the basis for her dismissal. She also made further written submissions. It is evident from the Appeal Chamber ’ s decision that it examined point by point the grounds of her appeal and scrutinised the findings of fact and law made by the IQC, thus complying with the requirement of “full jurisdiction” in the proceedings before it, as autonomously defined in the light of the object and purpose of the Convention (see Ramos Nunes de Carvalho e Sá, cited above, § 177). Having re-examined the facts and the material in the case file, the Appeal Chamber upheld some of the findings made by the IQC, substituted the assessment made by the IQC for its own and overturned some of the IQC ’ s other findings. In the Court ’ s view, the Appeal Chamber acted consistently with Article F of the Annex to the Constitution and the Vetting Act, which provided that it could uphold, amend or quash an IQC decision (see paragraphs 112 and 154 above).", "335. In this connection, the Court considers that the Appeal Chamber gave sufficient reasons for its decision, replying to each of the grounds of the applicant ’ s appeal. The Court is also satisfied that the Appeal Chamber provided adequate reasons for not accepting new evidence which the applicant had submitted to it (see paragraph 60 above). Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based. This obligation presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see paragraph 327 above).", "336. In the light of all of the aforementioned circumstances, the Court concludes that there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings.", "Compliance with the requirement to hold a public hearing before the Appeal Chamber", "(a) The parties ’ submissions", "337. The applicant submitted that the Appeal Chamber should have held a public hearing in her case in view of the grounds of appeal she had raised, which had disputed matters of fact and law. The Vetting Act did not provide for the possibility of a public hearing before the Appeal Chamber, nor could she submit a request to this effect. There had been no exceptional circumstances to justify dispensing with a public hearing before the Appeal Chamber.", "338. The Government argued that the applicant had failed to request a public hearing before the Appeal Chamber, which, in turn, had stated that a public hearing was unnecessary in the circumstances of the present case. The Appeal Chamber ’ s decision had been taken in accordance with section 51 of the Administrative Courts Act.", "(b) The Court ’ s assessment", "339. The Court has held that the right to a public hearing under Article 6 § 1 implies a right to an oral hearing before at least one instance (see, amongst other authorities, Fischer v. Austria, 26 April 1995, § 44, Series A no. 312). The absence of a hearing at second or third instance may be justified by the special features of the proceedings concerned, provided a hearing has been held at first instance (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002). While not relevant for the present case, the Court notes, conversely, that the lack of a public hearing at first instance may be remedied if a public hearing is held at the appeal stage, provided that the scope of the appellate proceedings extends to matters of law and fact (see, for example, in a disciplinary context, Buterlevičiūtė v. Lithuania, no. 42139/08, §§ 52-54, 12 January 2016).", "340. While the obligation to hold a hearing is not absolute, the Court has held that, in the context of disciplinary proceedings against judges, in view of what is at stake, namely the impact of the possible penalties on the lives and careers of the persons concerned and their financial implications, dispensing with an oral hearing altogether should be an exceptional measure and should be duly justified in the light of its case-law (see Ramos Nunes de Carvalho e Sá, cited above, § 210).", "341. Turning to the present case, in the first place, the Court observes that the IQC, which was independent and impartial, held a public hearing in which the applicant was represented by a lawyer of her own choosing, made oral pleadings and submitted further evidence in writing ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). In order to examine this additional evidence, the IQC had to adjourn without taking a decision in the applicant ’ s case.", "342. Secondly, there is no indication from her appeal and additional written submissions that the applicant requested a public hearing on appeal ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). While the Vetting Act does not expressly provide for or bar the possibility of a public hearing before the Appeal Chamber, the Court notes that the vetting bodies apply, inter alia, the procedures set out in the Administrative Courts Act whenever such procedures have not been set out in the Vetting Act (see paragraph 125 above). In this connection, section 51 of the Administrative Courts Act lists down the conditions for the holding of a public hearing on appeal (see paragraph 196 above). The Appeal Chamber, despite the absence of a request from the applicant for this purpose, provided adequate reasons in its decision not to hold a public hearing in the applicant ’ s case (see paragraph 61 above).", "343. Lastly, the Court will determine whether, despite the holding of a public hearing before the IQC and despite the absence of a request to that effect by the applicant before the Appeal Chamber, the nature of the proceedings required that a public hearing on appeal be held. In this connection, the Court notes that the applicant had ample opportunity to present her case in writing to the Appeal Chamber (compare Vilho Eskelinen, cited above, § 74). The grounds of appeal related, for the most part, to legal issues or rather technical questions concerning the evaluation of assets that could be dealt with satisfactorily on the basis of the case file alone ( see, mutatis mutandis, respectively, Varela Assalino v. Portugal ( dec. ), no. 64336/01, 25 April 2002, and Schuler- Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263). The proceedings did not require the hearing of witnesses or the taking of other oral evidence. Having regard to the foregoing, the Court does not find that the nature of the proceedings required a public hearing on appeal before the Appeal Chamber.", "344. There has accordingly been no breach of Article 6 § 1 of the Convention as regards the lack of a public hearing before the Appeal Chamber.", "Compliance with the principle of legal certainty", "(a) The parties ’ submissions", "345. The applicant submitted that the Vetting Act did not provide any specific statutory limitations as regards the evaluation of assets. This had allowed the vetting bodies to examine transactions that had taken place in the very distant past, leading to an unreasonable shifting of the burden of proof. The applicant had ultimately been dismissed from office on account of circumstances and facts dating back as early as the 1990s, in order to justify the purchase of a flat with her partner ’ s income. The far-reaching temporal scope of the vetting process had put the applicant in an impossible position for objective reasons.", "346. The Government submitted that the IQC had launched a thorough investigation into the declaration of assets that the applicant had filed pursuant to the Vetting Act. The IQC had used as evidence annual declarations of assets which the applicant and her partner had filed with HIDAACI. The verification and comparison of all the declarations of assets had enabled the IQC to track the progress and truthfulness of the disclosure of assets and draw conclusions on the sufficiency of the disclosure or the lawfulness of income over the years, as well as on the source used for the creation of assets. Upon the closure of the administrative investigation, the IQC considered that the evidence it had obtained had a probative value towards establishing the facts and circumstances surrounding the applicant ’ s case.", "347. In these circumstances, it had informed the applicant of its preliminary findings and shifted the burden of proof onto her in order to prove the contrary. Each finding had been supported by the evidence on which it was based. It had been open to the applicant to determine how to best mount her defence and provide any documents in support of her defence. She had had to show that she had taken all the steps to obtain or procure evidence in support of her claims, at the conclusion of which the vetting bodies would determine whether a failure to provide any supporting documents had been justified on reasonable grounds. Such a procedural guarantee had been introduced to address the post-1990s situation in Albania and had warranted, in observance of the principle of proportionality, a discretionary assessment of each case by the vetting bodies, without hindering or tainting the successful outcome of the vetting proceedings.", "(b) The Court ’ s assessment", "348. The Court has held that limitation periods serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent any injustice which might arise if the courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time. Limitation periods are a common feature of the domestic legal systems of the Contracting States as regards criminal, disciplinary and other offences (see Oleksandr Volkov, cited above, § 137).", "349. However, the Court considers that the special features of the widely used processes of audit of assets must also be taken into account. In the Court ’ s view, given that personal or family assets are normally accumulated over the course of working life, placing strict temporal limits for the evaluation of assets would greatly restrict and impinge on the authorities ’ ability to evaluate the lawfulness of the total assets acquired by the person being vetted over the course of his or her professional career. In this connection, an evaluation of assets manifests certain specificities, unlike ordinary disciplinary enquiries, which would call for a greater degree of flexibility to be granted to the respondent State for the application of statutory limitations, consistent with the objective of restoring and strengthening public trust in the justice system and ensuring a high level of integrity expected of members of the judiciary. This is all the more true in the Albanian context where prior verification of declarations of assets had not been particularly effective (see paragraphs 220 and 272 above). Finally, it can also be a matter of interpretation as to when exactly a specific disciplinary offence may have occurred in this context, that is, whether at the time the asset was initially acquired or at a later point in time when the asset was disclosed in a periodic declaration of assets. At the same time, such flexibility cannot be unlimited and the implications for legal certainty and an applicant ’ s rights under Article 6 § 1 of the Convention should be considered on a case-by-case basis.", "350. Turning to the present case, the Court notes that the applicant ’ s judicial career started in 1995 and continued uninterruptedly until her removal from office in 2018. The adverse findings against her were based both on the disclosure made in her vetting declaration of assets and prior asset declarations filed by her and her partner. The objective of the evaluation of assets was to check the lawfulness of the source of acquisition of assets and verify the truthfulness of the vetting declaration of assets against prior annual declarations of assets. It was for this reason that the vetting bodies would use as evidence prior annual declarations of assets that she had filed with HIDAACI to ensure that all assets, including the lawful financial sources which had served as a basis for their acquisition, had been accurately disclosed and justified.", "351. The vetting bodies examined assets of which the underlying financial sources had been secured in the 1990s or 2000s. It is understandable that the applicant was placed in a somewhat difficult position to justify the lawful nature of the financial sources owing to the passage of time and the potential absence of supporting documents. However, this situation was partly due to the applicant ’ s own failure to disclose the relevant asset at the time of its acquisition, which was much closer in time to the period during which the underlying financial sources had been secured by her and her partner. In addition, the Court observes that section 32(2) of the Vetting Act provides attenuating circumstances if a person being vetted faces an objective impossibility to submit supporting documents (see paragraph 136 above). In the applicant ’ s case, the vetting bodies held that the applicant had not provided any supporting documents justifying the existence of an objective impossibility to demonstrate the lawful nature of her partner ’ s income from 1992 to 2000 (see paragraphs 28 and 69 above). The Court further considers it important to note the Appeal Chamber ’ s finding that the applicant ’ s partner ’ s savings, even if they were to be accepted as claimed, would have not sufficed to buy the asset in question (see paragraph 70 above).", "352. The Court further reiterates that it is not per se arbitrary, for the purposes of the “civil” limb of Article 6 § 1 of the Convention, that the burden of proof shifted onto the applicant in the vetting proceedings after the IQC had made available the preliminary findings resulting from the conclusion of the investigation and had given access to the evidence in the case file (see Gogitidze and Others v. Georgia, no. 36862/05, § 122, 12 May 2015, in the context of forfeiture proceedings in rem, and, mutatis mutandis, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, §§ 37-49, 23 September 2008, in the context of a confiscation order in drug-trafficking cases).", "353. Consequently, the Court finds that, having regard to the evaluation process of personal or family assets amassed during a judge ’ s professional lifetime, the attenuating circumstances provided for in the Vetting Act, the applicant ’ s failure to submit supporting documents attesting to the objective impossibility to demonstrate the lawful nature of her partner ’ s income and her own omission to disclose the asset at the relevant time she had acquired it, there has been no violation of Article 6 § 1 of the Convention as regards the alleged breach of the principle of legal certainty.", "Alleged violation of Article 8 of the Convention", "354. The applicant complained that there had been a breach of Article 8 of the Convention on account of her unlawful and arbitrary dismissal from office and the lifetime ban imposed on her practising law.", "355. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private ... life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityAs regards the complaint concerning the applicant ’ s dismissal from office", "As regards the complaint concerning the applicant ’ s dismissal from office", "As regards the complaint concerning the applicant ’ s dismissal from office", "(a) The parties ’ submissions", "356. Referring to the Court ’ s judgment in the case of Denisov (cited above), the Government contended that Article 8 was not applicable as the applicant had failed to demonstrate that the threshold of severity had been attained in respect of the three criteria elaborated therein. Furthermore, the imposition of a disciplinary sanction could not in itself give rise to a breach of reputation if no serious consequences resulted therefrom. The Government further submitted that the applicant had failed to invoke a breach of Article 8 of the Convention before the Appeal Chamber.", "357. The applicant maintained that her dismissal from office had satisfied the threshold of the criteria laid down in Denisov (cited above), as a result of which Article 8 was applicable. She had appealed against her dismissal, the consequences of which were evident in her private life, before the Appeal Chamber. In those circumstances, she had exhausted all domestic remedies.", "(b) The Court ’ s assessment", "(i) Applicability of Article 8", "358. As the Government have contested the applicability of Article 8 of the Convention to the applicant ’ s case, the Court will first examine this plea of inadmissibility.", "(1) General principles", "359. In the case of Denisov (cited above), the Grand Chamber confirmed that employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. These aspects include ( i ) the applicant ’ s “inner circle”, (ii) the applicant ’ s opportunity to establish and develop relationships with others, and (iii) the applicant ’ s social and professional reputation. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measures (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach – ibid., § 115).", "360. If the consequence-based approach is applied, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to convincingly show that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov, cited above, § 116 ).", "361. The Court has established criteria for assessing the severity or seriousness of alleged violations in different regulatory contexts. An applicant ’ s suffering is to be assessed by comparing his or her life before and after the measure in question. The Court further considers that in determining the seriousness of the consequences in employment-related cases it is appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. This analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remains for the applicant to define and substantiate the nature and extent of his or her suffering, which should have a causal connection with the impugned measure. Having regard to the rule of exhaustion of domestic remedies, the essential elements of such allegations must be sufficiently raised before the domestic authorities dealing with the matter (see Denisov, cited above, § 117).", "(2) Application of the general principles to the present case", "362. The Court notes that, in assessing the applicability of Article 8 in the present case, that provision cannot be applicable under the reason-based approach: the applicant ’ s dismissal from judicial office related to her position as a judge and had no connection with her private life. While acquisition or creation of assets could be considered to be an aspect of private life, it is not the number or size of assets or an individual ’ s lifestyle as such that could give rise to disciplinary liability, but the individual ’ s inability to justify the lawfulness of the source used for their acquisition or creation and to ensure public trust in his or her integrity. In any event, the Court considers that an audit of assets does not involve an intimate aspect of private conduct that is itself treated as an ethical breach (contrast Özpınar v. Turkey, no. 20999/04, 19 October 2010).", "363. As far as the consequence-based approach is concerned, the Court observes the following. The applicant was dismissed from her judicial post pursuant to the Vetting Act, losing all her remuneration with immediate effect (see Polyakh and Others, cited above, § 208-09; contrast J.B. and Others v. Hungary ( dec. ), no. 4543 4/12 and 2 others, §§ 132-33, 27 November 2018 and Camelia Bogdan v. Romania, no. 36889/18, §§ 85-86, 20 October 2020). This undoubtedly had serious consequences for her “inner circle”, that is, her well-being and family members. Additionally, the vetting bodies further examined her professional competence and found that she had undermined public trust in the justice system (contrast J.B. and Others ( dec. ), cited above, § 136 ). A further consequence of this finding is that in the eyes of society, the applicant was and continues to be stigmatised as being unworthy of performing a judicial function.", "364. In view of these observations, the Court considers that Article 8 of the Convention applies in the present case and therefore rejects the Government ’ s objection.", "(ii) Exhaustion of domestic remedies", "365. Having found that Article 8 applies to the present case, the Court reiterates that the applicant challenged the IQC ’ s decision by lodging an appeal with the Appeal Chamber. The detailed grounds of appeal challenged each finding made by the IQC which led to her dismissal, affecting her right to respect for her private life. The Appeal Chamber did not decline jurisdiction in the matter, but examined the case on the merits in accordance with the Vetting Act.", "366. In view of the above, by pursuing the avenue of redress provided for in the Vetting Act, the Court concludes that the applicant raised in substance her complaints under Article 8 and thus complied with the requirements of Article 35 § 1 of the Convention. The Government ’ s objection of non-exhaustion of domestic remedies must therefore be rejected.", "(iii) Conclusion", "367. The Court, noting that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, declares it admissible.", "As regards the complaint concerning the lifetime ban on the applicant ’ s practising law", "(a) The parties ’ submissions", "368. The Government submitted that the applicant had failed to raise this complaint under Article 8 before the domestic authorities. She had not instituted any legal proceedings, this right having a separate and independent existence from the outcome of the vetting proceedings. The Government further submitted that this complaint was manifestly ill-founded as the conditions provided for in the Lawyers ’ Act did not intend to preclude individuals removed from the judiciary as a result of the vetting proceedings from practising law.", "369. The applicant submitted that she was in possession of a licence to practise law. The gist of her complaint was, however, that she risked being disbarred, pursuant to the Lawyers ’ Act, without any possibility of becoming a member of the Chamber of Advocates.", "(b) The Court ’ s assessment", "370. The Court reiterates that, in order to be able to lodge an application under Article 34, a person must be able to claim to be a victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. However, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risks being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (see, for example, Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, and the references cited therein, and Michaud v. France, no. 12323/11, § 51, ECHR 2012).", "371. In the present case, the Court notes that the proceedings were governed by, and concluded in pursuance of, the Vetting Act. The vetting bodies did not take any decision whatsoever concerning the applicant ’ s right to practise law; nor did they make any reference, even implicitly, to the provisions of the Lawyers ’ Act. Furthermore, the applicant submitted that she was in possession of a licence to practise law. In these circumstances, the Court notes that she cannot claim to be a victim of a breach of her rights under Article 8 of the Convention.", "372. That the applicant alleges to become a potential victim in the future on account of a risk of being disbarred, pursuant to the Lawyers ’ Act (see paragraph 208 above), is a mere suspicion or conjecture on her part. To date, she has not been affected by an adverse individual decision taken against her. In the Court ’ s view, it is open to her to challenge any unfavourable decision that the Chamber of Advocates might take against her in the future before a court of law, and thus provide the respondent State the possibility of remedying any alleged violation of her Convention rights, as required by Article 35 § 1 of the Convention. Furthermore, the applicant did not demonstrate that the scope of application of the Lawyers ’ Act was specifically directed against judges or prosecutors against whom a decision had been given in the course of vetting proceedings (compare and contrast Tănase, cited above, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 ). In sum, the applicant would not be required to modify any conduct under the Lawyers ’ Act; she would be subject to the statutory requirements of that Act.", "373. Consequently, the Court holds that, in the circumstances of the present case, this complaint is incompatible ratione personae and must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "Merits", "374. The Court will now examine whether on account of the applicant ’ s dismissal from office there was an interference with the applicant ’ s right to respect for her private life, and if so, whether the interference was justified.", "Whether there was an interference", "(a) The parties ’ submissions", "375. The applicant contended that the decision to dismiss her from judicial office had constituted interference under Article 8 of the Convention.", "376. In view of their submissions relating to the non-applicability of Article 8 of the Convention, the Government maintained that there had been no interference in the present case.", "(b) The Court ’ s assessment", "377. In view of the considerations in paragraphs 363 and 364 above regarding the applicability of Article 8 of the Convention, the Court considers that, as a result of her dismissal from office, there has been an interference with the applicant ’ s right to respect for her private life (see, for example, Özpınar, cited above, §§ 47-48, and Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, § 138, 19 January 2017).", "378. The above-mentioned interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Jankauskas v. Lithuania (no. 2), no. 50446/09, § 71, 27 June 2017).", "Whether the interference was “in accordance with the law”", "(a) The parties ’ submissions", "379. The applicant submitted that the statutory provisions of the Vetting Act lacked clarity and accessibility. In particular, there was a lack of clarity relating to the method used by the vetting bodies to calculate living and travel expenses. Also, the Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law in relation to her participation in the Constitutional Court bench which had examined the constitutional appeal lodged by a member of the public. In her case, the vetting bodies had had unfettered discretion in the interpretation and application of the Vetting Act.", "380. The Government submitted that the provisions of the Vetting Act were clear, well defined and comprehensible. The Act did not contain any contradictions and its provisions provided for certainty, clarity and continuity. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act.", "381. According to the Government, the basis for finding an insufficient declaration of assets was the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber.", "382. The Government submitted that living expenses were calculated by reference to an individual ’ s declaration, evidence obtained by the vetting bodies from national and foreign institutions, prior declarations of assets and evidence collected by banking and non-banking institutions. Such evidence would be subject to adversarial proceedings, as a result of which the person being re-evaluated would be invited to submit his or her own evidence in support of his or her position. All the evidence would be subject to numerical and logical checks and the IQC would make an individualised decision in respect of each case, regard being had to its factual specificities.", "383. The Government submitted that the determination of whether an individual had undermined public trust in the justice system resulted from the examination of the evidence by the vetting bodies.", "(b) The Court ’ s assessment", "384. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its consequences (see, among other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)). In order for the law to meet the requirement of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the person concerned – if need be, with appropriate advice – to regulate his or her conduct (see, as a recent example, Altay v. Turkey (no. 2), no. 11236/09, § 54, 9 April 2019).", "385. The Court notes that, following the examination of the re-evaluation criteria, the applicant was dismissed from office on two main grounds. Firstly, as regards the evaluation of assets, she was found to have made a false declaration and concealed the flat measuring 101 sq. m. Secondly, as regards the evaluation of professional competence, the applicant had undermined public trust by failing to recuse herself from the examination of a constitutional complaint. The Court will examine each of the grounds below in order to determine whether the interference was in accordance with the law.", "386. As regards the false disclosure and concealment of a flat measuring 101 sq. m, the Court notes that the vetting bodies ’ decisions were based on the Vetting Act and prior legislation on asset disclosure. Not only had the Vetting Act been published, it had also been subject to constitutional review proceedings. In the Court ’ s view, the interference met the qualitative requirements of accessibility and foreseeability.", "387. As regards the finding that the applicant had undermined public trust in the justice system, the Court notes that even though this ground for dismissal from office is formulated in rather broad terms, it is not uncommon to have such a provision in disciplinary law and rules of judicial discipline. That provision should normally be read and interpreted in conjunction with other more specific disciplinary rules, as in force at the material time, sanctioning breaches of an ethical or professional nature. In the present case, the grounds provided for in the Vetting Act were supplemented by the statutory provisions in force at the relevant time governing the recusal of Constitutional Court judges and other judges, namely section 36(1)(c) of the Constitutional Court Act and Article 72 of the CCP, to which the IQC and Appeal Chamber referred in their decisions. In these circumstances, the Court finds that the interference was sufficiently foreseeable.", "388. The Court is satisfied that the interference with the applicant ’ s private life was in accordance with the law, as required by Article 8 § 2 of the Convention. The Court will therefore examine below whether such interference pursued one or more of the legitimate aims listed in Article 8 § 2 of the Convention, and whether it was “necessary in a democratic society” in order to achieve the aim or aims concerned.", "Whether the interference pursued a legitimate aim", "(a) The parties ’ submissions", "389. The applicant contended that the interference had not pursued any legitimate aim. The legitimate aim put forward in the Government ’ s submissions, namely the cleansing of the judiciary from corruption, could have been achieved by less intrusive means, such as compulsory training for judges. The European Commission had not called for a widespread vetting of the serving judges and prosecutors in order to eradicate corruption.", "390. The Government submitted, with reference to the Assessment Report, that a number of problems had been identified. Those problems had warranted the need to introduce structural changes, which had culminated with the constitutional amendments and the enactment of a set of essential statutes. The Government referred to the legitimate aims which the Constitutional Court had identified in the abstract constitutional review of the Vetting Act.", "(b) The Court ’ s assessment", "391. The Court notes that the Assessment Report referred to a number of public perception surveys and numerous reports which demonstrated a high incidence of corruption in the justice system (see paragraph 4 above). In this connection, GRECO had also highlighted the pervasive extent of corruption in the judiciary in its reports since 2002 (see paragraphs 217 - 20 above).", "392. It is important to note that the aim of the Vetting Act, as stated in section 1, is to “guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system” (see paragraphs 102 and 120 above). The Venice Commission also stated that the vetting of judges and prosecutors “was not only justified but necessary to protect [the country] from the scourge of corruption, which, if not addressed, could completely destroy the judicial system” (see paragraph 96 above). The Constitutional Court further added that any restrictions imposed by the Vetting Act were justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others (see paragraph 175 above).", "393. In these circumstances, the Court sees no reason to doubt that the aim pursued by the Vetting Act in general, and the interference in the applicant ’ s case in particular, was consistent with aims identified in the Constitutional Court ’ s decision and in the interests of national security, public safety and the protection of the rights and freedoms of others, as listed in Article 8 § 2 (see also Ivanovski, cited above, 179).", "Whether the interference was “necessary in a democratic society”", "(a) The parties ’ submissions", "(i) The applicant", "394. The applicant submitted that her dismissal from office had been disproportionate. The vetting bodies had not given adequate reasons justifying her dismissal from office. They had not considered that she had been faced with an objective impossibility to demonstrate the lawful sources of income which her partner had earned more than twenty years earlier. Furthermore, the vetting bodies had extensively interpreted the domestic law and unjustly found that she had been a party to the 2003 and 2005 off-plan contracts.", "395. In her view, her partner ’ s living expenses in the 1990s had been wrongly determined on the basis of the Italian Institute of Statistics data for the years 2002 to 2004. Some travel expenses had been arbitrarily attributed to her, even though they had been incurred for business purposes and had been borne by the host institutions.", "396. The vetting bodies had overstepped the boundaries demarcated by the Vetting Act and dismissed her on account of annual declarations of assets which she had filed with HIDAACI and in respect of which there had been a positive assessment. The Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law. Furthermore, the vetting bodies had singled out just one episode in her 20-year long career.", "397. In the applicant ’ s view, there were no procedural safeguards to prevent an arbitrary application of the law. The legislation did not set out an appropriate scale of sanctions for disciplinary offences, and no rules had been developed to ensure their application in accordance with the principle of proportionality.", "(ii) The Government", "398. The Government submitted that the applicant had been subject to the vetting proceedings, which had to be distinguished from ordinary disciplinary proceedings. Her statutory obligations to disclose assets had already been enshrined in law since 2003. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of the applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act.", "399. The legislature had provided for the existence of an objective impossibility that persons to be vetted would face in obtaining evidence. This was due to ( i ) the country ’ s legacy emerging from a communist regime where no taxes were paid, (ii) the informal economy, which was stimulated by the difficult economic situation and the incapability of public institutions, (iii) poor fiscal culture and awareness in the country, which did not have effective law enforcement mechanisms, and (iv) a lack of professionalism on the part of the law enforcement administration.", "400. According to the Government, the basis for finding an insufficient declaration of assets had been the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber.", "401. Lastly, the sanction imposed on the applicant had been proportionate to the findings made by the vetting bodies, namely that she had made a false declaration and concealed an asset, had made an inaccurate declaration of other assets and had been found to have undermined public trust in the justice system. In the Government ’ s view, the State required civil servants to be loyal to the constitutional principles on which it was founded.", "(b) The Court ’ s assessment", "402. The Court reiterates that any interference with the right to respect for private life will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez, cited above, § 124, and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 174, 15 November 2016). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, Polyakh and Others, cited above, § 283).", "403. The Court further notes that dismissal from office is a grave – if not the most serious – disciplinary sanction that can be imposed on an individual. The imposition of such a measure, which negatively affects an individual ’ s private life, requires the consideration of solid evidence relating to the individual ’ s ethics, integrity and professional competence.", "404. In the present case, as stated in paragraphs 391 and 392 above, the Court notes that the Vetting Act was enacted further to the Assessment Report and the Reform Strategy, as well as substantial constitutional amendments. It responded to alarming levels of corruption in the judiciary, as assessed by the national legislature and other independent observers, and to the urgent need to combat corruption, which had also been highlighted in the Constitutional Court ’ s decision. The Court therefore considers that, in such circumstances, a reform of the justice system entailing the extraordinary vetting of all serving judges and prosecutors responded to a “pressing social need”.", "405. The question which remains to be answered is whether, in the circumstances of the applicant ’ s case, the domestic authorities overstepped the respondent State ’ s margin of appreciation. Consequently, the Court will examine whether the vetting bodies carried out an individualised assessment of the grounds which led to the imposition of the disciplinary sanction of dismissal from office, namely the evaluation of assets and professional competence.", "406. The Court observes that the vetting bodies examined the applicant ’ s vetting declaration of assets. In accordance with the Vetting Act, the applicant was required to justify the underlying lawful sources which had served as the basis for the acquisition of her assets. The Court reiterates that, in line with Albania ’ s treaty law commitments, the requirement to disclose assets and justify their lawful origin has been enshrined in domestic law since 2003, which also prescribes sanctions for failure to disclose assets or false disclosure thereof (see paragraphs 204 and 212 above). This is the reason why the Vetting Act, as further confirmed by the Appeal Chamber, provided for the use of previous declarations of assets as evidence to verify the truthfulness of the vetting declaration of assets (see paragraphs 136 and 188 above).", "407. As regards the flat measuring 101 sq. m, the Appeal Chamber upheld the IQC ’ s finding that the applicant had made a false declaration and concealed the asset. As regards her arguments that the vetting bodies had misinterpreted the law, the Court holds that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. Unless the interpretation is arbitrary or manifestly unreasonable, the Court ’ s role is limited to verifying compatibility with the Convention of the effects of such an interpretation (see, amongst other authorities, Radomilja and Others [GC], cited above, § 149 ). In the present case, the Court notes that two of the applicant ’ s assets had been acquired on the basis of an off-plan contract, which, as interpreted by the vetting bodies, was – and continues to be – one of the ways to acquire property rights under law in Albania. After careful examination of the evidence in the case file, the vetting bodies concluded that the applicant had also been a party to the underlying contracts which had served as the basis for and contributed to the acquisition of the flat measuring 101 sq. m which she had failed to disclose for a number of years, until 2011 (see paragraphs 25 and 67 above). The Court does not find anything arbitrary or manifestly unreasonable in the domestic decisions. Moreover, it notes that, according to the Bangalore Principles of Judicial Conduct, judges, who, by the nature of their work are considered to be guarantors of the rule of law, must be required to meet particularly high standards of integrity in the conduct of their private matters out of court – “above reproach in the view of a reasonable observer” – in order to maintain and enhance the confidence of the public and “reaffirm the people ’ s faith in the integrity of the judiciary”.", "408. As to the existence of sufficient and lawful income for the purchase of the underlying properties which had contributed to the purchase of the flat measuring 101 sq. m, the Court further notes that the Appeal Chamber found that the applicant and her partner had not been in possession of a sufficient income (see paragraph 71 above).", "409. As regards the determination of the applicant ’ s financial situation, the Court notes that the Appeal Chamber carried out a reassessment of her and her partner ’ s assets and liabilities, finding that they lacked lawful income to justify liquid assets. Since the evaluation was focused on facts specific to living and travel expenses and was adduced on the basis of evidence examined by the vetting bodies, the Court ’ s task, as also indicated in paragraph 402 above, is not to substitute its finding for those of the national authorities. The Court takes further note of the Appeal Chamber ’ s finding of a serious failure on the part of the applicant to disclose the origin of money in her foreign bank accounts, there having been no evidence of any bank transfers, and her partner ’ s failure to disclose in due time a large amount of cash, in breach of the statutory provisions (see paragraphs 33, 75 and 77 above).", "410. As regards the evaluation of professional competence, the Appeal Chamber upheld the IQC ’ s finding that the applicant ’ s failure to recuse herself from a set of constitutional proceedings had undermined public trust in the justice system. Having regard to the decisions given by the IQC and Appeal Chamber and the circumstances of the present case, the Court considers that, for the reasons given below, the vetting bodies did not give adequate reasons to justify such a finding. In the first place, the applicant ’ s father had been a member of an appellate court bench which had decided that the prosecution of certain individuals, who had been convicted of forgery of documents at first instance, was time-barred. The appellate court bench did not therefore examine the merits of the case and rule on the charge of forgery of documents. As to the applicant, she was called upon to examine a constitutional complaint relating to a separate set of civil proceedings. Secondly, since neither she nor her father had any other personal conflict of interest in either set of proceedings, the Court is not convinced that the vetting bodies sufficiently demonstrated the existence of doubts as to the applicant ’ s impartiality. The Court is mindful that, while the Contracting States are under an obligation to organise their legal system so as to ensure compliance with the requirements of the right to a fair hearing, impartiality being unquestionably one of the foremost of those requirements, automatic disqualification of a judge who has blood ties with another judge who has heard another set of proceedings concerning one or all parties to the proceedings is not always called for, particularly for a country the size of Albania (see, for the application of this principle, Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 53, 24 April 2008; Ramljak v. Croatia, no. 5856/13, §§ 29-42, 27 June 2017; Nicholas v. Cyprus, no. 63246/10, § 62-65, 9 January 2018; and Koulias v. Cyprus, no. 48781/12, §§ 61-66, 26 May 2020 ). Thirdly, there is no indication that the parties to the constitutional proceedings raised an objection to the applicant ’ s participation in the bench, even though she bore the same last name as that of her father.", "411. Notwithstanding the above reasons regarding the evaluation of the applicant ’ s professional competence, the Court considers that the findings made by the Appeal Chamber in respect of the evaluation of assets, as described in paragraphs 407 - 09 above and taken cumulatively, were sufficiently serious under national law and could in themselves justify the applicant ’ s dismissal from office.", "412. The Court further considers that, having regard to the domestic courts ’ individualised findings in paragraphs 407 - 09 above, the applicant ’ s dismissal from her post as Constitutional Court judge was proportionate. Indeed, the Vetting Act provides for two types of disciplinary sanctions: dismissal from office or suspension with the obligation to attend compulsory education. The Court has held, inter alia, that the absence of an appropriate scale of sanctions for disciplinary offences may be inconsistent with the principle of proportionality (see Oleksandr Volkov, § 182). The Court must emphasise, in this connection, that the Constitutional Court Act provides for a more detailed hierarchy of disciplinary sanctions, as described in paragraph 200 above, which would be imposed at the end of ordinary disciplinary proceedings. However, vetting proceedings are sui generis in nature, despite the similarities that they appear to have with ordinary disciplinary proceedings. They were introduced in response to the perceived pervasive presence of corruption in the justice system in order to rid it of corrupt elements and preserve the healthy part of the system. In the exceptional circumstances which preceded the adoption of the Vetting Act, as also highlighted in paragraphs 391, 392 and 404 above, the Court finds it consistent with the spirit of the vetting process to have a more limited scale of sanctions in the event a person fails to satisfy one of the three criteria laid down in the Vetting Act.", "413. The Court further observes that, under the Status of Judges and Prosecutors Act, the applicant ’ s dismissal from office entailed a lifetime ban on re-entering the justice system. In this connection, the Court reiterates that judges, and especially those occupying posts entailing a high degree of responsibility such as the posts in which the applicant wishes to resume employment, wield a portion of the State ’ s sovereign power. The lifetime ban imposed on the applicant and other individuals removed from office on grounds of serious ethical violations is not inconsistent with or disproportionate to the legitimate objective pursued by the State to ensure the integrity of judicial office and public trust in the justice system (see, mutatis mutandis, Naidin v. Romania, no. 38162/07, 21 October 2014, § 54-55, which concerned the absolute nature of a ban on former collaborator of the political police on joining public service employment; contrast Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 58, ECHR 2004 ‑ VIII; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, § 31, 7 April 2009 as regards restrictions on a person ’ s opportunity to find employment in the private sector). This is especially so within the national context of ongoing consolidation of the rule of law.", "414. In view of the foregoing reasons, the Court considers that there has been no breach of Article 8 of the Convention in respect of the applicant ’ s dismissal from office.", "ALLEGED VIOLATION OF article 13 of THE CONVENTION", "415. Lastly, the applicant complained that she had not had an effective remedy, as required by Article 13 of the Convention, in respect of her complaint under Article 8.", "Article 13 of the Convention reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "416. The Court notes that, in the present case, the applicant lodged an appeal against the IQC ’ s decision ordering her dismissal from judicial office. The Appeal Chamber, which had full jurisdiction over questions of fact and law, examined the merits of her appeal, including the alleged unfairness of her dismissal from office. That the Appeal Chamber dismissed her appeal is not sufficient for the Court to hold that it was not an effective remedy (see, amongst other authorities, Amann v. Switzerland [GC], no. 27798/95, § 89, 16 February 2000).", "417. In these circumstances, the Court considers that this complaint should be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "2. The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome.", "3. The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Muçaj of the State Advocate ’ s Office.", "The Background TO THE CASE", "4. In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (“the Assessment Report”). The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks – mainly with the involvement of a “middleman”, such as a family member, friend or lawyer – was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania.", "5. The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (“the Reform Strategy”). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, ( i ) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties.", "6. As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms “Re-evaluation of Judges and Prosecutors Act” and “Vetting Act” are used interchangeably. Likewise, the terms “vetting process/proceedings” and “re-evaluation process/proceedings” are used interchangeably.", "7. The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion.", "The circumstances of the case", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "9. The applicant ’ s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court.", "10. In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant.", "Proceedings before the Independent Qualification Commission", "11. Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets ( deklarata e pasurisë ). She and her partner disclosed that they co-owned three properties: ( i ) a flat measuring 101 sq. m which had been acquired by means of a contract for an off-plan purchase (“an off-plan contract”) entered into on 8 March 2005 ( blerë më 8 mars 2005 [me] kontratë sipërmarrje ) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 ( kontratë sipërmarrje datë 5.10.2010 ) and (iii) a plot of land measuring 221.9 sq. m. They both also gave a detailed description of the sources of their income and savings. The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration ( deklarata për kontrollin e figurës ) and a professional self-appraisal form ( formulari i vetëvlerësimit professional ) (see also paragraphs 133 and 134 below).", "Administrative investigation", "12. On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (“IQC”) decided to launch an in-depth administrative investigation ( hetim administrative të thelluar ) into the three declarations that she had filed.", "13. On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly.", "14. Between 15 December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26 December 2017 and 6 March 2018.", "15. On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated ( i ) that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant ’ s financial situation ( likuiditetet ), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint.", "16. Pursuant to section 52 of the Vetting Act and Article D § 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses.", "17. On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6 January to 5 December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”), the Classified Information Security Directorate (“CISD”) and the Inspectorate of the High Council of Justice (“IHCJ”), had given a favourable opinion in relation to all of the applicant ’ s declarations.", "18. On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence.", "19. On 16 April 2018, following the applicant ’ s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined.", "20. On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings.", "21. On 25 April 2018 the IQC adjourned without taking a decision in the applicant ’ s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing.", "The IQC ’ s decision", "22. On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant ’ s case. The operative provisions had been made public on 3 May 2018.", "(a) Findings regarding the evaluation of assets", "(i) As regards the flat measuring 101 sq. m", "23. The IQC, having examined the evidence in the case file relating to the flat measuring 101 sq. m which belonged to the applicant and her partner, found that “there [was] a lack of legal supporting documents as required by law, false declaration and concealment of income in connection with the lawfulness of the source of income disclosed as having served as the basis for acquiring the flat ( në lidhje me ligjshmërinë e burimit të deklaruar të të ardhurave që kanë shërbyer për blerjen e këtij apartamenti, ka mungesë dokumentacioni justifikues ligjor, deklarim të rremë dhe fshehje të të ardhurave )”.", "24. In drawing this conclusion, the IQC held that there was an inconsistency between the applicant ’ s vetting declaration of assets and her partner ’ s declaration of assets filed in 2003 and 2005 in relation to the source of income which had been used for the acquisition of the asset. The applicant ’ s vetting declaration of assets indicated that the source of income used for the acquisition of the flat had been her partner ’ s income from gainful employment in Italy and scholarship money he had received. However, her partner ’ s declaration of assets filed in 2005 stated for the first time that the flat had been purchased with the proceeds of sale of another flat measuring 93 sq. m, topped up by annual savings. His declaration of assets filed in 2003 stated that the flat measuring 93 sq. m had been bought with the proceeds obtained from the sale of another flat and savings from his employment in Italy. Consequently, according to the IQC, the flat measuring 101 sq. m had been bought with the proceeds secured from the earlier sale of a flat measuring 93 sq. m.", "25. The IQC further referred to an off-plan contract ( kontratë sipërmarrje ) concluded before a notary public on 7 March 2005, according to which the applicant and her partner had agreed to transfer ownership of the flat measuring 93 sq. m to a third party who, in turn, had paid the sale price in full. The contract stated that both the applicant and her partner had received the sale price. It contained the following statement: “on 31 March 2003 the building company entered into an off-plan contract with [the applicant and her partner] in respect of a flat ... measuring 93 sq. m”. Relying on this contract, the IQC concluded that both the applicant and her partner had acquired the flat measuring 93 sq. m. Even though the applicant and her partner had not been living together at the material time, the IQC held that the applicant could not have been absolved from the obligation to disclose in the 2003 declaration of assets the off-plan contract to which she had been a party and on the basis of which she had acquired property rights and made a payment in respect of the flat. Whereas the transaction had been effected by means of an off-plan contract, the goal of such a transaction was the sale and purchase of real property. Therefore, the true source of funds for the acquisition of the flat measuring 101 sq. m had been the proceeds of sale of an earlier flat measuring 93 sq. m which both the applicant and her partner had bought in 2003 through an off-plan contract. The IQC held that she had been co-owner of the flat and that she had failed to disclose the flat measuring 101 sq. m in any of the annual declarations of assets between 2005 and 2011 (see paragraph 11 above). According to the IQC, “the [applicant ’ s] concealment of the notarial deeds [entered into between 2003 and 2005] demonstrate[d] the failure to disclose truthfully the source [of funds used] for the creation of the asset being re-evaluated ( fshehja e veprimeve noteriale nga ana e subjektit të rivlerësimit pasqyron mosdeklarimin me vërtetësi të burimit të krijimit të pasurisë -vetting )”.", "26. As regards the applicant ’ s claim that she had contributed towards the purchase of the flat, the IQC, making an assessment of the evidence in the case file, held that the applicant had not possessed sufficient liquid assets: in 2003 her liquid assets had amounted to 783,964 Albanian leks (ALL 6,251 euros (EUR), at the current exchange rate) and in 2004 to ALL 25,000 (EUR 200). Furthermore, she had been burdened with loans obtained in 2003 and 2004.", "27. The IQC further rejected the applicant ’ s claim that the flat had been purchased with her partner ’ s income while he had been studying, working and living in Italy from 1992 to 2001. Making an assessment of the evidence in the case file, the IQC, having regard to the fact that only income subject to tax could be considered lawful, held that her partner ’ s financial situation had been negative. Notwithstanding this, the IQC carried out another assessment on the basis of his disclosed income and reached the conclusion that his net income (ALL 206,399 – EUR 1,646) had been insufficient to purchase the flat. The IQC only took into account the earnings obtained from her partner ’ s employment as a waiter. In the absence of any supporting documents, the IQC disregarded any earnings which would have been calculated as commission under a contract he had concluded with an Italian company. In determining the living expenses, the IQC based its estimates on information published by the Italian Institute of Statistics for the period 2002 to 2004.", "28. The IQC stated that the applicant had not submitted any supporting documents to justify her partner ’ s inability to provide documents dating from the 1990s in accordance with section 32(2) of the Vetting Act. She had not informed the IQC that, in view of the relationship her partner had had with the bank with which he had had an account in Italy, the Italian company which was still operating or the Italian National Institute of Social Security, supporting documents had gone missing, had been lost or could not be reproduced in any other way. Lastly, the IQC found that there were no documents in the case file to demonstrate that the scholarship money, which the Italian Ministry of Foreign Affairs had awarded her partner, had been transferred to his account. The IQC considered that the scholarship money, which had been awarded for a particular purpose, could not have given rise to considerable savings that could be used to buy a flat. It further held that the income which the applicant ’ s partner claimed to have earned by working on the black market was “not a convincing source for justifying this asset” ( nuk janë burime të bindshme për justifikimin e kësaj pasurie ).", "(ii) As regards a flat measuring 58.75 sq. m", "29. The IQC found that the applicant had not possessed sufficient lawful income in 2010 ( të ardhura të ligjshme të mjaftueshme ) to buy a flat measuring 58.75 sq. m through an off-plan contract ( fituar me anë të kontratës së sipërmarrjes ).", "(iii) As regards a plot of land measuring 221.9 sq. m", "30. The IQC held that the applicant had benefitted from a bigger plot of land (that is, 221.9 sq. m) than her entitlement by law (that is, 128.89 sq. m) as a result of the transfer of ownership of a plot of land in 2013.", "(iv) As regards the financial situation of the applicant and her partner", "31. The IQC, after determining the sources of assets and liabilities of the applicant and her partner, found that the applicant had lacked lawful financial sources of income ( ka mungesë të burimit të ligjshëm financiar ) to justify her liquid assets [1] in 2007, 2009 and 2015 of a total amount of ALL 1,972,969 (EUR 15,750). In determining the financial situation, the IQC had regard to the carryover cash balance of the applicant and her partner at the start of each year and their documented income. Liabilities comprised living expenses which had been determined by HIDAACI, travel expenses which had been calculated with reference to EUR 180 for a low-cost airline ticket, EUR 300 for a full service carrier ticket and EUR 50 for daily expenses, mortgage repayments which had been calculated on the basis of documents furnished by commercial banks and other encumbrances.", "32. In its determination of liquid assets, the IQC, relying on the supporting documents which the applicant had submitted, accepted the justification of certain income and expenses, for example income earned by her partner, certain travel expenses borne by her employer and educational expenses for her child. It also rejected certain other claims made by the applicant because of a lack of supporting documents.", "33. The IQC further considered that the fact that her partner had held EUR 15,000 in cash at home had been contrary to a provision of the Asset Disclosure Act, which had required him to deposit the cash in a bank account before filing the annual declaration of assets (see paragraph 202 below).", "(v) As regards a mortgage of 40,000 United States dollars (USD)", "34. The IQC held that the applicant had concealed the true nature of a mortgage of USD 40,000 which she had obtained in 2003 and that the taking of the mortgage had been fictitious.", "(vi) As regards a plot of agricultural land measuring 666 sq. m", "35. The IQC found that, on the basis of the documents in the case file, the applicant had made an inaccurate disclosure ( deklarim të pasaktë ) in 2003 as regards her share of a plot measuring 666 sq. m, which, according to the sale contract and property certificate, had been registered solely in the name of her mother.", "(vii) As regards a flat measuring 89.16 sq. m", "36. The IQC held that the applicant had made a false disclosure ( deklarim të rremë ) as regards the proceeds she had obtained, as co-owner, from the sale of a flat in 2003.", "(b) Findings regarding the evaluation of other criteria", "37. The IQC endorsed the positive findings of the IHCJ in relation to the applicant ’ s ethics and professional competence.", "38. The IQC further found that, following a complaint made by a member of the public under section 53 of the Vetting Act (see paragraph 148 below), the applicant had failed to disclose a conflict of interest and recuse herself from the examination of a constitutional complaint relating to the outcome of a set of civil proceedings before the lower courts in accordance with section 36(1)(c) of the Constitutional Court Act and Article 72 § 6 of the Code of Civil Procedure (see paragraphs 199 and 197 below). According to the IQC, the conflict of interest lay in the fact that the applicant ’ s father had been the rapporteur of an appellate court bench which had examined the issue of statutory limitations in a separate set of criminal proceedings against third parties, a complaint which had been brought by the same person who had lodged the constitutional complaint with the Constitutional Court. In that set of criminal proceedings, the appellate court had decided that the prosecution was time-barred. Those third parties had also been an interested party in the constitutional proceedings.", "39. As regards the applicant ’ s conduct, the IQC considered that she had cooperated during the re-evaluation proceedings and had provided explanations, as requested. However, it considered that the documents she had provided were of a declaratory nature.", "(c) Overall conclusion", "40. The IQC, having regard to the findings concerning the evaluation of the applicant ’ s assets and her failure to disclose a conflict of interest, decided by a majority to order her dismissal from office under section 61(3) and (5) of the Vetting Act (see paragraph 151 below).", "(d) Dissenting opinion", "41. A member of the IQC (G.T.) appended a dissenting opinion which stated that the inconsistencies in the declarations of assets as regards the flat measuring 101 sq. m (see paragraph 24 above) could not constitute sufficient evidence to warrant the applicant ’ s dismissal from office; nor could inaccuracies in the declaration of assets be regarded as insufficient disclosure of assets. In the dissenter ’ s view, it had been proven that the flat measuring 101 sq. m had been purchased with the proceeds obtained from the sale of another flat, which, in turn, had been acquired in 2003 with the income from the applicant ’ s partner ’ s employment in Italy and his scholarship money. Consequently, the income had originated from her partner ’ s funds and could not have given rise to inconsistencies in the declarations filed in different years.", "42. As her partner had earned the income over twenty years earlier, it had been objectively impossible for the applicant to obtain and submit documents to verify the source thereof. The financial assessment made in respect of her partner had disregarded the income he had received in 1996, 1998 and 1999 while working on the black market in Italy. It was widely acknowledged that Albanian students in Italy or elsewhere abroad had to work on the black market to earn an income in addition to any scholarship awarded to them. Indeed, the Vetting Act favoured lawful income subject to tax. Still, the spirit of the law, read together with the Annex to the Constitution, was in favour of a person whose total assets were up to twice the amount of lawful assets ( favorizon subjektet duke legjitimuar deri ne dyfishin e pasurise se ligjshme ). The applicant ’ s total assets had not exceeded twice the amount of lawful assets. The dissenter did not share the majority ’ s view as regards the money from the scholarship; nor did the dissenter endorse the majority ’ s findings concerning the notarial deed entered into in 2003, in so far as the IQC had not obtained any evidence to show that the applicant had contributed to the acquisition of or benefitted from the sale of that flat.", "43. As regards the applicant ’ s liquid assets in 2007, 2009 and 2010, the dissenter considered that the inaccuracies in completing the declaration of assets could not be regarded as false disclosure or a lack of lawful income. Furthermore, in the dissenter ’ s view, the mortgage of USD 40,000 had been directly paid into the building company ’ s bank account. This fact sufficed to demonstrate that the mortgage had been obtained for the purchase of the flat, and the applicant could not be blamed for material errors in the notarial deed. On the whole, the dissenter concluded, referring to the principle of proportionality, that the applicant had amassed credible assets.", "44. Lastly, the applicant had not been faced with a conflict of interest in connection with the complaint made by the member of the public in relation to her father ’ s participation in a criminal case as a member of an appellate court bench.", "Proceedings before the Appeal ChamberThe applicant ’ s appeal", "The applicant ’ s appeal", "The applicant ’ s appeal", "45. On 19 June 2018 the applicant lodged a 42-page appeal against the IQC ’ s decision with the Special Appeal Chamber (“the Appeal Chamber”), making two strands of arguments: the first related to allegations concerning procedural or substantial breaches of the law, and the second challenged the IQC ’ s findings. The applicant reiterated the same arguments in her further written submissions of 21 September and 15 October 2018.", "(a) Allegations regarding procedural and substantial breaches of the law", "46. The applicant contended that she had not been given the opportunity to defend herself in respect of the IQC ’ s ultimate findings that there had been concealment and false or inaccurate disclosure of assets by her, no such findings having been made at the conclusion of the administrative investigation.", "47. The IQC had played an active role in collecting facts, evidence and information, going beyond the standard role of a tribunal which would usually give a decision upon hearing all of the parties ’ arguments. It had subsequently failed to secure the procedural guarantees, such as equality of arms, in the proceedings against her. It had been selective in the evidence it had used and relied upon against her and had not considered the analysis, evidence and arguments that she had submitted in response to the findings of the administrative investigation.", "48. The IQC had not had any powers to interpret the previous declarations of assets that she had filed in accordance with the Asset Disclosure Act, which had been assessed positively by HIDAACI. For this reason, she argued that the IQC had retroactively applied section 31 of the Vetting Act to the 2003 declaration of assets.", "49. The IQC had unreasonably shifted the burden of proof onto her for facts in respect of which she had not been obliged to submit any supporting documents. Furthermore, it had not considered the objective impossibility for the applicant to obtain all the supporting documents needed to substantiate the source of her partner ’ s income.", "50. Lastly, the IQC had not held that she had amassed more than twice the amount of her lawful assets, which would have warranted her dismissal from office in accordance with Article D § 4 of the Annex to the Constitution. In fact, her assets had been half the amount of her lawful income.", "(b) Allegations regarding erroneous findings in respect of the re- evaluation criteria", "51. As regards the flat measuring 101 sq. m, the applicant made three strands of arguments. Firstly, she argued that the IQC had misinterpreted the law by equating the conclusion of a legal transaction ( veprim juridik ) – with reference to the 2003 and 2005 off-plan contracts – to the acquisition of an “asset”. There had been no obligation for her to disclose legal transactions, including the off-plan contracts which had not contributed to the acquisition of an asset, under the Asset Disclosure Act and the Vetting Act.", "52. Secondly, the applicant ’ s partner had carried out all the legal transactions in 2003 and 2005, the applicant not having been a party to them. He had disclosed the properties he had acquired, including the origin of income used, in the 2003 and 2005 declarations of assets, with no concealment thereof. She had disclosed their co-ownership in the 2011 declaration of assets, after her partner had decided to name her as joint owner with a 50% share of the flat in the registration of that property with the authorities. In this connection, she appended to her appeal a certificate issued by the Albanian company with which her partner had entered into an off-plan contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001.", "53. Thirdly, as regards the calculation of her partner ’ s living expenses in Italy from 1992 to June 1995, the IQC had relied on figures corresponding to the period 2002 to 2004, when the cost of living had increased as a result of inflation caused by the replacement of the Italian lira with the euro. Furthermore, her partner had been lawfully employed from July 1995 to July 2000, as evidenced by copies of his employment contract and some salary slips. According to an empirical assessment of her partner ’ s income and expenditure, he had saved ALL 3,444,871.32 (EUR 27,586), which justified the acquisition of the flat in 2003.", "54. As regards liquid assets, the IQC had not considered the fact that the expenses of certain business trips had been borne by her employer or host institutions or that the expenses of certain personal trips had been borne by host families. It had unjustly attributed all those expenses to her. Making her own assessment for 2007, 2009 and 2015, she argued that she had had sufficient income to cover all the necessary expenses.", "55. As regards the complaint made by a member of the public, the applicant submitted that the member of the public had lodged a criminal complaint with the prosecutor ’ s office against two private individuals for alleged forgery of official documents. Following the institution of criminal proceedings by the prosecutor ’ s office, to which the member of the public had not been a party, in 2011 a Court of Appeal bench, of which her father had been a member, had decided that the prosecution of the private individuals was time-barred and had not examined the merits of the case.", "56. The constitutional proceedings, which had been examined by a Constitutional Court bench, of which the applicant had been a member, had concerned a request submitted by the same member of the public about the outcome of a set of civil proceedings relating to the invalidation of a sale contract concluded between that person and a legal entity in 1999. As the constitutional proceedings had had no connection whatsoever with the criminal proceedings, she had not been faced with a conflict of interest so as to warrant the finding that she had undermined public trust in the justice system, as stipulated in section 61(5) of the Vetting Act.", "57. In view of the above arguments, the applicant maintained that her dismissal from office had been disproportionate and that the proceedings before the IQC had been conducted in breach of the principles of lawfulness, fairness, impartiality, equality before the law and proportionality.", "The Appeal Chamber ’ s decision", "58. On 16 July 2018 lots were drawn for the composition of the five-member panel of the Appeal Chamber and the applicant was notified accordingly. She was subsequently informed that her appeal would be examined in camera on 24 October 2018.", "59. On 24 October 2018 the Appeal Chamber gave its decision, examining the applicable procedure before it as well as the applicant ’ s grounds of appeal. She was notified of the decision on 23 November 2018.", "(a) Preliminary findings", "60. By way of general observation, the Appeal Chamber confirmed that the proceedings before it were governed by section 65 of the Vetting Act and, amongst others, sections 47, 49 and 51 of the Administrative Courts Act ( see paragraphs 153, and 194 - 96 below). Pursuant to sections 47 and 49(2) of the Administrative Courts Act, the Appeal Chamber declined to admit new evidence submitted by the applicant to the case file. It reasoned that she had not put forward any reasons for her inability to submit the new evidence to the IQC. It also declined to admit further evidence submitted on 15 October 2018, in accordance with section 49(6)(a) of the Vetting Act (see paragraph 146 below). The Appeal Chamber decided not to accept additional complaints made by other members of the public following the delivery of the IQC ’ s decision, as there were no grounds for an investigation.", "61. Even though the applicant had not requested a public hearing in her appeal, the Appeal Chamber considered that it was not necessary to hold one as ( i ) the IQC had made an accurate and comprehensive assessment of the facts, (ii) there was no need to accept new evidence or assess new facts, (iii) the IQC had not committed any serious procedural breaches or provided an erroneous or incomplete statement of facts and (iv) there was no need to readmit the evidence which had been accepted by the IQC.", "62. The Appeal Chamber clarified that the vetting bodies were empowered by sections 30, 32 and 33 of the Vetting Act as well as Article Ç § 4 and Article D of the Annex to the Constitution to consider an individual ’ s declarations of assets made since 2003 in order to verify whether the person being vetted owned more assets than he or she could lawfully possess or whether the person had made an accurate and complete disclosure of his or her assets and of assets belonging to other related persons. Since the statutory provisions had given a probative value to the annual declarations of assets, they could be regarded as having the same importance as the vetting declaration of assets. The IQC and Appeal Chamber would consider these declarations, together with other evidence, as a whole, in order to determine the circumstances of the case and make a just decision. The IQC would also examine the report drawn up by HIDAACI in order to determine its probative value and accuracy ( provueshmërinë dhe vërtetësinë ).", "63. The Appeal Chamber further clarified that upon the closure of the administrative investigation, the IQC had informed the applicant of its preliminary findings in respect of each asset and shifted the burden of proof onto her. Final findings relating to concealment or inaccurate disclosure of assets were to be made after the person being vetted had submitted arguments and evidence in his or her defence. In this connection, the person being vetted was required to convincingly demonstrate the lawful source of his or her assets and income and to not conceal or inaccurately disclose assets in his or her possession or use. The re-evaluation process was an administrative/disciplinary procedure (never akin to a criminal process) ( proccesi i rivlerësimit është një procedurë administrative/ sanksionuese ( dhe asnjëherë një proces penal), which aimed at affording all the guarantees relating to the right to a fair hearing.", "64. In the applicant ’ s case, the Appeal Chamber noted that the conclusion of the administrative investigation had related solely to the preliminary findings made by the IQC, in the absence of any arguments put forward by the applicant. The IQC had informed her of its findings and invited her to submit arguments and evidence to the contrary, following which it had continued the investigation. The IQC had adjourned the hearing of 25 April 2018 in order to fully examine the additional written submissions which she had submitted on the same date, as well as other supporting evidence which she had made available on 18 April 2018. This course of action had guaranteed the applicant ’ s right to a fair hearing. The IQC could not take a decision concerning concealment or false disclosure of assets during the administrative investigation, in so far as the proceedings had still been pending before it, a hearing had been due to take place and the applicant had had the right to present evidence and submissions. Had it done so, the IQC would have prejudiced the outcome of the case following the shifting of the burden of proof onto the applicant, who had been invited to submit evidence to the contrary.", "65. The Appeal Chamber held that the IQC had removed the applicant from office for insufficient disclosure of assets and the fact that she, following the overall examination of the proceedings, had undermined public trust in the justice system ( ka cenuar besimin e publikut te sistemi i drejtësisë ). She had not been removed from office on account of having amassed total assets of more than twice the value of her lawful assets ( nuk e ka shkarkuar subjektin e rivlerësimit për efekt të kalimit të dyfishit të pasurisë së ligjshme ). Furthermore, the fact that she had received a positive assessment of her integrity background check did not call into question the inappropriateness of the false, inaccurate and insufficient disclosure of assets she had made. Section 61(3) of the Vetting Act did not require both these criteria to be negatively evaluated, as they each constituted a separate ground for dismissal from office.", "66. Lastly, it observed that the IQC had secured the applicant ’ s right of access to the documents obtained during the administrative investigation; her case had been heard publicly within a reasonable time and by an independent and impartial tribunal. The IQC had taken its decision, after obtaining the applicant ’ s arguments, documents and evidence. For this reason, her right to a fair hearing had been respected.", "(b) Findings regarding the evaluation of assets", "(i) As regards the flat measuring 101 sq. m", "67. The Appeal Chamber held that, by means of the off-plan contracts, the applicant had acquired rights in rem ( të drejtat reale ) to the flat which was the subject matter of the contract. Domestic law provided that the conclusion of a legal contract was a way of acquiring a property or rights in rem. The IQC had correctly concluded, following an examination of the documents in the case file, that the 2003 and 2005 off-plan contracts had concerned the transfer of rights in rem to a flat which would be constructed in the future against the payment of a price. The applicant and her partner, who had both signed the 2003 and 2005 off-plan contracts which had specified the object and price that had subsequently been paid, had acquired the rights in rem upon its conclusion. The applicant should therefore have disclosed the acquisition of this particular property at the relevant time, that is, in the 2005 declaration of assets, instead of waiting to disclose it in the 2011 declaration of assets after her partner had named her as joint owner with a 50% share of the flat.", "68. Following an assessment of the documents in the case file, such as bank receipts, salary slips and payments relating to the scholarship in Italy, the Appeal Chamber observed that her partner had not convincingly demonstrated the lawfulness of his income ( nuk ka provuar bindshëm ligjshmërinë e të ardhurave ) for the period 1992 to 2000 in order to buy the flat in 2003. The IQC had not erred in the calculation of her partner ’ s expenses while he was a foreign student in Italy.", "69. As regards the applicant ’ s partner ’ s income from his gainful employment in Italy during the period 1995 to 2000, the applicant had not submitted sufficient supporting documents or other evidence to justify that the income had been lawful, that is, subject to the payment of taxes, not least because her partner had worked on the black market. There was no information on how the income had been transferred to Albania, and the applicant had not been faced with an objective impossibility which could justify the destruction or loss of supporting documents proving the existence of lawful income. The applicant ’ s statements relating to the source of income remained of a declaratory nature and could not serve as proof of lawful income ( mbesin në nivel deklarativ dhe nuk justifikohet ligjshmëria e tyre ).", "70. Lastly, considering the statements made by the applicant ’ s partner and taking into account all income that he had allegedly earned during his stay in Italy, his savings could not have been sufficient to buy the flat. Nor had the applicant had sufficient financial means in 2003 to contribute to its purchase. The applicant had not advanced any arguments challenging the authenticity of the 2003 off-plan contract or the payment of the sum indicated therein.", "71. The Appeal Chamber concluded that the applicant and her partner had not had sufficient funds to buy the flat measuring 101 sq. m with lawful income, as declared by them. The applicant had therefore made a false declaration and concealed the asset.", "(ii) As regards the flat measuring 58.75 sq. m", "72. The Appeal Chamber found that, having regard to the applicant ’ s financial situation, as evidenced by the 2009 declaration of assets, she had had sufficient income to acquire this property. It held that the IQC ’ s finding in respect of this asset was ill-founded.", "(iii) As regards the plot measuring 221.9 sq. m", "73. The Appeal Chamber held that the applicant could not be blamed for having benefitted from the regularisation of a bigger plot of land, the size of which and corresponding price had been determined by the relevant public authority in 2013, when she had in fact requested that her property rights be regularised in respect of a smaller plot of land. It found that the IQC ’ s finding in respect of this asset was ill-founded.", "(iv) As regards the financial situation", "74. At the outset, the Appeal Chamber emphasised that the applicant had not challenged before the IQC or Appeal Chamber the methodology applied by the IQC for the determination of the financial situation. Nor had she submitted any arguments challenging the calculation of living expenses.", "75. The Appeal Chamber upheld the IQC ’ s decision to not accept a notarised statement which had been drawn up abroad, as the statement did not contain the elements required to be considered valid under domestic law and used in the proceedings against the applicant. As regards certain travel expenses, the Appeal Chamber held that the applicant had not submitted supporting documents to convincingly demonstrate the legitimate source used to cover the expenses. As regards other travel expenses, the Appeal Chamber held that the IQC had not considered them in the determination of the expenses borne by the applicant. As regards the cash (EUR 15,000) that her partner had not disclosed over the years, the Appeal Chamber found that he had acted in breach of his statutory obligations.", "76. The Appeal Chamber carried out a reassessment of the applicant ’ s and her partner ’ s assets and liabilities for 2007, 2009, 2015 and 2016, the results of which differed from the IQC ’ s findings and the applicant ’ s submissions. It still found that the applicant had lacked lawful sources of income to justify her liquid assets of a total amount of ALL 1,288,258.27 (approximately EUR 10,277, and, also compare with the IQC ’ s finding in paragraph 31 above).", "77. The Appeal Chamber further pointed to the existence of two foreign bank accounts held by the applicant and her partner in 2015 and 2016 (see paragraph 11 above), stating that it was not apparent how the money had been deposited or transferred, there having been no disclosure of those accounts in the periodic annual declarations of assets. The applicant and her partner had therefore been unable to convincingly demonstrate how they had opened the accounts and conducted financial transactions.", "78. The Appeal Chamber concluded that: “the applicant [has] not convincingly explain[ed] the lawful source of these monetary amounts; she [has] attempt[ed] to conceal and present the liquid assets inaccurately; and, she and [her partner] have not justified the lawfulness of the income for these monetary amounts ( nuk shpjegon bindshëm burimin e ligjshëm të këtyre shumave monetare, përpiqet të fshehë dhe të paraqesë në mënyrë të pasaktë pasurinë në likuiditete, si dhe ajo vetë dhe personi i lidhur me të nuk kanë justifikuar ligjshmërinë e të ardhurave për këto shuma monetare )”.", "(v) As regards the mortgage of USD 40,000", "79. The Appeal Chamber found that the mortgage had been disbursed for its intended purpose, and held that the IQC ’ s finding in this respect was ill-founded.", "(vi) As regards the plot measuring 666 sq. m", "80. The Appeal Chamber upheld the IQC ’ s finding that the applicant had made an incorrect disclosure in 2003 as regards her share in the plot measuring 666 sq. m, which had belonged solely to her mother.", "(vii) As regards the flat measuring 89.16 sq. m", "81. The Appeal Chamber held that, as regards the flat measuring 89.16 sq. m, there had been an inaccurate disclosure in the declaration submitted by the applicant ( jemi përpara pasaktësisë në deklarim ) instead of a false disclosure as the IQC had found.", "(c) Findings regarding the evaluation of professional competence", "82. The Appeal Chamber upheld the IQC ’ s finding that, following a complaint by a member of the public, the applicant had failed to recuse herself from proceedings before the Constitutional Court. It appears from the Appeal Chamber ’ s decision that the applicant, as a member of the Constitutional Court ’ s bench, had examined a constitutional complaint lodged by a member of the public of unfairness in a set of civil proceedings concerning the invalidation of a sales contract entered into between the member of the public and a legal entity. The member of the public had made available to the Constitutional Court a decision given in 2011 by a bench of the Tirana Court of Appeal, of which the applicant ’ s father had been the rapporteur, which had decided that the criminal proceedings against two individuals, who had been convicted of forgery of an administrative property decision by the first-instance court, were time-barred. Those individuals had been an interested party in the constitutional proceedings ( kanë qenë persona të interesuar në gjykimin kushtetues ).", "83. While at first glance there were two separate sets of proceedings, one criminal and the other civil, the parties to the proceedings were almost the same but in different procedural positions. The subject matter of both sets of proceedings appeared to be different; however, the primary cause thereof was the privatisation of a building and the validity of the property title of a plot of land, in respect of which criminal proceedings against some individuals had been instituted and subsequently declared time-barred. The applicant had not recused herself from examining the constitutional complaint, even though a copy of the decision given by the Court of Appeal, in the composition of which the applicant ’ s father had been the rapporteur, had been included in the Constitutional Court ’ s case file. The applicant ’ s failure to recuse herself from the proceedings had not ensured respect for the principle of impartiality and had given rise to doubts as regards the objective test, as a result of which public trust in the justice system had been undermined. In the Appeal Chamber ’ s view, the applicant ’ s recusal would not have hampered the examination of the constitutional complaint by a quorum of the Constitutional Court, as required by law.", "(d) Conclusion", "84. The Appeal Chamber upheld the IQC ’ s decision as regards the applicant ’ s dismissal from office.", "(e) Separate opinion", "85. A judge of the Appeal Chamber (I.R.) appended a separate opinion ( mendim paralel ), which did not affect her vote in favour of the applicant ’ s dismissal from office. She mainly referred to the findings in respect of the flat measuring 101 sq. m. In her view, the off-plan contracts, which had not been disputed by the applicant, constituted solid evidence that that asset had not been acquired solely with the income of her partner. As a result, the applicant had endeavoured to make an incorrect disclosure of the asset and had made a false disclosure of the source used for its creation. However, the judge departed from the Appeal Chamber ’ s findings in respect of the issues described below.", "86. As regards the applicant ’ s financial situation, the separate opinion stated that the Appeal Chamber had not considered a number of her submissions concerning certain travel expenses she had incurred over the years. Those expenses, which had not been borne by the applicant and in respect of which she had submitted evidentiary support, had been wrongly attributed to her. Those expenses had to be deducted from the total amount determined by the Appeal Chamber (see paragraph 76 above), and the resulting amount would have been ALL 478,392 (approximately EUR 3,849) or less. Consequently, in view of the relatively low value and the length of the applicant ’ s professional experience, the argument concerning a lack of income to justify her liquid assets could not constitute a solid basis ( premisë të qendrueshme ) to regard it as a reason for dismissal from office, within the meaning of Article D of the Annex to the Constitution and section 61(3) and 33(5)(ç) of the Vetting Act.", "87. The separate opinion accepted the Appeal Chamber ’ s reclassification as “inaccurate disclosure” for the plot measuring 666 sq. m and the flat measuring 89.16 sq. m. However, it did not consider that those findings, which pertained to the 2003 and 2004 declarations of assets, were sufficient to constitute grounds for the applicant ’ s removal from office, in so far as there had been no intention to conceal the asset or make a false disclosure.", "88. The separate opinion did not accept the Appeal Chamber ’ s findings as regards the evaluation of the applicant ’ s professional competence. Upon making an analysis of section 36(1)(c) of the Constitutional Court Act and Article 72 of the Code of Civil Procedure, the separate opinion argued that, having regard to the special nature of proceedings before the Constitutional Court, which was called upon to examine solely an alleged lack of impartiality in a set of civil proceedings and not the application of substantive law, domestic law did not provide for a situation like the one at hand, in which the applicant had had a conflict of interest in relation to the criminal proceedings in which her father had acted as rapporteur and at the end of which it had been decided that the criminal proceedings were time-barred. The member of the public had not raised any complaints about the applicant ’ s participation in the Constitutional Court ’ s bench. No private interests pertaining to the applicant or her father had been affected as a result of the outcome of the constitutional proceedings in which the applicant had sat as a member of the Constitutional Court ’ s bench.", "89. In view of the reasoning that there had been no conflict of interest, the separate opinion considered that the conclusion that public trust in the justice system had been undermined was ill-founded. The separate opinion went on to state that “the fact that a party to a set of proceedings is dissatisfied, dismayed or in disbelief with a decision given by a bench of which the applicant was a member, does not necessarily constitute a sufficient element to regard it as undermining public trust, which ... should encompass a large number of individuals who should not fall into the category of parties to that set of proceedings ... ”.", "Events subsequent to the communication of the case", "90. On 16 July 2020 the applicant informed the Court that criminal proceedings for forgery of documents had been opened against L.D. for having concealed important information during the process leading to his appointment as member of the Appeal Chamber. L.D. was a member of the bench of the Appeal Chamber which had examined the applicant ’ s appeal.", "91. On 24 July 2020, following the institution of the criminal proceedings against L.D., the Appeal Chamber ordered his suspension from office [2].", "92. In the meantime, it appears that on 1 December 2020 [3] the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of false disclosure of documents and sentenced him to six months ’ imprisonment, converted into twelve months ’ probation. L.D. has reportedly filed an appeal against that decision." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic materialsThe Constitution", "The Constitution", "The Constitution", "93. In implementation of the Assessment Report and the Reform Strategy, Parliament intended to adopt constitutional amendments, which would cover several areas, including the transitional re-evaluation of judges and prosecutors (“vetting”).", "Venice Commission opinion", "94. Further to a request for an opinion on the compatibility of the draft constitutional amendments with international standards, which was made by the chairman of the ad hoc parliamentary committee, on 14 March 2016 the European Commission for Democracy Through Law (the “Venice Commission”) adopted a final opinion on the revised draft constitutional amendments (Opinion no. 824/2015 – CDL-AD (2016)009), after issuing an interim opinion on 21 December 2015 (CDL-AD (2015)045).", "95. The Venice Commission considered appropriate the proposed institutional structure for carrying out the vetting process, stressing that it was for the national legislator to design checks and balances, since a system affected by widespread corruption might need more external control mechanisms than a healthier system. The Venice Commission found that the draft constitutional amendments were by and large coherent and compatible with European standards, as they contained sound proposals for the future institutional design of the Albanian judiciary.", "96. With regard to the extraordinary measures to vet judges and prosecutors, the Venice Commission remained of the opinion that such measures “[were] not only justified but [were] necessary for Albania to protect itself from the scourge of corruption which, if not addressed, could completely destroy [the] judicial system”. The Venice Commission made a general remark as regards the mandate of the members of the IQC and Appeal Chamber. The proposed term of nine years, without the right of reappointment, was long, considering that vetting was “an extraordinary and strictly temporary measure” and that the entire vetting process was “supposed to last 11 years or less if Albania join[ed] the European Union on an earlier date”. The Venice Commission further stated that the vetting structures should not replace ordinary constitutional bodies; while they might co-exist with them for some time, they should not turn into parallel quasi-permanent mechanisms. Following the winding up of the vetting bodies, ordinary institutions and courts might assume any residual function of deciding on the vetting procedures which had not been concluded.", "97. The Venice Commission welcomed the creation of a separate appellate body, namely the Appeal Chamber, which was in line with its recommendation in the interim opinion. It stated as follows:", "“This body is evidently a sort of a specialised court which is not an ad hoc extraordinary judge – because it is not created in view of a single specific case – and it is supposed to stay in activity during the whole duration of the vetting [process].”", "98. As the Appeal Chamber became a clearly distinct body from the IQC, the Venice Commission recommended, amongst other things, that judges of the Appeal Chamber should be able to integrate the judiciary automatically at the end of their mandate.", "99. In the interim opinion, the Venice Commission had stated that:", "“to the extent that ... re-evaluation is a general measure, applied equally to all judges, decided at the constitutional level, and accompanied by certain procedural safeguards and not related to any specific case a judge might have before him or her, the Venice Commission does not see how this measure may be interpreted as affecting the judge ’ s independence to an extent incompatible with Article 6 [of the Convention]. This does not, however, exclude the possibility that the vetting procedure might on a particular occasion be abused in order to influence the judge ’ s position in a particular case: if such allegations were proven, this might require the reopening of that particular case since the judge would not be an ‘ independent tribunal ’ .”", "Ad hoc Parliamentary Committee report on the draft constitutional amendments [4]", "100. The ad hoc parliamentary committee ’ s report on the proposed constitutional amendments stated that the transitional re-evaluation of judges and prosecutors constituted one of the measures to achieve professionalism and make the justice system immune from the influence of political interests, corrupt practices and organised crime.", "Overview of constitutional amendments", "101. On 22 July 2016 Parliament unanimously passed a number of constitutional amendments (Law no. 76/2016). Of relevance to the present case are Article 179/b of the Constitution and the Annex to the Constitution.", "(a) Article 179/b of the Constitution", "102. Article 179/b provides for the establishment of a re-evaluation system of all judges, including Constitutional Court judges and Supreme Court judges, as well as of all prosecutors, including the Prosecutor General, with a view to “guaranteeing the functioning of the rule of law, the independence of the justice system, and the restoration of public trust in the institutions [of that system]”. Legal advisors and assistants are to be automatically subject to re-evaluation. Failure to pass the re-evaluation process will constitute a reason for immediate termination of employment ( mbarim të menjëhershëm të ushtrimit të detyrës ), in addition to the grounds provided for in the Constitution. Judges and prosecutors who pass the re-evaluation process will remain in office or be appointed judge or prosecutor, as the case may be.", "103. Under Article 179/b, re-evaluation is to be carried out by an Independent Qualification Commission (“IQC”) at first instance and a Special Appeal Chamber (“the Appeal Chamber”), attached as a separate chamber to the Constitutional Court, which will hear appeals against IQC decisions. Both the IQC and Appeal Chamber will be independent and impartial. The IQC members and the Public Commissioners, who represent the public interest, will serve for a five-year term, whereas the term of office of the Appeal Chamber ’ s members will be nine years.", "(b) Annex to the Constitution", "104. The Annex to the Constitution, which is entirely devoted to the transitional re-evaluation of judges and prosecutors, consists of ten Articles named after the letters of the Albanian alphabet. Article A provides that a number of constitutional provisions, notably those relating to the right to respect for private life and the burden of proof, would be partly restricted. Persons who pass the re-evaluation process will be subject to a permanent system of accountability, as provided for in the Constitution and other statutes.", "105. Article B governs the establishment of an International Monitoring Operation (“IMO”), led by the European Commission, to support, monitor and supervise the re-evaluation process. The IMO will appoint international observers after giving notice to the Government. International observers will have the right to ( i ) give recommendations to Parliament on the qualification and selection of candidates for the position of members of the vetting bodies or the position of Public Commissioner, (ii) make findings and give opinions on matters being considered by the vetting bodies, (iii) make recommendations to the Public Commissioner to file an appeal against the IQC ’ s decision and (iv) access and obtain all information needed to monitor the re-evaluation proceedings in their entirety. They may also ask the vetting bodies to obtain new evidence or may submit new evidence for their consideration.", "106. Article C provides that the IQC will be composed of four panels, each consisting of three members. Two Public Commissioners, who will represent the public interest, may appeal against an IQC decision. The work of the IQC and Appeal Chamber will be guided by the “principles of accountability, integrity and transparency in order to establish an independent and professional justice system, free of corruption”. The IQC members and Public Commissioners will enjoy the status of Supreme Court judges, and the Appeal Chamber members the status of Constitutional Court judges. Under Article C § 4, the members of the vetting bodies and the Public Commissioners and staff members thereof would sign an authorisation subjecting themselves to an annual audit of their assets, regular monitoring of their financial transactions and bank accounts and restrictions on their right to confidentiality of communications during their mandate.", "107. Under Article Ç § 1, re-evaluation will consist of an evaluation of assets, an integrity background check and an evaluation of professional competence. Article Ç § 2 provides that the IQC and Appeal Chamber will publish all their decisions. Any information, including complaints, from members of the public will be accepted by ensuring respect for the principle of proportionality, privacy and the need to carry out the investigation, as well as by guaranteeing the right to a fair hearing. The IQC or Appeal Chamber will evaluate the declarations (to be) filed by persons to be vetted, interview the persons named in the declarations or other persons/entities, and cooperate with national or international institutions in order to verify the truthfulness and accuracy of the declarations. Under Article Ç § 5, under certain circumstances, the burden of proof may be shifted to the person being vetted, only in so far as the re-evaluation process is concerned, to the exclusion of any other process, in particular criminal proceedings.", "108. Article D, which governs the evaluation of assets, reads as follows:", "Article D – Evaluation of assets", "“ 1. Persons to be vetted shall disclose their assets, and have them evaluated, in order to identify persons who possess or use more assets than can be lawfully justified, or those who have failed to make an accurate and full disclosure of their assets and those of related persons.", "2. The person to be vetted shall file a new and detailed declaration of assets in accordance with the law. The High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest shall verify the declaration of assets and provide the [IQC] with a report concerning the lawfulness of the assets, as well as the accuracy and completeness of the asset disclosure.", "3. The person being vetted shall provide convincing explanations concerning the lawful source of his or her assets and income. For the purposes of this law, assets will be considered lawful if the income has been declared and subject to the payment of taxes. Additional elements of lawful assets shall be determined by law.", "4. If the person being vetted has [total] assets greater than twice the value of lawful assets, the person shall be presumed guilty ( fajtor ) of a disciplinary breach, unless [he or she] submits evidence to the contrary.", "5. If the person to be vetted does not file the declaration of assets within the time-limit prescribed by law, [he or she] shall be dismissed from office. If the person being vetted endeavours to conceal or make an inaccurate disclosure of assets in his or her ownership, possession or use, a presumption in favour of the disciplinary sanction of dismissal from office ( shkarkim ) shall apply and the person will be required to prove the contrary.”", "109. Article DH § 1 requires persons to be vetted to file an integrity background declaration in order to identify “inappropriate contact with individuals involved in organised crime”. The integrity background check is based on the integrity background declaration and other evidence, including decisions of the domestic and foreign courts. Under Article DH § 2, the integrity background declaration will be filed with the IQC and covers the period from 1 January 2012 to the date on which the person to be vetted submits the declaration. The declaration will only be used as evidence in the vetting process and may under no circumstances be used in criminal proceedings. Under Article DH § 3, if a person being vetted is found to “have inappropriate links with persons involved in organised crime, a presumption in favour of the disciplinary sanction of dismissal from office shall apply and the person will be required to prove the contrary”. Article DH § 4 states that if the person to be vetted does not file the integrity background declaration within the time-limit prescribed by law, he or she will be dismissed from office.", "110. Article E provides that persons to be vetted will also undergo an evaluation of their professional competence in order to identify persons who are not qualified to perform their tasks or persons who lack professional knowledge which can be remedied through further education. The evaluation of professional competence will be carried out by the institutions responsible for the ethical and professional performance appraisal of judges and prosecutors. Under Article E § 3, if the person being vetted is found to have manifested poor knowledge, skills, judgment or aptitude, or to have adopted working methods incompatible with his or her position, these will constitute professional shortcomings. In such cases, a presumption in favour of the imposition of the disciplinary sanction of suspension from office, accompanied by the obligation to attend an education programme, will apply and the person being vetted will be required to prove the contrary. Under Article E § 4, if the person being vetted is found to have manifested inadequate knowledge, skills, judgment or aptitude or adopted working methods incompatible with his or her position which cannot be remedied through a one-year education programme, a presumption in favour of the imposition of the disciplinary sanction of dismissal from office ( shkarkim ) will apply.", "111. Article Ë § 1 provides that on the conclusion of proceedings the IQC or Appeal Chamber may impose one of the following disciplinary sanctions: suspension from office for one year accompanied by mandatory education, or dismissal from office ( shkarkimin nga detyra ). The decision will be reasoned. Under Article Ë § 3, dismissal from office will not constitute a reason for reopening cases which may have been decided by a judge or investigated by a prosecutor, unless the reopening request was based on other grounds prescribed by law.", "112. Under Article F, the Appeal Chamber will consist of seven members and will be the only judicial body responsible for examining appeals against IQC decisions, which may be lodged by the person being vetted or the Public Commissioner. The Appeal Chamber will sit in formations composed of five members. Under Article F § 3, the Appeal Chamber may request that additional facts or evidence be obtained and may remedy procedural faults ( gabim procedural ) committed by the IQC. The Appeal Chamber will decide on the appeal and will not remit the case to the IQC for re-examination. Article F § 7 provides that the Appeal Chamber may uphold, amend or quash the IQC ’ s decision, by giving a reasoned decision in writing.", "113. Article G provides that a person to be vetted may resign. In this case, re-evaluation will be discontinued ( ndërpritet ) and the person “shall not be reappointed to work as a judge or prosecutor ... for a period of fifteen years”.", "The Transitional Re-evaluation of Judges and Prosecutors Act (Law no. 84/2016 – “The Vetting Act”)", "114. Pursuant to Article 179/b of the Constitution, on 30 August 2016 Parliament passed the Vetting Act, which, following its publication in the Official Journal, entered into force on 8 October 2016.", "Ad hoc parliamentary committee report [5]", "115. The ad hoc parliamentary committee report stated that the draft law was necessary in order to provide detailed regulation of the constitutional provisions found in Article 179/b of the Constitution and the Annex to the Constitution. The draft law was to lay down the principles for carrying out the re-evaluation process of judges and prosecutors, the methodology and standard procedures for the re-evaluation process, the organisation and functioning of the vetting bodies, as well as the role of the International Monitoring Operation (“IMO”). It was submitted as part of a set of six essential statutes in relation to the implementation of the constitutional amendments.", "116. The main goal of the draft law was to ensure the functioning of the rule of law, the independence of the justice system and the restoration of public trust in the justice system. This would be achieved by carrying out a transitional re-evaluation of all serving judges and prosecutors with a view to establishing an independent, efficient, trustworthy and honest justice system, which would operate with integrity and free of external influence from organised crime and politics.", "Explanatory report [6]", "117. The explanatory report to the draft law stated that the reform of the justice system, as described in the Assessment Report, had been chiefly prompted by the need to address the high prevalence of corruption in the justice system. The existence and prevalence of corruption was not only a matter of public perception and that of court users, but also a fact acknowledged by judges, who considered that the justice system was not free of external influence. Other reasons related to the unsatisfactory performance of judges and prosecutors, as well as the non-functioning of existing effective mechanisms to appraise their performance and hold them accountable for breaches of the law.", "118. The aim of the draft law was to lay down special rules for the re-evaluation of all serving judges and prosecutors, as well as other persons who would be subject to re-evaluation pursuant to Article 179/b of the Constitution. This process would serve the purpose of evaluating their professional performance, moral integrity and identifying their level of independence from the influence of organised crime, corruption and politics. The draft law would lay down the principles for the carrying out of, and procedures for, re-evaluation. The re-evaluation process would be carried out effectively without impinging on the standards of the right to a fair hearing, so that the outcome of the process would serve as the cornerstone for establishing an independent judicial system, which would operate efficiently and trustworthily and embody the highest standards of honesty, integrity, professionalism and transparency.", "119. Owing to its exceptional nature, this would be a special statute with time-limited effect lasting until the conclusion of the re-evaluation process of all serving judges, prosecutors and other functions provided for in the Constitution. The draft law would set up a number of institutions which would carry out the comprehensive re-evaluation of judges and prosecutors.", "Overview of the Vetting Act", "120. Section 1 states that the purpose of the Vetting Act is “ to determine specific rules for carrying out the transitional re-evaluation of all persons to be vetted, in order to guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system ... ”.", "121. Section 3 contains some definitions, the most relevant of which for the purpose of this judgment are the following:", "“ ‘ Asset ’ shall mean all real estate and movable properties in the Republic of Albania and abroad, as described in section 4 of the [Asset Disclosure Act - see paragraph 202 below], as amended, which are in the ownership, possession or use of the person to be vetted;", "‘ Related persons ’ shall mean the circle of individuals related to the person to be vetted, public commissioner or judge, consisting of the spouse, live-in partner, adult children, as well as any other individual whose name appears on the family certificate as provided by the civil registry office to the person to be vetted, commissioners, public commissioners or judges for the period of re-evaluation;", "‘ Other related persons ’ shall mean any natural or legal person who appears to have or to have had links of interest with the person to be vetted, commissioners, public commissioners or judges, resulting from any proprietary interest or business relationship.”", "(a) Vetting bodies", "122. Section 5 specifies the bodies involved in the vetting process: an Independent Qualification Commission (“IQC”), a Special Appeal Chamber (“Appeal Chamber”), Public Commissioners and an International Monitoring Operation (“IMO”).", "123. Section 6 sets out the eligibility criteria that a person must satisfy in order to apply for and be appointed as a member of the vetting bodies. An Albanian national may be appointed as a member of the vetting bodies, provided that he or she, inter alia : ( i ) has completed a second-cycle (master ’ s) degree in law at university; (ii) has acquired at least fifteen years ’ professional experience as a judge, prosecutor, lawyer, professor of law, senior-level civil servant or other recognised experience in the field of administrative law or in other fields of law; (iii) has not held political office in the public administration or a leadership position in a political party during the last ten years; (iv) is not under criminal investigation and has not been convicted of a crime [or] wilful criminal misdemeanour by a final court decision ...; (v) has not been subject to the disciplinary sanction of dismissal from office or any other disciplinary sanction still in force under the law at the time it was imposed; (vi) has not been a judge, prosecutor, legal advisor or assistant during the two years preceding the application; and (vii) has a very good command of English.", "124. Sections 7 to 12 regulate the procedure for the application, preselection, interviewing and election of candidates. The members of the vetting bodies are to be elected by Parliament.", "125. Section 4(2) provides that the IQC and Appeal Chamber are the institutions which will decide on the final re-evaluation of persons to be vetted. Under section 4(5), both the IQC and Appeal Chamber will exercise their functions as independent and impartial institutions, on the basis of the principles of equality before the law, constitutionality, lawfulness, proportionality and other principles guaranteeing the right to a fair hearing of the person being vetted. Under section 4(6), the vetting bodies may apply the procedures provided for in the Code of Administrative Procedure or the Administrative Courts Act whenever those procedures are not referred to in the Constitution or the Vetting Act. Section 27 provides that members of the vetting bodies are to declare and avoid any situation of conflict of interest. Section 28 provides that their electronic communications and declaration of annual income will be monitored subject to a privacy waiver being signed by them.", "126. Section 14 provides that the IQC will be composed of twelve members, who are to hear cases in panels composed of three members each. Cases will be allocated by drawing lots and a rapporteur will be assigned to each case. Section 15 provides that the Appeal Chamber will hear cases in panels composed of five members, who are to be drawn by lots. A rapporteur will be assigned to each case.", "127. Section 16 specifies the grounds of disciplinary liability of members of the vetting bodies, and section 17 sets out the procedure for their removal as a result of an alleged disciplinary breach. The decision in favour of a disciplinary sanction is to be taken by a three-member panel of the Appeal Chamber.", "128. Section 18 provides that the vetting bodies have discretion to decide on their organisational structure and employment of personnel. Under section 19, they propose their annual draft budget to Parliament, which decides on it as an integral part of the State budget. Under section 22, a legal service unit is to be set up within the IQC and Appeal Chamber to help its members in the decision-making process.", "(b) IMO", "129. Under section 45(2), the international observers, who are members of the IMO, may seek information during the administrative investigation. Under section 50(7), they may also request international cooperation in reliance on international agreements or by way of diplomatic channels. Under section 33(3), they have a right of access to all information in the possession of HIDAACI. Under section 50, they also have the same right of access to information as the vetting bodies.", "130. Under section 49(10), the international observers may file findings with the vetting bodies, which will admit them as evidence. The findings have the procedural value of an expert report and can be rejected by way of a reasoned decision. A written opinion given by an international observer may affect the decision-making process, but it has no evidentiary value.", "131. Section 55 states that the international observers are informed when a public hearing is to be held before the IQC. Their presence is required in the deliberations, and they may append a separate opinion to the IQC ’ s decision. Under section 65(2), a panel composed of three international observers may recommend that the Public Commissioner file an appeal against the IQC ’ s decision.", "132. Section 17 states that the international observers may also institute disciplinary proceedings against members of the vetting bodies, including the Public Commissioners.", "(c) Re-evaluation criteria", "133. Under section 4(1), the transitional re-evaluation is to be carried out on the basis of three criteria: an evaluation of assets, an integrity background check and an evaluation of professional competence. Section 4(2) provides that a decision will be taken on the basis of “only one criterion or several criteria, an overall evaluation of all three criteria or the overall conduct of the proceedings ( ose në vlerësimin tërësor të procedurave )”.", "134. Persons to be vetted are required to file, within three months of entry into force of the Vetting Act, a declaration of assets as per Annex 2 to the Act, an integrity background declaration as per Annex 3 to the Act and a professional self-appraisal form as per Annex 4 to the Act. The declaration of assets consists of information relating to the person ’ s assets and their origin, a description of the person ’ s income and liabilities, and a list of other related persons. The integrity background declaration comprises information relating to the person ’ s particular details, address history, education and other qualifications, employment history and questions concerning links to organised crime. The professional self-appraisal form contains information about the person ’ s employment history and questions concerning a description of his or her duties, statistical figures relating to the number of cases processed, training attended and qualifications attained.", "(i) Evaluation of assets", "135. Section 30 states that the objective of the evaluation of assets is the disclosure and audit of assets, the lawfulness of the source used for their acquisition or creation, the fulfilment of financial obligations, including private interests, of the person being vetted and related persons. Under section 31(1), the person to be vetted must file a declaration of assets, as per Annex 2 to the Act, within thirty days of its entry into force, with the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”).", "136. Section 32 states as follows:", "“1. The person being vetted as well as related persons shall submit all supporting documents justifying the truthfulness of their statements concerning the lawfulness of the source [used for] the creation of assets.", "2. If the person being vetted faces an objective impossibility ( është në pamundësi objektive ) to submit supporting documents justifying the lawfulness of the creation of assets, the person shall certify to the vetting body that the supporting document is missing, lost or cannot be reproduced or obtained in any other way. The vetting bodies shall decide whether the absence of supporting documents is justified ...", "...", "4. The person being vetted and related persons, or other persons, who have been named as donors, lenders or borrowers, are obliged to justify the lawfulness of the source [used for] the creation of assets.", "5. The IQC and Appeal Chamber may use as evidence prior annual asset disclosure declarations submitted to HIDAACI.", "137. Section 33 states that HIDAACI is the institution responsible for verifying the declaration of assets. Under section 33(5), HIDAACI, upon completion of the evaluation, will draw up a reasoned and detailed report stating whether ( i ) the disclosure has been accurate, in compliance with the law and with lawful financial sources, and whether there is any conflict of interest; (ii) there is a lack of lawful financial sources to justify the assets; (iii) there has been a concealment of assets; (iv) the person being vetted has made a false declaration; (v) the person being vetted has been involved in a conflict of interest.", "(ii) Integrity background check", "138. Section 34 states that the objective of the integrity background check is the verification of statements in order to identify persons who have had inappropriate contact with individuals involved in organised crime, as provided for in Article DH of the Annex to the Constitution. Under section 35(1), the person to be vetted will file, within thirty days of entry into force of the Vetting Act, an integrity background declaration, as per Annex 3, with the Classified Information Security Directorate (“CISD”).", "139. Under section 36(1), the vetting bodies, in cooperation with CISD, are responsible for administering the integrity background checks. Section 36(2) provides that a working group composed of representatives from CISD, the State Intelligence Service and the Internal Affairs Audit and Complaints Service of the Ministry of the Internal Affairs, will be set up to carry out the integrity background checks. Section 36(3) states that CISD, at the request of the working group, has the right to obtain information from other countries about individuals involved in organised crime or individuals suspected of involvement in organised crime.", "140. Section 38 states that the integrity background check will be based on accurate evidence, confidential information as well as other available intelligence.", "141. Under section 39, CISD will submit a report to the IQC stating ( i ) whether the person being vetted has completed the integrity background declaration accurately and truthfully, and (ii) whether there is information in the integrity background declaration, or which has been obtained otherwise, indicating that the person being vetted has had inappropriate contact with individuals involved in organised crime, including a finding relating to his or her suitability to continue or not in the position. Information will not be disclosed if it poses a risk to the safety of the source, or would contravene a non-disclosure undertaking imposed by a foreign government.", "(iii) Evaluation of professional competence", "142. Section 41(1) requires the person to be vetted to file, within thirty days of entry into force of the Vetting Act, a professional self-appraisal form with the responsible authority. Section 41(3) states that the period for the evaluation of professional competence will cover the last three years of the person ’ s professional experience. However, section 41(4) states that, depending on whether there is available information about the ethics and professional competence of the person being vetted, the period for the evaluation of professional competence may commence from 1 January 2006.", "143. Under section 43, the evaluation of professional competence is carried out in accordance with the legislation governing the status of judges and prosecutors. Under section 44, a report is submitted to the IQC, the rapporteur of which proposes to find that the person being vetted is competent, lacking in competence or unfit for work ( i aftë, me mangësi, ose i papërshtatshëm ).", "(d) Conduct of re-evaluation proceedings", "144. Under section 45(1), the IQC, the Appeal Chamber and the international observers investigate and examine all facts and circumstances necessary for the re-evaluation proceedings. Under section 45(2), they may request information from any public authority. They administer documents attesting to the existence of actions, facts or another situation necessary for the conduct of the administrative investigation. Under section 46, the Vetting Act prioritises communication by email with the person being vetted.", "145. Section 47 provides that the rights of the person being vetted are governed by Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure. Under section 48, the person being vetted must cooperate with the vetting bodies, which will take his or her availability and behaviour into account during the decision-making process.", "146. Under section 49(1), the vetting bodies will obtain legal documents, collect statements from the person being vetted, witnesses, experts and members of the public, and receive other written documents in order to determine the facts and circumstances of each case. Under section 49(6)(a), the vetting bodies may decline to admit new evidence if, for example, obtaining it is unnecessary. Under section 49(8), the vetting bodies will provide reasons for rejecting a request to obtain new evidence. Under section 51, if the person being vetted fails to submit any evidence or the evidence made available is incomplete, the vetting bodies may decide on the basis of the evidence made available to them.", "147. Section 52 requires the vetting bodies to be governed by the principles of objectivity and proportionality. If they reach the conclusion that the evidence, which has been collected during the administrative investigation in accordance with section 45, has a probative value ( kanë nivelin e provueshmërisë ), the person being vetted has the burden of proof to submit evidence or give other explanations to the contrary.", "148. Under section 53, any member of the public who becomes aware of facts or circumstances which may constitute evidence related to the re-evaluation criteria has the right to directly inform the vetting bodies, which will investigate any allegations made against the person being vetted.", "149. Section 55 provides that a public hearing will take place before the IQC. IQC members and the international observer may put questions to the person being vetted.", "(e) Disciplinary sanctions", "150. At the conclusion of the re-evaluation proceedings, the IQC gives a reasoned decision, confirming the person being vetted in his or her position, suspending him or her from office for a one-year period with an obligation to attend a training programme run by the School of Magistrates, or dismissing him or her from duty.", "151. Under section 61, dismissal from office may be ordered if it appears that:", "“1. the person being vetted has declared [total] assets greater than twice the value of lawful assets belonging to him or her and related persons;", "2. there are serious concerns about the integrity background check, because the person being vetted has had inappropriate contact with individuals involved in organised crime which render it impossible for him or her to continue in his or her position;", "3. the person being vetted has made an insufficient disclosure of assets and integrity background [declaration] under sections 39 and 33 of this Act;", "4. as regards the evaluation of professional competence, the person being vetted is professionally unfit;", "5. on the basis of the overall conduct [of the proceedings], within the meaning of section 4(2) ... the person being vetted has undermined public trust in the justice system and it is impossible to remedy the deficiencies by means of a training programme.”", "(f) Right to appeal", "152. Under section 63, all IQC decisions are amenable to appeal by the person being vetted and/or the Public Commissioner within fifteen days of their notification. The complaint is lodged with the IQC in accordance with the Administrative Courts Act.", "153. Section 65(1) states that judicial proceedings before the Appeal Chamber are governed by sections 47, 48, 49, 51 and 55 of the Administrative Courts Act. Section 65(3) provides that in the event of an appeal lodged by the Public Commissioner, the Appeal Chamber will hold a public hearing.", "154. Section 66 provides that the Appeal Chamber may, by giving a reasoned decision, decide to uphold, amend or quash the IQC ’ s decision.", "Proceedings before the Constitutional Court", "155. In October 2016 a petition for an abstract constitutional review of the Vetting Act was lodged with the Constitutional Court. The complainants, namely members of parliament belonging to the main opposition party, alleged that the Vetting Act: ( i ) violated the principles of separation and balance of powers and the independence of the judiciary, as it had displaced the control and investigation of the process of re-evaluation of judges from the independent and impartial bodies created by the constitutional amendments to the existing institutions allegedly under government control, such as HIDAACI, CISD, the School of Magistrates, the General Directorate for the Prevention of Money Laundering and the Ministry of Internal Affairs; (ii) breached the principle of legal certainty as the wording of its provisions was unclear, ambiguous and contradictory; (iii) provided for unjustified restrictions on fundamental human rights, in particular as regards the continuous surveillance of private life and restrictions on the right to file a constitutional petition with the Constitutional Court; and (iv) did not provide for any specific procedural rules guaranteeing the right to a fair hearing, the right to appeal and respect for the principle of equality and fundamental human rights, in particular the admissibility of evidence obtained from members of the public, as provided for in sections 53 and 54 of the Vetting Act.", "(a) Venice Commission amicus curiae brief", "156. On 25 October 2016 the Constitutional Court, having regard to serious and irreparable consequences for the fundamental freedoms and rights of persons to which the Vetting Act would apply and the observance of the rule of law, decided to suspend its implementation.", "157. Further to an invitation by the President of the Constitutional Court to the Venice Commission to provide an amicus curiae brief on the compliance of the Vetting Act with international standards, including the Convention, on 12 December 2016 the Venice Commission issued the amicus curiae brief (Opinion no. 868/2016 – CDL-AD (2016)036).", "158. The Venice Commission stated that both vetting bodies possessed the characteristics of judicial bodies, and would operate and decide independently and impartially. The IQC members and Public Commissioner would have the status of Supreme Court judges. The Appeal Chamber would function as a chamber of the Constitutional Court and its members would have the status of Constitutional Court judges. The members of the vetting bodies would be subject to an annual disclosure of assets which would be made public, as well as constant monitoring of their financial accounts and a waiver of the privacy of their communications related to their work. They would incur disciplinary liability in accordance with the Act, which had also provided for the disclosure of conflicts of interest and their dismissal.", "159. The conditions for appointment to the IQC and Appeal Chamber seemed to be equivalent to those for judicial appointment and appeared to be at least as rigorous as those in place for appointments to permanent judicial office. The arrangements for making the appointments appeared to be designed to ensure so far as practicable the appointment of suitably qualified candidates who met the criteria. Procedures had been put in place to allow for appointments by qualified majority in Parliament with an anti-deadlock mechanism. Other than the fact that these would not be permanent institutions, it seemed that the intent of the constitutional and legal provisions was to confer on them the essential characteristics of courts of law. On the expiry of their terms of office any pending cases would be thenceforth dealt with by the permanent judicial and prosecutorial institutions.", "160. According to the Venice Commission, under the Vetting Act, the evaluation and assessment of any information or evidence collected by executive bodies would rest with the IQC and Appeal Chamber, which would draw their own conclusions independently. In its view, it was normal and in line with European standards that evidence presented to a court of law would initially be obtained by executive bodies such as the police or prosecutor. This would not amount to an interference with the judicial power provided its evaluation, that is, the assessment of its veracity and the weight to be attached to it, was a matter for judicial determination. Furthermore, the IQC and Appeal Chamber would have extensive powers to investigate and verify matters themselves. That executive bodies were involved in the re-evaluation process seemed to have instrumental and subservient functions aimed at helping the vetting bodies to carry out their mandate. Decision-making power in all cases appeared to remain with the IQC and Appeal Chamber, established for this purpose in accordance with the provisions of the Constitution as independent and impartial judicial bodies.", "161. As to whether the Vetting Act guaranteed the right to a fair trial, the Venice Commission stated that the rules concerning the qualifications for and methods of appointment of the members of the vetting bodies were designed to secure that they would be independent and impartial tribunals. Furthermore, the vetting bodies would apply the procedures provided for in the Code of Administrative Procedure and the Administrative Courts Act for the adjudication of individual cases. Furthermore, Article Ç § 2 of the Annex to the Constitution expressly imposed on the IQC and Appeal Chamber a duty to guarantee the right to a fair trial. Although in the re-evaluation proceedings, a presumption in favour of the disciplinary sanction of dismissal would be established in some cases, which the person being vetted would have the burden to dispel, Article Ç § 5 of the Annex to the Constitution clearly provided that this would only apply to the vetting proceedings and not to other proceedings, in particular criminal proceedings. Both vetting bodies would act with transparency; they would establish facts and circumstances in each case for which hearings would be held in public, and their decisions would be reasoned and in writing.", "162. As to whether the integrity background check would constitute an unjustified interference with the right for respect of private life, the Venice Commission stated that the existence of inappropriate contact between judges and organised criminals would be contrary to the interests of national security, contrary to public safety, likely to encourage rather than prevent disorder or crime, and likely to threaten rather than protect the rights and freedoms of others. The integrity background declaration would serve as the basis for carrying out the integrity background check. It was important to note that the integrity background declaration would not be used in any criminal proceedings. While a working group was to have the main role in conducting the background check, the use of the assessment would be under the supervision and control of the IQC and Appeal Chamber. In the Venice Commission ’ s view, that some information would not be disclosed would only be reasonable if it was favourable to the person being vetted. It was essential that the rapporteur of a case had access to all documents and material in the possession or control of the working group and that his or her representative attended meetings of the working group.", "(b) Constitutional Court decision no. 2/2017", "163. By decision no. 2 of 18 January 2017 the Constitutional Court decided that, even though its judges would be automatically subject to the vetting process laid down in the Vetting Act, it was competent to examine the request submitted by the opposition party ’ s MPs in so far as the Vetting Act did not preclude the Constitutional Court judges, who would act in good faith, from exercising their duties in interpreting the statutory provisions.", "(i) As regards an alleged breach of the principle of separation of powers", "164. As regards an alleged breach of the principle of separation of powers, the Constitutional Court noted that Article 179/b of the Constitution had expressly empowered the IQC to carry out the re-evaluation of judges and prosecutors at first instance, with the possibility of appealing to the Appeal Chamber attached to the Constitutional Court. The transitional re-evaluation process had been set up as “an extraordinary and temporary measure” to be carried out by the vetting bodies specified in the Constitution. Whereas the Constitution could not lay down exhaustive and detailed provisions relating to the organisation of social and political life, the application thereof would be stipulated in a separate implementing act. The legislature had broad discretion to determine the matters to be governed by a separate implementing act. The Constitutional Court went on to examine each criterion separately.", "165. Turning to the evaluation of assets, the Constitutional Court held that Article D of the Annex to the Constitution had empowered HIDAACI to verify the declaration of assets which would be filed by the person to be vetted, regard being had to HIDAACI ’ s expertise, existing infrastructure and responsibilities. The details concerning the exercise of the verification process had been laid down in the Vetting Act, which was not contrary to constitutional provisions. Furthermore, the Constitutional Court valued HIDAACI ’ s independence in collecting and verifying the information provided by the person to be vetted.", "166. As regards the evaluation of professional competence, the declaration concerning professional competence (professional self-appraisal form), as completed and filed by the person to be vetted, would be subject to re-evaluation by the responsible body in accordance with Article E of the Annex to the Constitution. Apart from designating the School of Magistrates as responsible for carrying out the testing of legal advisors and assistants, the Constitution had not determined other bodies responsible for evaluating professional competence. Those bodies, which were determined by other statutes, would draw up a detailed and reasoned report and submit it to the IQC, which would have ultimate supervision over the process and determine whether the person being vetted was “competent”, “lacking in competence” or “unfit”.", "167. The integrity background assessment would be based on a declaration completed by the person being vetted and other evidence, such as domestic or foreign court decisions, and would be carried out in accordance with Article DH of the Annex to the Constitution. Under section 36(1) of the Vetting Act, the vetting bodies, in cooperation with CISD, would be responsible for the integrity background check. The Constitutional Court accepted that the institutions mentioned in sections 36 of the Vetting Act would play an active role in carrying out the integrity background assessment. It therefore referred to the Venice Commission amicus curiae brief, which stated as follows:", "“ ... if the process of vetting is conducted or controlled by the executive, the entire process of vetting may be compromised. Therefore, it is important to ensure that the involvement of the executive, in law and in practice, is limited to the extent that is strictly necessary for the effective functioning of the vetting bodies.”", "168. Having examined Article Ç § 4 of the Annex to the Constitution and sections 45, 50 and 51 of the Vetting Act, the Constitutional Court concluded that the vetting bodies would maintain the authority to have supervision over the integrity background check. The working group to be established in accordance with section 36 would not give rise to any issues provided that representatives of the IQC were members. This could be secured by the presence of legal advisors who might be asked by the rapporteur of an individual case to attend such meetings.", "169. The Constitutional Court therefore concluded that the other bodies involved in the vetting process would assist the vetting bodies in fulfilling their mandate. In all circumstances, with reference to section 4(2) of the Vetting Act and Article 179/b § 5 of the Constitution, decision-making would rest with the IQC and Appeal Chamber, which would be established as independent and impartial institutions. The vetting bodies would perform supervisory and evaluating functions and would not be bound by the findings made by other auxiliary institutions. In so far as law enforcement agencies had an auxiliary role and their activity was subject to supervision by and control of the vetting bodies, they would not be able to commence their activities without the prior constitution of the vetting bodies.", "170. Thanks to their purpose, functioning, expertise and tasks, the auxiliary institutions would help the vetting bodies in exercising their constitutional functions and fulfilling their mission in the name of the principle of cooperation, interaction and coordination of all institutions involved in the vetting process. They would not perform their tasks beyond the scrutiny of the IQC and Appeal Chamber. This was all the more important to avoid any potential interference by the executive power with the vetting process, notably as regards the integrity background check, a concern also shared by the Venice Commission.", "171. According to the Constitutional Court, the vetting bodies were the only bodies empowered to remove a judge or prosecutor from office. Only they could determine whether the declarations had been filed within the prescribed time-limit. At the end of the proceedings, they would give a reasoned decision describing the entire decision-making.", "(ii) As regards an alleged breach of the principle of legal certainty", "172. The Constitutional Court held that, pursuant to section 42 of the Vetting Act, all serving judges, including those of the Supreme Court and the Constitutional Court, legal advisors and assistants, as well as all serving prosecutors, including the Prosecutor General, would be subject to professional evaluation, which would be carried out by the same institution. The legislation relating to the status of judges and prosecutors would apply, as appropriate.", "173. Irrespective of the institutions involved in the vetting process, the Constitutional Court held that the legal provisions did not give rise to ambiguities, misinterpretation or misapplication. At the conclusion of the vetting proceedings, the IQC would give a reasoned decision, containing the evidence serving as the basis for its outcome. In its view, it was essential that an unfavourable evaluation would only be made in cases of fundamental and serious errors and/or when there was clear and consistent pattern of erroneous judgments that indicated a lack of professional competence.", "174. The Constitutional Court further clarified that, as a rule, the timespan related to professional evaluation would cover the last three years of professional experience. However, under section 41(4) of the Vetting Act, the vetting bodies could exceptionally decide to have the timespan commence as early as 1 January 2006. In such cases, the information would be examined if the rapporteur or the international observer considered it essential for the evaluation process.", "(iii) As regards unjustified restrictions on fundamental human rights", "175. As regards the restrictions imposed by the Constitution on members of the vetting bodies, the Constitutional Court held that they could not be subject to constitutional review. As regards restrictions imposed by the Vetting Act, the Constitutional Court held that the interference was justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others. The court stressed that it was incumbent on the vetting bodies to observe European standards and case-law.", "176. In response to the allegation that there was a breach of the right to appeal, the Constitutional Court held that the Constitution and the Vetting Act provided for the right to appeal against an IQC decision to the Appeal Chamber, which was a special body set up to ensure the wide range of rights and guarantees accorded to persons being vetted, as had also been noted in the Venice Commission amicus curiae brief (see paragraph 161 above). It considered that, having regard to their functioning, the election of their members and powers, the vetting bodies appeared to secure the guarantees required by the right to a fair hearing. Moreover, the Appeal Chamber would decide cases on the merits, as a last resort, and could not remit the case to the IQC for re-examination. As such, the right to appeal could be said to have been adequately secured.", "177. As regards a restriction on the right to constitutional petition, the Constitutional Court held that this allegation could not be subject to constitutional scrutiny in so far as it had been provided for in the constitutional amendments. However, taking note of the powers of the Appeal Chamber, which could review decisions taken by the IQC, it considered that this process would be subject to supervision from a constitutional viewpoint.", "(iv) As regards an alleged breach of the right to a fair hearing", "178. The Constitutional Court stated that, pursuant to section 4 of the Vetting Act, the IQC and Appeal Chamber would be independent and impartial and would operate on the basis of the principles of lawfulness and proportionality, as well as other principles guaranteeing the right to a fair hearing of persons being vetted. They would also apply the provisions of the Code of Administrative Procedure and the Administrative Courts Act. Furthermore, the Vetting Act made provision for guaranteeing and respecting the rights of the person to be vetted in its sections 35 to 40, 45 to 47, 55, 57, 63 and 65.", "179. While the Vetting Act had not laid down any specific time-limits for the examination of individual cases, the vetting bodies would have a duty to do so within a reasonable time. Re-evaluation was a general measure which would apply equally to all serving judges and prosecutors, without leading to inequalities before the law.", "180. In accordance with Article Ç § 2 of the Annex to the Constitution, proportionality between the right for respect of private life and the duty to investigate, as well as the right to a fair hearing, would be observed whenever information was obtained from members of the public under sections 53 and 54 of the Vetting Act.", "(v) Conclusion", "181. The Constitutional Court, having regard to the lawful procedure followed for the enactment of the Vetting Act, as well as the reasons described above, decided by a majority to reject the grounds raised in the petition made by the complainants.", "(vi) Dissenting opinion", "182. Two judges of the Constitutional Court (B.I. and G.D.) appended a dissenting opinion. In their view, the statutory provisions had shifted the investigation and control of the vetting process from the vetting bodies to existing institutions which were controlled by the executive. In support of this argument, they noted that section 35 of the Vetting Act required persons to be vetted to file their integrity background declaration with CISD, whereas Article DH § 2 of the Annex to the Constitution demanded that those persons file that declaration with the IQC. Furthermore, CISD and other bodies, which were controlled by the executive, would commence the verification of the integrity background declarations when the vetting bodies had not yet been constituted. CISD would thus carry out a de facto verification of the integrity background declaration without supervision or control by the vetting bodies.", "183. Furthermore, the dissenters took issue with the statutory provisions providing for the dismissal of a person being vetted in the event that he or she failed to file a declaration of assets or the integrity background declaration within thirty days of entry into force of the Vetting Act. In so far as the vetting bodies had not yet been formed, it was unclear how those provisions would apply and how a decision could be taken. For this reason, they argued that the phrase “within thirty days of entry into force” used in sections 31, 35 and 41 of the Vetting Act, should have been repealed.", "184. Lastly, the dissenters considered that the fact that the period for the evaluation of professional competence could be extended up to ten years, or longer, gave rise to serious doubts as to respect for the principle of legal certainty. This could also lead to unequal treatment of the persons being vetted.", "The Appeal Chamber ’ s case-law", "185. The summary of the following decisions, which were given by the Appeal Chamber prior to the delivery of the decision in the applicant ’ s case, has been limited to a description of procedural matters in order to avoid prejudicing the outcome of the domestic proceedings in respect of which the persons who were vetted have lodged an application with this Court.", "(i) Decision no. 3 of 17 July 2018 (no. 3/2018)", "186. In its first vetting decision on the merits (no. 3/2018), the Appeal Chamber, pursuant to section 47 of the Administrative Courts Act, declined to admit the appellant ’ s additional evidence to the case file, stating that he had failed to advance any reasonable grounds for his failure to submit that evidence to the IQC. The same finding was also made in decision no. 7/2008, in which the Appeal Chamber further stated, referring to section 49(6) of the Vetting Act, that the additional evidence was not important for the decision-making process. In decision no. 3/2018, the Appeal Chamber decided to dispense with a public hearing.", "187. The Appeal Chamber held that, even though the re-evaluation proceedings were to be carried out on the basis of the assessment of the three criteria laid down in the Vetting Act, the final decision could be limited only to one of them. This approach was allowed by the wording of section 4(2) of the Vetting Act and there was no other statutory provision precluding such a course of action. In the appellant ’ s case, the IQC had considered that, on the basis of the evidence in the case file, the re-evaluation could be concluded in respect of the evaluation of assets, there being no need to proceed with the re-evaluation of the remaining criteria. Such a finding was also made in decisions nos. 4/2018 and 8/2018.", "188. The Appeal Chamber further held, referring to Article Ç § 4 of the Annex to the Constitution and section 32(5) of the Vetting Act, that the IQC was empowered to use as evidence all prior annual asset declarations submitted by the appellant to HIDAACI in order to verify the truthfulness and accuracy of the vetting asset declaration. This finding was also repeated in decision no. 8/2008. Any prior thorough investigation carried out by HIDAACI in 2011, which could not be said to have acquired the force of res judicata for the purposes of the Vetting Act ( nuk mund të përbëjë gjë të gjykuar në kuadër të ligjit 84/2016 ), did not preclude the IQC from carrying out an in-depth investigation into the three criteria prescribed by the Vetting Act (see also paragraph 191 below).", "189. As regards the complaint that no methodology for the determination of income had been determined, the Appeal Chamber held that it was not necessary to determine the application of a methodology, since, under Article D § 3 of the Annex to the Constitution, the appellant had to provide convincing explanations concerning the lawful source of assets and income, which he should have disclosed and in respect of which he should have paid taxes. As the appellant had not been able to demonstrate the existence of such lawful income for the period 1994 to 2003, no prescribed methodology was to apply.", "(ii) Decision no. 4 of 26 July 2018 (no. 4/2018)", "190. In decision no. 4/2018, the Appeal Chamber, in accordance with section 49 of the Administrative Courts Act, decided to dispense with a public hearing in the appellant ’ s case, stating ( i ) that the facts had been fully and accurately established, (ii) that there had been no serious procedural breaches and (iii) that it was not necessary to reopen the judicial examination and administer new evidence. The same finding was also made in decision no. 7/2018.", "191. The Appeal Chamber rejected the appellant ’ s argument that the positive audit of his assets in 2013 by HIDAACI had acquired the force of res judicata, stating that the evaluation of assets had been permitted by lex specialis, namely the Vetting Act, which had laid down a methodology and procedure different from prior audits. This evaluation would only be administered once by a different body, such as the IQC, which was empowered to take a decision in each individual case.", "Code of Administrative Procedure (Law no. 44/2015)", "192. Articles 35 to 40 relate to the representation of parties before a public authority. Article 45 enshrines the right of parties to have access to the case file. Article 46 provides that restrictions may be imposed on the parties ’ right under Article 45, and Article 47 guarantees the right of parties to express opinions, give explanations, submit evidence or make proposals about facts, circumstances, legal issues and the outcome of the case.", "Administrative Courts Act (Law no. 49/2012 on the organisation and functioning of the administrative courts and the adjudication of administrative disputes, as amended)", "193. The Administrative Courts Act lays down rules relating to the jurisdiction and competence of administrative courts, as well as the principles and procedure for the adjudication of administrative disputes.", "194. Section 47 states that an appellant may not submit new facts or request new evidence on appeal, unless the appellant can demonstrate that, through no fault of his or her own, it was not possible to submit those new facts or request new evidence, within the time-limits prescribed by the Act, during the examination of the case at first instance.", "195. Section 49(1) states that the examination of an appeal is carried out in camera on the basis of the documents submitted. Under section 49(2), the president of the court bench, after fixing the date for the examination of the appeal in camera, informs the parties. It is open to the parties, up to five days prior to the examination of the case, to make written submissions in respect of the grounds of appeal and counter appeal.", "196. Under section 51(1), the appellate court will decide in private to hold a public hearing if it considers that the parties ’ arguments are necessary to determine ( i ) that new facts should be considered or new evidence should be taken in order to establish the factual circumstances in a comprehensive and accurate manner; (ii) that the decision against which an appeal has been lodged was based on serious procedural breaches or on factual circumstances which had been established erroneously or inaccurately; or (iii) that the collection of some or all evidence should be carried out afresh in order to establish the correct factual circumstances.", "Code of Civil Procedure (“the CCP”) (Law no. 8116 of 29 March 1996, as amended)", "197. Under Article 72 § 6 of the CCP, a judge may recuse him or herself from civil proceedings, by making a request to the president of the court, if (1) he or she has an interest in the proceedings or in any other dispute connected to the impugned proceedings; (2) he or she or his or her spouse are second-degree relatives or in-laws of, or have adoption obligations towards, or live permanently with, one of the parties to the proceedings or their representatives; (3) he or she or his or her spouse have a dispute or animosity with, or have taken a loan from, one of the parties to the proceedings or their representatives; (4) he or she has given advice or made public his or her views about the impugned proceedings or has participated in the examination of the case at another instance of the proceedings, has been questioned as a witness, expert or representative of one of the parties to the proceedings; (5) he or she is a guardian, employer of one of the parties to the proceedings, administrator or holds office in a legal entity, association, company or other institution which has an interest in the proceedings; (6) “it has been demonstrated, in view of the circumstances, that there are other serious reasons of partiality”.", "198. In addition, Article 74 provides that a party to proceedings may request that a judge recuses him or herself from examining the case.", "Constitutional Court Act (Law no. 8577 of 10 February 2000 on the organisation and functioning of the Constitutional Court, as amended by Law no. 99/2016)", "199. Section 36(1) of the Constitutional Court Act, as in force until 22 November 2016, stated that a judge of the Constitutional Court was required to withdraw from the examination of a case if: (a) he or she had participated in the preparation of the constitutional complaint, (b) his or her objectivity was called into question owing to kinship or another relationship with any of the parties to the proceedings, or (c) other instances gave rise to serious grounds of partiality. Under section 37, any of the parties had the right to request that a judge be excluded from sitting in a case for one of the reasons laid down in section 36 if the judge had not withdrawn from examining the case.", "200. Until 22 November 2016 the Constitutional Court Act did not contain any provisions relating to disciplinary liability. Section 10, following amendments introduced on 23 November 2016, specifies the cases which may give rise to disciplinary liability on the part of a Constitutional Court judge. Under section 10/b, the following disciplinary sanctions may be imposed on a Constitutional Court judge: a written reprimand, a public reprimand, a temporary reduction of up to 50% of his or her salary for a period of up to one year, suspension from office for a period of between three and six months and dismissal from office.", "Asset Disclosure Act (Law no. 9049 of 10 April 2003 on the disclosure and audit of assets and financial obligations of elected officials and certain public servants, as amended from 2006 to 2018)", "201. Following the entry into force of the Asset Disclosure Act in 2003, judges and prosecutors were, pursuant to section 6, required to file an initial asset disclosure declaration. Section 9 provides that this requirement also applies to judges and prosecutors taking up their functions for the first time. Pursuant to the Prevention of Conflicts of Interest in the Exercise of Public Functions Act, which entered into force on 26 May 2005 (“Prevention of Conflicts of Interest Act” - Law no. 9367/2005, as amended), judges and prosecutors are required to disclose all instances of conflicts of interest, as defined therein. Since amendments to the Asset Disclosure Act in 2012, the subsequent annual declaration of assets and conflicts of interest only has to indicate changes to the initial or preceding declarations, as the case may be. Under section 9/1, introduced in 2012 (by Law no. 85/2012), each declaration is to be accompanied by a special authorisation empowering the appropriate bodies to perform checks within and outside the country and to contact any person who they deem necessary.", "202. The annual declaration of assets is filed with HIDAACI by 31 March of each calendar year, in respect of assets and liabilities for the period from 1 January to 31 December of the preceding year. Section 4 lists the assets that should be disclosed, such as real estate and movable properties, items of special value exceeding a specific threshold, the values of shares and securities as well as the number of shares held, cash savings, bank accounts, treasury bills and loans, annual personal income, licences and patents generating income, gifts and preferential treatment exceeding a specific value, engagements in profit-making activities or other activities generating income, and private interests based on and originating from family or cohabitation relationships. In addition, the sources used for their creation, any expenditure exceeding a specific threshold, financial obligations and liabilities, including those belonging to family members and related persons, are to be disclosed. Section 4/1, as introduced by Law no. 45/2014 which entered into force in 11 June 2014, requires all officials and public servants holding cash exceeding ALL 1.5 million (EUR 11,990) at home to deposit it to a bank account prior to filing the annual declaration of assets.", "203. Section 22 provides that asset disclosure declarations are subject to preliminary checks by HIDAACI, which entails verifying that the declaration (and its annexes) has been completed properly and correctly. They may also be subject to a full audit, consisting of numerical and logical checks. According to the 2012 amendments, a full audit is carried out every two years in respect of judges of the Supreme Court and Constitutional Court and every three years in respect of appellate court judges. Since the 2014 amendments (brought about by Law no. 45/2014), first-instance court judges have been subject to a full audit every four years (prior to that, they used to be subject to random audits, which covered at least 4% of the total number of declarations filed with HIDAACI).", "204. Under section 5, refusal to disclose assets and conflicts of interest results in dismissal from office and applicable criminal liability, upon notice served by HIDAACI to the responsible employing body. Under section 38, false disclosure of assets ( deklarim i rremë ) constitutes a criminal offence under the applicable criminal law (Article 257/a of the Criminal Code). The Act initially provided that failure to file an asset disclosure declaration within the time-limit and without good cause was punishable by an administrative fine of ALL 25,000 (EUR 199), which could be doubled in case of repeated failure. In 2012, the fine was increased, and ranges from ALL 50,000 (EUR 399) to ALL 100,000 (EUR 798).", "205. As regards first-instance court and appellate judges, section 32(2)(ç) of the Judiciary Act 2008 (Law no. 9877/2008 on the organisation and functioning of the judiciary, as amended), which entered into force on 15 March 2008, provided, inter alia, that “refusal or failure to disclose assets, concealment of assets and false disclosure of assets” constituted “very serious” disciplinary breaches, entailing dismissal from office in accordance with section 33(3) thereof. The Judiciary Act 2008 was repealed as a result of the entry into force of the Judiciary Act 2016 (Law no. 98/2016) on 22 November 2016.", "Status of Judges and Prosecutors Act (Law no. 96/2016, as amended)", "206. The Status of Judges and Prosecutors Act, which entered into force on 22 November 2016, lays down the rules for appointment as a judge. Under section 28(dh), a person has the right to apply for admission to the initial training course if he or she has not been dismissed from office on disciplinary grounds and there is no valid disciplinary sanction in force. Former judges may also be reappointed provided that they satisfy, amongst other things, the requirement laid down in section 28(dh). Section 150(3) states that the disciplinary sanction of dismissal from office imposed on judges and prosecutors will not be extinguished or erased from the register of disciplinary sanctions kept by the responsible authorities.", "207. Section 166(6) states that members of the Appeal Chamber will be appointed to the post of appellate court judge upon the expiry of their term, unless a disciplinary sanction has been imposed on them.", "Lawyers ’ Act (Law no. 55/2018 on the profession of lawyers)", "208. Under section 13(1), a person will be qualified to act as a lawyer if he or she has obtained the title of “advocate” and has been admitted as an advocate on the strength of a certificate (licence) issued by the Chamber of Advocates (namely the Bar Association). Section 13(2) lists a number of general requirements that have to be satisfied in order for a person to be admitted as an advocate, the most relevant, for the purposes of this case, being that “a person shall not have been removed from duty or a public function, on account of [a breach of] ethical integrity, by a final decision of the competent authority, save for cases where the disciplinary sanction has been extinguished by virtue of a specific law”.", "209. Section 51 of the Lawyers ’ Act states that the First Instance Administrative Court is competent to hear complaints against disciplinary decisions given by the responsible bodies of the Chamber of Advocates.", "Relevant international materialsMaterials relating to the judiciary", "Materials relating to the judiciary", "Materials relating to the judiciary", "210. Relevant Council of Europe texts, such as extracts from the Committee of Ministers ’ Recommendation (2010) 12, the Magna Carta of Judges (Fundamental Principles) and the European Charter on the Statute of Judges, can be found in Baka v. Hungary ([GC], no. 20261/12, §§ 77, 78 and 81, 23 June 2016).", "211. Relevant international texts, such as extracts from the Bangalore Principles of Judicial Conduct, can be found in Rustavi 2 Broadcasting Company Ltd and Others v. Georgia (no. 16812/17, § 224, 18 July 2019), and Harabin v. Slovakia (no. 58688/11, § 107, 20 November 2012).", "Materials relating to the fight against corruptionUnited Nations materials", "United Nations materials", "United Nations materials", "212. The United Nations Convention Against Corruption entered into force in respect of Albania on 25 May 2006, having been signed on 18 December 2003. Its main purpose is to promote and strengthen measures to prevent and combat corruption more efficiently and effectively. In this connection, Article 8, which calls on States Parties to apply codes of conduct for public officials, states amongst other things that a State Party should “establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials” and “take disciplinary or other measures against public officials who violate the codes or standards”.", "Council of Europe materials", "(a) Legal instruments", "213. The Criminal Law Convention on Corruption (ETS No. 173) entered into force in respect of Albania on 1 July 2002. It aims at the coordinated criminalisation of a large number of corrupt practices, as outlined in its Articles 2 to 14. Its implementation will be monitored by the Group of States against Corruption (“GRECO”) which had been established in 1999.", "214. The Civil Law Convention on Corruption (ETS No. 174) entered into force in respect of Albania on 1 November 2002. It requires Contracting Parties to provide in their domestic law “for effective remedies for persons who have suffered damage as a result of acts of corruption, to enable them to defend their rights and interests, including the possibility of obtaining compensation for damage”. Its implementation will be monitored by GRECO.", "215. Committee of Ministers Recommendation No. R (2000)10 on codes of conduct for public officials, which was adopted on 11 May 2000, recommends the adoption of national codes of conduct for public officials based on the model code of conduct annexed to the Recommendation. Under Article 14 of the model code, a public official “who occupied a position in which his or her personal or private interests are likely to be affected by his or her official duties should, as lawfully required, declare upon appointment, at regular intervals thereafter and whenever any changes occur the nature and extent of those interests”. Under Article 28, a breach of the provisions of the model code of conduct may result in disciplinary action.", "(b) GRECO evaluation reports", "216. The Group of States against Corruption (GRECO) monitors States ’ compliance with the Council of Europe ’ s anti-corruption standards. It works in cycles, known as evaluation rounds, each covering specific themes. Following an on-site visit, the GRECO evaluation team (“GET”) produces an evaluation report, which may include recommendations requiring action to be taken by the State to ensure compliance therewith.", "217. In the first evaluation round concerning the independence, specialisation and means of national bodies engaged in the prevention and fight against corruption, which was carried out in Albania from 8 to 12 April 2002, the GET stated in the section of its evaluation report headed “The phenomenon of corruption and its perception in Albania”, in so far as the judiciary was concerned, the following:", "“13. Surveys (referred to by the Government) carried out with the support from the international community, show that the judiciary, the Customs, the Privatisation Agency and the Health service are among the most corrupt. ... The authorities consider that the most common form of corruption in Albania is bribery. Civil servants or other officials are inclined to accept bribes to expedite service delivery, to refrain from using punishment foreseen in law/regulation or judges who may be ready to change court decisions, etc. Surveys also show that it is very common that private enterprises pay bribes to public officials to avoid taxes and regulations, or that court and arbitrage decisions are being bought.”", "218. The analysis section of the evaluation report, in so far as the courts were concerned, stated the following:", "“156. ... the independence of the judiciary is of paramount importance under the rule of law, however, such independence is not without limits and must be connected to a system of accountability. The Albanian Constitution provides for the independence of the judiciary and the authorities are struggling to put in place an accountability mechanism of the judges. The GET recognises the difficulties linked to this, considering that the judicial system in Albania appears to be suffering from a general lack of public confidence. Furthermore, this is an area where the Albanian authorities consider anti-corruption measures to be very important. It was also noted, however, that it seems that the judiciary consists of dedicated officials working under difficult conditions”.", "219. In the second evaluation round concerning, amongst other things, public administration and corruption, which was carried out in Albania from 11 to 15 October 2004, the GET stated in its report the following relevant information:", "“34. A new control body, the High Inspectorate for Declaration and [Audit] of Assets, is operating in Albania. It is an independent institution with a duty to verify obligatory declaration of assets required of individuals particularly exposed to corruption. Medium, higher and elected public officials including at local level, as well as judges, prosecutors, etc. are obliged to report all kinds of assets, financial obligations, income, etc. to this body. Their family members and close associates are also subject to this obligation. Failure to do so may lead to disciplinary, administrative and/or criminal sanctions. Control of their financial statement is carried out by requesting information from banks, registers, etc. which hold pertinent information. Responding correctly to such requests is an obligation. Suspicious cases have already been examined. In one case, a person has been dismissed. The case was also reported to the prosecutor ’ s office.”", "220. GRECO ’ s fourth evaluation round, which was carried out in Albania from 28 October to 1 November 2013, focused on prevention of corruption in respect of MPs, judges and prosecutors. Its evaluation report stated, in so far as judges were concerned, the following relevant information:", "“13. According to the 2013 Global Corruption Barometer, the perception of corruption within the judiciary is the highest (81% of respondents). In the opinion of the Heritage Foundation, a culture of impunity and political interference has made it difficult for the judiciary to deal with high-level and deeply rooted corruption, and the implementation of deeper institutional reforms to increase judicial independence and eradicate lingering corruption remains critical. The seriousness of judicial corruption has also been reiterated in the reports of the European Commission and of the Commissioner for Human Rights of the Council of Europe.", "...", "53. The discussions on-site highlighted the clear priority given to asset declaration by officials and the regular in-depth monitoring carried out by the HIDAA. The asset disclosure regime extends to a large number of officials (currently some 4,670 persons) as well as their family members, “trusted persons” and “partners/cohabitees”. The GET was informed that, due to the HIDAA ’ s limited capacity to process all declarations and carry out checks in a timely fashion, the [Asset Disclosure Act] was amended in 2012 introducing a differentiated treatment for various categories of officials. ( ... )", "...", "75. ... the recently introduced system for ethical and professional evaluation of judges cannot be considered effective and efficient due to the significant time lapse between evaluation and the reference period. GRECO does not share the opinion of the authorities who assert that such evaluation cannot be managed in real time as the average duration of trial before the three instances is up to three years. A well-conceived system of periodic assessments allows not only for the monitoring of a judge ’ s performance and its progression over time but also for the early detection of problems, such as the high caseload and backlog which many judges confront and which can and should be addressed at an earlier stage. In light of the high public perception of corruption in the judiciary, another source of concern to which consideration needs to be given is the apparent lack of well-formulated criteria for periodic evaluation of a judge ’ s ethical qualities (as a continuation of the integrity checks that are carried out before appointment).", "Declaration of assets income, liabilities and interests", "95. As previously stated, the asset disclosure regime is widely regarded as an important tool for combating corruption and achieving greater transparency of private interests of officials, including judges. Nevertheless, the shortcomings that arise from the absence of the timely on-line publication of MPs ’ asset declarations have the same effect in respect of all categories of judges and contribute to diminished public trust in the judiciary. That being said, the risks generated by this delayed public disclosure are mitigated to a certain extent by the length of a judge ’ s service which is not time-barred. For this reason, GRECO foregoes issuing a separate recommendation on this matter; still it encourages the authorities to ensure the timely publication of asset declarations by judges on an official web site, having regard to the privacy and security of judges and their family members who are subject to a reporting obligation.", "...", "Supervision over declarations of assets, income, liabilities and interests", "97. The supervision of judges ’ asset declarations is also assigned to the HIDAA. It is carried out in a manner identical to that applied in respect of MPs, except that the declarations of the [Supreme] Court justices and judges who are HCJ [High Council of Justice] members are to be audited every two years, those of appellate judges – every three years, and finally, the declarations of district court judges are subject to annual random audits. In case of refusal or failure to declare, concealment or false declaration of assets, the HIDAA refers the case to the Prosecution Service for criminal proceedings, and to the HCJ and the Minister of Justice – for disciplinary [sanctions] of dismissal from office.", "...", "99. As mentioned above, judges are disciplinarily liable for violations of law and commission of acts and conduct discrediting their reputation and integrity. “Very serious” violations (e.g. non-compliance with incompatibility rules; refusal to declare, failure to declare, hiding or false declaration of assets; obtaining, directly or indirectly, gifts, favours, promises or preferential treatment, in the exercise of duties; failure to withdraw from a trial; the absolute absence of reasoning in a judicial decision) are sanctioned by removal from office. “Serious” violations (e.g. repeated and unjustified procedural delays; interference with or any kind of other influence exerted on another judge; violation of ethical norms in relations with parties, colleagues, court president and staff, experts, prosecutors and lawyers) are punishable by a transfer for one to two years to a lower instance or same level court outside the judicial district of a judge ’ s appointment. Finally, “minor” violations lead to a reprimand or a reprimand with a warning.", "100. Disciplinary proceedings are carried out by the HCJ. The period of limitation is one year from the date the violation is found by/reported to the Minister of Justice and five years from the date of its commission.”", "(c) Venice Commission report", "221. On 9 December 2020 the Venice Commission released an urgent opinion on the constitutional situation created by a decision of the Constitutional Court of Ukraine, which had declared unconstitutional certain statutory provisions in the sphere of anti-corruption, including a criminal-law provision which provided for criminal liability for submitting false assets declarations or failure to submit a declaration. The relevant parts of the Venice Commission ’ s opinion read as follows:", "“ 34. Since the central argument of the [Constitutional Court of Ukraine] is the alleged ‘ lack of proportionality ’ of [the ‘ criminal - law ’ provision], more tailor-made sanctions may be provided in the revised provision: for example, the sanction of imprisonment may be reserved only for cases above a certain threshold and for perpetrators acting with deliberate intent. That being said, in the [Venice] Commission ’ s view, the level of monetary fines and other sanctions should be sufficiently high as to act as [a] deterrent and as to ensure a punishment which is proportionate to the importance which the fight against corruption has in Ukraine. The sanction of imprisonment should be maintained for the most serious violations ... ”", "Case-law of the Court of Justice of the European Union (the “CJEU”) Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "Judgments in cases Commission v Poland (Independence of the Supreme Court, C-619/18) and Commission v Poland (Independence of ordinary courts), C-192/18)", "222. In response to an action concerning alleged breaches of European Union law arising from the enactment of a new domestic law on the Supreme Court of Poland, brought by the European Commission against Poland (case of Commission v. Poland (Independence of the Supreme Court), C ‑ 619/18), on 24 June 2019 the Grand Chamber of the CJEU held that Poland had failed to fulfil its obligations under European Union law, first, by providing that the measure consisting in lowering the retirement age of Supreme Court judges to 65 was to apply to judges in post who had been appointed to that court before the date on which the relevant law had entered into force and, second, by granting the President of the Republic discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age. The CJEU held that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court was not justified by a legitimate aim and undermined the principle of irremovability of judges, which was essential to their independence.", "223. In response to an action concerning alleged breaches of European Union law arising from the introduction of amendments to the Polish law on the ordinary courts, brought by the European Commission against Poland (case of Commission v. Poland (Independence of ordinary courts), C ‑ 192/18), on 5 November 2019 the CJEU ’ s Grand Chamber held that Poland had failed to fulfil its obligations under European Union law, first, by establishing a different retirement age for men and women who were judges or public prosecutors in Poland and, second, by lowering the retirement age of judges of the ordinary courts while conferring on the Minister for Justice the power to extend the period of active service of those judges. As regards the power held by the Minister of Justice, the CJEU found that the national statutory provisions which laid down the substantive conditions and detailed procedural rules governing the adoption of decisions by the Minister of Justice gave rise to “reasonable doubts, inter alia, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interest that may be the subject of argument before them”. The CJEU further held that the power held by the Minister of Justice failed to comply with the principle of irremovability, which was inherent in judicial independence.", "224. In so far as is relevant for the purposes of the present case, the CJEU referred in both judgments to, inter alia, the following general principles:", "“The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (references omitted).", "In that latter respect, it is apparent, more specifically, from the [CJEU ’ s] case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in ... the Charter [of Fundamental Rights of the European Union], in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies ’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary.”", "Judgment in the case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18 and C-625/18)", "225. In response to three requests for a preliminary ruling concerning the independence of the newly established Disciplinary Chamber of the Supreme Court of Poland, made by the Labour and Social Insurance Chamber of the Supreme Court of Poland (case of A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C-624/18 and C-625/18), on 19 November 2019 the CJEU ’ s Grand Chamber held that the referring court had to ascertain whether the new Disciplinary Chamber of the Supreme Court was independent in order to determine whether that chamber had jurisdiction to rule on cases where judges of the Supreme Court were retired, or in order to determine whether such cases had to be examined by another court which would meet the requirement that courts must be independent.", "226. In doing so, the referring court had to assess the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the Polish National Council of the Judiciary (“NCJ”) in making proposals for appointment to the President of the Republic of Poland. In particular, the referring court had to examine the following specific factors, which the CJEU had identified, in order to ascertain whether the new Disciplinary Chamber of the Supreme Court offered sufficient guarantees of independence: ( i ) compliance with the substantive conditions and detailed procedural rules governing the appointment of judges of the new Disciplinary Chamber, (ii) the degree of independence enjoyed by the Polish NCJ from the legislature and the executive in exercising the responsibilities attributed to it under national law, (iii) the way in which the Polish NCJ exercised its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it did so in a way which was capable of calling into question its independence from the legislature and the executive, (iv) the effectiveness of the judicial review of a resolution of the Polish NCJ, including its decisions concerning proposals for appointment to the post of judge of the Supreme Court, which would, at the very least, be capable of examining whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment.", "227. In addition, the referring court had to examine other features which more directly characterised the new Disciplinary Chamber, such as ( i ) its exclusive jurisdiction to rule on a specific number of matters which previously fell within the jurisdiction of the ordinary courts, (ii) its composition of solely newly appointed judges, thereby excluding judges already serving in the Supreme Court, and (iii) its particularly high degree of autonomy compared to the other chambers of the Supreme Court.", "228. As a general point, the CJEU reiterated at several points that, although each of the factors examined, taken in isolation, were not necessarily capable of calling into question the independence of the Disciplinary Chamber, that could, however, be the case once they were taken together.", "229. Subsequent to the CJEU ’ s judgment, the Labour and Social Insurance Chamber of the Supreme Court of Poland delivered three judgments in cases that had been referred for a preliminary ruling to the CJEU (one on 5 December 2019 and two on 15 January 2020). The judgment of 5 December 2019 contained extensive grounds and applied the indications as to the applicable standards given by the CJEU. The Labour and Social Insurance Chamber of the Supreme Court concluded that the NCJ was not an authority that was impartial and independent from legislative and executive branches of power. Moreover, it concluded that the newly established Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and the Convention.", "THE LAW", "alleged violation of article 6 § 1 of the Convention", "230. The applicant complained that the vetting bodies lacked independence and impartiality, as required by Article 6 § 1 of the Convention, for the following reasons: ( i ) the vetting bodies were composed of non-judicial members who lacked the requisite professionalism and experience; (ii) the members of the vetting bodies were appointed by parliament without any involvement of the judiciary; (iii) the vetting bodies carried out the preliminary administrative investigation, framed the “accusation” and decided on the merits of the “accusation”.", "231. She also complained under Article 6 § 1 of the Convention of unfairness in the proceedings in her case, for the following reasons: ( i ) she had been denied the right to refute the main reason for her dismissal and defend herself; (ii) the IQC had shifted an unreasonable burden of proof onto her in relation to circumstances which had arisen decades ago; (iii) the Vetting Act had not prescribed any limitation periods; (iv) the decisions in her case had lacked reasoning in relation to her arguments; (v) the vetting bodies had applied double standards compared to other cases; (vi) the Appeal Chamber had dismissed her request to submit further exculpatory evidence; (vii) she had not had sufficient time and facilities to prepare her defence; (viii) the Appeal Chamber had failed to hold a public hearing; and (ix) the vetting bodies had breached the principle of legal certainty and legitimate expectation in so far as they had disregarded the positive audit of her assets carried out by HIDAACI.", "232. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”", "Admissibility", "233. The Court, having regard to the parties ’ submissions, will now determine matters regarding the applicability of Article 6 § 1, the exhaustion of domestic remedies and compliance with the six-month time-limit.", "Applicability of Article 6 § 1", "(a) The parties ’ submissions", "234. The Government conceded that Article 6 § 1 of the Convention applied under its civil limb. In view of the administrative nature of the vetting proceedings, they contested the applicability of Article 6 § 1 of the Convention under its criminal limb.", "235. The applicant maintained that Article 6 applied under its civil limb. She further argued, with reference to Matyjek v. Poland (( dec. ), no. 38184/03, ECHR 2006 ‑ VII), that Article 6 applied under its criminal limb for the following reasons: ( i ) the IQC, which had carried out the preliminary investigation and adopted a decision at first instance, was vested with powers similar to those of a public prosecutor; (ii) her position in the vetting proceedings had been like that of an accused in criminal proceedings; (iii) the nature of the offence, namely the production of untrue statements in the declaration of assets, was analogous to that of perjury, which would be liable to criminal prosecution; and (iv) the nature and degree of severity of the penalty at stake, namely dismissal from office, allegedly entailed an indefinite ban on applying for a large number of public posts.", "(b) The Court ’ s assessment", "(i) Applicability of Article 6 § 1 under its civil head", "236. The Court notes that the parties did not contest the applicability of Article 6 § 1 of the Convention under its civil limb. In this connection, the Court points out that labour disputes between civil servants and the State may fall outside the civil limb of Article 6 provided that two cumulative conditions are fulfilled. In the first place, the State in its national law must have expressly excluded access to the courts for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest (see, for example, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II, hereafter “the Vilho Eskelinen test”).", "237. Although the judiciary is not part of the ordinary civil service, it is considered part of typical public service. Therefore, Article 6 § 1 has been applied to proceedings relating to the dismissal of judges chiefly on account of the fact that judges had access to the national courts to challenge their dismissal (see, for example, Olujić v. Croatia, no. 22330/05, §§ 42-43, 5 February 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 90-91, ECHR 2013; Poposki and Duma v. the former Yugoslav Republic of Macedonia, nos. 69916/10 and 36531/11, § 37, 7 January 2016; and Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017).", "238. Turning to the present case, and with regards to the first condition laid down in the Vilho Eskelinen test, the Court notes that, further to the institution of the vetting proceedings, the IQC, at first instance, and the Appeal Chamber, on appeal, dismissed the applicant from her post as a judge of the Constitutional Court. Indeed, domestic law did not exclude her right to challenge the dismissal.", "239. However, as the Court has to determine for the first time whether the IQC and Appeal Chamber are to be considered a “tribunal established by law”, it considers that the applicability of Article 6 § 1 of the Convention under its civil head must be joined to the merits of this complaint.", "(ii) Applicability of Article 6 § 1 under its criminal head", "240. The Court notes that the parties disagreed on whether Article 6 § 1 was applicable under its criminal head.", "241. The Court points out that the two aspects, civil and criminal, of Article 6 § 1 are not necessarily mutually exclusive (see Albert and Le Compte v. Belgium, 10 February 1983, § 30, Series A no. 58). The concept of a “criminal charge” in Article 6 § 1 is an autonomous one. The Court ’ s established case-law sets out three criteria, commonly known as the “Engel criteria”, to be considered in determining whether or not there was a “criminal charge” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among other authorities, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018, and the references cited therein).", "242. In Matyjek (cited above, §§ 49-58 ), in holding that Article 6 was applicable under its criminal head to lustration proceedings under Polish law, the Court had regard to the fact that the Polish Code of Criminal Procedure was applicable to the proceedings, that the nature of the act for which the applicant had been subject to lustration, namely making a false declaration, was akin to the criminal offence of perjury, and that the sanction imposed on him, a ban on occupying a range of public posts for ten years, was severe.", "243. Turning to the present case, as regards the first of the Engel criteria, namely the domestic classification of the offence, the Court observes that the vetting proceedings against the applicant, which were of a disciplinary nature, were governed by the Vetting Act, in conjunction with the rules laid down in the Code of Administrative Procedure, the Administrative Courts Act or the Code of Civil Procedure, as applicable. No reference or mention was ever made to the application or interpretation of criminal law or criminal procedure law. The vetting proceedings were conducted by a specially established body, the IQC, subject to a subsequent appeal to the Appeal Chamber, and neither the prosecuting authorities nor the criminal courts were involved in determining their outcome. Furthermore, Article Ç § 5 of the Annex to the Constitution only provides for a shifting of the burden of proof in vetting proceedings, it being expressly excluded during any separate criminal proceedings, and Article DH § 2 of the Annex to the Constitution explicitly bars the use of the integrity background declaration in any criminal proceedings (see paragraphs 107 and 109 above). For these reasons, the Court cannot accept the applicant ’ s argument that her position had been like that of an accused in criminal proceedings or that the IQC ’ s powers were similar to those of a public prosecutor.", "244. As to the second criterion – the very nature of the offence – the Court notes that the applicable statutory provisions were aimed solely at a specific category, namely judges, prosecutors and legal advisors, and not at the public in general. The provisions were designed to protect the professions ’ conduct, honour and reputation and to maintain public trust in the judiciary. They were purely of a disciplinary nature and not vested with elements of a criminal nature. That the applicant may be subject to criminal proceedings in the future on account of false disclosure of assets does not suffice to bring the vetting proceedings within the criminal sphere. In this connection, the fact that an act which can lead to a disciplinary sanction also constitutes a criminal offence is not sufficient to consider a person responsible under disciplinary law as being “charged” with a crime (see Müller- Hartburg v. Austria, no. 47195/06, § 44, 19 February 2013, and Biagoli v. San Marino ( dec. ), no. 64735/14, § 56, 13 September 2016 ). It would only be in the context of any future, separate criminal proceedings which might be instituted against the applicant that Article 6 § 1 may be found to apply under its criminal head.", "245. With regard to the third criterion, that is, the degree of severity of the penalty, the Court notes that the applicant ’ s dismissal is a sanction characteristic of a disciplinary offence and cannot be confused with a criminal penalty. No fine was imposed on her subsequent to her dismissal. The Court further notes that the Vetting Act does not impose a permanent ban on applying for posts in the justice system. However, the Status of Judges and Prosecutors Act has barred judges and prosecutors who have been dismissed from office from rejoining the justice system (see paragraph 206 above). Be that as it may, this bar, in any event, would not in itself be decisive to regard the vetting proceedings as criminal for the following reasons. The bar is not set out in criminal law. It cannot be considered a sanction that is criminal in nature. The purpose of the bar from rejoining the justice system does not appear to be to impose a punishment in relation to the dismissal from office, but is rather aimed at ensuring and preserving public trust in the justice system. Even though, in itself, the bar appears to be a rather severe consequence, many non-penal measures of a preventive nature may have a substantial impact on the person concerned. The mere fact that the bar is of a permanent nature does not suffice to regard it as a penalty (see, mutatis mutandis, Rola v. Slovenia, nos. 12096/14 and 39335/16, § 66, 4 June 2019). The same finding would also apply to any claim that the applicant is ineligible to join the civil service, a speculative claim which she has not challenged before the national courts.", "246. In these circumstances, the Court considers that, the elements above, taken alternatively or cumulatively, are insufficient to reach a conclusion that Article 6 is applicable under its criminal limb (see, amongst other authorities, Ramos Nunes de Carvalho e Sá, cited above, §§ 124-27; Kamenos v. Cyprus, no. 147/07, § 51, 31 October 2017; Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 121, 21 January 2016; and Oleksandr Volkov, cited above, §§ 93-95 ).", "Exhaustion of remedies", "247. The Government submitted that the applicant had not complained before the IQC or on appeal before the Appeal Chamber that the IQC had framed the “accusation” and decided on the merits of the “accusation”.", "248. The applicant submitted that she had availed herself of all domestic remedies and had submitted her complaints to the Appeal Chamber.", "249. The Court points out that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court ’ s case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court ’ s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant ’ s legal arguments, for the purposes of determining whether the complaint submitted to the Court had indeed been raised beforehand, in substance, before the domestic authorities (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 117, 20 March 2018, and the references cited therein).", "250. Turning to the circumstances of the present case, the Court notes that on 9 June 2018 the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber, making numerous complaints of a procedural and substantive nature. Indeed, the appeal pointed to the alleged failure by the IQC to secure procedural guarantees, and took issue with its active concurrent roles of collecting evidence and information and deciding on the merits of the case. The Court considers that the allegation made in the applicant ’ s appeal is akin to arguments to the same or like effect that she has raised before this Court of a lack of impartiality on the part of the IQC on the grounds that it had framed the “accusation” and decided on its merits. In the Court ’ s view, she raised this ground of the complaint “at least in substance” before the Appeal Chamber, which, with reference to Article F of the Annex to the Constitution and section 63 of the Vetting Act (see paragraphs 112 and 152 above), is a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention.", "251. Accordingly, the Court finds that the Government ’ s objection in this regard should be dismissed.", "Compliance with the six-month time-limit", "252. In her observations on the admissibility and merits of the case submitted on 10 January 2020, the applicant complained that ( i ) three members of the Appeal Chamber ’ s bench had not satisfied the statutory eligibility criteria to be shortlisted and, subsequently, appointed as members of the Appeal Chamber and (ii) another member of the Appeal Chamber had not disclosed a conflict of interest concerning the conviction of that member ’ s sibling in 1997 by an appellate court bench, of which the applicant ’ s father had been a member. The applicant alleged that she had learned of this latter development on 25 November 2019, after it had been brought to her attention by another judge of the Constitutional Court who had been dismissed from office as a result of vetting proceedings.", "253. The Court notes that even though the Government did not raise any objection to the applicant ’ s failure to comply with the six-month time-limit, it is not open to the Court to set aside the application of the six-month rule on that ground (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III, and, subsequently, Ramos Nunes de Carvalho e Sá, cited above, § 98). The Court must therefore ascertain whether those allegations were part of the initial complaints, the introduction of which interrupted the running of the six-month period.", "254. In the initial application, the applicant complained that the vetting bodies had not been independent and impartial, for the reasons set out in paragraph 230 above. She did not raise in substance or even implicitly the allegation that three members of the Appeal Chamber had not complied with the statutory eligibility criteria. She did not claim to have faced any difficulties in obtaining reliable – or indeed official – information on those members ’ eligibility with the statutory criteria, prior to such allegations coming to light, and in any event following the communication of the case of Sevdari v. Albania (no. 40662/19) on 22 November 2019 in which specific questions were put to the parties regarding the outcome of domestic proceedings against certain members of the Appeal Chamber for alleged non-compliance with the statutory eligibility criteria. In such circumstances, the Court is not convinced that the applicant was prevented from coming into possession of such material in the course of the domestic proceedings and from voicing any suspicions as to the members ’ compliance with the eligibility criteria before the Appeal Chamber. Furthermore, she did not take any steps to challenge the alleged non-compliance of certain members of the Appeal Chamber with the statutory eligibility criteria before the relevant national authorities subsequent to lodging her application with the Court and prior to the Court taking a decision on its admissibility. Moreover, the domestic proceedings concerning fulfilment by those members of the statutory eligibility criteria are currently pending before the national authorities.", "255. Nor did the applicant complain in the initial application that a fourth member of the Appeal Chamber had failed to disclose a conflict of interest and recuse herself from the proceedings. That she allegedly learned of this development on 25 November 2019, without substantiating the fact that she could not have become aware of the 1997 appellate court decision prior to that date, cannot serve to absolve her from the obligation to have acted with due diligence in the course of the domestic proceedings, obtained official information and raised an objection to that member ’ s participation in the bench before the Appeal Chamber. Against this background, the Court is not convinced that it was impossible for the applicant to learn of this element in the course of the domestic proceedings.", "256. That the applicant invoked Article 6 of the Convention in her application and that notice of the application was given to the respondent Government under that Article does not suffice to justify the introduction of subsequent complaints under that provision where no indication was initially given to the factual basis of the grounds of the complaint in the application form. As the scope of Article 6 of the Convention is very broad, the Court ’ s examination is necessarily delimited by the specific grounds of the complaint that the applicant initially submitted to it (see Ramos Nunes de Carvalho e Sá, cited above, § 103-04).", "257. In these circumstances, the Court concludes that the applicant only raised these complaints for the first time on 10 January 2020, more than six months after notification of the Appeal Chamber ’ s decision to her on 23 November 2018 (see paragraph 59 above). The Court has previously found a new complaint submitted for the first time in the applicant ’ s observations on the admissibility and merits of the case to have been introduced outside the six-month time-limit, in breach of Article 35 § 1 of the Convention (see, amongst other authorities, Fábián v. Hungary [GC], no. 78117/13, § 98, 5 September 2017, and Majski v. Croatia, no. 33593/03, § 34, 1 June 2006 ). Consequently, this complaint has been lodged out of time and must be rejected pursuant to Article 35 § 1 and 4 of the Convention.", "Conclusion as regards admissibility", "258. The Court notes that, save for the ground of the applicant ’ s complaints under Article 6 § 1 declared inadmissible in paragraph 257 above, the remaining complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.", "Merits", "259. In view of the applicant ’ s numerous complaints, the Court will first consider the complaint alleging that the vetting bodies lacked independence and impartiality. It will subsequently examine the complaint of unfairness in the proceedings and the complaint regarding the lack of a public hearing before the Appeal Chamber, and will conclude by considering the complaint alleging a breach of the principle of legal certainty.", "Compliance with the principle of “an independent and impartial tribunal established by law”", "(a) The parties ’ submissions", "(i) The applicant", "260. The applicant submitted that, contrary to the requirements laid down in a number of international documents, such as the European Charter on Statutes of Judges and the Magna Carta of Judges, the vetting bodies were composed of (almost entirely) non-judicial members. None of the members commanded the necessary legal and/or judicial experience and skills for examining complex matters of fact and law.", "261. The members of the vetting bodies were entirely elected by Parliament, after a preselection procedure carried out by an ad hoc parliamentary committee, there having been no involvement of the judiciary. In the applicant ’ s view, the role of the IMO was confined to supervising the application process, making recommendations in respect of the candidates and submitting the list of candidates for Parliament ’ s approval. There was a lack of transparency in the selection process as the candidates had not made public their professional qualifications and competence. Furthermore, some candidates had been employed by State institutions or involved in politics.", "262. Furthermore, the mandate of the members of the vetting bodies was limited to five years for the IQC members and nine years for the Appeal Chamber members. According to the applicant, this limited term of office made them vulnerable to external influence, which cast doubt on their independence. She further submitted that the work of the vetting bodies was under the constant scrutiny of the Government, which, in 2018, had awarded them a “performance bonus”. There was no formal recognition of their irremovability in the law.", "263. The applicant argued that the ultimate effect of the preliminary investigation which the IQC had carried out had been prejudicial to her case. This was accentuated by the fact that the burden of proof had rested automatically and exclusively with her.", "264. She further alleged that, since taking office in 2013, the Government had launched frontal and fierce attacks on the judiciary, frequently and publicly accusing judges of corruption and incompetence, as well as branding them as “criminals”. The Prime Minister had even taken issue with the composition of the Justice Appointment Council. She submitted a news item from a television internet portal dated 2 May 2018 reporting the Prime Minister as saying as follows:", "“vetting has already started. [E]ach day [ ... ] you have witnessed the results which will continue to intensify. Corrupt judges and prosecutors will be removed from the system. Anyone who is unable to establish the legitimacy of his or her wealth, who is unable to demonstrate the integrity of previous decision-making, who is unable to prove the ability to remain in the new justice system, will no longer be a member. This is a good reason to remain optimistic about the future.”", "265. The applicant alleged that the Appeal Chamber did not have any constitutional review powers, which were exclusively vested with the Constitutional Court.", "(ii) The Government", "266. The Government submitted that the vetting process had a legal basis in the Constitution and the Vetting Act. The fact that the establishment of the vetting bodies was provided for in the Constitution was a guarantee of their independence from undue interference by the executive and the legislature.", "267. The members of the vetting bodies were selected by means of a competitive and transparent procedure in accordance with the criteria prescribed by law. The restrictions imposed by the selection criteria were a further guarantee to preclude current judges, prosecutors and legal advisors who had a clear conflict of interest, or other individuals who had held public office in the administration or had been in leadership positions in political parties in the last ten years, from becoming members of the vetting bodies.", "268. The election of the members followed the procedure prescribed by law and guaranteed an impartial and consensual process of appointment. The process was monitored by the People ’ s Advocate and the IMO, while the ad hoc parliamentary committee was composed of MPs from both the ruling party and the opposition. The involvement of constitutional bodies in the selection of candidates was aimed at avoiding the politicisation of the process and ensuring their independence and impartiality. That Parliament was involved in their election was consistent with its role under the Constitution in electing members of constitutional bodies, as had been the case previously. The discharge of their duties was incompatible with any other function. The Vetting Act had introduced the obligation for members of the vetting bodies to declare and avoid any conflicts of interest in the examination of a given case. No such conflicts of interest had been disclosed in the applicant ’ s case and she had not raised any complaints or made requests for the recusal of any member. The composition of the bench in both instances had been drawn by lots, as had their presidents and rapporteurs.", "269. The Government contended that the IQC had not prejudiced the outcome of the applicant ’ s case. It had not informed the applicant of an early or premature imposition of a disciplinary sanction. Its preliminary findings had been examined together with the evidence the applicant had submitted, thus ensuring adversarial proceedings. Its members had not taken any action which would raise doubts as to their impartiality. Furthermore, the IQC, in view of the specific nature of the vetting proceedings, was not an ordinary disciplinary body which investigated alleged disciplinary breaches committed by judges and prosecutors. Instead, it carried out an independent assessment of the three criteria laid down in the Constitution and the Vetting Act. It did not take the initiative to bring any charges. The involvement of the IQC and the scope of investigation were determined by law, including the manner of obtaining information. Its activity was equivalent to that of a quasi-judicial body. The fact that the IQC had decision-making powers, after examining all the evidence in the case file, was an inherent feature of this type of special administrative disciplinary procedure. In no circumstances had the IQC predetermined the outcome of the applicant ’ s case. The applicant had appealed to the Appeal Chamber which, in turn, had had full jurisdiction over questions of fact and law.", "(b) The third-party interveners", "270. The Court will set out below the submissions received from the third parties which were granted leave to intervene in the case, there being no need to separate them in respect of each of the applicant ’ s complaints.", "(i) The European Commission", "271. The European Commission, representing the European Union, submitted that the comprehensive justice reform adopted by Albania in 2016, which aimed at restoring public trust and confidence in the justice system, consisted of two pillars: firstly, the institutional restructuring of the entire judiciary and prosecution services and, secondly, the setting up of the vetting process by amending the Constitution and enacting the Vetting Act.", "272. The aim of the vetting process was to fight widespread corruption, unprofessionalism and links with organised crime amongst judges and prosecutors, re-establish an independent and impartial judicial system and restore public trust in it. The involvement of the international community was considered crucial for the credibility of the process, which had been anchored in the Constitution. Whereas it noted that the vetting process could create significant tension within a country ’ s judiciary, the European Commission considered that its temporary nature was justified given the cumulative fulfilment of the following circumstances: the level of corruption and political influence in the judiciary was extremely high, the proposed measure enjoyed broad political and public support, and the existing tools and mechanisms to ensure integrity and fight corruption of judicial office holders had been exhausted. For those reasons, the European Commission maintained that the vetting process was indispensable for the reform process and was to be pursued thoroughly until its completion, under the continued close and independent supervision of the IMO.", "273. According to the European Commission, the essential elements of the vetting process were threefold: ( i ) the IQC was composed of independent and qualified personnel and had the necessary investigative and decisional powers to carry out its functions; (ii) the Appeal Chamber was set up as a court of law and acted as an independent tribunal, responsible for examining appeals against IQC decisions on questions of fact and law; and (iii) the IMO and the international observers were in a position to monitor and report on the vetting process in complete independence.", "274. The European Commission submitted that the vetting process provided sufficient guarantees for conducting a due process and respecting fundamental rights for the following four reasons. Firstly, the legal framework, namely Article 179/b of the Constitution and sections 4(5), 47 and 55 of the Vetting Act, laid down principles to ensure respect for the right to a fair hearing and for the fundamental rights of persons to be re-evaluated. Secondly, both the Constitution and the Vetting Act gave far-reaching independence to the vetting bodies. The Appeal Chamber was attached to the Constitutional Court, and the IQC members enjoyed the status of Supreme Court judges. The Constitution and the Vetting Act granted them a high level of personal protection against threats to life, health and property. The members of the vetting bodies were subject to disciplinary proceedings which, for the sake of avoiding undue external pressure, would be carried out by the Appeal Chamber. Thirdly, the legal framework provided for the right to appeal against the IQC ’ s findings to the Appeal Chamber, which was the only judicial body responsible for examining appeals on questions of fact and law. The proceedings before the Appeal Chamber were governed by the provisions of the Administrative Courts Act. Fourthly, the establishment and role of the IMO, the secretariat of which was funded by the European Commission, provided important additional safeguards for ensuring respect for the right to a fair hearing and fundamental rights.", "275. Lastly, the European Commission maintained that, despite the general conformity with the guarantees of a fair hearing and respect for fundamental rights, any shortcoming that might be identified in the conduct of proceedings in individual cases was not to call into question the essential elements of the vetting process.", "(ii) Respublica", "276. Respublica, a non-governmental organisation promoting the protection of and respect for human rights, has been granted leave to intervene in all vetting-related applications in respect of which notice has been given to the Government. The observations submitted in the context of the present application were a continuation of written comments they had submitted in the context of two other pending similar cases: Gashi and Gina v. Albania (no. 29943/18, communicated on 7 September 2018) and Nikehasani v. Albania (no. 58997/18, communicated on 25 January 2019). For this reason, all the written comments they submitted in respect of these applications have been summarised below.", "277. Respublica contended that the Government, other than relying on a series of public perception surveys whereby the majority of respondents had replied that they considered corruption in the judiciary to be endemic, as well as on findings by international bodies, had not presented clear and compelling arguments attesting to the need for such a drastic overhaul of the justice system. The vetting model appeared to be predicated on the unsubstantiated premise that a large number of justice system officials were corrupt, without taking into consideration the high level of politicisation of the judiciary, which was very problematic and had become its main threat.", "278. Respublica submitted that only three members of the Appeal Chamber had worked as judges in the (rather distant) past, the other members having been either lawyers, legal consultants or legal advisors. It would have been preferable for at least half of its members to have had a solid judicial background. None of the members of the Appeal Chamber appeared to have had expertise in the complicated and highly technical field of disciplinary proceedings against judges. In its view, disciplinary proceedings against judges ought to be carried out by essentially judicial bodies, as this would guarantee that the members of the vetting bodies had the requisite professional background. In addition, Respublica expressed concerns whether the limited mandate of the members raised doubts as to their vulnerability from outside political influence, particularly in the light of the highly politicised nature of the entire vetting process. A 2018 Government decision awarding an end-of-year bonus to members of the vetting bodies raised further doubts as to their objective impartiality.", "279. In Respublica ’ s view, there was a lack of clear guidance from the vetting bodies on how to apply the concept of lawful income and lawful assets. The Vetting Act failed to set a meaningful standard that would allow persons to be vetted to foresee the shifting of the burden of proof onto them. As a result, the vetting bodies imposed an impossible burden of proof on the persons being vetted without setting out the evidence that had led to their findings. They further submitted that the vetting bodies had failed to develop a coherent line of case-law concerning other issues, such as the failure of related persons to justify assets. To this, they argued, should be added the failure of the legislature to provide a more graduated range of sanctions instead of the effectively binary outcome (confirmation against dismissal).", "(c) The Court ’ s assessment", "280. Before determining whether the vetting bodies are independent and impartial, the Court will have to establish whether they constitute a “tribunal established by law” to which the applicant had access for the purposes of the Vilho Eskelinen test (see paragraph 239 above).", "(i) Whether the vetting bodies constitute a ‘ tribunal established by law ’", "(1) General principles", "281. The Court reiterates the general principles on the notion of a “tribunal established by law” as laid down in the recent Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, §§ 124-27, 211-13, 219-21, 223 and 229, 1 December 2020 ).", "282. The Court further reiterates that an authority which is not classified as one of the courts of the State may, for the purposes of Article 6 § 1, fall within the concept of a “tribunal” in the substantive sense of this expression. According to the Court ’ s settled case-law, a “tribunal” is characterised in that substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, “such as independence, in particular of the executive, impartiality, duration of its members ’ terms of office ... ” (see Guðmundur Andri Ástráðsson, cited above, § 219, and the reference cited therein). A power of decision is inherent in the very notion of “ tribunal” (see Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, § 139, 2 October 2018, and the references cited therein).", "(2) Application to the case", "283. The Court notes that, further to the Assessment Report and the Reform Strategy, the Albanian authorities introduced a number of constitutional amendments and enacted a set of essential statutes to implement the reform in the justice sector. Consequently, all serving judges, prosecutors, legal advisors and assistants were to be subject to a transitional re-evaluation process, which would be carried out by the IQC at first instance and the Appeal Chamber on appeal.", "284. The establishment and functioning of the IQC and Appeal Chamber are set forth in Article 179/b of the Constitution, as further supplemented by Articles C and F of the Annex to the Constitution and the Vetting Act, which were enacted by Parliament. In the Court ’ s view, they provide a sufficiently clear legal basis for the establishment of the vetting bodies which would be responsible for carrying out the transitional re-evaluation of judges, prosecutors, legal advisors and assistants (see paragraphs 103, 106, 112, and 122 - 28 above). That the vetting bodies were solely set up with the aim of carrying out the transitional re-evaluation process was also stated in decision no. 2/2017 of the Constitutional Court (see paragraph 169 above). In this connection, the Court points out that, for the purposes of Article 6 § 1, a tribunal need not be a court of law integrated within the standard judicial machinery. It may be set up to deal with a specific subject matter which can be appropriately administered outside the ordinary court system (see Mutu and Pechstein, cited above, § 139 ).", "285. The Court further notes that, pursuant to the Vetting Act, the IQC is empowered to deal with all questions of fact and law. It conducts the proceedings in accordance with the Vetting Act, the Code of Administrative Procedure and the Administrative Courts Act (see paragraphs 145, 152, 153 and 178 above). At the end of the proceedings, it takes a decision on the merits of the case. The decision becomes final and binding in the absence of an appeal. If the person being vetted or the Public Commissioner appeals against the IQC ’ s decision, the Appeal Chamber decides on the appeal, considering all matters of fact and law raised in the grounds of appeal. This was further reiterated by the Constitutional Court in its decision no. 2/2017 (see paragraph 176 above).", "286. In the present case, the composition of the IQC and Appeal Chamber panels was established in accordance with the law, that is, by drawing lots. The applicant did not make any specific complaint about the procedure relating to the formation of the judicial panels. The IQC, following the examination of all matters of fact and law, made a determination of the applicant ’ s case. On appeal, the Appeal Chamber examined the applicant ’ s grounds of appeal and had full jurisdiction over questions of fact and law.", "287. Lastly, both Article 179/b of the Constitution and the Vetting Act, as further evidenced by decision no. 2/2017 of the Constitutional Court, provide that the IQC and Appeal Chamber would exercise their functions independently (see paragraphs 103, 125 and 169 above).", "288. In these circumstances, the Court concludes that, having regard to the fact that both the IQC and Appeal Chamber were set up and composed in a legitimate way satisfying the requirements of a “tribunal established by law”, the applicant had access to a “court”, within the meaning of the first condition of the Vilho Eskelinen test. Article 6 § 1 of the Convention therefore applies under its civil head.", "(ii) Whether the vetting bodies are “independent and impartial”", "(1) General principles", "‒ As regards independence", "289. The Court notes that the term “independent” refers to independence vis-à- vis the other powers (the executive and the Parliament) and also vis-à-vis the parties. In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence (see, amongst other authorities, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 190, ECHR 2003 ‑ VI; Oleksandr Volkov, cited above, § 103; and Denisov v. Ukraine [GC], no. 76639/11, § 60, 25 September 2018).", "290. The Court reiterates that a very close interrelationship exists between the guarantees of an “independent and impartial” tribunal and the right to a “tribunal established by law”. While they each serve specific purposes as distinct fair trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see Guðmundur Andri Ástráðsson, cited above, §§ 231 and 233).", "291. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both ( i ) a state of mind, which denotes a judge ’ s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other state powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (ibid., § 234).", "‒ As regards impartiality", "292. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and that its existence or otherwise can be tested in various ways. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to ( i ) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009 ).", "293. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal ’ s impartiality from the point of view of the external observer (the objective test), but may also go to the issue of the judge ’ s personal conviction (the subjective test) (see Kyprianou, cited above, § 119). In some cases where it may be difficult to obtain evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996 ‑ III, and Otegi Mondragon v. Spain, nos. 4184/15 and 4 others, § 54, 6 November 2018). In this connection, even appearances may be of a certain importance, or in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015).", "(2) Application to the present case", "294. In the present case, the Court, having regard to the applicant ’ s complaint of a lack of independence and impartiality on the part of the vetting bodies (see paragraph 230 above), will examine whether the requirements of an “independent and impartial” tribunal were complied with by both vetting bodies (see, for example, Clarke v. the United Kingdom ( dec. ), no. 23695/02, 25 August 2005, and Rustavi 2 Broadcasting Company Ltd and Others, cited above, § 329-64). In addition, the Court will determine whether the Appeal Chamber was a judicial body which had full jurisdiction.", "‒ The IQC", "295. To start with the IQC ’ s independence, the applicant took issue with the manner of appointment of the members of the IQC, namely their election en bloc by Parliament. The Court considers that there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. It reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, election or appointment of judges by the executive or the legislature is permissible under the Convention, provided that, once elected or appointed, they are free from influence or pressure and exercise their judicial activity with complete independence (see Sacilor-Lormines v. France, no. 65411/01, § 67, ECHR 2006 ‑ XIII; Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007; Thiam v. France, no. 80018/12, § 80, 18 October 2018; and Guðmundur Andri Ástráðsson, cited above, § 207 ).", "296. While the Court has no reason, in general, to call into question the manner in which the members of the IQC were appointed, it nevertheless remains for it to assess whether, in the present case, the IQC possessed the “appearance of independence” required by the Court ’ s case-law in terms of safeguards against extraneous pressure. The applicant failed to demonstrate that the members of the IQC which dealt with her case had received any instructions or had been subject to any pressure from the executive. The material in the case file does not disclose any evidence of such instruction or pressure being exerted on the panel by the executive. That on the eve of the IQC ’ s announcement of the operative provisions in her case the Prime Minister made a general statement about the progress of the vetting process in general, without any specific link to or mention of her case, could not be taken as an instruction or pressure exerted by the executive on the vetting bodies (see paragraphs 22 and 264 above). The Prime Minister ’ s statement contained general remarks about the ongoing developments of the vetting process and was not directed against a particular case or individual.", "297. Turning to the term of office of members, the Court notes that, pursuant to domestic law, members of the IQC have a non-renewable five-year term of office. The Court finds no issue with the fixed duration of the term of office of members of the vetting bodies. Assuming that the fixed period of time was relatively short, this is understandable given the extraordinary nature of the vetting process, as further highlighted by decision no. 2/2017 of the Constitutional Court (see paragraph 164 above).", "298. The Court further points out that what matters is the irremovability of members during their term of office, which is considered to be a corollary of their independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 80, Series A no. 80, and Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013 (extracts), albeit in the context of a criminal case; see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above). The absence of any formal recognition of the irremovability of judges in the Vetting Act does not in itself imply a lack of independence, provided that it is recognised in fact and that the other necessary guarantees are present (see Sacilor-Lormines, cited above, § 67). It can be seen from the provisions of the Vetting Act that this is indeed the case. Neither the legislature nor the executive can require the resignation or removal from office of the members of the vetting bodies. Section 17 of the Vetting Act specifies the limited cases where they may be removed from office (see paragraph 127 above). The fact that they can only be removed in the event of the commission of a disciplinary breach, in accordance with the procedure prescribed by law, does not call into question the necessary guarantees for their irremovability, which are present in this case.", "299. As regards the non-representation of serving judges in the IQC, the Court has indeed pointed to the need for substantial representation of judges within the relevant disciplinary body (see Oleksandr Volkov, cited above, § 109). This need is all the more important in ordinary disciplinary proceedings against judges and prosecutors. However, the Court must take account of the extraordinary nature of the vetting process of judges and prosecutors in Albania. This process was introduced in response to the urgent need, as assessed by the national legislature, to combat widespread levels of corruption in the justice system. It consists of the assessment of three criteria and precisely targets all serving judges and prosecutors. It is for this reason that the vetting process of judges and prosecutors in Albania is sui generis and must be distinguished from any ordinary disciplinary proceedings against judges or prosecutors.", "300. In the Court ’ s view, the fact that members of the IQC did not come from amongst serving professional judges was consistent with the spirit and goal of the vetting process, namely to avoid any individual conflicts of interest and ensure public confidence in the process. The Court further refers to the strict eligibility requirements that members of the IQC were expected to satisfy (see paragraph 123 above). It notes that those members were elected by Parliament in accordance with the procedure prescribed by law (see paragraph 124 above). Furthermore, the status of IQC members is the same as that of Supreme Court judges (see paragraph 106 above).", "301. That the Government awarded the IQC an end-of-year bonus in 2018 in recognition of their work is not sufficiently capable, in the Court ’ s view, of calling into question their members ’ independence. The Court notes that the IQC has a statutory obligation to decide the merits of each case independently (see paragraphs 103 and 125 above), and that, as stated above, the applicant failed to demonstrate that its members had not acted independently in her case.", "302. The Court further emphasises the importance of the guarantees laid down in the domestic legislation, namely that the IQC has complete discretion in deciding on its organisational structure and personnel; it does not take instructions or directions from the executive. In addition, it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above).", "303. Lastly, the Venice Commission and the Constitutional Court concluded that the IQC embodied the characteristics of an independent judicial body (see paragraphs 158 and 169 above).", "304. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence on the part of the IQC.", "305. Turning to its impartiality, the Court notes that the applicant did not contest the IQC members ’ subjective impartiality. The Court finds no reason to hold otherwise. According to the applicant, the fear of a lack of impartiality was based on the fact that the IQC carried out the preliminary investigation and subsequently decided on the merits of her case. The Court appreciates that this situation might have given rise to certain misgivings on the part of the applicant as to the impartiality of the IQC, and considers that the case must be examined from the perspective of the objective impartiality test. More specifically, it must address the question of whether the applicant ’ s complaint of a lack of IQC impartiality may be regarded as objectively justified in the circumstances of her case.", "306. The Court notes that, unlike ordinary disciplinary proceedings, the vetting proceedings did not commence upon the filing of a complaint or a charge of misconduct. As a result of the automatic operation of the Vetting Act (see paragraph 144 above), the IQC opened an investigation into the three declarations that the applicant had filed (see paragraph 12 above) rather than on the basis of its own findings that disciplinary proceedings had to be brought against her. As a matter of fact, the IQC did not assume the role of a prosecutor by bringing any charges or accusations against the applicant ( compare and contrast Kamenos, cited above, § 105). Its tasks were thus exclusively limited to the re-evaluation of the three criteria laid down in the Annex to the Constitution and the Vetting Act. At the end of the investigation, the IQC made preliminary findings, without drawing any conclusions, and confronted the applicant with those findings, in response to which she was invited to put forward her defence.", "307. When giving a decision at the conclusion of the proceedings, the IQC assessed whether the evidence that had been obtained, including the arguments and documents that the applicant had provided in reply, sufficed to confirm her in her position or impose a disciplinary sanction in accordance with the Vetting Act (see paragraph 150 above, and compare and contrast Kamenos, cited above, § 107). A preliminary finding based on the available information, without the benefit of the applicant ’ s defence, cannot by itself be regarded as entailing any prejudice on the final conclusion to be drawn after the applicant’s arguments have been presented at an oral hearing. What is important is for the final decision to be taken on the basis of all the available elements, including the evidence produced and the arguments made at the hearing (see, for example, Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Morel v. France, no. 34130/96, § 45, ECHR 2000 ‑ VI ).", "308. There is therefore no confusion between the IQC ’ s statutory obligation to open the investigation, in which no charges or findings of misconduct were made against the applicant, and its duty to take a decision on the applicant ’ s disciplinary liability. Such a procedural arrangement is not uncommon in disciplinary or other administrative proceedings in European legal systems. In the Court ’ s view, the mere fact that the IQC made preliminary findings in the applicant ’ s case is not sufficient to prompt objectively justified fears as to the IQC ’ s impartiality.", "‒ The Appeal Chamber", "309. Turning to the Appeal Chamber, the Court notes that the applicant lodged an appeal against the IQC ’ s decision with the Appeal Chamber. Subsequently, she made additional elaborate submissions challenging each finding made by the IQC. In its decision, the Appeal Chamber, having regard to the applicant ’ s submissions, addressed each of the grounds of her appeal. It even reversed some of the IQC ’ s findings, following a fresh assessment of the evidence in the case file and consideration of the applicant ’ s submissions, thus substituting its own findings of fact for those of the IQC. The Vetting Act and the Annex to the Constitution further empower the Appeal Chamber to quash an IQC decision in its entirety (see paragraphs 112 and 154 above). In these circumstances, the Court is satisfied that the Appeal Chamber, following the examination of the applicant ’ s written appeal and submissions, had full review jurisdiction and gave a detailed decision addressing each of the grounds of her appeal.", "310. Lastly, the Court will examine whether the Appeal Chamber complied with the requirements of independence and impartiality.", "311. As regards the “appearance of independence” of the Appeal Chamber, the applicant did not put forward any facts capable of calling into question its independence from the executive and the legislature.", "312. The Court notes that the members of the Appeal Chamber are appointed, in accordance with the procedure prescribed by the Vetting Act, for a non-renewable term of nine years, which is longer than the term of office of IQC members. The members of the Appeal Chamber enjoy the same status as Constitutional Court judges (see paragraph 106 above). Domestic law further guarantees that members of the Appeal Chamber are appointed as appellate court judges at the end of their term of office (see paragraph 207 above).", "313. The irremovability of members of the Appeal Chamber from office, despite the absence of any formal recognition thereof, is also guaranteed by the Vetting Act in the same way as for IQC members. They can be dismissed from office, in accordance with the procedure prescribed by law, in the event of a disciplinary breach. The fact that members of the Appeal Chamber are subject to disciplinary proceedings and bound by rules of judicial discipline and ethics is not in itself a reason to doubt their independence (see also the general principles emanating from the CJEU ’ s judgments in paragraph 224 above).", "314. As regards the non-representation of judges in the Appeal Chamber, the Court refers to its findings in paragraphs 299 - 300 above. It also refers to its findings in paragraph 301 above regarding the end-of-year bonus awarded in 2018. It further takes note of the statutory safeguards which likewise apply to the Appeal Chamber, namely that ( i ) it decides the merits of each case independently, (ii) it has complete discretion in deciding on its organisational structure and personnel; (iii) it does not take instructions or directions from the executive, and (iv) it makes a proposal for an annual budget allocation by Parliament, free from any intervention by the executive (see paragraph 128 above). The conduct of the proceedings is further monitored by international observers, which would appear to constitute an additional safeguard (see paragraphs 105, 129 and 130 above). It goes without saying that members of the vetting bodies are subject to the law in general and to the rules of professional ethics in particular (see paragraph 125 above).", "315. As regards an alleged lack of impartiality, the applicant failed to adduce any arguments capable of being examined on the merits.", "316. In view of the above, and having regard to the specific circumstances of the applicant ’ s case, the Court sees no evidence of a lack of independence and impartiality on the part of the Appeal Chamber.", "‒ Conclusion", "317. It follows that both the IQC and Appeal Chamber were independent and impartial. Accordingly, there has been no violation of Article 6 § 1 of the Convention in this respect.", "Compliance with the requirement of fairness", "(a) The parties ’ submissions", "318. The applicant contended that the proceedings before the IQC had lacked the minimum procedural safeguards: she had not been properly informed of the “accusation” made by the IQC and had not had sufficient time to prepare an adequate defence. The IQC had not mentioned any issues relating to the inaccuracy of annual declarations of assets or to possible concealment of assets as part of the findings of the administrative investigation.", "319. As the main point of contention of her appeal related to her partner ’ s lawful income for the purchase of the flat measuring 101 sq. m, the applicant had appended two items of evidence to her appeal to the Appeal Chamber, namely a certificate issued by the Albanian company with which her partner had entered into a conditional sales contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001 (see paragraph 52 above). Even though both pieces of evidence had been significant for the outcome of the case, the Appeal Chamber had refused to admit the evidence to the case file, giving vague and insufficient reasons in its decision.", "320. Lastly, the applicant alleged that the IQC appeared to have questioned representatives of the company with which her partner had entered into the 2003 conditional sales contract, but had failed to disclose this in the proceedings, thus giving rise to a breach of the principle of equality of arms.", "321. The Government submitted that the applicant ’ s new pieces of evidence had not been admitted to the case file as they had not complied with the provisions of section 49(2) of the Administrative Courts Act. She had also failed to argue under section 47 of the Administrative Courts Act that she had been unable to submit the evidence to the IQC. Furthermore, the Appeal Chamber had refused to include the evidence, in accordance with section 49(6) of the Administrative Courts Act.", "322. In the Government ’ s view, the Appeal Chamber had had full jurisdiction over questions of fact and law. Not only had the Appeal Chamber had jurisdiction to review the case decided by the IQC, it had also exercised constitutional review powers in order to guarantee the applicant ’ s right to an effective appeal before a court. Having regard to its powers, the Appeal Chamber could either uphold or quash the IQC ’ s decision, by giving a reasoned ruling in writing. Both the Venice Commission and the Constitutional Court had highlighted this role.", "323. The Government maintained that the applicant had been represented by a lawyer of her own choosing before the Appeal Chamber. She had not advanced any arguments before the Appeal Chamber that she had lacked adequate time or sufficient facilities to mount her defence. Nor had she made any requests to be granted additional time to familiarise herself with the evidence or present new evidence.", "(b) The Court ’ s assessment", "(i) General principles", "324. The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011).", "325. Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‐I). It is for the national courts to assess the relevance of proposed evidence, its probative value and the burden of proof (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 198, ECHR 2012, and Lady S.R.L. v. the Republic of Moldova, no. 39804/06, § 27, 23 October 2018).", "326. The Court notes that the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to judicial proceedings to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is, duly considered by the domestic courts. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004 ‑ I).", "327. While Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based, it does not require a detailed answer to every argument put forward by a complainant. This obligation nevertheless presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303-A).", "328. In view of these relevant general principles, the Court will determine whether the proceedings, taken as a whole, were fair.", "(ii) Application to the present case", "329. The Court notes that, owing to the applicant ’ s inclusion on a priority list of individuals to be subject to transitional re-evaluation, the IQC launched the administrative investigation into the three declarations that the applicant had filed pursuant to the Vetting Act (see paragraph 12 above). The commencement of the investigation was in accordance with the Vetting Act (see paragraph 144 above). At the conclusion of that investigation, the IQC informed the applicant of its preliminary findings. The report expressly stated that preliminary findings had been made to the effect that there had been, amongst other things, ( i ) inconsistencies in relation to the source of income of assets, (ii) a lack of supporting documents relating to the sources of funds which had been used for the acquisition of assets, (iii) insufficient lawful income to justify the excessive amount of liquid assets during certain years, and (iv) inconsistencies in relation to the applicant ’ s share in certain assets (see paragraph 15 above).", "330. The IQC made the preliminary findings having examined all the documents it had obtained from various institutions as well as explanations and information that the applicant had provided in reply to its questions. Furthermore, the report referred to the documents which had served as the basis for those findings. In the Court ’ s view, the information that the applicant obtained following the conclusion of the administrative investigation should have enabled her to comprehend the seriousness of the preliminary findings with a view to putting up an adequate defence.", "331. That the applicant alleged that the IQC had withheld certain evidence is mere conjecture which has been introduced tardily and has not been substantiated by any evidence.", "332. Throughout the proceedings before the IQC, in particular after the shifting of the burden of proof onto the applicant to rebut its preliminary findings, she submitted extensive arguments in her defence and filed numerous written submissions. She was granted access to the case file and to the methodology used to calculate expenses in order to mount a defence. She was given time to submit her pleadings (see paragraph 16 above). There is no indication that she lacked the time and facilities to prepare an adequate defence, as it would appear that she did not make a request or raise concerns to this effect before the IQC or Appeal Chamber.", "333. Lastly, the Court observes that the IQC had full jurisdiction over all matters of fact and law. It was specifically set up to interpret and apply the Vetting Act. The assessment of the facts indeed required specialised knowledge or specific professional experience, which is why the Vetting Act indicated the auxiliary bodies that would assist the IQC in discharging its duties (see paragraphs 135 - 42 above). This was also emphasised in the decision of the Constitutional Court, which furthermore added that the ultimate decision-making would lie with the IQC (see paragraphs 169 - 70 above). In the applicant ’ s case, the IQC gave a decision stating adequate reasons for her dismissal from judicial office.", "334. Following notification of the IQC ’ s decision, the applicant, who continued to be represented by a lawyer of her own choosing, lodged an extensive appeal with the Appeal Chamber, challenging, amongst other things, the factual evidence that had served as the basis for her dismissal. She also made further written submissions. It is evident from the Appeal Chamber ’ s decision that it examined point by point the grounds of her appeal and scrutinised the findings of fact and law made by the IQC, thus complying with the requirement of “full jurisdiction” in the proceedings before it, as autonomously defined in the light of the object and purpose of the Convention (see Ramos Nunes de Carvalho e Sá, cited above, § 177). Having re-examined the facts and the material in the case file, the Appeal Chamber upheld some of the findings made by the IQC, substituted the assessment made by the IQC for its own and overturned some of the IQC ’ s other findings. In the Court ’ s view, the Appeal Chamber acted consistently with Article F of the Annex to the Constitution and the Vetting Act, which provided that it could uphold, amend or quash an IQC decision (see paragraphs 112 and 154 above).", "335. In this connection, the Court considers that the Appeal Chamber gave sufficient reasons for its decision, replying to each of the grounds of the applicant ’ s appeal. The Court is also satisfied that the Appeal Chamber provided adequate reasons for not accepting new evidence which the applicant had submitted to it (see paragraph 60 above). Article 6 requires the domestic courts to adequately state the reasons on which their decisions are based. This obligation presupposes that a party to judicial proceedings can expect a specific and express reply to those submissions which are decisive for the outcome of the proceedings in question (see paragraph 327 above).", "336. In the light of all of the aforementioned circumstances, the Court concludes that there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings.", "Compliance with the requirement to hold a public hearing before the Appeal Chamber", "(a) The parties ’ submissions", "337. The applicant submitted that the Appeal Chamber should have held a public hearing in her case in view of the grounds of appeal she had raised, which had disputed matters of fact and law. The Vetting Act did not provide for the possibility of a public hearing before the Appeal Chamber, nor could she submit a request to this effect. There had been no exceptional circumstances to justify dispensing with a public hearing before the Appeal Chamber.", "338. The Government argued that the applicant had failed to request a public hearing before the Appeal Chamber, which, in turn, had stated that a public hearing was unnecessary in the circumstances of the present case. The Appeal Chamber ’ s decision had been taken in accordance with section 51 of the Administrative Courts Act.", "(b) The Court ’ s assessment", "339. The Court has held that the right to a public hearing under Article 6 § 1 implies a right to an oral hearing before at least one instance (see, amongst other authorities, Fischer v. Austria, 26 April 1995, § 44, Series A no. 312). The absence of a hearing at second or third instance may be justified by the special features of the proceedings concerned, provided a hearing has been held at first instance (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002). While not relevant for the present case, the Court notes, conversely, that the lack of a public hearing at first instance may be remedied if a public hearing is held at the appeal stage, provided that the scope of the appellate proceedings extends to matters of law and fact (see, for example, in a disciplinary context, Buterlevičiūtė v. Lithuania, no. 42139/08, §§ 52-54, 12 January 2016).", "340. While the obligation to hold a hearing is not absolute, the Court has held that, in the context of disciplinary proceedings against judges, in view of what is at stake, namely the impact of the possible penalties on the lives and careers of the persons concerned and their financial implications, dispensing with an oral hearing altogether should be an exceptional measure and should be duly justified in the light of its case-law (see Ramos Nunes de Carvalho e Sá, cited above, § 210).", "341. Turning to the present case, in the first place, the Court observes that the IQC, which was independent and impartial, held a public hearing in which the applicant was represented by a lawyer of her own choosing, made oral pleadings and submitted further evidence in writing ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). In order to examine this additional evidence, the IQC had to adjourn without taking a decision in the applicant ’ s case.", "342. Secondly, there is no indication from her appeal and additional written submissions that the applicant requested a public hearing on appeal ( contrast Ramos Nunes de Carvalho e Sá, cited above, § 209). While the Vetting Act does not expressly provide for or bar the possibility of a public hearing before the Appeal Chamber, the Court notes that the vetting bodies apply, inter alia, the procedures set out in the Administrative Courts Act whenever such procedures have not been set out in the Vetting Act (see paragraph 125 above). In this connection, section 51 of the Administrative Courts Act lists down the conditions for the holding of a public hearing on appeal (see paragraph 196 above). The Appeal Chamber, despite the absence of a request from the applicant for this purpose, provided adequate reasons in its decision not to hold a public hearing in the applicant ’ s case (see paragraph 61 above).", "343. Lastly, the Court will determine whether, despite the holding of a public hearing before the IQC and despite the absence of a request to that effect by the applicant before the Appeal Chamber, the nature of the proceedings required that a public hearing on appeal be held. In this connection, the Court notes that the applicant had ample opportunity to present her case in writing to the Appeal Chamber (compare Vilho Eskelinen, cited above, § 74). The grounds of appeal related, for the most part, to legal issues or rather technical questions concerning the evaluation of assets that could be dealt with satisfactorily on the basis of the case file alone ( see, mutatis mutandis, respectively, Varela Assalino v. Portugal ( dec. ), no. 64336/01, 25 April 2002, and Schuler- Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263). The proceedings did not require the hearing of witnesses or the taking of other oral evidence. Having regard to the foregoing, the Court does not find that the nature of the proceedings required a public hearing on appeal before the Appeal Chamber.", "344. There has accordingly been no breach of Article 6 § 1 of the Convention as regards the lack of a public hearing before the Appeal Chamber.", "Compliance with the principle of legal certainty", "(a) The parties ’ submissions", "345. The applicant submitted that the Vetting Act did not provide any specific statutory limitations as regards the evaluation of assets. This had allowed the vetting bodies to examine transactions that had taken place in the very distant past, leading to an unreasonable shifting of the burden of proof. The applicant had ultimately been dismissed from office on account of circumstances and facts dating back as early as the 1990s, in order to justify the purchase of a flat with her partner ’ s income. The far-reaching temporal scope of the vetting process had put the applicant in an impossible position for objective reasons.", "346. The Government submitted that the IQC had launched a thorough investigation into the declaration of assets that the applicant had filed pursuant to the Vetting Act. The IQC had used as evidence annual declarations of assets which the applicant and her partner had filed with HIDAACI. The verification and comparison of all the declarations of assets had enabled the IQC to track the progress and truthfulness of the disclosure of assets and draw conclusions on the sufficiency of the disclosure or the lawfulness of income over the years, as well as on the source used for the creation of assets. Upon the closure of the administrative investigation, the IQC considered that the evidence it had obtained had a probative value towards establishing the facts and circumstances surrounding the applicant ’ s case.", "347. In these circumstances, it had informed the applicant of its preliminary findings and shifted the burden of proof onto her in order to prove the contrary. Each finding had been supported by the evidence on which it was based. It had been open to the applicant to determine how to best mount her defence and provide any documents in support of her defence. She had had to show that she had taken all the steps to obtain or procure evidence in support of her claims, at the conclusion of which the vetting bodies would determine whether a failure to provide any supporting documents had been justified on reasonable grounds. Such a procedural guarantee had been introduced to address the post-1990s situation in Albania and had warranted, in observance of the principle of proportionality, a discretionary assessment of each case by the vetting bodies, without hindering or tainting the successful outcome of the vetting proceedings.", "(b) The Court ’ s assessment", "348. The Court has held that limitation periods serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent any injustice which might arise if the courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time. Limitation periods are a common feature of the domestic legal systems of the Contracting States as regards criminal, disciplinary and other offences (see Oleksandr Volkov, cited above, § 137).", "349. However, the Court considers that the special features of the widely used processes of audit of assets must also be taken into account. In the Court ’ s view, given that personal or family assets are normally accumulated over the course of working life, placing strict temporal limits for the evaluation of assets would greatly restrict and impinge on the authorities ’ ability to evaluate the lawfulness of the total assets acquired by the person being vetted over the course of his or her professional career. In this connection, an evaluation of assets manifests certain specificities, unlike ordinary disciplinary enquiries, which would call for a greater degree of flexibility to be granted to the respondent State for the application of statutory limitations, consistent with the objective of restoring and strengthening public trust in the justice system and ensuring a high level of integrity expected of members of the judiciary. This is all the more true in the Albanian context where prior verification of declarations of assets had not been particularly effective (see paragraphs 220 and 272 above). Finally, it can also be a matter of interpretation as to when exactly a specific disciplinary offence may have occurred in this context, that is, whether at the time the asset was initially acquired or at a later point in time when the asset was disclosed in a periodic declaration of assets. At the same time, such flexibility cannot be unlimited and the implications for legal certainty and an applicant ’ s rights under Article 6 § 1 of the Convention should be considered on a case-by-case basis.", "350. Turning to the present case, the Court notes that the applicant ’ s judicial career started in 1995 and continued uninterruptedly until her removal from office in 2018. The adverse findings against her were based both on the disclosure made in her vetting declaration of assets and prior asset declarations filed by her and her partner. The objective of the evaluation of assets was to check the lawfulness of the source of acquisition of assets and verify the truthfulness of the vetting declaration of assets against prior annual declarations of assets. It was for this reason that the vetting bodies would use as evidence prior annual declarations of assets that she had filed with HIDAACI to ensure that all assets, including the lawful financial sources which had served as a basis for their acquisition, had been accurately disclosed and justified.", "351. The vetting bodies examined assets of which the underlying financial sources had been secured in the 1990s or 2000s. It is understandable that the applicant was placed in a somewhat difficult position to justify the lawful nature of the financial sources owing to the passage of time and the potential absence of supporting documents. However, this situation was partly due to the applicant ’ s own failure to disclose the relevant asset at the time of its acquisition, which was much closer in time to the period during which the underlying financial sources had been secured by her and her partner. In addition, the Court observes that section 32(2) of the Vetting Act provides attenuating circumstances if a person being vetted faces an objective impossibility to submit supporting documents (see paragraph 136 above). In the applicant ’ s case, the vetting bodies held that the applicant had not provided any supporting documents justifying the existence of an objective impossibility to demonstrate the lawful nature of her partner ’ s income from 1992 to 2000 (see paragraphs 28 and 69 above). The Court further considers it important to note the Appeal Chamber ’ s finding that the applicant ’ s partner ’ s savings, even if they were to be accepted as claimed, would have not sufficed to buy the asset in question (see paragraph 70 above).", "352. The Court further reiterates that it is not per se arbitrary, for the purposes of the “civil” limb of Article 6 § 1 of the Convention, that the burden of proof shifted onto the applicant in the vetting proceedings after the IQC had made available the preliminary findings resulting from the conclusion of the investigation and had given access to the evidence in the case file (see Gogitidze and Others v. Georgia, no. 36862/05, § 122, 12 May 2015, in the context of forfeiture proceedings in rem, and, mutatis mutandis, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, §§ 37-49, 23 September 2008, in the context of a confiscation order in drug-trafficking cases).", "353. Consequently, the Court finds that, having regard to the evaluation process of personal or family assets amassed during a judge ’ s professional lifetime, the attenuating circumstances provided for in the Vetting Act, the applicant ’ s failure to submit supporting documents attesting to the objective impossibility to demonstrate the lawful nature of her partner ’ s income and her own omission to disclose the asset at the relevant time she had acquired it, there has been no violation of Article 6 § 1 of the Convention as regards the alleged breach of the principle of legal certainty.", "Alleged violation of Article 8 of the Convention", "354. The applicant complained that there had been a breach of Article 8 of the Convention on account of her unlawful and arbitrary dismissal from office and the lifetime ban imposed on her practising law.", "355. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private ... life ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityAs regards the complaint concerning the applicant ’ s dismissal from office", "As regards the complaint concerning the applicant ’ s dismissal from office", "As regards the complaint concerning the applicant ’ s dismissal from office", "(a) The parties ’ submissions", "356. Referring to the Court ’ s judgment in the case of Denisov (cited above), the Government contended that Article 8 was not applicable as the applicant had failed to demonstrate that the threshold of severity had been attained in respect of the three criteria elaborated therein. Furthermore, the imposition of a disciplinary sanction could not in itself give rise to a breach of reputation if no serious consequences resulted therefrom. The Government further submitted that the applicant had failed to invoke a breach of Article 8 of the Convention before the Appeal Chamber.", "357. The applicant maintained that her dismissal from office had satisfied the threshold of the criteria laid down in Denisov (cited above), as a result of which Article 8 was applicable. She had appealed against her dismissal, the consequences of which were evident in her private life, before the Appeal Chamber. In those circumstances, she had exhausted all domestic remedies.", "(b) The Court ’ s assessment", "(i) Applicability of Article 8", "358. As the Government have contested the applicability of Article 8 of the Convention to the applicant ’ s case, the Court will first examine this plea of inadmissibility.", "(1) General principles", "359. In the case of Denisov (cited above), the Grand Chamber confirmed that employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. These aspects include ( i ) the applicant ’ s “inner circle”, (ii) the applicant ’ s opportunity to establish and develop relationships with others, and (iii) the applicant ’ s social and professional reputation. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measures (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach – ibid., § 115).", "360. If the consequence-based approach is applied, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to convincingly show that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov, cited above, § 116 ).", "361. The Court has established criteria for assessing the severity or seriousness of alleged violations in different regulatory contexts. An applicant ’ s suffering is to be assessed by comparing his or her life before and after the measure in question. The Court further considers that in determining the seriousness of the consequences in employment-related cases it is appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. This analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remains for the applicant to define and substantiate the nature and extent of his or her suffering, which should have a causal connection with the impugned measure. Having regard to the rule of exhaustion of domestic remedies, the essential elements of such allegations must be sufficiently raised before the domestic authorities dealing with the matter (see Denisov, cited above, § 117).", "(2) Application of the general principles to the present case", "362. The Court notes that, in assessing the applicability of Article 8 in the present case, that provision cannot be applicable under the reason-based approach: the applicant ’ s dismissal from judicial office related to her position as a judge and had no connection with her private life. While acquisition or creation of assets could be considered to be an aspect of private life, it is not the number or size of assets or an individual ’ s lifestyle as such that could give rise to disciplinary liability, but the individual ’ s inability to justify the lawfulness of the source used for their acquisition or creation and to ensure public trust in his or her integrity. In any event, the Court considers that an audit of assets does not involve an intimate aspect of private conduct that is itself treated as an ethical breach (contrast Özpınar v. Turkey, no. 20999/04, 19 October 2010).", "363. As far as the consequence-based approach is concerned, the Court observes the following. The applicant was dismissed from her judicial post pursuant to the Vetting Act, losing all her remuneration with immediate effect (see Polyakh and Others, cited above, § 208-09; contrast J.B. and Others v. Hungary ( dec. ), no. 4543 4/12 and 2 others, §§ 132-33, 27 November 2018 and Camelia Bogdan v. Romania, no. 36889/18, §§ 85-86, 20 October 2020). This undoubtedly had serious consequences for her “inner circle”, that is, her well-being and family members. Additionally, the vetting bodies further examined her professional competence and found that she had undermined public trust in the justice system (contrast J.B. and Others ( dec. ), cited above, § 136 ). A further consequence of this finding is that in the eyes of society, the applicant was and continues to be stigmatised as being unworthy of performing a judicial function.", "364. In view of these observations, the Court considers that Article 8 of the Convention applies in the present case and therefore rejects the Government ’ s objection.", "(ii) Exhaustion of domestic remedies", "365. Having found that Article 8 applies to the present case, the Court reiterates that the applicant challenged the IQC ’ s decision by lodging an appeal with the Appeal Chamber. The detailed grounds of appeal challenged each finding made by the IQC which led to her dismissal, affecting her right to respect for her private life. The Appeal Chamber did not decline jurisdiction in the matter, but examined the case on the merits in accordance with the Vetting Act.", "366. In view of the above, by pursuing the avenue of redress provided for in the Vetting Act, the Court concludes that the applicant raised in substance her complaints under Article 8 and thus complied with the requirements of Article 35 § 1 of the Convention. The Government ’ s objection of non-exhaustion of domestic remedies must therefore be rejected.", "(iii) Conclusion", "367. The Court, noting that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, declares it admissible.", "As regards the complaint concerning the lifetime ban on the applicant ’ s practising law", "(a) The parties ’ submissions", "368. The Government submitted that the applicant had failed to raise this complaint under Article 8 before the domestic authorities. She had not instituted any legal proceedings, this right having a separate and independent existence from the outcome of the vetting proceedings. The Government further submitted that this complaint was manifestly ill-founded as the conditions provided for in the Lawyers ’ Act did not intend to preclude individuals removed from the judiciary as a result of the vetting proceedings from practising law.", "369. The applicant submitted that she was in possession of a licence to practise law. The gist of her complaint was, however, that she risked being disbarred, pursuant to the Lawyers ’ Act, without any possibility of becoming a member of the Chamber of Advocates.", "(b) The Court ’ s assessment", "370. The Court reiterates that, in order to be able to lodge an application under Article 34, a person must be able to claim to be a victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. However, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risks being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (see, for example, Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, and the references cited therein, and Michaud v. France, no. 12323/11, § 51, ECHR 2012).", "371. In the present case, the Court notes that the proceedings were governed by, and concluded in pursuance of, the Vetting Act. The vetting bodies did not take any decision whatsoever concerning the applicant ’ s right to practise law; nor did they make any reference, even implicitly, to the provisions of the Lawyers ’ Act. Furthermore, the applicant submitted that she was in possession of a licence to practise law. In these circumstances, the Court notes that she cannot claim to be a victim of a breach of her rights under Article 8 of the Convention.", "372. That the applicant alleges to become a potential victim in the future on account of a risk of being disbarred, pursuant to the Lawyers ’ Act (see paragraph 208 above), is a mere suspicion or conjecture on her part. To date, she has not been affected by an adverse individual decision taken against her. In the Court ’ s view, it is open to her to challenge any unfavourable decision that the Chamber of Advocates might take against her in the future before a court of law, and thus provide the respondent State the possibility of remedying any alleged violation of her Convention rights, as required by Article 35 § 1 of the Convention. Furthermore, the applicant did not demonstrate that the scope of application of the Lawyers ’ Act was specifically directed against judges or prosecutors against whom a decision had been given in the course of vetting proceedings (compare and contrast Tănase, cited above, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009 ). In sum, the applicant would not be required to modify any conduct under the Lawyers ’ Act; she would be subject to the statutory requirements of that Act.", "373. Consequently, the Court holds that, in the circumstances of the present case, this complaint is incompatible ratione personae and must be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "Merits", "374. The Court will now examine whether on account of the applicant ’ s dismissal from office there was an interference with the applicant ’ s right to respect for her private life, and if so, whether the interference was justified.", "Whether there was an interference", "(a) The parties ’ submissions", "375. The applicant contended that the decision to dismiss her from judicial office had constituted interference under Article 8 of the Convention.", "376. In view of their submissions relating to the non-applicability of Article 8 of the Convention, the Government maintained that there had been no interference in the present case.", "(b) The Court ’ s assessment", "377. In view of the considerations in paragraphs 363 and 364 above regarding the applicability of Article 8 of the Convention, the Court considers that, as a result of her dismissal from office, there has been an interference with the applicant ’ s right to respect for her private life (see, for example, Özpınar, cited above, §§ 47-48, and Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, § 138, 19 January 2017).", "378. The above-mentioned interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Jankauskas v. Lithuania (no. 2), no. 50446/09, § 71, 27 June 2017).", "Whether the interference was “in accordance with the law”", "(a) The parties ’ submissions", "379. The applicant submitted that the statutory provisions of the Vetting Act lacked clarity and accessibility. In particular, there was a lack of clarity relating to the method used by the vetting bodies to calculate living and travel expenses. Also, the Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law in relation to her participation in the Constitutional Court bench which had examined the constitutional appeal lodged by a member of the public. In her case, the vetting bodies had had unfettered discretion in the interpretation and application of the Vetting Act.", "380. The Government submitted that the provisions of the Vetting Act were clear, well defined and comprehensible. The Act did not contain any contradictions and its provisions provided for certainty, clarity and continuity. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act.", "381. According to the Government, the basis for finding an insufficient declaration of assets was the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber.", "382. The Government submitted that living expenses were calculated by reference to an individual ’ s declaration, evidence obtained by the vetting bodies from national and foreign institutions, prior declarations of assets and evidence collected by banking and non-banking institutions. Such evidence would be subject to adversarial proceedings, as a result of which the person being re-evaluated would be invited to submit his or her own evidence in support of his or her position. All the evidence would be subject to numerical and logical checks and the IQC would make an individualised decision in respect of each case, regard being had to its factual specificities.", "383. The Government submitted that the determination of whether an individual had undermined public trust in the justice system resulted from the examination of the evidence by the vetting bodies.", "(b) The Court ’ s assessment", "384. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its consequences (see, among other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)). In order for the law to meet the requirement of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the person concerned – if need be, with appropriate advice – to regulate his or her conduct (see, as a recent example, Altay v. Turkey (no. 2), no. 11236/09, § 54, 9 April 2019).", "385. The Court notes that, following the examination of the re-evaluation criteria, the applicant was dismissed from office on two main grounds. Firstly, as regards the evaluation of assets, she was found to have made a false declaration and concealed the flat measuring 101 sq. m. Secondly, as regards the evaluation of professional competence, the applicant had undermined public trust by failing to recuse herself from the examination of a constitutional complaint. The Court will examine each of the grounds below in order to determine whether the interference was in accordance with the law.", "386. As regards the false disclosure and concealment of a flat measuring 101 sq. m, the Court notes that the vetting bodies ’ decisions were based on the Vetting Act and prior legislation on asset disclosure. Not only had the Vetting Act been published, it had also been subject to constitutional review proceedings. In the Court ’ s view, the interference met the qualitative requirements of accessibility and foreseeability.", "387. As regards the finding that the applicant had undermined public trust in the justice system, the Court notes that even though this ground for dismissal from office is formulated in rather broad terms, it is not uncommon to have such a provision in disciplinary law and rules of judicial discipline. That provision should normally be read and interpreted in conjunction with other more specific disciplinary rules, as in force at the material time, sanctioning breaches of an ethical or professional nature. In the present case, the grounds provided for in the Vetting Act were supplemented by the statutory provisions in force at the relevant time governing the recusal of Constitutional Court judges and other judges, namely section 36(1)(c) of the Constitutional Court Act and Article 72 of the CCP, to which the IQC and Appeal Chamber referred in their decisions. In these circumstances, the Court finds that the interference was sufficiently foreseeable.", "388. The Court is satisfied that the interference with the applicant ’ s private life was in accordance with the law, as required by Article 8 § 2 of the Convention. The Court will therefore examine below whether such interference pursued one or more of the legitimate aims listed in Article 8 § 2 of the Convention, and whether it was “necessary in a democratic society” in order to achieve the aim or aims concerned.", "Whether the interference pursued a legitimate aim", "(a) The parties ’ submissions", "389. The applicant contended that the interference had not pursued any legitimate aim. The legitimate aim put forward in the Government ’ s submissions, namely the cleansing of the judiciary from corruption, could have been achieved by less intrusive means, such as compulsory training for judges. The European Commission had not called for a widespread vetting of the serving judges and prosecutors in order to eradicate corruption.", "390. The Government submitted, with reference to the Assessment Report, that a number of problems had been identified. Those problems had warranted the need to introduce structural changes, which had culminated with the constitutional amendments and the enactment of a set of essential statutes. The Government referred to the legitimate aims which the Constitutional Court had identified in the abstract constitutional review of the Vetting Act.", "(b) The Court ’ s assessment", "391. The Court notes that the Assessment Report referred to a number of public perception surveys and numerous reports which demonstrated a high incidence of corruption in the justice system (see paragraph 4 above). In this connection, GRECO had also highlighted the pervasive extent of corruption in the judiciary in its reports since 2002 (see paragraphs 217 - 20 above).", "392. It is important to note that the aim of the Vetting Act, as stated in section 1, is to “guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system” (see paragraphs 102 and 120 above). The Venice Commission also stated that the vetting of judges and prosecutors “was not only justified but necessary to protect [the country] from the scourge of corruption, which, if not addressed, could completely destroy the judicial system” (see paragraph 96 above). The Constitutional Court further added that any restrictions imposed by the Vetting Act were justified by the public interest of reducing the level of corruption and restoring public trust in the justice system, which in turn was connected to interests of national security, public order and the protection of rights and freedoms of others (see paragraph 175 above).", "393. In these circumstances, the Court sees no reason to doubt that the aim pursued by the Vetting Act in general, and the interference in the applicant ’ s case in particular, was consistent with aims identified in the Constitutional Court ’ s decision and in the interests of national security, public safety and the protection of the rights and freedoms of others, as listed in Article 8 § 2 (see also Ivanovski, cited above, 179).", "Whether the interference was “necessary in a democratic society”", "(a) The parties ’ submissions", "(i) The applicant", "394. The applicant submitted that her dismissal from office had been disproportionate. The vetting bodies had not given adequate reasons justifying her dismissal from office. They had not considered that she had been faced with an objective impossibility to demonstrate the lawful sources of income which her partner had earned more than twenty years earlier. Furthermore, the vetting bodies had extensively interpreted the domestic law and unjustly found that she had been a party to the 2003 and 2005 off-plan contracts.", "395. In her view, her partner ’ s living expenses in the 1990s had been wrongly determined on the basis of the Italian Institute of Statistics data for the years 2002 to 2004. Some travel expenses had been arbitrarily attributed to her, even though they had been incurred for business purposes and had been borne by the host institutions.", "396. The vetting bodies had overstepped the boundaries demarcated by the Vetting Act and dismissed her on account of annual declarations of assets which she had filed with HIDAACI and in respect of which there had been a positive assessment. The Vetting Act did not contain a definition of the phrase “undermining public trust in the justice system”. Its interpretation and application granted a broad margin of discretion to the vetting bodies. There had been no situation giving rise to a conflict of interest under domestic law. Furthermore, the vetting bodies had singled out just one episode in her 20-year long career.", "397. In the applicant ’ s view, there were no procedural safeguards to prevent an arbitrary application of the law. The legislation did not set out an appropriate scale of sanctions for disciplinary offences, and no rules had been developed to ensure their application in accordance with the principle of proportionality.", "(ii) The Government", "398. The Government submitted that the applicant had been subject to the vetting proceedings, which had to be distinguished from ordinary disciplinary proceedings. Her statutory obligations to disclose assets had already been enshrined in law since 2003. The concept of lawfulness of assets was prominent in domestic law, whether in statutes relating to the disclosure of assets or the prevention of money laundering. For an asset to be considered lawful, two conditions had to be satisfied: the income used for its creation or acquisition had to originate from a lawful activity, and the income ought to have been subject to the payment of the applicable taxes or duties. The cumulative fulfilment of these two conditions was clearly provided for in Article D of the Constitution and section 3 of the Vetting Act.", "399. The legislature had provided for the existence of an objective impossibility that persons to be vetted would face in obtaining evidence. This was due to ( i ) the country ’ s legacy emerging from a communist regime where no taxes were paid, (ii) the informal economy, which was stimulated by the difficult economic situation and the incapability of public institutions, (iii) poor fiscal culture and awareness in the country, which did not have effective law enforcement mechanisms, and (iv) a lack of professionalism on the part of the law enforcement administration.", "400. According to the Government, the basis for finding an insufficient declaration of assets had been the vetting declaration of assets. Under section 61(3) of the Vetting Act, read in conjunction with section 33, an insufficient declaration of assets would take place if a finding was made to the effect that there was an absence of financial sources, a concealment of assets, a false disclosure of assets or a conflict of interest. Prior declarations of assets could be used as evidence by the IQC and Appeal Chamber.", "401. Lastly, the sanction imposed on the applicant had been proportionate to the findings made by the vetting bodies, namely that she had made a false declaration and concealed an asset, had made an inaccurate declaration of other assets and had been found to have undermined public trust in the justice system. In the Government ’ s view, the State required civil servants to be loyal to the constitutional principles on which it was founded.", "(b) The Court ’ s assessment", "402. The Court reiterates that any interference with the right to respect for private life will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez, cited above, § 124, and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 174, 15 November 2016). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, Polyakh and Others, cited above, § 283).", "403. The Court further notes that dismissal from office is a grave – if not the most serious – disciplinary sanction that can be imposed on an individual. The imposition of such a measure, which negatively affects an individual ’ s private life, requires the consideration of solid evidence relating to the individual ’ s ethics, integrity and professional competence.", "404. In the present case, as stated in paragraphs 391 and 392 above, the Court notes that the Vetting Act was enacted further to the Assessment Report and the Reform Strategy, as well as substantial constitutional amendments. It responded to alarming levels of corruption in the judiciary, as assessed by the national legislature and other independent observers, and to the urgent need to combat corruption, which had also been highlighted in the Constitutional Court ’ s decision. The Court therefore considers that, in such circumstances, a reform of the justice system entailing the extraordinary vetting of all serving judges and prosecutors responded to a “pressing social need”.", "405. The question which remains to be answered is whether, in the circumstances of the applicant ’ s case, the domestic authorities overstepped the respondent State ’ s margin of appreciation. Consequently, the Court will examine whether the vetting bodies carried out an individualised assessment of the grounds which led to the imposition of the disciplinary sanction of dismissal from office, namely the evaluation of assets and professional competence.", "406. The Court observes that the vetting bodies examined the applicant ’ s vetting declaration of assets. In accordance with the Vetting Act, the applicant was required to justify the underlying lawful sources which had served as the basis for the acquisition of her assets. The Court reiterates that, in line with Albania ’ s treaty law commitments, the requirement to disclose assets and justify their lawful origin has been enshrined in domestic law since 2003, which also prescribes sanctions for failure to disclose assets or false disclosure thereof (see paragraphs 204 and 212 above). This is the reason why the Vetting Act, as further confirmed by the Appeal Chamber, provided for the use of previous declarations of assets as evidence to verify the truthfulness of the vetting declaration of assets (see paragraphs 136 and 188 above).", "407. As regards the flat measuring 101 sq. m, the Appeal Chamber upheld the IQC ’ s finding that the applicant had made a false declaration and concealed the asset. As regards her arguments that the vetting bodies had misinterpreted the law, the Court holds that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. Unless the interpretation is arbitrary or manifestly unreasonable, the Court ’ s role is limited to verifying compatibility with the Convention of the effects of such an interpretation (see, amongst other authorities, Radomilja and Others [GC], cited above, § 149 ). In the present case, the Court notes that two of the applicant ’ s assets had been acquired on the basis of an off-plan contract, which, as interpreted by the vetting bodies, was – and continues to be – one of the ways to acquire property rights under law in Albania. After careful examination of the evidence in the case file, the vetting bodies concluded that the applicant had also been a party to the underlying contracts which had served as the basis for and contributed to the acquisition of the flat measuring 101 sq. m which she had failed to disclose for a number of years, until 2011 (see paragraphs 25 and 67 above). The Court does not find anything arbitrary or manifestly unreasonable in the domestic decisions. Moreover, it notes that, according to the Bangalore Principles of Judicial Conduct, judges, who, by the nature of their work are considered to be guarantors of the rule of law, must be required to meet particularly high standards of integrity in the conduct of their private matters out of court – “above reproach in the view of a reasonable observer” – in order to maintain and enhance the confidence of the public and “reaffirm the people ’ s faith in the integrity of the judiciary”.", "408. As to the existence of sufficient and lawful income for the purchase of the underlying properties which had contributed to the purchase of the flat measuring 101 sq. m, the Court further notes that the Appeal Chamber found that the applicant and her partner had not been in possession of a sufficient income (see paragraph 71 above).", "409. As regards the determination of the applicant ’ s financial situation, the Court notes that the Appeal Chamber carried out a reassessment of her and her partner ’ s assets and liabilities, finding that they lacked lawful income to justify liquid assets. Since the evaluation was focused on facts specific to living and travel expenses and was adduced on the basis of evidence examined by the vetting bodies, the Court ’ s task, as also indicated in paragraph 402 above, is not to substitute its finding for those of the national authorities. The Court takes further note of the Appeal Chamber ’ s finding of a serious failure on the part of the applicant to disclose the origin of money in her foreign bank accounts, there having been no evidence of any bank transfers, and her partner ’ s failure to disclose in due time a large amount of cash, in breach of the statutory provisions (see paragraphs 33, 75 and 77 above).", "410. As regards the evaluation of professional competence, the Appeal Chamber upheld the IQC ’ s finding that the applicant ’ s failure to recuse herself from a set of constitutional proceedings had undermined public trust in the justice system. Having regard to the decisions given by the IQC and Appeal Chamber and the circumstances of the present case, the Court considers that, for the reasons given below, the vetting bodies did not give adequate reasons to justify such a finding. In the first place, the applicant ’ s father had been a member of an appellate court bench which had decided that the prosecution of certain individuals, who had been convicted of forgery of documents at first instance, was time-barred. The appellate court bench did not therefore examine the merits of the case and rule on the charge of forgery of documents. As to the applicant, she was called upon to examine a constitutional complaint relating to a separate set of civil proceedings. Secondly, since neither she nor her father had any other personal conflict of interest in either set of proceedings, the Court is not convinced that the vetting bodies sufficiently demonstrated the existence of doubts as to the applicant ’ s impartiality. The Court is mindful that, while the Contracting States are under an obligation to organise their legal system so as to ensure compliance with the requirements of the right to a fair hearing, impartiality being unquestionably one of the foremost of those requirements, automatic disqualification of a judge who has blood ties with another judge who has heard another set of proceedings concerning one or all parties to the proceedings is not always called for, particularly for a country the size of Albania (see, for the application of this principle, Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 53, 24 April 2008; Ramljak v. Croatia, no. 5856/13, §§ 29-42, 27 June 2017; Nicholas v. Cyprus, no. 63246/10, § 62-65, 9 January 2018; and Koulias v. Cyprus, no. 48781/12, §§ 61-66, 26 May 2020 ). Thirdly, there is no indication that the parties to the constitutional proceedings raised an objection to the applicant ’ s participation in the bench, even though she bore the same last name as that of her father.", "411. Notwithstanding the above reasons regarding the evaluation of the applicant ’ s professional competence, the Court considers that the findings made by the Appeal Chamber in respect of the evaluation of assets, as described in paragraphs 407 - 09 above and taken cumulatively, were sufficiently serious under national law and could in themselves justify the applicant ’ s dismissal from office.", "412. The Court further considers that, having regard to the domestic courts ’ individualised findings in paragraphs 407 - 09 above, the applicant ’ s dismissal from her post as Constitutional Court judge was proportionate. Indeed, the Vetting Act provides for two types of disciplinary sanctions: dismissal from office or suspension with the obligation to attend compulsory education. The Court has held, inter alia, that the absence of an appropriate scale of sanctions for disciplinary offences may be inconsistent with the principle of proportionality (see Oleksandr Volkov, § 182). The Court must emphasise, in this connection, that the Constitutional Court Act provides for a more detailed hierarchy of disciplinary sanctions, as described in paragraph 200 above, which would be imposed at the end of ordinary disciplinary proceedings. However, vetting proceedings are sui generis in nature, despite the similarities that they appear to have with ordinary disciplinary proceedings. They were introduced in response to the perceived pervasive presence of corruption in the justice system in order to rid it of corrupt elements and preserve the healthy part of the system. In the exceptional circumstances which preceded the adoption of the Vetting Act, as also highlighted in paragraphs 391, 392 and 404 above, the Court finds it consistent with the spirit of the vetting process to have a more limited scale of sanctions in the event a person fails to satisfy one of the three criteria laid down in the Vetting Act.", "413. The Court further observes that, under the Status of Judges and Prosecutors Act, the applicant ’ s dismissal from office entailed a lifetime ban on re-entering the justice system. In this connection, the Court reiterates that judges, and especially those occupying posts entailing a high degree of responsibility such as the posts in which the applicant wishes to resume employment, wield a portion of the State ’ s sovereign power. The lifetime ban imposed on the applicant and other individuals removed from office on grounds of serious ethical violations is not inconsistent with or disproportionate to the legitimate objective pursued by the State to ensure the integrity of judicial office and public trust in the justice system (see, mutatis mutandis, Naidin v. Romania, no. 38162/07, 21 October 2014, § 54-55, which concerned the absolute nature of a ban on former collaborator of the political police on joining public service employment; contrast Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 58, ECHR 2004 ‑ VIII; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, § 36, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, § 31, 7 April 2009 as regards restrictions on a person ’ s opportunity to find employment in the private sector). This is especially so within the national context of ongoing consolidation of the rule of law.", "414. In view of the foregoing reasons, the Court considers that there has been no breach of Article 8 of the Convention in respect of the applicant ’ s dismissal from office.", "ALLEGED VIOLATION OF article 13 of THE CONVENTION", "415. Lastly, the applicant complained that she had not had an effective remedy, as required by Article 13 of the Convention, in respect of her complaint under Article 8.", "Article 13 of the Convention reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "416. The Court notes that, in the present case, the applicant lodged an appeal against the IQC ’ s decision ordering her dismissal from judicial office. The Appeal Chamber, which had full jurisdiction over questions of fact and law, examined the merits of her appeal, including the alleged unfairness of her dismissal from office. That the Appeal Chamber dismissed her appeal is not sufficient for the Court to hold that it was not an effective remedy (see, amongst other authorities, Amann v. Switzerland [GC], no. 27798/95, § 89, 16 February 2000).", "417. In these circumstances, the Court considers that this complaint should be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention." ]

[ "2. The applicant was born in 1980 and lives in Gdynia. Having been granted legal aid, she was represented by Ms M. Gąsiorowska, a lawyer practising in Warszawa.", "3. The Polish Government (“the Government”) were represented by their Agent Mr J. Sobczak, of the Ministry of Foreign Affairs.", "THE BACKGROUND TO THE CASENational Council of the Judiciary", "National Council of the Judiciary", "National Council of the Judiciary", "4. The National Council of the Judiciary ( Krajowa Rada Sądownictwa, hereinafter “the NCJ”) is a body which was introduced in the Polish judicial system in 1989, by the Amending Act of the Constitution of the Polish People’s Republic ( ustawa z dnia 7 kwietnia 1989 r. o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej ).", "5. Its organisation was governed by the 20 December 1989 Act on the NCJ as amended and superseded on several occasions ( ustawa z dnia 20 grudnia 1989 r. o Krajowej Radzie Sądownictwa ). The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges at different levels, and from different types of court, within the judiciary.", "6. The 1997 Constitution of the Republic of Poland provides that the purpose of the NCJ is to safeguard the independence of courts and judges (see paragraph 59 below). Article 187 § 1 governs the composition of its twenty-five members: seventeen judges (two sitting ex officio : the First President of the Supreme Court, the President of the Supreme Administrative Court and fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts); four Members of Parliament chosen by Sejm; two members of the Senate; the Minister of Justice, and one person indicated by the President of the Republic of Poland (“the President” or “the President of Poland”).", "7. The subsequent Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa – “the 2011 Act on the NCJ”), in its wording prior to the amendment which entered into force on 17 January 2018, provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels within the judiciary (see paragraph 62 below).", "Legislative process", "8. As part of the general reorganisation of the Polish judicial system prepared by the government, Sejm enacted three new laws: the 12 July 2017 Law on amendments to the Act on the Organisation of Ordinary Courts and certain other statutes ( Ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw, “Act on the Ordinary Courts”), the 12 July 2017 Amending Act on the NCJ and certain other statutes ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ) and the 20 July 2017 Act on the Supreme Court ( Ustawa o Sądzie Najwyższym).", "9. The 12 July 2017 Law on amendments to the Act on the Ordinary Courts was signed by the President of Poland on 24 July 2017 and entered into force on 12 August 2017 (see paragraph 69 below).", "10. On 31 July 2017 the President vetoed two acts adopted by Sejm : one on the Supreme Court and the Amending Act on the NCJ. On 26 September 2017 the President submitted his proposal for amendments to both acts. The bills were passed by Sejm on 8 December and by the Senate on 15 December 2017. They were signed into law by the President on 20 December 2017.", "New National Council of the JudiciaryElection of the new members of the NCJ", "Election of the new members of the NCJ", "Election of the new members of the NCJ", "11. The Amending Act on the NCJ of 8 December 2017 ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw, “the 2017 Amending Act”) entered into force on 17 January 2018 (see paragraphs 7 above and 63 below).", "12. The 2017 Amending Act granted to Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a(1) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act). The positions of the judicial members of the NCJ who had been elected on the basis of the previous Act were discontinued with the beginning of the term of office of the new members of the NCJ (section 6). The election of new judicial members of the NCJ required the majority of 3/5 of votes cast by at least half of the members of Sejm (section 11d(5)). The candidates for the NCJ were to present a list of support from either 2,000 citizens or twenty-five judges (section 11a).", "13. On 5 March 2018 a list of fifteen judges, candidates for the NCJ, was positively assessed by the Commission of Justice and Human Rights of Sejm.", "14. On 6 March 2018 Sejm, in a single vote, elected fifteen judges as new members of the NCJ.", "15. On 17 September 2018 the Extraordinary General Assembly of the European Network of Councils for the Judiciary (ENCJ) decided to suspend the membership of the Polish NCJ. The General Assembly found that the NCJ no longer met the requirements of being independent from the executive and the legislature in a manner which ensured the independence of the Polish judiciary (see also paragraph 175 below).", "Non-disclosure of endorsement lists", "16. On 25 January 2018 a Member of Parliament (“MP”), K.G.-P., asked the Speaker of Sejm ( Marszalek Sejmu ) to disclose the lists, containing names of persons supporting the candidates to the NCJ, which had been lodged with Sejm. The MP relied on the Act on Access to Public Information ( ustawa o dostępie do informacji publicznej ). Her request was dismissed on 27 February 2018 by the Head of the Chancellery of Sejm ( Szef Kancelarii Sejmu ). The MP appealed.", "17. On 29 August 2018 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) gave judgment in the case (no. II SA/Wa 484/18). The court quashed the impugned decision. It considered that domestic law had not allowed any limitation of the right of access to public information in respect of attachments to the applications lodged by candidates for the NCJ containing lists of judges who had supported their candidatures. The lists of judges supporting candidates for the NCJ had to be considered as information related to the exercise of a public office by judges. The publication of endorsement lists signed by judges had to be preceded by the removal of their personal registration numbers (PESEL) as the number had not related to the exercise of public office by judges.", "18. The Head of the Chancellery of Sejm lodged a cassation appeal against the judgment.", "19. On 28 June 2019 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal (I OSK 4282/18). The court agreed with the conclusions of the Regional Administrative Court. It found that the attachments to the applications of candidates to the NCJ in the form of lists of citizens and lists of judges supporting the applications had fallen within the concept of public information. The limitation of this right to public information in relation to the lists of judges supporting the applications of candidates for the NCJ could not be justified by the reason that this information was related to the performance of public duties by judges. The court held that access to the list of judges supporting the applications of candidates for the NCJ should be made available after prior anonymisation of the judges’ personal registration numbers (PESEL).", "20. On 29 July 2019 the Head of the Personal Data Protection Office ( Prezes Urzędu Ochrony Danych Osobowych – “ UODO ” ) decided that the endorsement lists should remain confidential and should not be published (two decisions were issued on that day, one initiated ex officio and one upon the application of Judge M.N., a member of the NCJ).", "21. Appeals against the decisions of the Head of UODO were lodged by the Commissioner of Human Rights, the MP K.G.-P. and a foundation, F.C.A. On 24 January 2020 the Warsaw Regional Administrative Court quashed the decisions of 29 July 2019 (II SA/Wa 1927/19 and II SA/Wa 2154/19). The court referred to findings contained in the final judgment of the Supreme Administrative Court of 28 June 2018 which had not been enforced to date (see paragraph 19 above).", "22. On 14 February 2020 the lists of persons supporting candidates to the NCJ were published on the Sejm website.", "The Supreme CourtNew Chambers", "New Chambers", "New Chambers", "23. The Act on the Supreme Court of 8 December 2017 (“the 2017 Act on the Supreme Court”) modified the organisation of that court by, in particular, creating two new Chambers: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych; see paragraph 66 below).", "24. The Disciplinary Chamber of the Supreme Court became competent to rule on cases concerning the employment, social security and retirement of judges of the Supreme Court (the 2017 Act on the Supreme Court, section 27(1)). The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in the Supreme Court were excluded from it (section 131).", "25. The Chamber of Extraordinary Review and Public Affairs became competent to examine extraordinary appeals ( skarga nadzwyczajna ), electoral protests and protests against the validity of the national referendum, constitutional referendum and confirmation of the validity of elections and referendums, other public law matters, including cases concerning competition, regulation of energy, telecommunications and railway transport and cases in which an appeal had been lodged against a decision of the Chairman of the National Broadcasting Council ( Przewodniczący Krajowej Rady Radiofonii i Telewizji ), as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court (section 26).", "Appointments of judges", "(a) Act announcing vacancies at the Supreme Court", "26. On 24 May 2018 the President announced sixteen vacant positions of judges of the Supreme Court in the Disciplinary Chamber ( obwieszczenie Prezydenta, Monitor Polski – Official Gazette of the Republic of Poland of 2018, item 633). By the same act the President announced other vacant positions at the Supreme Court: twenty in the Chamber of Extraordinary Review and Public Affairs, seven in the Civil Chamber and one position in the Criminal Chamber.", "27. At its sessions held on 23, 24, 27 and 28 August 2018, the NCJ closed competitions for vacant positions of judges at the Supreme Court.", "(b) Disciplinary Chamber", "28. On 23 August 2018 the NCJ issued a resolution (no. 317/2018) recommending twelve candidates for judges of the Disciplinary Chamber and submitted the requests for their appointment to the President.", "29. On 19 September 2018 the President decided to appoint ten judges, from among those recommended by the NCJ, to the Disciplinary Chamber of the Supreme Court. On 20 September 2018 the President handed the letters of appointment to the appointed judges and administered the oath of office to them.", "(c) Chamber of Extraordinary Review and Public Affairs", "30. On 28 August 2018 the NCJ issued a resolution (no. 331/2018) recommending twenty candidates for judges of the Chamber of Extraordinary Review and Public Affairs and submitted the requests for their appointment to the President.", "31. On 10 October 2018 the President decided to appoint nineteen judges, as recommended by the NCJ on 28 August 2018, to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. The twentieth candidate to be appointed, Judge A.S., was appointed by the President on 30 January 2019 after he had relinquished a foreign nationality.", "(d) Criminal and Civil Chambers", "32. On 24 August 2018 the NCJ issued a resolution (no. 318/2018) recommending one candidate for the position of judge of the Criminal Chamber of the Supreme Court.", "33. On 28 August 2018 the NCJ issued a resolution (no. 330/2018) recommending seven candidates for judges of the Civil Chamber of the Supreme Court.", "34. On 10 October 2018 the President decided to appoint one judge to the Criminal Chamber and seven judges to the Civil Chamber of the Supreme Court, as recommended by the NCJ on 24 and 28 August 2018. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them.", "Appeals against the NCJ resolutions recommending judges for appointment to the Supreme Court", "(a) Disciplinary Chamber", "35. On 25, 27 September and 16 October 2018 the Supreme Administrative Court dismissed requests lodged by various appellants to stay the execution ( o udzielenie zabezpieczenia ) of the NCJ’s resolution no. 317/2018 recommending candidates for appointment to the Disciplinary Chamber (see paragraph 28 above). The court noted that the NCJ resolution of 23 August 2018 had been delivered to the candidate G.H. on 14 September 2018, and he had lodged his appeal with the Supreme Administrative Court on 17 September 2018. However, on 19 September 2019 the President had appointed the judges recommended by the NCJ. NCJ resolution no. 317/2018 had therefore been enforced, which precluded any stay of execution.", "(b) Chamber of Extraordinary Review and Public Affairs", "36. On 27 September 2018 the Supreme Administrative Court (case no. II GW 28/18) stayed the execution of the NCJ resolution of 28 August 2018 (no. 331/2018; see paragraph 30 above) recommending twenty candidates to the Chamber of Extraordinary Review and Public Affairs and not recommending other candidates, including the claimant A.B.", "(c) Criminal and Civil Chambers", "(i) Staying the execution of the NCJ’s resolutions", "37. On 25 September 2018 the Supreme Administrative Court (case no. II GW 22/18) stayed the execution of the NCJ resolution of 24 August 2018 (no. 318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D.", "38. On 27 September 2018 the Supreme Administrative Court (case no. II GW 27/18) stayed the execution of the NCJ resolution of 28 August 2018 (no. 330/2018; see paragraph 33 above) recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and not recommending other candidates, including the appellant I.J. The court noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20 September 2018 although it had been obliged to do so under the law.", "(ii) Case of A.B. (II GOK 2/18)", "39. On 1 October 2018 Mr A.B. lodged an appeal against the NCJ’s resolution of 28 August 2019 (no. 330/2018; see paragraph 33 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the execution of the resolution.", "40. On 8 October 2018 the Supreme Administrative Court (case no. II GW 31/18) stayed the execution of the impugned resolution. The court noted that A.B.’s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court.", "41. On 26 June 2019 the Supreme Administrative Court made a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”) and the latter gave judgment on 2 March 2021 (see paragraphs 165-167 below).", "42. On 6 May 2021 the Supreme Administrative Court gave judgment (case no. II GOK 2/18). It quashed the impugned NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. As regards the part of the resolution concerning the refusal to recommend certain other candidates it quashed it in so far as it concerned the appellant, A.B. (see also paragraphs 122 ‑ 125 below).", "43. In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 162-167 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph 123 below).", "44. The court also noted that it did not appear that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 169 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1 October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates.", "45. Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 71 ‑ 86 and 89-105 below), that the President’s announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister.", "The Court of Justice of the European Union judgment of 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18)", "46. In August and September 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling ( pytania prejudycjalne ). The opinion of Advocate General Tanchev in those cases, delivered on 27 June 2019, analysed the qualifications required by the NCJ with reference to the Court’s case-law and concluded that the Disciplinary Chamber of the Polish Supreme Court did not satisfy the requirements of judicial independence (see paragraph 163 below).", "47. The CJEU delivered a judgment on 19 November 2019 in which it considered that it was for the national court, i.e. the Supreme Court, to examine whether the Disciplinary Chamber of the Supreme Court was an impartial tribunal. The CJEU clarified the scope of the requirements of independence and impartiality in the context of the establishment of the Disciplinary Chamber so that the domestic court could itself issue a ruling (see paragraph 164 below).", "The Supreme Court’s rulingsJudgment of 5 December 2019", "Judgment of 5 December 2019", "Judgment of 5 December 2019", "48. On 5 December 2019 the Supreme Court issued the first judgment in cases that had been referred for a preliminary ruling to the CJEU (case no. III PO 7/180; see paragraph 71 below). The Supreme Court concluded that the NCJ was not an authority that was impartial or independent from legislative and executive branches of power. Moreover, it concluded that the Disciplinary Chamber of the Supreme Court could not be considered a court within the meaning of domestic law and the Convention.", "Resolution of 8 January 2020", "49. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution in which it interpreted the consequences of the CJEU judgment narrowly (I NOZP 3/19, see paragraph 87 below). The independence of the NCJ was to be examined only if raised in the appeal and the appellant would have to justify that the lack of independence of the NCJ had adversely affected the content of the resolution given in his or her case.", "Resolution of 23 January 2020", "50. On 23 January 2020 three joined Chambers of the Supreme Court issued a joint resolution (see paragraph 89 below). The court agreed with the assessment in the judgment of 5 December 2019 that the NCJ had not been an independent and impartial body and that this had led to defects in the procedures for the appointment of judges carried out on the basis of the NCJ’s recommendations. With respect to the Disciplinary Chamber, the Supreme Court took into account its organisation, structure and appointment procedure and concluded that it structurally failed to fulfil the criteria of an independent court. Accordingly, the judgments given by the Disciplinary Chamber were not judgments given by a duly appointed court. In consequence, according to the resolution, court formations including Supreme Court judges appointed through the procedure involving the NCJ were unduly composed within the meaning of the relevant provisions of the domestic law.", "Constitutional Court", "Pending case before the Constitutional Court", "51. On 29 March 2021 the Prime Minister referred the following request to the Constitutional Court:", "“Application to examine the compatibility of:", "(1) the first and second paragraphs of Article 1, in conjunction with Article 4(3) of the Treaty on European Union of 7 February 1992, hereinafter ‘TEU’, understood as empowering or obliging a law-applying body to derogate from the application of the Constitution of the Republic of Poland or ordering it to apply legal provisions in a manner inconsistent with the Constitution of the Republic of Poland, with Article 2; Article 7; Article 8 § 1 in conjunction with Article 8 § 2, Article 90 § 1 and Article 91 § 2; and Article 178 § 1 of the Constitution of the Republic of Poland;", "(2) Article 19(1), second subparagraph, in conjunction with Article 4(3) TEU, interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law is authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution, including the application of a provision which, by virtue of a decision of the Constitutional Court, has ceased to be binding as being inconsistent with the Basic Law, with Article 2; Article 7; Article 8 § 1 in conjunction with Article 8 § 2 and Article 91 § 2; Article 90 § 1; Article 178 § 1; and Article 190 § 1 of the Constitution of the Republic of Poland;", "(3) Article 19(1), second subparagraph, in conjunction with Article 2 TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic of Poland and to review a resolution of the National Council of the Judiciary concerning an application to the President of the Republic of Poland for appointment of a judge, with Article 8 § 1 in conjunction with Article 8 § 2, Article 90 § 1 and Article 91 § 2; Article 144 § 3 (17); and Article 186 § 1 of the Constitution of the Republic of Poland.”", "52. On 17 May 2021 the Polish Commissioner for Human Rights joined the proceedings as a third-party intervener. He considered that the first two issues should not be examined by the Constitutional Court at all, and as regards the third, that it should turn to the CJEU for a preliminary ruling.", "53. The proceedings are pending before the Constitutional Court (K 3/21).", "THE CIRCUMSTANCES OF THE CASE", "54. The applicant is a barrister.", "55. On 12 July 2017 the Pomerania Bar Chamber Disciplinary Court in Gdańsk ( Sąd Dyscyplinarny Pomorskiej Izby Adwokackiej w Gdańsku ) imposed a disciplinary penalty on the applicant. She was suspended for a period of three years in connection with various breaches of the Code of Bar Ethics ( Kodeks Etyki Adwokackiej ) in the course of performing her duties as representative of certain clients. The charges against her concerned, first, events dating back to October 2013 in respect of which she was charged with failure to display particular diligence when acting as her client’s representative, in particular by failing to settle financial accounts with him and return all documents. The second charge related to her non-compliance with a previous disciplinary order suspending her from practice and related to events in August 2015 when the applicant had continued to provide legal services despite that order.", "56. The applicant appealed, contesting the facts as established by the Disciplinary Court and their assessment.", "57. On 12 May 2018 the High Disciplinary Court of the Bar ( Wyższy Sąd Dyscylinarny Adwokatury ) upheld the ruling. The applicant lodged a cassation appeal with the Supreme Court.", "58. On 14 February 2019 the Supreme Court, sitting as a panel of three judges of the Disciplinary Chamber (K.W., P.Z., and T.P.), dismissed the applicant’s cassation appeal. The decision contained no reasons. It was notified to the applicant’s lawyer on 20 February 2019." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic law and practiceDomestic LawConstitution of the Republic of Poland", "Domestic LawConstitution of the Republic of Poland", "Constitution of the Republic of Poland", "Domestic LawConstitution of the Republic of Poland", "Constitution of the Republic of Poland", "Constitution of the Republic of Poland", "59. The relevant provisions of the Constitution read as follows:", "Article 2", "“The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.”", "Article 7", "“The organs of public authority shall function on the basis of, and within the limits of, the law.”", "Article 8 § 1", "“The Constitution shall be the supreme law of the Republic of Poland.”", "Article 10", "“1. The system of government of the Republic of Poland shall be based on the separation of, and balance between, the legislative, executive and judicial powers.", "2. Legislative power shall be vested in Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.”", "Article 32", "“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.", "2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”", "Article 45 § 1", "“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”", "Article 144", "“1. The President of the Republic, exercising his constitutional and statutory authority, shall issue Official Acts.", "2. Official Acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts accountability therefor to Sejm.", "3. The provisions of paragraph 2 above shall not relate to:", "...", "(17) appointing judges;...”", "Article 179", "“Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.”", "Article 180", "“1. Judges shall not be removable.", "2. Recall of a judge from office, suspension from office, or transfer to another bench or position against his or her will, may only occur by virtue of a court judgment and only in those instances prescribed by statute.", "3. A judge may be put on retirement as a result of illness or infirmity which prevents him discharging the duties of his office. The procedure for doing so, as well as for appealing against such decision, shall be specified by statute.", "4. A statute shall establish an age limit beyond which a judge shall take retirement. ...”", "Article 183 § 1", "“The Supreme Court shall exercise supervision over ordinary and military courts in respect of their judgments.”", "Article 186 § 1", "“The National Council of the Judiciary shall safeguard the independence of courts and judges.”", "Article 187", "“1. The National Council of the Judiciary shall be composed as follows:", "(1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;", "(2) fifteen judges chosen from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts;", "(3) four members chosen by Sejm from among its Deputies and two members chosen by the Senate from among its Senators.", "2. The National Council of the Judiciary shall choose, from among its members, a chairperson and two deputy chairpersons.", "3. The term of office of those chosen as members of the National Council of the Judiciary shall be four years.", "4. The organisational structure, the scope of activity and working procedures of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.”", "Article 190", "“1. Judgments of the Constitutional Court shall be of universally binding application and shall be final.", "2. Judgments of the Constitutional Court regarding matters specified in Article 188 shall be immediately published in the official publication in which the original normative act was promulgated. If a normative act has not been promulgated, then the judgment shall be published in the Official Gazette of the Republic of Poland, Monitor Polski.", "3. A judgment of the Constitutional Court shall take effect from the day of its publication, however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time period may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.", "4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or a statute, of a normative act on which a legally binding judgment of a court, a final administrative decision or a settlement of other matters was based, shall be a basis for reopening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.", "5. Judgments of the Constitutional Court shall be made by a majority of votes.”", "Relevant provisions of the Code of Criminal Procedure and Code of Civil Procedure", "60. Article 439 § 1 of the Code of Criminal Procedure ( Kodeks postępowania karnego ) deals with absolute grounds of appeal ( bezwzględne przyczyny odwoławcze ):", "“Regardless of the scope of the appeal and the arguments raised, or the impact of any defects on the content of the ruling, the appellate court shall, at a sitting, revoke the decision appealed against if:", "...", "(2) the court was unduly composed or any of its members was not present at the entire hearing”.", "61. Article 379 of the Code of Civil Procedure ( Kodeks postępowania cywilnego ) deals with invalidity of proceedings ( nieważność postępowania ):", "“Proceedings shall be null and void :", "...", "(4) if the composition of the adjudicating court was inconsistent with the provisions of the law, or if a judge excluded [from sitting in the case] by virtue of the law took part in the examination of the case;", "...”", "The 2011 Act on the National Council of the Judiciary as in force prior to 17 January 2018", "62. The relevant provisions of the 2011 Act on the NCJ as in force until 17 January 2018 (see paragraph 7 above) read:", "Section 11", "“1. The general assembly of judges of the Supreme Court elects two members of the Council from among the judges of that court.", "2. The general assembly of judges of the Supreme Administrative Court, together with the representatives of general assemblies of provincial administrative courts, elects two members of the Council from among the judges of the administrative courts.", "3. The meeting of representatives of general assemblies of judges of courts of appeal elects two members of the Council from among judges of the courts of appeal.", "4. The meeting of representatives of general assemblies of regional court judges elects eight members of the Council from among their number.", "5. The assembly of judges of military courts elects one member of the Council from among its body.”", "Section 12", "“1. General assemblies of judges of Regional Administrative Courts elect two representatives from among their members.", "2. Representatives of the general meetings of judges of regional administrative courts are elected at the latest one month before the expiry of the term of office of the Council members, elected from among the judges of the administrative courts. The representatives are elected for a period of four years.”", "Section 13", "“1. General assemblies of judges of courts of appeal elect representatives of general assemblies of judges of courts of appeal from among judges of the courts of appeal in the proportion of one fifth of the number of those judges.", "2. The general assemblies of regional judges elect representatives of the general assemblies of regional judges from among their members in the proportion of one fiftieth of the number of regional judges.", "3. The election of representatives of the general assemblies shall be carried out at the latest one month before the expiry of the term of office of the members of the Council, elected from among the judges of ordinary courts. The representatives are elected for a period of four years.", "4. The Minister of Justice, in agreement with the Chairman of the Council, convenes the meeting of the representatives in order to elect the members of the Council. The Chairman of the Council convenes the meeting of representatives once every two years, and also at the request of one third of the number of representatives or at the request of the Council.", "5. The meetings of the representatives evaluate the activity of the members of the Council elected by them, make proposals to the Council concerning its activity and adopt resolutions concerning the problems arising in the activity of the ordinary courts.", "6. The meeting of representatives is chaired by the oldest judge in terms of age. The meetings deliberate according to the rules of procedure adopted by them.”", "The 2017 Amending Act", "63. The relevant provisions of the 2011 Act on the NCJ, as amended by the 2017 Amending Act (see paragraph 11 above – ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw) read as follows:", "Section 9a", "“1. Sejm shall appoint, from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts, fifteen members of the Council for a joint four-year term of office.", "2. When making the selection referred to in subsection 1, Sejm, to the extent possible, shall take into account the need for representation of judges of particular types and levels of court in the Council.", "3. The joint term of office of new members of the Council elected from among the judges shall begin on the day following that on which they are elected. Members of the Council from the previous term shall perform their duties until the first day of the joint term of office of new members of the Council.\"", "Section 11a", "“1. The Speaker of Sejm, not earlier than one hundred and twenty days and not later than ninety days before the expiry of the term of office of the members of the Council elected from among the judges, shall announce in the Official Gazette of the Republic of Poland, Monitor Polski, the commencement of the procedure for submitting candidatures for election to the Council.", "2. The entities entitled to nominate a candidate for the Council shall be groups of at least:", "(1) two thousand citizens of the Republic of Poland who are over eighteen years of age, have full capacity to perform legal acts and enjoy full public rights;", "(2) twenty-five judges, excluding retired judges.", "3. One application may concern only one candidate for election to the Council. The entities referred to in subsection 2 may submit more than one application.", "4. Candidates for election to the Council shall be notified to the Speaker of Sejm within thirty days from the date of the announcement referred to in subsection 1.", "5. A candidate’s application shall include information about the candidate, the duties and social activities performed to date and other significant events occurring during the candidate’s term of office as judge. The application shall be accompanied by the judge’s consent to be a candidate.", "6. Within three days of receiving a candidate’s application, the Speaker of Sejm shall send a written request to the president of the court having jurisdiction in respect of the nominated candidate, and if the application concerns the president of:", "(1) a district court, a regional court or a military court - to the president of the higher court;", "(2) a court of appeal, district administrative court or military district court – to the vice-president or deputy president of that court – with a request to compile and forward, within seven days of receiving the request, information on the candidate’s judicial achievements, including socially significant or precedent-setting judgments, and relevant information on the candidate’s judicial culture, primarily disclosed during inspections and lustrations.", "7. If the information referred to in subsection 6 is not prepared within the time-limit referred to in that subsection, the Speaker of Sejm shall send a written request to the candidate for election to the Council to have the information prepared by the candidate within seven days of receiving the request of the Speaker of Sejm. The candidate for election to the Council shall forward a copy of the information he or she prepares to the president of the court having jurisdiction in respect of the nominated candidate, the president of the higher court or the vice-president or deputy president of the court of appeal, the regional administrative court or the military regional court, respectively.", "8. If the information referred to in subsection 6 is not prepared by the candidate for election to the Council within the time-limit referred to in subsection 7, the Speaker of Sejm shall refuse to accept the application. The decision on that matter, together with the justification, shall immediately be delivered to the proxy and to the candidate for election to the Council.", "9. The information referred to in subsection 6 shall be attached by the Speaker of Sejm to the candidate’s application.”", "Section 11d", "“1. The Speaker of Sejm shall request the parliamentary groups to indicate, within seven days, their candidates for election to the Council.", "2. The parliamentary group shall indicate, from among the judges whose candidatures have been put forward under section 11a, no more than nine candidates for election to the Council.", "3. If the total number of candidates indicated by the parliamentary groups is less than fifteen, the Presidium of Sejm shall indicate, from among the candidates nominated under the section 11a procedure, the number of candidates that are lacking up to fifteen.", "4. The competent committee of Sejm shall establish the list of candidates by selecting, from among the candidates indicated pursuant to the provisions of subsections 2 and 3, fifteen candidates for election to the Council, with the proviso that the list shall include at least one candidate indicated by each parliamentary group which has been active within sixty days from the date of the first sitting of Sejm during the term of office in which the election is to take place, provided that such candidate has been indicated by the group within the framework of the indication referred to in subsection 2.", "5. Sejm shall elect the members of the Council, for a joint four-year term of office, at its next sitting, by a three-fifths majority in the presence of at least one half of the statutory number of Deputies, voting on the list of candidates referred to in subsection 4.", "6. In the event of failure to elect members of the Council in accordance with the procedure set forth in subsection 5 Sejm shall elect the members of the Council by an absolute majority of votes cast in the presence of at least a half of the statutory number of members, voting on the list of candidates referred to in subsection 4.", "7. If, as a result of the procedure referred to in subsections 1 ‑ 6, fifteen members of the Council are not elected, the provisions of sections 11a ‑ 11d shall apply accordingly.”", "Section 43", "“1. An NCJ resolution shall become final if no appeal lies against it.", "2. Unless all the participants in the procedure have challenged the resolution referred to in section 37(1), that resolution shall become final for the part comprising the decision not to present the recommendation for appointment to the office of judge of the participants who did not lodge an appeal, subject to the provisions of section 44(1b).”", "64. Section 44 underwent several amendments. Section 44(1a) of the 2011 Act on the NCJ was inserted by an amendment of 8 December 2017 which entered into force on 17 January 2018. Section 44(1b) and (4) were inserted by the amendment of 20 July 2018, which entered into force on 27 July 2018.", "Section 44 of the 2011 Act on the NCJ, in the version in force between 27 July 2018 and 22 May 2019, read as follows:", "“1. A participant in the procedure may appeal to the Supreme Court on the grounds that the [NCJ] resolution is unlawful, unless separate provisions provide otherwise. ...", "1a. In individual cases concerning appointments to the office of judge of the Supreme Court, an appeal may be lodged with the Supreme Administrative Court. In those cases it is not possible to appeal to the [Supreme Court]. An appeal to the [Supreme Administrative Court] may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when making a decision on the presentation of the recommendation for appointment to the [Supreme Court].", "1b. Unless all the participants in the procedure have challenged the resolution [indicated above]... in individual cases concerning appointment to the office of judge of the [Supreme Court], that resolution shall become final in the part containing the decision to present the recommendation for appointment to the [Supreme Court] and in the part comprising the decision not to present the recommendation for appointment to the office of judge of the same court for participants in the procedure who did not lodge an appeal ...", "4. In individual cases concerning appointment to the office of judge of the Supreme Court, the annulment by the [Supreme Administrative Court] of the [NCJ] resolution not to present the recommendation for appointment to the office of judge of the [Supreme Court] is equivalent to accepting the candidature of the participant who lodged an appeal in the procedure for the vacant position of judge at the [Supreme Court], for a position for which, on the date of delivery of the [Supreme Administrative Court] judgment, the procedure before the [NCJ] has not ended or, in the absence of such a procedure, for the next vacant position of judge in the [Supreme Court] which is the subject of the announcement.”", "65. On 25 March 2019 the Constitutional Court declared section 44(1a) unconstitutional and repealed it with effect from 1 April 2019 (case K 12/18; see paragraph 114 below).", "Subsequently, section 44 was amended by an Act of 26 April 2019, which entered into force on 23 May 2019 (the Act amending the Act on the NCJ and the Act on the System of Administrative Courts; ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz ustawy ‐ Prawo o ustroju sądów administracyjnych ). Section 44(1b) was quashed and section 44(1) was amended and now states as follows:", "“A participant in the procedure may appeal to the Supreme Court on the grounds that the [NCJ] resolution was unlawful, unless separate provisions provide otherwise. There shall be no right of appeal in individual cases regarding the appointment of Supreme Court judges.”", "Furthermore, section 3 of the Act of 26 April 2019 referred to above provides that “the proceedings in cases concerning appeals against NCJ resolutions in individual cases regarding the appointment of Supreme Court judges, which have been initiated but not concluded before this Act comes into force, shall be discontinued by law”.", "The 2017 Act on the Supreme Court", "66. The 2017 Act on the Supreme Court entered into force on 3 April 2018 (ustawa z dnia 8 grudnia 2017 o Sądzie Najwyższym).", "67. Under Section 29 the judges shall be appointed to the Supreme Court by the President of the Republic acting on a recommendation from the NCJ. Section 30 sets out the conditions which a person must satisfy in order to qualify for the post of judge of the Supreme Court.", "68. Section 3 provides for the creation of two new chambers within the Supreme Court: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ).", "Section 4", "“The President of the Republic of Poland, after obtaining the opinion of the Supreme Court Board, shall determine by ordinance the rules of procedure of the Supreme Court, in which he shall fix the number of posts of judge of the Supreme Court at not less than 120, including their number in the respective chambers, the internal organisation of the Supreme Court, the rules of internal procedure and the detailed scope and manner of performance of activities by assistant judges, taking into account the need to ensure the efficient functioning of the Supreme Court, its chambers and organs, the specificity of the proceedings conducted before the Supreme Court, including disciplinary proceedings, and the number and type of cases heard.”", "Section 20", "“With regard to the Disciplinary Chamber and the judges who adjudicate in it, the powers of the First President of the Supreme Court, as defined in:", "(1) Section 14(1)(1), (4) and (7), section 31(1), section 35(2), section 36(6), section 40(1) and (4) and section 51(7) and (14), shall be exercised by the President of the Supreme Court who directs the work of the Disciplinary Chamber;", "(2) and those in section 14(1)(2) and the second sentence of section 55(3), shall be exercised by the First President of the Supreme Court in agreement with the President of the Supreme Court who directs the work of the Disciplinary Chamber.”", "Section 25", "“The Labour and Social Security Chamber shall have jurisdiction to hear and rule on cases concerning labour law, social security ...”", "Section 26 ((2) - (6) added with effect from 14 February 2020)", "“1. The jurisdiction of the Chamber of Extraordinary Review and Public Affairs shall include the examination of extraordinary appeals, examination of election protests and protests against the validity of the national referendum and the constitutional referendum, and ascertaining the validity of elections and the referendum, other public law cases, including cases in the field of competition protection, energy regulation, telecommunications and railway transport, and cases in which an appeal has been filed against the decision of the Chairman of the National Broadcasting Council, as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court.", "2. It shall be within the jurisdiction of the Extraordinary Review and Public Affairs Chamber to hear motions or declarations for the exclusion of a judge or for the designation of the court before which the proceedings are to be held, involving a plea of lack of independence of the court or lack of independence of the judge. The court examining the case shall immediately forward the motion to the President of the Extraordinary Review and Public Affairs Chamber for further proceedings under rules laid down in separate provisions. The forwarding of the motion to the President of the Extraordinary Review and Public Affairs Chamber shall not stay the course of the proceedings pending.", "3. The motion referred to in subsection 2 shall be left without consideration if it concerns the determination and assessment of the legality of the appointment of a judge or his authority to perform judicial duties.", "4. The jurisdiction of the Extraordinary Review and Public Affairs Chamber shall include consideration of complaints about the determination of the unlawfulness of a final decision of the Supreme Court, ordinary courts, military courts and administrative courts, including the Supreme Administrative Court, if the unlawfulness consists in challenging the status of the person appointed to the office of judge who issued the decision in the case.", "5. The proceedings in cases referred to in subsection 4 shall be governed by the relevant provisions on establishing the unlawfulness of final judgments, and in criminal cases by the provisions on the resumption of judicial proceedings concluded with a final judgment. It is not necessary to establish probability or damage caused by the issuance of the decision which is the subject of the complaint.", "6. The complaint about the unlawfulness of a final decision, referred to in subsection 4 may be lodged with the Supreme Court’s Extraordinary Review and Public Affairs Chamber, bypassing the court which issued the appealed decision, and also in the event that the party does not make use of the legal remedies to which it is entitled, including an extraordinary complaint to the Supreme Court.”", "Section 27 § 1", "“The following cases shall fall within the jurisdiction of the Disciplinary Chamber:", "(1) disciplinary proceedings:", "(a) involving the Supreme Court judges,", "(b) heard by the Supreme Court in connection with disciplinary proceedings conducted under the act:", "- of 26 May 1982 on the Bar ( Prawo o adwokaturze ) ...", "(2) proceedings in the field of labour law and social security involving the Supreme Court judges;", "(3) proceedings concerning the compulsory retirement of a Supreme Court judge.”", "Section 29", "“Appointment to judicial office at the Supreme Court shall be carried out by the President of Poland pursuant to a recommendation of the National Council of the Judiciary.”", "Section 48", "“7. A judge of the Supreme Court adjudicating in the Disciplinary Chamber ... shall be entitled to a [additional] allowance equal to 40% of the basic salary and the function allowance jointly. The allowance shall not be due for any period of absence from work due to illness of a judge, unless the total period of such absence does not exceed 30 days in a calendar year.”", "Section 73", "“1. The disciplinary courts in disciplinary cases concerning judges of the Supreme Court shall be:", "(1) in the first instance – the Supreme Court, composed of 2 judges of the Disciplinary Chamber and 1 lay judge of the Supreme Court;", "(2) in the second instance – the Supreme Court, composed of 3 judges of the Disciplinary Chamber and 2 lay judges of the Supreme Court.”", "Section 79", "“Labour law and social security cases concerning the Supreme Court judges and cases relating to the retirement of a Supreme Court judge shall be heard:", "(1) at first instance by one judge of the Disciplinary Chamber of the Supreme Court;", "(2) at second instance by three judges of the Disciplinary Chamber of the Supreme Court.”", "Section 89", "“1. An extraordinary appeal may be filed against a final decision of an ordinary court or a military court discontinuing proceedings in a case if it is necessary to uphold the rule of law and social justice and:", "(1) the ruling violates the principles or freedoms and rights of a human being and a citizen laid down in the Constitution,", "(2) the ruling grossly violates the law through its misinterpretation or misapplication, or", "(3) there is an obvious contradiction between significant findings of the court and the content of evidence collected in the case – and the ruling may not be reversed or amended under other extraordinary appeals.", "2. An extraordinary complaint may be lodged by the Prosecutor General, the [Polish Commissioner for Human Rights] and, within the scope of his competence, the President of the Office of Prosecutor General of the Republic of Poland, the Children’s Rights Ombudsman, the Patient’s Rights Ombudsman, the Chairman of the Financial Supervision Authority, the Financial Ombudsman and the President of the Office for Competition and Consumer Protection.", "3. The extraordinary complaint shall be lodged within 5 years from the date on which the appealed decision becomes final, and if a cassation appeal has been lodged – within one year from the date of their examination. It shall be inadmissible to consider an extraordinary appeal to the detriment of the defendant lodged after one year has elapsed from the date on which the ruling has become final, and if a cassation appeal or appeal in cassation has been lodged – after 6 months from the date of its consideration.", "4. If five years have passed since the appealed decision became final and the decision has had irreversible legal consequences, or the principles of human and civil liberties and rights set forth in the Constitution speak in favour of it, the Supreme Court may confine itself to stating that the appealed decision was issued in violation of the law and indicating the circumstances due to which it issued such a decision.”", "Section 97", "“1. If the Supreme Court detects an obvious violation of the law when examining a case, regardless of its other prerogatives, it shall issue a finding of error to the relevant court. Before issuing a finding of error, it must inform the judge or the judges of the adjudicating panel of the possibility of submitting written explanations within seven days. The detection of an error and the issuance of a finding of error shall not affect the outcome of the case. ...", "3. Whenever a finding of error is issued, the Supreme Court may file a request for a disciplinary case to be examined by a disciplinary court. The disciplinary court of first instance shall be the Supreme Court.”", "Section 131", "“Until all of the judges of the Disciplinary Chamber of the Supreme Court have been appointed, the other judges of the Supreme Court cannot sit within that chamber.”", "Section 134", "“On entry into force of the present Act, the judges sitting in the Labour, Social Security and Public Affairs Chamber of the Supreme Court shall sit in the Labour and Social Security Chamber.”", "Act on the Ordinary Courts", "69. The disciplinary regime for the judges of the ordinary courts is also regulated by the Act on the ordinary courts of 27 July 2001 which was amended, in particular, by the 2017 Act on the Supreme Court (see paragraphs 8 and 9 above). It reads, in so far as relevant, as follows:", "Section 107(1)", "“A judge shall be liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and breaches of the dignity of the office (disciplinary offences).”", "Section 110(3)", "“The disciplinary court within whose jurisdiction the judge who is the subject of the disciplinary proceedings holds office shall not hear the cases referred to in subsection 1(1)(a). The disciplinary court competent to hear the case shall be designated by the President of the Supreme Court directing the work of the Disciplinary Chamber at the request of the disciplinary officer.”", "Section 112b", "“1. The Minister of Justice may appoint a Disciplinary Officer of the Minister of Justice to conduct a specific case concerning a judge. The appointment of a Disciplinary Officer of the Minister of Justice shall preclude another disciplinary officer from acting in the case.", "2. The Disciplinary Officer of the Minister of Justice shall be appointed from among the ordinary court judges or the Supreme Court judges. In the case of disciplinary offences having the characteristics of wilful offences prosecuted by public indictment, the Disciplinary Officer of the Minister of Justice may also be appointed from among the public prosecutors indicated by the National Public Prosecutor. In justified cases, in particular if the Disciplinary Officer of the Minister of Justice dies or is unable to perform his duties for a prolonged period, the Minister of Justice shall appoint in his place another judge or, in the case of a disciplinary offence having the characteristics of a wilful offence prosecuted by public indictment, a judge or a public prosecutor.", "3. The Disciplinary Officer of the Minister of Justice may initiate proceedings at the request of the Minister of Justice or join ongoing proceedings.", "4. The appointment of the Disciplinary Officer of the Minister of Justice is equivalent to a request to initiate investigative or disciplinary proceedings.", "5. The function of the Disciplinary Officer of the Minister of Justice shall expire as soon as a ruling refusing to initiate disciplinary proceedings, discontinuing disciplinary proceedings or closing disciplinary proceedings becomes final. The expiry of the office of the Disciplinary Officer of the Minister of Justice shall not preclude the re-appointment by the Minister of Justice of the Disciplinary Officer of the Minister of Justice in the same case.”", "Section 113a", "“Activities related to the appointment of ex officio defence counsel and the taking up of the defence by that counsel shall not have a suspensive effect on the course of proceedings.”", "Section 114(7)", "“Upon notification of the disciplinary charges, the disciplinary officer shall request the President of the Supreme Court directing the work of the Disciplinary Chamber to designate the disciplinary court to examine the case at first instance. The President of the Supreme Court directing the work of the Disciplinary Chamber shall designate that court within seven days from receipt of the request.”", "Section 115a(3)", "“The disciplinary court shall conduct proceedings despite the justified absence of the notified accused or his defence counsel, unless this is contrary to the interests of the disciplinary proceedings being conducted.”", "Act on the Bar", "70. The relevant provisions of the law of 26 May 1982 – “the Act on the Bar” ( prawo o adwokaturze ) read in so far as relevant, as follows:", "Section 50", "“The Disciplinary Court passes judgments in disciplinary cases relating to members of the local Bar Chamber.”", "Section 81(1)", "“Disciplinary sanctions shall be as follows:", "(1) an admonition ( upomnienie );", "(2) a reprimand ( nagana );", "(3) a fine;", "(4) suspension from practising law for a period ranging from three months to five years;", "(5) (repealed);", "(6) disbarment.”", "Section 91a", "“(1) The parties, the Minister of Justice, the Commissioner for Human Rights and the President of the Supreme Bar Council shall be entitled to lodge a cassation appeal with the Supreme Court against a judgment given by the High Disciplinary Court of the Bar in the second instance.", "(2) The judgment against which the entities referred to in paragraph (1) above are entitled to lodge a cassation appeal shall not be enforced until a cassation appeal has been lodged or until the time-limit for that purpose has expired.”", "Section 91b", "“A cassation appeal may be lodged on the ground of a flagrant breach of law, or manifest disproportionality of a disciplinary sanction.”", "Section 91c", "“A cassation appeal shall be lodged with the Supreme Court through the High Disciplinary Court within thirty days from the date of delivery of a reasoned judgment.”", "Section 91d", "“(1) No court fee shall be due in respect of a cassation appeal referred to in section 91a(1) hereof.", "(2) The decision against which a cassation appeal has been lodged shall not be enforced until the cassation appeal has been examined.", "(3) The Supreme Court shall examine a cassation appeal at a hearing before a panel of three judges.”", "Domestic PracticeThe Supreme Court’s case-law", "The Supreme Court’s case-law", "The Supreme Court’s case-law", "(a) Judgment of 5 December 2019 (case no. III PO 7/180)", "71. On 5 December 2019 the Supreme Court, sitting in the Labour and Social Security Chamber, gave judgment in the first of three cases that had been referred for a preliminary ruling to the Court of Justice of the European Union (“CJEU”), the subject of a judgment of 19 November 2019 (case C ‑ 585/18; see paragraph 48 above and paragraphs 162-164 below).", "72. As regards its jurisdiction to examine the compatibility of domestic laws with European Union (“EU”) law, and its role as a court applying EU binding legislation, the Supreme Court noted as follows [1] :", "“32. It must be stressed that Article 91 § 3 of the Constitution of the Republic of Poland directly empowers the Supreme Court to examine the compatibility of statutes such as the ASC and the Act on the National Council of the Judiciary with Union law. That provision directly implies, with no reservation or limitation, that statutes have to be compatible with Union law and the Convention, and not the other way around. The jurisdiction to review the compatibility of statutes with Union law rests, according to the Constitution of the Republic of Poland, not with the Constitutional Court but, as a condition of Union accession, with any Polish court examining a case falling within an area covered by Union law.”", "73. As regards the Constitutional Court’s judgment of 20 June 2017 (see paragraph 109 below), the Supreme Court held:", "“33... In that judgment, the [Constitutional Court] called into question its earlier position taken in the judgment of 18 July 2007, K 25/07 ..., to the effect that NCJ members must be judges elected by other judges. This implies that, in the absence of any amendment to the Constitution, the Constitutional Court not so much changed its position as regards appointment to the NCJ (judgment in K 5/17 vs. judgment in K 25/07) as created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial enshrined in the national constitution and fundamental obligations of member States of the European Union, as a Union (community) of law. In that context, the two judgments of the Constitutional Court are evidently in conflict with each other. The interpretation offered in K 5/17 is not supported by legal theory, which considers that judgment to be a manifestation of a constitutional crisis, as it was passed by a formation that included two members appointed to non-vacant positions of judges ... One should also consider information in the public domain, including statements of those members of the Constitutional Court, concerning various dependencies and informal relations with politicians, which implies that the Constitutional Court cannot be considered to safeguard independence in the exercise of its constitutional powers (Article 195 of the Constitution of the Republic of Poland).”", "74. As regards the standards set out in the preliminary ruling of the CJEU, the Supreme Court held, in so far as relevant, as follows:", "“35. The CJEU judgment of 19 November 2019 sets a standard which includes a comprehensive assessment of safeguards of the right to a fair trial by an independent and impartial court. Such assessment follows a two-step rule: (a) assessment of the degree of independence enjoyed by the National Council of the Judiciary in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered to ensure the independence of the courts and of the judiciary, as relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter of Fundamental Rights (judgment in C ‑ 585/18, §§ 139 ‑ 140); (b) assessment of the circumstances in which the new judges of the Disciplinary Chamber of the Supreme Court were appointed and the role of the Council in that regard (judgment in C-585/18, § 146) ...", "37. Following the guidance provided in the CJEU judgment of 19 November 2019, C ‑ 585/18, one should in the first place consider the circumstances concerning the National Council of the Judiciary. That assessment requires no evidential proceedings; in any case, such proceedings would be beyond the remit of the Supreme Court and consist in the consideration of positions that are publicly known and available to all parties to the proceedings.", "38. With respect to the National Council of the Judiciary, the CJEU judgment of 19 November 2019 requires the examination of the following: (-) the objective circumstances in which that body was formed; (-) the means by which its members have been appointed; (-) its characteristics; (-) whether the three aforementioned aspects are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it.”", "75. The Supreme Court further underlined its role as an EU court implementing the CJEU judgment:", "“39. ...[T]he Supreme Court categorically declares (once again) that, acting as a Union court in the enforcement of the CJEU judgment of 19 November 2019, it does not examine the constitutionality of the provisions of the Act on the National Council of the Judiciary in the wording effective as of 2018 but their compatibility with Union law. The Supreme Court has the jurisdiction to undertake such examination not only in the light of uniform well-established case-law (cf. CJEU judgment of 7 September 2006, C-81/05) but also under the unequivocal powers vested in it by the Constitution which require no complex interpretation in the case in question. Article 91 § 3 of the Constitution of the Republic of Poland provides clearly and beyond any doubt: ‘If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.’ Furthermore, the examination of how the applicable provisions governing the functioning of the Council and its practice in the performance of functions under the Constitution of the Republic of Poland and provisions of national law influence the fulfilment of the requirements of independence and impartiality under Union law by a court formed with the participation of the Council represents a typical judicial examination of certain facts and provisions of law. It should be recalled once again that such examination is completely unrelated to the jurisdiction vested in the Constitutional Court by the Constitution of the Republic of Poland and the Act on the Constitutional Court.”", "76. With respect to the circumstances surrounding the setting-up of the new NCJ and the role of the Constitutional Court’s judgment of 20 June 2017 in that context, the Supreme Court noted:", "“40. [As regards the circumstances under which the Council was established], one should bear in mind the shortened term of the previous Council (a constitutional body pursuant to Article 187 § 3 of the Constitution of the Republic of Poland): Article 6 of the [2017 Amending Act]. As intended by the legislature, the new provisions were to ensure conformity with the Constitution of the Republic of Poland in connection with the Constitutional Court judgment of 20 June 2017 (K 5/17...), pursuant to which section 11(2-4) and section 13(3) of the NCJ Act are in breach of the Constitution to the extent that they provide for the individual term of office for Council members who are judges. To that end, the Supreme Court concludes that the referenced Constitutional Court ‘judgment’ was issued with the participation of judges elected in breach of Article 190 § 1 of the Constitution of the Republic of Poland, as ascertained under the following judgments of that court: 16 December 2015, K 34/15 ...; 9 March 2016, K 47/15 ...; 11 August 2016, K 39/16 ...”", "77. With respect to the change in the manner of election of the fifteen judicial members of NCJ the Supreme Court held:", "“43. The mechanism for electing NCJ members was considerably modified pursuant to [the 2017 Amending Act]. Pursuant to section 1(1), Sejm shall elect fifteen Council members for a joint four-year term of office from among judges of the Supreme Court, ordinary courts, administrative courts, and military courts. When making its choice, Sejm shall – to the extent possible – recognise the need for judges of diverse types and levels of court to be represented on the Council. Notably, the provisions of the Constitution of the Republic of Poland have not been amended in respect of NCJ membership or NCJ member appointment. This means that a statute could only lawfully amend the manner of election of Council members (judges) by judges rather than introducing a procedure whereby NCJ judicial members are elected by the legislature. The aforementioned amendment to the NCJ Act passed jointly with the new Act on the Supreme Court provides a solution whereby the legislature and the executive – regardless of the long statutory tradition of a part of the Council members being elected by judges themselves, thus reflecting the Council’s status and mandate, and those of the judiciary recognised as a power separate from other authorities under the Constitution of the Republic of Poland – gain a nearly monopolistic position in deciding on NCJ membership. Today, the legislature is responsible for electing 15 members of the NCJ who are judges, with another 6 NCJ members being parliamentary representatives (4 and 2 of whom are elected by Sejm and the Senate, respectively). The new mechanism of electing NCJ members who are judges has resulted in the decision to appoint as many as twenty-one of the twenty-five (84%) of Council members lying with both parliamentary houses. Furthermore, the Minister of Justice and a representative of the President of the Republic of Poland are ex officio Council members: consequently, twenty-three of the twenty-five Council members are ultimately appointed by authorities other than the judiciary. This is how the division and balance of the legislative, executive, and judiciary branches have been distorted, while having been duly described under Article 10 of the Constitution of the Republic of Poland as a foundation of a democratic state of law model (Article 2 of the Constitution of the Republic of Poland).", "44. Since Sejm and the Senate are responsible for electing from among their respective members, judges representing various levels shall elect Council members from among individuals applying as candidates. In consequence, the checks and balances rule anchored in Article 10 of the Constitution of the Republic of Poland will also be adhered to, in support of the process of rationalising the parliamentary governance system.”", "78. As regards the submission of candidatures, candidate endorsement lists, the election to the NCJ and the non-disclosure of the endorsement lists, the Supreme Court held:", "“45. The Supreme Court’s appraisal in acting on the binding legal interpretation expressed in the CJEU’s judgment of 19 November 2019 attaches considerable importance to the process of electing present-day Council members. With regard to this particular matter, the point at issue concerns the endorsement lists that were apparently offered to candidates by judges. To date, it has not been verified whether new Council members were lawfully nominated as candidates, or who endorsed them. Relevant documents have not been disclosed yet, despite the relevant judgment of the Supreme Administrative Court of 28 June 2019, OSK 4282/18 ... It is common knowledge that the enforcement of the judgment has faced an obstacle in a decision issued by the Chair of the Personal Data Protection Authority on 29 July 2019 on the initiative of a new NCJ member. Consequently, it has come to pass that a body of the judiciary responsible for a review of administrative authorities has in effect itself fallen under the review of the latter. The failure to implement the Supreme Administrative Court’s judgment justifies an assumption that the content of the lists of endorsement for individual judicial candidates for the NCJ corroborates the dependence of candidates on the legislature or the executive.", "46. The Supreme Court further concludes that it is common knowledge that the public had been informed of judicial candidates to the Council having been recommended by presidents of district courts appointed by the Minister of Justice; other judges were recommended by judges dependent on (reporting to) candidates in managerial positions in courts of higher instance; judicial Council candidates were also recommended by the plenipotentiary of the Institute of the Judiciary at the Ministry of Justice; last but not least, some candidatures were submitted by the next of kin; candidates recommended other candidates; some of the elected members of the future Council were Ministry of Justice employees. All these facts prove that the executive branch – acting through its direct or indirect subordinates – had stood behind the majority of recommendations for NCJ judicial member candidatures. Such circumstances accompanying the process of electing current Council members may well raise doubts among the general public as to the Council’s independence from the executive.", "47. Furthermore, persons submitting endorsement forms would withdraw them before the expiry of the candidature submission term; at least one new NCJ member had endorsed his/her own application ...", "48. Such circumstances preclude the notion of representativeness stipulated in Article 187 § 2 of the Constitution of the Republic of Poland....”", "79. The Supreme Court further pointed out that some members of the NCJ had become beneficiaries of the Government’s reorganisation of the judiciary:", "“49. Practice also shows that elected Council members have directly benefitted from recent changes. They have been appointed to managerial positions at courts whose presidents and vice-presidents have been dismissed ad hoc, or applied for promotion to a court of higher instance ... The general public may also learn of various dependencies between elected judges – new Council members and the executive branch ...”", "80. As regards the manner in which the NCJ exercised its constitutional duty of safeguarding the independence of the judiciary, the Supreme Court made the following findings:", "“50. The fourth test component is the important assessment of how the body performs its constitutional duty to safeguard the independence of courts and judges; and how it performs its competencies, and in particular whether it proceeds in a manner that could render its independence from the legislature and the executive doubtful from the vantage point of a member of the public. With regard to the aforementioned premises, the following arguments ought to be raised: the National Council of the Judiciary failed to take action in defence of the independence of the Supreme Court or of the Court’s judges after the coming into force of the Act on the Supreme Court and an attempt to force the Court’s judges into retirement (see the CJEU’s judgment of 24 June 2019, C-619/18).", "The Supreme Court further emphasises that Council members have publicly demanded that disciplinary action be taken against judges filing preliminary rulings ...; have challenged the right to file preliminary rulings ... and have challenged the necessity of ‘apologising to justices for corruption comments.”", "81. The Supreme Court reached the following conclusion as regards the NCJ:", "“60. On the basis of an overall assessment of the above circumstances, the Supreme Court concludes that, as of this day, the National Council of the Judiciary does not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure.”", "82. This conclusion was the starting point for its assessment of whether the Disciplinary Chamber could be considered an “independent and impartial tribunal established by law”:", "“61. The foregoing is the point of departure for assessing whether the Disciplinary Chamber of the Supreme Court (hereinafter ‘IDSN’) is an impartial and independent tribunal within the meaning of Article 47 of the Charter and Article 6 of the Convention, and ... although this is not expressly assessed in the present case, whether it can be [considered] a court pursuant to domestic law. As in the case of the NCJ, only the cumulative fulfilment of the conditions indicated by the Court of Justice of the EU may lead to certain negative consequences in the assessment of the status of the IDSN as a court.", "...", "64. Firstly, the ‘IDSN’ was created from scratch. For the purposes of the present case, it must be emphasised that, in accordance with the applicable section 79 of [the 2017 Act on the Supreme Court] it became competent in labour and social security legal matters concerning judges of the Supreme Court and matters concerning the retirement of judges of the Supreme Court. In this area, previously, the ordinary courts and the Labour, Social Security, and Public Affairs Chamber (now the Labour and Social Security Chamber) were competent. It should be noted that [the 2017 Act on the Supreme Court] introduced a change which deprived judges of the Supreme Court of the right to two-instance court proceedings. At present, an appeal may be lodged only with another panel of the Disciplinary Chamber ...”", "83. The Supreme Court noted who had been appointed as judges to this Chamber:", "“66... it should be noted that only persons with very strong connections to the legislative or executive power have been elected to the IDSN, and this, in turn, may raise objective doubts for individuals with regard to the obligation to secure the right to an independent and impartial tribunal....It should be recalled that persons appointed to the Chamber are those who were previously subordinate to the executive power or who, in the course of the crisis concerning the rule of law covered by the procedure under Article 7 [TEU], acted on instructions from or in a manner consistent with the expectations of the political authorities. Selecting only such candidates as judges of the Supreme Court does not guarantee their independence and thus does not allow for the constitution of an independent court. Among the elected members of the Disciplinary Chamber are: the director of a department in the State Prosecutor’s Office; a deputy regional prosecutor in the Regional Prosecutor’s Office (appointment in 2016); the director of the legislative office of the National Institute of Remembrance (IPN); the prosecutor of the State Prosecutor’s Office, who accused judges of corruption but ultimately the proceedings in this case were discontinued; the former governor and adviser to the Speaker of Sejm; a person known in the legal community exclusively for his activity in the mass media and social media, who in recent times has repeatedly expressed his unequivocal political sympathies; a prosecutor whose procedural actions were found to have violated Article 3 of the Convention (prohibition of torture) as a result of a settlement before the Court (application no. 32420/07).”", "84. The Supreme Court also examined the appointment process and considered that there had been no effective appeal procedure against the resolutions of the NCJ recommending the judges. It held:", "“67. Fourthly, the conditions of the competition procedure were changed in the course of that procedure. [The amendments to the domestic law] removed the obligation on the person seeking a recommendation by the NCJ to submit the required documents (professional experience, academic achievements, opinions of superiors, recommendations, publications, opinion of the collegium of the competent court and the assessment of the competent assembly of judges). Such documents may be crucial when there are more candidates for a judicial post than places. This was the case for candidates to the Disciplinary Chamber, where over 90 candidates applied for sixteen seats. ... the amendment further introduced the principle that if resolutions in individual cases concerning appointment to the Supreme Court are not challenged by all participants to the proceedings, it becomes final in the part concerning the decision to present a motion for appointment to the office of judge of the Supreme Court. This type of solution eliminates the possibility of an effective appeal of a candidate against a resolution of the NCJ to the relevant court ...", "...", "72. ...Currently, the legislator has abandoned the aforementioned standards of non-binding substantive control of candidates for the position of a judge of the Supreme Court by the community of judges of the Supreme Court. If one combines this procedure (elimination of the Supreme Court from participation in the procedure for filling the posts of its judges) with the ‘new’ solutions serving to select members of the National Council of the Judiciary, it becomes clear that assessment of the independence and impartiality of the composition of the new chamber of the Supreme Court thus selected, measured – as the CJEU indicates – by the ‘conviction of an individual’, is problematic.”", "85. The Supreme Court further analysed the legal framework of the Disciplinary Chamber, its competences and certain activities:", "“73. Sixthly, this Chamber is given wide autonomy and a special status as an extraordinary court, which can only be established for times of war, and which is only ostensibly (by name) part of the structure of the Supreme Court. This problem has been described in detail in legal commentary ... The Chamber was established in the structure of the Supreme Court as a court of first instance: (a) in disciplinary cases of judges of the Supreme Court; (b) in labour and social security cases concerning the Supreme Court judges; (c) in cases concerning the retired status of a judge of the Supreme Court. Subsequently, the legislator made the IDSN a court adjudicating as a court of first and sole instance in cases involving appeals against decisions of corporate bodies, adjudicating in disciplinary matters regarding legal professions (section 27(1) point 1(b)). In the remaining scope this Chamber acts as a second instance court in disciplinary cases concerning judges of ordinary courts and prosecutors (Section 27(1) point 1(b)). In addition, its organisational and financial autonomy points to a number of distinctions, despite remaining within the structure of the Supreme Court....", "75. Seventhly, actions taken by the DCSC ought to be considered as well; such activities were intended to cause the withdrawal of referrals for a preliminary ruling [to the CJEU]; prior to their appointment, persons currently adjudicating in the Chamber publicly criticised questions referred for a preliminary ruling by the Supreme Court.", "After the CJEU judgment of 19 November 2019, the Disciplinary Chamber flagrantly continued operating, before any decision resolving the matter referred for a preliminary ruling – as to its status as a court within the meaning of EU law ‑ had been given.”", "86. The Supreme Court reached the following conclusion regarding the Disciplinary Chamber:", "“79. In sum, each of the circumstances presented, when assessed alone, is not conclusive of a failure to comply with the standard of Article 47 of the [Charter of Fundamental Rights of the European Union] (Article 6 of the Convention in conjunction with Article 45 § 1 of the Polish Constitution). However, when all these circumstances are put together – the creation of a new organisational unit in the Supreme Court from scratch, staffing of this unit exclusively with new persons with strong connections to the legislative and executive powers and who, prior to their appointment, were beneficiaries of the changes to the administration of justice, and were selected by the NCJ, which does not act in a manner independent of the legislature and the executive, and its broad autonomy and competences taken away from other courts and other chambers of the Supreme Court – it follows clearly and unequivocally that the Disciplinary Chamber of the Supreme Court is not a tribunal within the meaning of Article 47 of the Charter, Article 6 of the Convention and Article 45 § 1 of the Polish Constitution”....", "In view of the above conclusions, the Supreme Court decided not to transfer the case to the Disciplinary Chamber of the Supreme Court and quashed the resolution of the NCJ given in the case:", "“88. In conclusion, the Supreme Court holds that the National Council of the Judiciary in its current composition is not an impartial body and is not independent of the legislative and executive powers and therefore the resolution adopted by it should be quashed. Accordingly, the Supreme Court has decided as set out in the operative part of the ruling.”", "(b) Resolution of 8 January 2020 (case no. I NOZP 3/19)", "87. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution of seven judges ( uchwała; see paragraph 49 above). The Supreme Court found that a resolution of the NCJ recommending to the President candidates for the post of judge could be quashed upon an appeal by a candidate, provided that the appellant proved that the lack of independence of the NCJ had adversely affected the content of the impugned resolution, or provided that the appellant demonstrated that the court had not been independent or impartial according to the criteria indicated in the CJEU judgment. In respect of the latter, the court stressed that the Constitution had not allowed for a review of the effectiveness of the President’s decision concerning the appointment of judges. When dealing with such appeals the Supreme Court was bound by the scope of the appeal and had to examine whether the NCJ had been an independent body according to the criteria determined in the CJEU judgment 19 November 2019 (in paragraphs 134 ‑ 144 thereof).", "(c) Rulings of 15 January 2020 (case nos. III PO 8/18 and III PO 9/18)", "88. On 15 January 2019 the Supreme Court gave two rulings in two remaining cases that had been referred for a preliminary ruling to the CJEU (cases C-624/18, C-625/18). The court decided not to transfer the cases to the Disciplinary Chamber of the Supreme Court and remitted them for consideration to the District Court. The Supreme Court ruled that the Disciplinary Chamber was not an independent and impartial tribunal, given the conditions of its creation, the scope of its powers, its composition and the involvement of the NCJ in its constitution.", "(d) Resolution of 23 January 2020 (case no. BSA I-4110-1/20)", "89. In the wake of the Supreme Court’s judgment of 5 December 2019, and the resolution of 8 January 2020 by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (see paragraphs 71-87 above), the First President of the Supreme Court decided that it was necessary to issue an interpretative resolution in a formation of the joined Chambers of that court “to resolve divergences in the interpretation of the law existing in the case-law of the Supreme Court concerning the legal question” arising in connection with the interpretation of the CJEU judgment of 19 November 2019. On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of the Civil, Criminal and Labour and Social Security Chambers) issued an interpretative resolution on a request from the First President of the Supreme Court. It concluded that, as a result of the 2017 Amending Act, the NCJ was no longer independent and that a judicial formation including a person appointed as a judge on the recommendation of the NCJ was contrary to the law. These conclusions, in so far as relevant, read as follows [2] :", "“1. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of the Supreme Court on the recommendation of the National Council of the Judiciary in accordance with the [2017 Amending Act].", "2. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of an ordinary or military court on the recommendation of the National Council of the Judiciary formed in accordance with the [2017 Amending Act], if the deficiency of the appointment process leads, in specific circumstances, to a violation of the guarantees of independence and impartiality within the meaning of Article 45 § 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention].", "3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 above shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date [of the present resolution] under the Code of Criminal Procedure before a given court formation.", "4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.”", "90. The Supreme Court’s resolution contained an extensive reasoning, the relevant parts of which are rendered below.", "91. The Supreme Court first defined the scope of the resolution. It held, in so far as relevant:", "“11... in the present resolution, the Supreme Court must address the question whether participation in a formation of an ordinary court, a military court or the Supreme Court, ..., of a person appointed as a judge by the President of the Republic of Poland following the procedure defined in the [2017 Amending Act] causes a breach of the standards of independence and impartiality of the court which would be inadmissible under Article 6 § 1 of the Convention, Article 45 § 1 of the Constitution of the Republic of Poland, and Article 47 of the Charter and, if that is the case, it must define the procedural effect on the administration of justice under such circumstances ...", "To determine under Article 6 § 1 [of the Convention] and Article 47 of the Charter that a case is heard by a court which is impartial and independent, established by law, it is necessary to examine the process of judicial appointment in the national judicial system in order to establish whether judges can adjudicate independently and impartially ...”", "92. The Supreme Court reiterated the fundamental rules for appointment of judges in Poland:", "“31. In the light of Article 179 of the Constitution of the Republic of Poland, the President of the Republic of Poland appoints to the office of judge not just anyone, at his sole discretion as to the candidate’s qualifications and ability to hold office, but exercises that power on a motion of the [NCJ]. Therefore, a motion of the [NCJ] is a condition sine qua non for effective appointment. Moreover, a motion concerning a judicial appointment cannot be lodged by anyone except a body acting as the [NCJ], not only in name but based on the procedure of its appointment and the conditions under which it exercises its powers (decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08).”", "93. As regards a breach of Article 187 § 1 (2) of the Constitution, resulting from the change to the appointment process in respect of fifteen judicial members of the NCJ, the Supreme Court held:", "“31. ... New members of the [NCJ] were appointed by Sejm of the Republic of Poland in accordance with [the 2017 Amending Act] which stood in conflict with Article 187 § 1 (2) of the Constitution of the Republic of Poland. That provision removed the requirement for judges sitting as members of the [NCJ] to be appointed by judges, .... The Constitution does not allow for that power to be implicitly granted to Parliament. After [the 2017 Amending Act], fifteen members of the [NCJ] who were judges were appointed by Sejm of the Republic of Poland for a joint four-year term of office (section 9a(1) of [the 2011 Act on the NCJ as amended by the 2017 Amending Act]). None of them is a judge of the Supreme Court, as is required under Article 187 § 1 (2) of the Constitution of the Republic of Poland.", "In view of the procedure of appointment of judges to the [NCJ] under [the 2017 Amending Act], the judiciary no longer has control over the membership of the [NCJ] or, indirectly (in connection with amendments of other systemic provisions), over which candidates are proposed to the President for appointment to the office of judge of an ordinary court, a military court, the Supreme Court, or an administrative court. The [NCJ] is dominated by political appointees of the majority in Sejm. Following the appointment of 15 judges to sit as members of the [NCJ] by Sejm, as many as 21 out of the 25 members of the [NCJ] are political appointees of both Houses of Parliament. Following the appointment of judges to the [NCJ], judges sitting as members of the [NCJ] no longer represent judges of the Supreme Court, judges of ordinary courts, administrative courts, or military courts, as required under Article 187 § 1 (2) of the Constitution of the Republic of Poland. Judges sitting as members of the [NCJ] by political appointment have no legitimacy as representatives of the judicial community, who should have authority and remain independent of political influence. That has largely weakened the role of the [NCJ] as a guardian of the independence of courts and judges.”", "94. As regards a breach of Articles 10 § 1, 173 and 178 and 187 §§ 1 and 3 of the Constitution, the Supreme Court held:", "“31. ...The provisions of the [2017 Amending Act] governing the appointment of judges to the [NCJ] are inconsistent with the principle of division and balance of powers (Article 10 § 1 of the Constitution of the Republic of Poland) and the principle of separation and independence of courts (Article 173 of the Constitution of the Republic of Poland) and independence of judges (Article 178 of the Constitution of the Republic of Poland). The principle of separation of the judiciary is of crucial relevance in this context. According to that principle, based on the division and balance of powers, the legislature and the executive may interfere with the functioning of the judiciary only to the extent allowed by the Constitution of the Republic of Poland, that is, where expressly provided for in the Constitution. With respect to the National Council for the Judiciary, the principle of separation implies that the legislature and the executive may influence the membership and functioning of the National Council for the Judiciary only to the extent expressly provided for by the Constitution of the Republic of Poland (Article 187 § 1 (1) in fine, Article 187 § 1 (3) ‑ (4)). Consequently, in determining the system, responsibilities and rules of procedure of the [NCJ] (Article 187 § 4 of the Constitution of the Republic of Poland), the legislature cannot exercise the power to appoint judges to sit as members of the [NCJ], which is not provided for in the Constitution of the Republic of Poland because its power to appoint members of the [NCJ] are defined in the Constitution (Article 187 § 1 (3) of the Constitution of the Republic of Poland).", "The termination of the mandate of previous members of the [NCJ] and the appointment of new members of the [NCJ] in accordance with the Act of 8 December 2019 amending the Act on the [NCJ] raises serious doubts as to compliance with Article 187 §§ 1 and 3 of the Constitution of the Republic of Poland and, consequently, doubts as to the legality of the [NCJ] and the appointment of candidates to the post of judge with the participation of the [NCJ].”", "95. The Supreme Court further analysed the procedure of election of judicial members of the NCJ and held, in so far as relevant, as follows:", "“Shaped by [the 2017 Amending Act], the procedure for the election of judges to that body resulted in the judicial authority losing any influence over its composition, and thus indirectly – also in connection with the amendments to other systemic laws – also on the candidates presented to the President for appointment to the position of ordinary court judge, military court judge, Supreme Court judge and administrative court judges. The National Council of the Judiciary has been dominated by politically elected members of the parliamentary majority. After the selection by Sejm of fifteen judges as members of the National Council of the Judiciary, as many as twenty-one of the twenty-five persons comprising the Council come from the political nomination of both chambers of Parliament. As a result of the election of judges to the National Council of the Judiciary, the judges sitting on that body ceased to be a group representing judges of the Supreme Court, ordinary courts, administrative courts and military courts, as provided by Article 187 § 1 (2) of the Constitution. The judges sitting on it as a result of political nomination were not therefore given a mandate to represent the judiciary, a task which should be entrusted to persons enjoying authority and independence from political influence. This has resulted in a fundamental weakening of the role of the National Council of the Judiciary as a guardian of the independence of courts and judges.”", "96. In respect of the endorsement lists for candidates for the NCJ, the Supreme Court observed:", "“32. The [2017 Amending Act] changed the procedure for the appointment of judges sitting as members of the [NCJ] as follows. Authorisation to nominate a candidate to serve as member of the Council shall be granted to a group of at least: (1) two thousand citizens of the Republic of Poland who are over 18 years of age, have full legal capacity and enjoy full public rights; (2) twenty-five judges other than retired judges ...", "Endorsement lists presented by judges running as candidates for the [NCJ] had to be signed not just by anyone, but by judges.... A request for information concerning persons who signed the lists of endorsement of judges running as candidates to the [NCJ], according to regulations governing access to public information, confirmed as legitimate by a legally binding judgment of the National Administrative Court of 28 June 2019, I OSK 4282/18, dismissing a cassation appeal of the Head of the Chancellery of Sejm of the Republic of Poland concerning the judgment annulling the decision on the extent of refusal to disclose such information, has been disregarded by the Head of the Chancellery of Sejm of the Republic of Poland and the Speaker of Sejm, who have refused to comply with the legally valid judgment. That state of affairs has prevailed to date ...", "According to a published statement of [Judge M.N.], appointed as a member of the [NCJ], he signed his own endorsement list. According to a published statement of four judges, [Judge M.N.] used withdrawn endorsements to run as a candidate for the [NCJ]. The endorsements were withdrawn long before the list was verified and used in a vote; the Speaker of Sejm was given advance notice of the circumstance (on 25 January 2018). ... If candidates for the [NCJ] signed each other’s endorsement lists, that is indicative of the scale of endorsement for the members of the [NCJ] in the judicial community ...”", "97. As regards a breach of Article 144 § 2 of the Constitution in that the President’s act announcing vacant positions in the Supreme Court was issued without a countersignature of the Prime Minister, the Supreme Court held:", "“34. Section 31(1) of [the 2017 Act on the Supreme Court] deprived the First President of the Supreme Court of the power to announce vacant positions of judges of the Supreme Court and vested that power in the President of the Republic of Poland. The new legal power is not enumerated in Article 144 § 3 of the Constitution of the Republic of Poland as one of the 30 prerogatives; therefore, it is evident that the publication in Monitor Polski [Official Gazette] of an announcement concerning the number of vacant judicial positions in chambers of the Supreme Court requires a countersignature of the Prime Minister. Under Article 144 § 2 of the Constitution of the Republic of Poland, official acts of the President other than the prerogatives shall require, for their validity, the countersignature of the Prime Minister. The power to announce vacant judicial positions in the Supreme Court vested in the President of the Republic of Poland under the 2017 Act on the Supreme Court cannot be considered a prerogative derived from the prerogative of appointing judges (Article 144 § 3 (17) of the Constitution of the Republic of Poland) ... Such a defective announcement by the President of the Republic of Poland could not initiate a non-defective procedure of appointment for judicial positions at the Supreme Court ...”", "98. As regards the fact that the President of Poland proceeded with the appointments to the Supreme Court notwithstanding pending appeals against the NCJ’s resolutions recommending candidates, the Supreme Court found as follows:", "“35. The requirement of holding a competition procedure before the [NCJ] for the selection of a candidate for the office of a judge to be presented to the President of the Republic of Poland not only creates conditions of fair competition for candidates for public office but, in particular, ensures that the office goes to the person best positioned to hold it.", "The [Act of 20 July 2018 amending the Act on Organisation of Ordinary Courts] eliminated the requirement for the [NCJ] to consider, when drawing up a list of candidates recommended for appointment to the office of a judge, opinions on candidates issued by panels of the relevant courts and appraisals issued by relevant general assemblies of judges. That was a reaction to the behaviour of judicial self-government bodies which refused to exercise their powers in defective proceedings before the [NCJ]. Instead of eliminating the broadly criticised defects of the system it had devised, the legislature decided to eliminate from the system the last options of participation in the procedure of judicial appointments previously left for judicial self-government bodies.", "[Section 44 of the 2011 Act on the NCJ as in force after of 27 July 2018], without formally eliminating the option for participants in the competition procedure for the office of judge of the Supreme Court to lodge an appeal on grounds of an unlawful resolution of the [NCJ], provides that, unless a resolution in an individual case concerning appointment to the office of judge of the Supreme Court is appealed against by all participants in the procedure, it becomes legally valid ... All resolutions of the [NCJ] naming candidates for the office of a judge of the Supreme Court were appealed. The [NCJ] ignored the appeals and presented selected candidates for judicial positions to the President of the Republic of Poland ... As the resolutions were appealed against, the vacant judicial positions were filled defectively and the fitness of candidates for office was in fact never duly checked ...", "Despite the pending judicial review of the resolutions of the [NCJ] concerning all candidates for the Supreme Court and despite the decisions of the Supreme Administrative Court suspending the effect of the resolutions concerning the candidates for the Civil Chamber, the Criminal Chamber, and the Extraordinary Review and Public Affairs Chamber, being aware of the effect of his decisions that would be difficult to reverse de lege lata, the President of the Republic of Poland presented appointments to the persons named in the resolutions of the [NCJ] and the appointees accepted the appointments.”", "99. As regards the question whether the NCJ had been duly appointed, the Supreme Court concluded as follows:", "“36. ... The President appoints judges, but he does so not just at any time or at his own discretion but on a motion of the [NCJ]. No appointment may be granted to anyone who is not concerned by such motion (cf. the decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08).", "The minimum conditions for the exercise of the prerogative in question by the President of the Republic therefore require that his action be initiated by a duly constituted and composed body having the status of the National Council of the Judiciary. Since [entry into force of the 2017 Amending Act and the 2017 Act on the Supreme Court], the [NCJ] has not been duly appointed under the Constitution of the Republic of Poland; consequently, the [NCJ] could not exercise its powers, which the President of the Republic of Poland should have determined before exercising his prerogative. Persons named in the lists of recommendations drawn up in a defective procedure of appointment for judicial positions cannot be considered to have been candidates for office duly presented to the President of the Republic of Poland whom the President is competent to appoint to the office. Even assuming that the issuance of letters of appointment to such persons renders them formally appointed to the office of judge, it is necessary to determine whether and to what extent such persons may exercise judicial functions, so that the requirement of impartiality and independence of a court administering justice is not thereby infringed.”", "100. The Supreme Court also made the following observations regarding political influence on the election of the NCJ members:", "“38. The procedure for appointment to the office of judge has a particular bearing on whether the court comprised of such appointees may be considered an impartial and independent tribunal in a given case. Any criteria of appointment other than substantive ones would suggest that the judge is affiliated with a political option or group. The more political the appointment procedure, i.e., the more the appointment decision comes directly from politicians or representatives of political authorities, the less transparent and more arbitrary, or even unlawful, the decision-making procedure will be. That seriously, and irreversibly, undermines the trust of the general public in a judge as an independent person free of external influence and pressure or the willingness to show gratitude to such groups.", "Consequently, individual judges in the system of the judiciary could become permanently identified with specific political groups or groups of interest (‘our judges’ v. ‘their judges’) and their legitimacy would be contested by each new parliamentary majority. That is clearly in conflict with the individual’s right to hearing of his case by an independent court as the stability of court decisions would hinge on changes of the country’s political majority.", "In this context, it should be noted that, according to the official statement of the Minister of Justice issued in the legislative procedure on 15 January 2020 at the Senate of the Republic of Poland, the membership of the [NCJ] was determined in such a way as to ensure that it was comprised of persons loyal to the parliamentary majority (the political group represented by the Minister of Justice): ‘each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’ – transcript of the third session of the Senate of the Republic of Poland of the 10 th term, 15 January 2020).", "Consequently, appointments granted by the [NCJ] are systemically not independent of political interest, affecting the fulfilment of the objective criteria of impartiality and independence by persons appointed to the office of a judge on the motion of the [NCJ]. In other words, because the [NCJ] has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution of the Republic of Poland ...", "39. Significant influence exerted by the Minister of Justice, who is also Prosecutor General, on the membership of the [NCJ] (confirmed in his aforementioned official statement in the Senate of the Republic of Poland) and consequently on decisions of that body concerning judicial appointments, undermines the objective conditions of impartiality in cases where a person so appointed for the position of a judge were to participate in the court formation while the Prosecutor General or the public prosecutor’s office headed by the Prosecutor General were a party to such proceedings.", "40. Defective competitions for the office of a judge carried out by the [NCJ], which is structurally no longer independent, took place under conditions of long-term intentional steps taken by representatives of the executive and the legislature seeking to generally undermine trust in the courts, their impartiality and independence ...”", "101. As regards the lack of independence of the NCJ, the Supreme Court fully endorsed the conclusions in the judgment of 5 December 2019 and held:", "“42. The formation of the Supreme Court passing the present resolution fully shares the position presented in the judgment of the Supreme Court of 5 December 2019, III PO 7/18 to the effect that the [NCJ] so formed is not an independent body but a body subordinated directly to political authorities. Consequently, competitions for the office of judge carried out by the [NCJ] have been and will be defective, creating fundamental doubts as to the motivation behind motions for the appointment of specific individuals to the office of a judge. That notwithstanding, in view of factual and legal obstacles aiming to prevent the elimination of doubts as to the legality of the appointment of individual members of the [NCJ], up to and including unlawful refusal to comply with court judgments, the stability and legality of decisions of the [NCJ] may be permanently contested, becoming an object of political dispute, which calls into question the neutrality of persons appointed by the [NCJ].”", "102. With respect to the consequences of the finding that the NCJ had not been an independent body in the process of appointment of judges to different courts, the Supreme Court held:", "“45. Lack of independence of the [NCJ] leads to defectiveness in the procedure of judicial appointments. However, such defect and its effect undermining the criteria of independence and impartiality of the court may prevail to a different degree. First and foremost, the severity and scope of the procedural effect of a defective judicial appointment varies depending on the type of the court and the position of such court in the organisation of the judiciary. The status of a judge of an ordinary court or a military court is different from the status of a judge of the Supreme Court....The severity of irregularities in competition procedures for the appointment of judges of ordinary and military courts and judges of the Supreme Court, since the normative changes implemented in 2017, has varied; however, it was definitely more severe in the case of appointments for judicial positions in the Supreme Court”....", "103. As regards the Chamber of Extraordinary Review and Public Affairs, it noted:", "“45. It is also relevant to note that the exclusive jurisdiction of the Extraordinary Review and Public Affairs Chamber includes hearing appeals against resolutions of the [NCJ] concerning candidates for the office of a judge of ordinary, military and administrative courts. As a result, a Chamber which is comprised entirely of defectively appointed judges reviews the appointment of other judges on the application of a [NCJ] formed in the same way.”", "104. As regards the Disciplinary Chamber and Articles 45 § 1 and 175 § 2 of the Constitution, the Supreme Court also noted additional elements pertaining to its competence and structure:", "“45. ...It should be mentioned that additional circumstances arise with regard to judges of the Disciplinary Chamber, confirming the inability of an adjudicating court with their participation to fulfil the criteria of independence and impartiality. Such circumstances concern directly the Chamber’s organisation, system, and appointment procedure, as well as its separation from the Supreme Court. The formation of the joined Civil Chamber, Criminal Chamber, and Labour and Social Security Chamber of the Supreme Court fully shares, in that regard, the legal assessment and its justification provided in the judgment of the Supreme Court of 5 December 2019 in case III PO 7/18, which found that the Disciplinary Chamber established in the Supreme Court, under the 2017 Act on the Supreme Court, structurally fails to fulfil the criteria of an independent court within the meaning of Article 47 of the Charter and Article 45 § 1 of the Constitution of the Republic of Poland and Article 6 § 1 ECHR, and that it is an extraordinary court which cannot be established in time of peace pursuant to Article 175 § 2 of the Constitution of the Republic of Poland. For those reasons alone, judgments issued by formations of judges in the Disciplinary Chamber are not judgments given by a duly appointed court.”", "105. In its final remarks, the Supreme Court referred, among other things, to the current situation of the Polish judiciary:", "“59. The current instability of the Polish judiciary originates from the changes to the court system over the past years, which are in breach of the standards laid down in the Constitution, the EU Treaty, the Charter of Fundamental Rights, and the European Convention on Human Rights.", "The Leitmotif of the change was to subordinate judges and courts to political authorities and to replace judges of different courts, including the Supreme Court. That affected the appointment procedure of judges and the bodies participating in the procedure, as well as the system for the promotion and disciplining of judges. In particular, a manifestly unconstitutional attempt was made to remove some judges of the Supreme Court and to terminate the mandate of the First President of the Supreme Court, contesting the legitimacy of the Supreme Court.", "The systemic changes caused doubts about the adjudicating legitimacy of judges appointed to the office in the new procedures. The political motivation for the changes jeopardised the objective conditions necessary for courts and judges to be perceived as impartial and independent. The Supreme Court considers that the politicisation of courts and their subordination to the parliamentary majority in breach of constitutional procedures establishes a permanent system where the legitimacy of individual judges and their judgments may be challenged with every new political authority. That notwithstanding, the politicisation of courts departs from the criteria of independence and impartiality of courts required under Union law and international law, in particular Article 47 of the Charter and Article 6 § 1 [of the Convention].", "That, in turn, causes uncertainty about the recognition of judgments of Polish courts in the Union space of freedom, justice and security. Even now courts in certain EU Member States refuse to co-operate, invoking violation of standards, and challenge judgments of Polish courts. It should be noted that a resolution of the Supreme Court cannot mitigate all risks arising in the functioning of the Polish judiciary at the systemic level. In fact, that could only be done by the legislature if it restored regulations concerning the judiciary that are consistent with the Constitution of the Republic of Poland and Union law.", "The Supreme Court may, at best, take into consideration such risks and the principles of stability of the case-law and legal certainty for individuals in its interpretations of provisions which guarantee that a judgment in a specific case will be given by an impartial and independent court. In its interpretation of the regulations governing criminal and civil proceedings, referred by the First President of the Supreme Court, the Supreme Court considered the effect of the judgment of the Court of Justice of the European Union of 19 November 2019 in cases C-585/18, C ‑ 624/18 and C-625/18, as well as the obligation to identify such legislative instruments in the legal system which would guarantee that a judgment will be issued by an impartial and independent tribunal despite doubts arising from a range of systemic changes affecting the status of judges.”", "The Supreme Court concluded the resolution as follows:", "“60. ... It should be stressed that, pursuant to Article 91 § 3 of the Constitution of the Republic of Poland, if an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and take precedence in the event of a conflict of laws. That concerns in particular the Charter of Fundamental Rights. Consequently, in the event of a conflict of laws with norms arising from such legal act, Polish courts are required to disregard such laws in adjudicating.", "In this context, it is important to quote once again in extenso the principle reiterated on many occasions in the case-law of the Court of Justice of the European Union ...: ‘any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law.’ That is because a ‘national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently’ (judgment of March 1977, C-106/77).", "Therefore, a law or decision of any national body cannot prevent Polish courts from applying European Union law, prohibit an interpretation of Polish law in line with European Union law, or especially impose any restrictions or sanctions on judges who, exercising their judicial power and acting as a court, respect the obligations arising from the European Union membership of the Republic of Poland.", "If, however, the Constitution of Poland, in particular Article 179, which provides that judges shall be appointed by the President of the Republic of Poland on a motion of the [NCJ], is found to prevent review of the independence and impartiality of a court adjudicating in a given case, then the Polish Constitution would be in fundamental conflict with Article 47 of the Charter. In the territory of the European Union, the independence and impartiality of courts must be genuine; and their independence and impartiality cannot be uncontestably decreed by the mere fact of appointment to the office of judge by the President of the Republic of Poland.”", "106. In the wake of the resolution, the Ministry of Justice published a statement on its website which, in its verbatim (emphasis included) English version, read as follows:", "“ Statement on the resolution of the Supreme Court", "The resolution of the Supreme Court of 23 January 2020 is ineffective. It was passed in gross violation of law. It violates Article 179, Article 180(1) and Article 10 of the Polish Constitution. Contrary to the applicable statutory provisions, the Supreme Court adopted a resolution in proceedings regarding the challenge of the status of judges appointed with the participation of the current National Council of the Judiciary (KRS).", "These proceedings were suspended by law on 22 January 2020 upon initiating a dispute of competence between the Supreme Court and the Sejm and the President of the Republic of Poland before the Constitutional [Court]. Before the Constitutional [Court]’s ruling, no action is allowed to be taken in the matter concerned. The resolution of the Supreme Court is therefore invalid by law.", "Pursuant to the Act on the Organisation of the Constitutional [Court] and the Mode of Proceedings before the Constitutional [Court], if a dispute of competence is initiated, the proceedings before the Supreme Court are suspended by law. All actions of the Court during the suspension are invalid. Before the Constitutional [Court]’s ruling, no action is allowed to be taken in the matter concerned. A party to a dispute is not allowed to judge for itself whether a dispute has actually occurred. Pursuant to the Constitution, this right is vested only in the Constitutional [Court].", "The essence of such as dispute is that no Court can examine, let alone question judicial appointments or act that govern the status of judges and the manner in which candidates are selected. Therefore, the Supreme Court cannot encroach upon the competences of the National Council of the Judiciary, the President of the Republic of Poland or the Sejm, and, pursuing this line, even the competencies of the Constitutional [Court] itself, which has already dealt with the case of the National Council of the Judiciary and declared the current wording of the Act to be in accordance with the Constitution.", "The suspension of the proceedings before the Supreme Court was also necessary because a case regarding the provision of the Code of Civil Procedure to which the resolution refers (i.e. Article 379(4) of the Code of Civil Procedure) is being heard before the Constitutional [Court].", "A resolution adopted by three chambers of the Supreme Court is unlawful and, as such, produces no legal effects. The Supreme Court is not authorised to examine and assess whether the fact that a judge appointed by the President of the Republic of Poland at the request of the National Council of the Judiciary after 2018 sits on common [ sic ] court, military court or Supreme Court invalidates the proceedings. Consequently, no authority, including a judicial one, can question the appointment and investiture of a judge.", "In addition, following the effective date the Act of 20 December 2019 on Guaranteeing Constitutional Order in the Administration of Justice and Improving the Work of Courts, the resolution of the Supreme Court will become even more irrelevant. Indeed, the new Act eliminates recent doubts about the possibility of questioning the status of judges appointed by the President of the Republic of Poland. It declares inadmissibility of such actions, in accordance with the jurisprudence of the Supreme Administrative Court and the Constitutional [Court].", "Office of Communication and Promotion", "Ministry of Justice.”", "The Constitutional Court’s case-law", "(a) Judgment of 18 July 2007 (case no. K 25/07)", "107. On 18 July 2007 the Constitutional Court reviewed, on an application from the NCJ, the constitutionality of two provisions added to the 2001 Act on the Ordinary Courts by the Act of 16 March 2007 amending the Act on the NCJ of 2001, which had introduced the rule of incompatibilitas for the position of a member of the NCJ with the position of president or vice-president of an ordinary court. The first of the impugned provisions (section 25a) stipulated (1) that a judge elected as member of the NCJ could not be appointed to the post of president or vice-president of a court, and (2) that the appointment to such post is terminated on election to the NCJ. The second of the impugned provisions (section 5) extended the rule included in section 25a to judges sitting as members of the NCJ during their term of office. The Constitutional Court held that both provisions were incompatible with Article 187 § 1 (2) of the Constitution, and that the second of these provisions was also incompatible with Article 2 of the Constitution.", "As regards the constitutional position of the NCJ, the Constitutional Court held that it was a constitutional collegial State authority whose functions were related to judicial power. The relevant part of the judgment read:", "“In vesting the Council with competences relating to the protection of the independence of courts and judges, the Constitution also introduced the mechanism protecting the independence of the Council. Article 187 § 1 of the Constitution provides that the composition of the Council is mixed: it connects representatives of the judiciary (with compulsory participation of Presidents of the Supreme Court and the Supreme Administrative Court), representatives of the executive (the Minister of Justice and a person appointed by the President of the Republic) as well as four MPs and two senators. The [1997] Constitution introduced – in comparison to earlier provisions of constitutional rank – constitutional rules concerning the composition of the Council, specified the term of office of its members and the manner of their appointment or election. In the composition of the Council the Constitution gave a significant majority to elected judges of the ordinary, administrative and military courts and judges of the Supreme Court. The regulations concerning election of judges to the Council are of constitutional rank and of particular constitutional significance, since their status de facto determines the independence of this constitutional organ and the effectiveness of the Council’s work.”", "The Constitutional Court also held that the members of the NCJ should be judges and elected by judges:", "“4. The Constitution regulates directly in Article 187 § 1 (2) the principle of election of judges to the NCJ, determining in that way the personal composition of the NCJ. It explicitly prescribes that judges – elected by judges – could be members of the NCJ, without stipulating other additional conditions that would have to be met for them to sit in the NCJ. The election is made from among four groups of judges mentioned in Article 187 § 1 (2) of the Constitution. The Constitution does not provide for a removal of the [judicial members of the NCJ], stipulating their four-year term of office in the NCJ. The election procedure set out in the [2001] Act on the NCJ ... falls within the boundaries laid down in Article 187 § 1 (2) of the Constitution, fulfilling the principle of election of judges by judges. ...”", "(b) Judgment of 20 June 2017 (case no. K 5/17)", "108. On 11 April 2017 the Prosecutor General, who at the same time holds the position of Minister of Justice, asked the Constitutional Court to examine the compatibility with the Constitution of several provisions of the Act on the NCJ in force at the material time.", "109. On 20 June 2017 the Constitutional Court gave judgment in the case. It held that the provisions regulating the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [3] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges of the respective levels of the ordinary and administrative courts to the NCJ and did not provide equal opportunities in respect of standing for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same applied to judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court.", "110. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the terms of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution.", "111. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self-governance. The mixed composition of the Council made it an organ ensuring the balance of – and cooperation between – the different powers. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant:", "“The Constitutional Court in its current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, the question of who can be elected as member of the NCJ follows from the Constitution, but it is not specified how judicial members of the Council are to be elected. These matters were delegated to statutory regulation. There is no obstacle for election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely in assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that MPs are elected to the NCJ by Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.”", "The Constitutional Court concluded:", "“...The legislator has quite broad freedom in shaping the NCJ system, as well as the scope of its activities, the mode of work and the manner of election of its members. However, the legislator’s competence is not unlimited.", "Its limits are determined by:", "firstly, the Council’s task, i.e. in acting to safeguard the independence of courts and independence of judges;", "secondly, the constitutionally determined composition of the Council: while a statute may regulate the manner of election of Council members, it may not modify its personal component set out in Article 187 § 1 of the Constitution ...”", "112. The bench included Judge M.M. as judge rapporteur. The issue whether a bench of the Constitutional Court including Judge M.M. was a “tribunal established by law” was raised in the case of Xero Floor w Polsce sp. z. o.o. v Poland (no. 4907/18, judgment of 7 May 2021, not final).", "(c) Judgment of 25 March 2019 (case no. K 12/18)", "113. On 2 November 2018 the NCJ lodged a request with the Constitutional Court to examine compliance with the Constitution of the provisions of the 2011 Act on the NCJ as amended by the 2017 Amending Act.", "114. On 25 March 2019 the Constitutional Court gave judgment confirming compliance with Articles 187 § 1 (2) and § 4, in conjunction with Articles 2, 10 § 1 and 173 and 186 § 1 of the Constitution, of section 9a of the 2011 Act on the NCJ, as amended by the 2017 Amending Act, concerning the manner of appointment of the NCJ’s judicial members by Sejm.", "Secondly, the court held that section 44(1a) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act, concerning the procedure for judicial review of individual resolutions of the NCJ on the selection of judges, refusing to appoint the candidates, was incompatible with Article 184 of the Polish Constitution.", "(d) Judgment of 20 April 2020 (case no. U 2/20)", "115. On 24 February 2020 the Prime Minister ( Prezes Rady Ministrów ) referred to the Constitutional Court the question of the compatibility of the Supreme Court’s resolution of 23 January 2020 with several provisions of the Polish Constitution, the Charter of Fundamental Rights of the European Union and the Convention.", "116. On 20 April 2020 the Constitutional Court issued judgment declaring that the Supreme Court’s resolution of 23 January 2020 was incompatible with Articles 179, Article 144 § 3 (17), Article 183 § 1, Article 45 § 1, Article 8 § 1, Article 7 and Article 2 of the Constitution, Articles 2 and 4(3) of the Treaty on European Union (TEU) and Article 6 § 1 of the Convention. It held, in particular, that decisions of the President of Poland on judicial appointments may not be subject to any type of review, including by the Supreme Court. The judgment was given by a Constitutional Court’s panel including Judge M.M. It was published in the Official Gazette on 21 April 2020. The court held (references omitted), in particular:", "“...The four editorial divisions of the Supreme Court’s resolution, which constitute the entirety of the subject under review, introduce and regulate a normative novelty (unknown to other legal acts of the Republic of Poland, in particular the Constitution) consisting in the fact that ordinary courts, military courts and the Supreme Court may control and restrict a judge’s right to adjudicate solely on the basis of the fact of his or her appointment by the President on a motion of the NCJ, whose members, who are judges, were elected by Sejm, and not by judicial bodies ...", "The contested resolution of the Supreme Court is incompatible with Article 179 of the Constitution because it undermines the character of that provision as an independent basis for the effective appointment of a judge by the President on a motion of the NCJ, and thus as an independent, complete and sufficient legal regulation enabling the exercise by the President of the powers indicated in that provision.", "The contested resolution of the Supreme Court is incompatible with Article 144 § 3 (17) of the Constitution because it cannot be reconciled with the essence of the President’s prerogative to appoint judges within the Republic of Poland. The President’s prerogative is not subject to review in any manner whatsoever, and therefore, it may not be subject to any limitation or narrowing of interpretation within the content of an act of secondary legislation ...”", "117. As regards Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention the Constitutional Court held, in so far as relevant (references omitted):", "“In particular, the contested resolution of the Supreme Court is incompatible with Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention because, in its content, it infringes the standard of independence of a court and of a judge which, according to the case-law of the CJEU, has two aspects. The first – external – aspect of the judge’s independence presupposes that the court, in its adjudication, performs its tasks completely independently, without being subject to any official hierarchy or subordinated to anyone, and does not receive orders or instructions from any source whatsoever, such that it is protected from interference and external pressure that might compromise the independence of its members (judges) when they examine cases. The content of the impugned resolution of the Supreme Court granting to some judges the right to decide that other judges appointed by the President have, de facto, the status of retired judges ab initio cannot be reconciled with the standard as outlined above, resulting from all the indicated relevant standards. As the CJEU points out, the second – internal – aspect of the independence of a judge - is linked to the concept of impartiality and concerns an unbiased dissociation from the litigants, and their respective interests, in relation to a dispute before the court. This factor requires [of a judge] the observance of objectivity and the absence of any interest in the resolution of the dispute, apart from the strict application of the law. This aspect excludes a procedure generally questioning a judge’s right to adjudicate by other judges and verifying the regularity of the procedure preceding the appointment of a judge by the President as a basis for a general objection to such a judge’s right to adjudicate. An unbiased dissociation of a judge from a dispute is possible only where any conclusions of the court leading to the resolution of a case are based on respect for the Constitution as a foundation. Such aspect of the judge’s independence excludes the content of the court’s judgment from being made dependent on the need to choose between a constitutional provision and the content of a [law] that is in conflict with the Constitution, but which – as a result of a statutory regulation – could in all likelihood constitute a ground for challenging the judgment before a higher court. For that reason, the content of the impugned resolution of the Supreme Court cannot be reconciled with Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention.”", "(e) Decisions of 28 January and 21 April 2020 (case no. Kpt 1/20)", "118. The Speaker of Sejm referred a question to the Constitutional Court as to whether there was a “conflict of competence between Sejm and the Supreme Court and between the President of Poland and the Supreme Court”.", "119. On 28 January 2020 the Constitutional Court issued an interim decision ( postanowienie ), whereby it suspended the enforcement of the Supreme Court’s resolution of 23 January 2020 (see paragraph 89 above) and suspended the prerogative of the Supreme Court to issue resolutions concerning the compatibility with national or international law or the case-law of international courts of the composition of the NCJ, the procedure for presenting candidates for judicial office to the President of Poland, the prerogative of the President to appoint judges and the competence to hold judicial office of a person appointed by the President of Poland upon recommendation of the NCJ.", "120. On 21 April 2020 the Constitutional Court gave a decision, finally ruling on the matter of the “conflict of competence”. Both the interim measure and the final ruling were given by the Constitutional Court sitting in a formation which included Judge M.M. The Constitutional Court decided to:", "“1. Resolve the conflict of competence between the Supreme Court and Sejm of the Republic of Poland as follows [4] :", "(a) The Supreme Court – also in connection with a ruling of an international court – has no jurisdiction to make a ‘law-making interpretation’ ( wykładnia prawotwórcza ) of legal provisions, by means of [a resolution]which leads to modification in the legal situation regarding the organisational structure of the judiciary;", "(b) pursuant to Article 10, Article 95(1), Article 176(2), Article 183(2) and Article 187(4) of the Constitution of the Republic of Poland, the introduction of any modification within the scope specified in point 1(a) shall be within the exclusive competence of the legislature.", "2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows:", "(a) under Article 179 in conjunction with Article 144 § 3 (17) of the Constitution, an appointment of a judge constitutes the exclusive competence of the President of the Republic of Poland, which he exercises upon the request of the National Council of the Judiciary personally, irrevocably and without any participation or interference of the Supreme Court;", "(b) Article 183 of the Constitution does not provide that the Supreme Court has jurisdiction to oversee the President of the Republic of Poland in his exercise of the competence referred to in Article 179 in conjunction with Article 144 § 3 (17) of the Constitution including [the Supreme Court’s jurisdiction] to give a binding interpretation of legal provisions to specify prerequisites for the President’s effective exercise of the said competence.”", "121. The Constitutional Court held, in so far as relevant:", "“... The Constitution in Article 144 § 3 (17) defines the prerogative of the President – his personal power to appoint judges. And Article 179 of the Constitution provides that judges are appointed by the President, on a motion of the NCJ, for an indefinite period.", "The Constitutional Court upholds the view expressed earlier that ‘judges are appointed by the President, on a motion of the NCJ, for an indefinite period of time’. The Constitution identifies two entities involved in the judicial appointment procedure – the President and the NCJ. The judicial appointment procedure under the Constitution thus involves cooperation between two bodies, one of which has a direct mandate from the public, and the other – due to the participation of, inter alia, MPs and senators - has an indirect mandate ..., although it should be noted that there are only six MPs and senators in the 25 ‑ member NCJ (four MPs and two senators). Under Article 144 § 3 (17) of the Constitution, the power to appoint judges belongs to those official acts of the President which, in order to be valid, do not require the countersignature of the Prime Minister (the so-called prerogative). ... By vesting the power to appoint judges in the President, the Constitution thus adopts a system of judicial appointment, albeit of a limited nature. Although judicial appointments do not require countersignature, the constitutional requirement of a motion of the NCJ significantly restricts the President’s freedom of action in this situation. The President may not appoint every person who meets the requirements for election to the judiciary, but only a person whose candidature has been considered and indicated by the NCJ. ... In the light of the prevailing views of legal scholars, there is no doubt that, although the President’s freedom of action is limited to taking a stance on the candidate proposed by the NCJ, the fact that the competences concerning appointment of judges have been made into a prerogative emphasises that the President is not legally obliged to grant the NCJ’s motion. ... The power to appoint judges is, under Article 144 § 3 (17) of the Constitution, a prerogative of the President, that is, his personal prerogative, which in order to be valid does not require the signature of the Prime Minister. As such, it remains within the President’s exclusive competence and responsibility, although this does not mean that he may act entirely freely - he is bound by the principles and values expressed in the Constitution, the observance of which, pursuant to Article 126 § 2 of the Constitution, he is obliged to ensure. The prerogative regarding the appointment of judges is specified in Article 179 of the Constitution. This provision, stipulating that judges shall be appointed by the President on the motion of the NCJ, for an indefinite period, precisely defines the competences of both the President and the NCJ. It is for the NCJ to submit a motion for the appointment of judges (identification of candidates for specific judicial positions).”", "The Supreme Administrative Court’s case-law", "122. On 6 May 2021 the Supreme Administrative Court gave judgments in five cases (nos. II GOK 2/18; II GOK 3/18; II GOK 5/18; II GOK 6/18 and II GOK 7/18), including the case of A.B. v. the NCJ (no. II GOK 2/18) in which it held that the NCJ did not offer sufficient guarantees of independence from the legislative and executive powers and that the President of Poland’s announcement of vacant positions in the Supreme Court in May 2018 (see paragraph 42 above), as having been done without the Prime Minister’s countersignature, was contrary to Article 144 § 2 of the Constitution and had resulted in a deficient procedure for judicial appointments. All the judgments contain identical reasoning.", "123. In particular, the Supreme Administrative Court considered, in application of the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 164-167 below), that the decisive elements justifying the conclusion as to the NCJ’s lack of independence were as follows:", "(a) The current NCJ had been constituted as a result of the premature termination of the terms of office of former members of the NCJ.", "(b) In contrast to the former legislation under which fifteen judicial members of the NCJ had been elected by their peers directly, they were currently elected by Sejm; as a result, the number of the NCJ’s members directly originating from or appointed by political authorities was twenty-three, out of twenty-five members; also, there were no representatives of the Supreme Court or administrative courts, as required by Article 187 § 2 of the Constitution, and 14 of its judicial members had come from ordinary courts.", "(c) The potential for irregularities that could adversely affect the process of appointment of certain members of the NCJ; it was noted that in practice some members had supported their own candidatures, that some candidates had supported each other, and that there had clearly been political factors behind their choice, for instance political loyalty to the legislative power.", "(d) The manner in which the current NCJ carried out its constitutional duty to safeguard the independence of courts and judges; on this point it was noted that the NCJ’s activity had been in stark contrast to what would be expected of such a body, as confirmed by the 2018 decision of the ENCJ, suspending the NCJ’s membership for its non-compliance with the ENCJ rule of independence from the executive (see also paragraph 175 below).", "The Supreme Administrative court accepted – as did the CJEU in the above-mentioned judgments – that while each element taken in isolation might not necessarily lead to that conclusion, their combination and the circumstances in which the NCJ had been constituted raised doubts as to its independence.", "In that regard, the Supreme Administrative Court stated that it fully and unreservedly shared the Supreme Court’s assessment of those elements and circumstances in its judgment of 5 December 2019 (see also paragraph 71 above).", "It was further noted that since many members of the NCJ had recently been promoted to posts of president and vice-president of courts, the entire body had to be regarded as strictly and institutionally subordinate to the executive, represented by the Minister of Justice. The degree of dependence on the executive and legislature was such that it could not be irrelevant in assessing the ability of the judges selected by it to meet the objective requirements of independence and impartiality required by Article 47 of the Charter of Fundamental Rights (see paragraph 149 below). Such composition of the NCJ undermined its ability to perform effectively its primary function of safeguarding the independence of judges and courts.", "124. As to other details of the NCJ’s activities, the court found that there was no appearance that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting positions presented by national and international institutions. In particular, it had not opposed the actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 169 below).", "The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ referred the appeal lodged by A.B. on 1 October only on 9 November 2019 while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates.", "125. Lastly, as regards the precondition of the Prime Minister’s countersignature for the 2018 President of Poland’s act of announcement of vacant positions at the Supreme Court (see paragraph 26 above), the Supreme Administrative Court agreed with the interpretation of the Supreme Court given in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 71 and 89 below), that this act required for its validity a countersignature of the Prime Minister. It stressed that Article 144 § 3 of the Constitution did not mention that prerogative among the explicit, exhaustively enumerated prerogatives of the President that did not require the countersignature for their validity. Since this provision laid down the President’s exclusive prerogatives, all other acts being subject to the Prime Minister’s countersignature, it had to be interpreted strictly. Nor could it be said that the act of announcement of vacant positions in the Supreme Court could be derived from the President’s power to appoint judges under Article 144 § 3 (17) of the Constitution since the exercise of any derived prerogative not requiring the countersignature must be necessary for the proper accomplishment of the main prerogative.", "Before the entry into force of the 2017 Act on the Supreme Court, the competence to announce vacant positions in the Supreme Court belonged to the First President of the Supreme Court, and this in no way affected the President of Poland’s power to appoint judges to the Supreme Court. Consequently, a decision to announce vacant positions in the Supreme Court did not constitute an act which was necessary for the exercise of the President of Poland’s prerogative to appoint the judges; conversely, it could constitute an instrument of discretionary power to influence the time when, if at all, vacant positions in the Supreme Court would be filled.", "INTERNATIONAL MATERIALUnited Nations", "United Nations", "United Nations", "126. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide as follows, in so far as relevant:", "“10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.", "...", "19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.”", "127. On 5 April 2018 the UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Diego García–Sayán, submitted a report on his mission to Poland (UN Human Rights Council, document A/HRC/38/38/Add.1). The relevant parts of the report’s conclusions and recommendations read as follows:", "“IV. Conclusions", "...", "74. After having successfully ‘neutered’ the Constitutional [Court], the Government has undertaken a far-reaching reform of the judicial system. Between May and December 2017, the ruling majority has adopted three acts that introduce broad changes to the composition and functioning of ordinary courts, the Supreme Court and the National Council of the Judiciary. Each of these acts presents a number of concerns as to its compliance with international legal standards but, taken together, their cumulative effect is to place the judiciary under the control of the executive and legislative branches.", "75. The Special Rapporteur warns Polish authorities that the implementation of this reform, undertaken by the governing majority in haste and without proper consultation with the opposition, the judiciary and civil society actors, including the Office of the [Polish Commissioner for Human Rights], risks hampering the capacity of judicial authorities to ensure checks and balances and to carry out their essential function in promoting and protecting human rights and upholding the rule of law.", "V. Recommendations", "...", "84. The Special Rapporteur recommends that [the 2017 Act on the Supreme Court] be amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and the separation of powers. ...", "(f) Reviewing the vast ratione materiae jurisdiction of the Extraordinary Chamber and the Disciplinary Chamber in line with the recommendations of the European Commission, the Venice Commission and OSCE/ODIHR.", "85. The Special Rapporteur recommends that [the 2017 Amending Act] be amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and the separation of powers. In particular, the Special Rapporteur recommends:", "(a) Removing the provisions concerning the new appointment procedure for the judicial members of the National Council of the Judiciary and ensuring that the 15 judicial members of the Council are elected by their peers. ...”", "The Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) Opinion of 5 May 2017", "Opinion of 5 May 2017", "Opinion of 5 May 2017", "128. The final Opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain Other Acts of Poland (JUD ‑ POL/305/2017-Final) of 5 May 2017, reads, in so far as relevant, as follows:", "“13. While the OSCE/ODIHR recognizes the right of every state to reform its judicial system, any judicial reform process should preserve the independence of the judiciary and the key role of a judicial council in this context. In this regard, the proposed amendments raise serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of the judiciary, as also emphasized by the UN Human Rights Committee in its latest Concluding Observations on Poland in November 2016. The changes proposed by the Draft Act could also affect public trust and confidence in the judiciary, as well as its legitimacy and credibility. If adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law, which OSCE participating States have committed to respect as a prerequisite for achieving security, justice and stability....", "17. In light of the potentially negative impact that the Draft Act, if adopted, would have on the independence of the Judicial Council, and as a consequence of the judiciary in Poland, the OSCE/ODIHR recommends that the Draft Act be reconsidered in its entirety and that the legal drafters not pursue its adoption.”", "Opinion of 13 November 2017", "129. The 13 November 2017 opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017), (JUD ‑ POL/315/2017), reads, in so far as relevant:", "“2.3 The New Disciplinary Chamber", "65. The New Disciplinary Chamber will be in charge of hearing disciplinary cases against Supreme Court judges and other legal professionals where this is provided by separate legislation, as well as complaints concerning overly lengthy proceedings before the Supreme Court (Article 26 of the Draft Act).", "66. This new chamber stands out insofar as it is somewhat removed from the authority of the First President of the Supreme Court compared to the other chambers. In a departure from the procedure by which Presidents of other chambers are chosen, the President of the Republic of Poland does not have to consult the First President of the Supreme Court when choosing the President of the Disciplinary Chamber (Article 14 par. 3). Moreover, the President of the Disciplinary Chamber has an array of special powers that are not granted to other chamber Presidents. These include budgetary powers of the kind which the First President exercises for the rest of the Supreme Court (Article 7 pars 2 ‑ 3 and 4), the right to appoint and dismiss chairs of departments within the Disciplinary Chamber, to be consulted when the President of the Republic of Poland determines the number of vacancies in the Chamber and to authorise the additional employment by members of the Chamber (Article 19 par 1), the institution of disciplinary inquiries against Supreme Court judges (Article 75 par 1), and the determination of the Chamber’s internal organisation and internal rules of conduct (Article 95).", "67. The First President of the Supreme Court is furthermore constrained to act “in consultation with” the President of the Disciplinary Chamber when exercising certain functions, including the appointment and dismissals of chairs of departments in other chambers and the selection of lay justices, as well as when ordering the release of a judge detained in flagrante delicto or on the authority of a disciplinary court (Article 19 par 2). Pursuant to Article 97 of the Draft Act, the Disciplinary Chamber will furthermore be supported by its own secretariat following special rules, making it largely autonomous within the Supreme Court, and de facto, creating a separate chamber with a special status within the Supreme Court.", "68. It is unclear from the Explanatory Statement to the Draft Act why such a special autonomous status for this chamber is needed. While the independence of a body adjudicating on disciplinary cases against judges need to be ensured, the modalities of appointment of the President of the Disciplinary Chamber confer on the President of the Republic a decisive influence, which is even more exacerbated by the fact that the First President of the Supreme Court is not consulted. While Article 144 par 3 (23) of the Constitution of the Republic of Poland specifically provides that the President of the Republic of Poland appoints the Presidents of the Supreme Court, such a prerogative should be of a ceremonial nature (see par 105 infra ). In any case, the conditions and procedure for appointing the Presidents of the Supreme Court should be open and transparent to ensure that objective criteria of merit and competence prevail and that the best candidate is ultimately appointed (see pars 103-104 infra ). The fact that the President of the Republic of Poland has the final say in this process means that one cannot exclude that political or other considerations may prevail over criteria for appointment. Moreover, overall, there is a risk of having a future President of the Disciplinary Chamber, who would be somewhat beholden towards the appointing authority in a manner that may undermine judicial independence (see also Sub-Section 4.2 infra regarding the appointment of presidents of the Supreme Court and related recommendation in par 105 infra ).", "69. Moreover, allowing the President of the Disciplinary Chamber a say when appointing/dismissing chairs of department in other chambers and during the selection of lay judges seems to go quite far and also does not appear to be linked in any way to disciplinary matters. In light of the above, these provisions would open the door for indirect influence of the President of the Republic, who is part of the executive branch, in these areas, which should be under the sole responsibility of the First President of the Supreme Court. The specific status and rules applicable solely to the Disciplinary Chamber and its President, particularly with regard to the President of the Republic’s special role, should be reconsidered.”", "130. In Annex 1 (dated 30 August 2017) to the above-mentioned opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (JUD-POL/313/2017), OSCE/ODIHIR made the following conclusion:", "“60. Given the modalities for appointing judges to the Disciplinary Chamber, the status of these judges and the great influence of the Minister of Justice on disciplinary proceedings during the preliminary phase, the adjudication of disciplinary cases against Supreme Court judges is not compliant with relevant fair trial requirements set out in Article 6 par 1 of the ECHR and Article 14 par 1 of the ICCPR. This deficiency cannot be cured on appeal in light of the composition of the competent courts of second instance.”", "Council of EuropeThe European Charter on the Statute for Judges", "The European Charter on the Statute for Judges", "The European Charter on the Statute for Judges", "131. The relevant extract from the European Charter on the Statute for Judges of 8-10 July 1998 [5] reads as follows:", "“2. SELECTION, RECRUITMENT, INITIAL TRAINING", "2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them ...", "2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.”", "132. In its Explanatory Memorandum, the European Charter on the Statute for Judges provides, among other things, as follows:", "“1.1 The Charter endeavours to define the content of the statute for judges on the basis of the objectives to be attained: ensuring the competence, independence and impartiality which all members of the public are entitled to expect of the courts and judges entrusted with protecting their rights. The Charter is therefore not an end in itself but rather a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection.", "These safeguards on individuals’ rights are ensured by judicial competence, in the sense of ability, independence and impartiality ...”", "Committee of Ministers", "133. The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities” provides, in so far as relevant, as follows:", "“ Chapter I – General aspects", "Judicial independence and the level at which it should be safeguarded", "...", "3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence.", "4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.", "Chapter VI - Status of the judge", "Selection and career", "44. Decisions concerning the selection and career of judges should be based on objective criteria pre ‑ established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.", "...", "46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.", "47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.", "48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.”", "The Explanatory Memorandum to this recommendation further provides as follows:", "“13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.”", "134. Recommendation No. R(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted by the Committee of Ministers on 25 October 2000 at the 727 th meeting of the Ministers’ Deputies) provides, in so far as relevant, as follows:", "“Principle VI - Disciplinary proceedings", "1. Where lawyers do not act in accordance with their professional standards, set out in codes of conduct drawn up by Bar associations or other associations of lawyers, appropriate measures should be taken, including disciplinary proceedings.", "2. Bar associations or other lawyers’ professional associations should be responsible for or be entitled to participate in the conduct of disciplinary proceedings concerning lawyers.", "3. Disciplinary proceedings should be conducted with full respect of the Principles and rules laid down in the European Convention on Human Rights, including the right of the lawyer concerned to participate in the proceedings and to apply for judicial review of the decision.", "4. The Principle of proportionality should be respected in determining sanctions for disciplinary offences committed by lawyers.”", "The Explanatory Memorandum to this recommendation further provides as follows:", "“61. In particular, for the purpose of this Recommendation, lawyers’ rights include, inter alia :", "- the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This does not preclude lawyers from asking that the hearing be heard in camera .”", "The Council of Europe Commissioner for Human Rights", "135. The Council of Europe Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. In her report following the visit, published on 28 June 2019, she stated as follows:", "“1.2 CHANGES AFFECTING THE NATIONAL COUNCIL FOR THE JUDICIARY", "14. In March 2018, in a vote boycotted by the parliamentary opposition, Sejm elected the new judicial members of the [NCJ], thereby terminating the mandate of the sitting members of the Council. Thirteen of the newly elected members were judges from district (first-instance) courts, and one each from a regional court and a regional administrative court. Three of them had been previously seconded to the Ministry of Justice, while seven had previously been appointed by the Minister of Justice as presidents or vice-presidents of ordinary courts (cf. paragraph 40 of section 1.5 below). An informal survey conducted in December 2018 showed that about 3,000 Polish judges considered that the newly constituted Council was not performing its statutory tasks, while 87% of those who participated believed the body’s new members should all be made to resign. In September 2018, the General Assembly of the ENCJ made the unprecedented decision to suspend the membership of the Poland’s [NCJ] and stripped it of its voting rights, finding that it no longer fulfilled the requirement of independence from the executive and the legislature.", "...", "1.2.1 CONCLUSIONS AND RECOMMENDATIONS", "18. The Commissioner recalls that councils for the judiciary are independent bodies that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system (paragraph 26 of the aforementioned recommendation of the Committee of Ministers CM/Rec(2010)12). She considers that the collective and individual independence of the members of such bodies is directly linked, and complementary to, the independence of the judiciary as a whole, which is a key pillar of any democracy and essential to the protection of individual rights and freedoms.", "19. The Commissioner considers that serious concerns remain with regard to the composition and independence of the newly constituted [NCJ]. She observes that under the new rules, 21 out of the 25 members of the body have been elected by Poland’s legislative and executive powers; this number includes the body’s 15 judicial members, who have been elected by Sejm.", "20. The Commissioner considers that entrusting the legislature with the task of electing the judicial members to the [NCJ] infringes on the independence of this body, which should be the constitutional guarantor of judicial independence in Poland. She considers that the selection of members of the judiciary should be a decision process independent of the executive or the legislature, in order to preserve the principles of separation of powers and the independence of the judiciary, and to avoid the risk of undue political influence.", "1.3.2 THE SUPREME COURT’S COMPOSITION AND NEW CHAMBERS", "25. The new legislation referred to in paragraph 22 above created two new special chambers of the Supreme Court: a Disciplinary Chamber, to adjudicate cases of judicial misconduct, and a Chamber of Extraordinary [Review] and Public Affairs, tasked with hearing cases concerning the validity of general elections or disputes regarding television and radio licensing....", "26. Despite being nominally positioned within the organisational structure of the Supreme Court, the Disciplinary Chamber, unlike that Court’s other chambers, is virtually exempt from the oversight of the Supreme Court’s First President. It notably has a separate chancellery and budget; moreover, the earnings of judges sitting on the Disciplinary Chamber are 40% higher than those of their fellow judges in other chambers of the Supreme Court....", "29. The Commissioner was informed that similarly to the newly composed [NCJ], many of the newly appointed members of the Disciplinary Chamber were former prosecutors or persons with links to the Minister of Justice (Prosecutor-General). Apparently, some of the new appointees have experienced a very rapid career progression, made possible by new rules governing judicial promotions; one had reportedly been a district court judge merely three years prior to his appointment to the Supreme Court....", "52. In tandem with the sweeping changes described in the previous sections, government officials in Poland have openly assailed the judiciary in order to justify the reforms being undertaken. In a speech delivered in July 2017, the former Prime Minister called Poland’s judiciary the ‘judicial corporation’, claiming that ‘in everybody’s immediate surrounding there is someone who has been injured by the judicial system’. In an op-ed published in the Washington Examiner in December 2017, the current Prime Minister argued that the Polish judiciary was a legacy of Communist system, characterised by ‘nepotism and corruption’; that judges demanded ‘[b]ribes (...) in some of the most lucrative-looking cases’; and that the courts generally worked to benefit the wealthy and the influential. The Prime Minister later made similar statements in other contexts, including in a speech given at a US university in April 2019. Other members of the ruling party called judges ‘a caste’ or ‘a group of cronies’. The current head of the political cabinet in the chancellery of the Prime Minister publicly implied that former judge-members of the National Council of the Judiciary ‘were hiding gold in their gardens and it is unclear where the money came from’. In support of the government’s reform of the judiciary, in September 2017 the government-controlled ‘Polish National Foundation’ initiated a two ‑ month campaign called ‘Fair Courts’. The campaign’s cost, estimated to amount to EUR 2.8 million, was cosponsored by a dozen or so of the largest state-owned companies. Using large black-and-white billboards, television commercials and a website, the campaign conveyed a negative image of judges, labelling them as ‘a special caste’, and portraying them as incompetent or indulging in unseemly or illegal behaviour, such as drunkenness, corruption, or petty theft ...", "1.6.1 CONCLUSIONS AND RECOMMENDATIONS", "61. The Commissioner regrets that the reform of the judiciary was accompanied by a publicly-financed campaign to discredit judges, as well as by a series of negative statements regarding the Polish judiciary made by high ranking Polish officials. She recalls that members of the executive and the legislature have a duty to avoid criticism of the courts, judges and judgments that would undermine the independence of or public confidence in the judiciary, in accordance with paragraph 18 of the Committee of Ministers’ recommendation CM/Rec(2010)12. In view of the highly stigmatising and harmful effect of statements such as the ones quoted above (in paragraph 52), the Commissioner urges the Polish authorities to exercise responsibility and lead by example in their public discourse, rather than using their powerful platform to tarnish the judiciary as a whole or to unduly attack the reputation of individual judges.”", "Parliamentary Assembly of the Council of Europe", "(a) Resolution 2188 (2017)", "136. On 11 October 2017 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2188 (2017) entitled “New threats to the rule of law in the Council of Europe Member States”. The Polish authorities were called upon to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary, and, in this context, to refrain from amending the 2011 Act on the National Council of the Judiciary in a way that would modify the procedure for appointing judges to the Council and would establish political control over the appointment process for judicial members.", "(b) Resolution 2316 (2020)", "137. On 28 January 2020 PACE decided to open its monitoring procedure in respect of Poland, which is the only member State of the Council of Europe, among those belonging to the European Union, currently undergoing that procedure. In its Resolution 2316 (2020) of the same date entitled “The functioning of democratic institutions in Poland”, the Assembly stated:", "“7. The Assembly lauds the assistance given by the Council of Europe to ensure that the reform of the justice system in Poland is developed and implemented in line with European norms and rule of law principles in order to meet their stated objectives. However, it notes that numerous recommendations of the European Commission for Democracy through Law (Venice Commission) and other bodies of the Council of Europe have not been implemented or addressed by the authorities. The Assembly is convinced that many of the shortcomings in the current judicial system, especially with regard to the independence of the judiciary, could have been addressed or prevented by the implementation of these recommendations. The Assembly therefore calls upon the authorities to revisit the total reform package for the judiciary and amend the relevant legislation and practice in line with Council of Europe recommendations, in particular with regard to:", "...", "7.2. the reform of the National Council of the Judiciary, the Assembly expresses its concern about the fact that, counter to European rule of law standards, the 15 judges who are members of the National Council of the Judiciary are no longer elected by their peers but by the Polish Parliament. This runs counter to the principle of separation of powers and the independence of the judiciary. As a result, the National Council of the Judiciary can no longer be seen as an independent self-governing body of the judiciary. The Assembly therefore urges the authorities to reinstate the direct election, by their peers, of the judges who are members of the National Council of the Judiciary; ...", "7.4. the reform of the Supreme Court... The composition and manner of appointment of the members of the disciplinary and extraordinary appeals chambers of the Supreme Court, which include lay members, in combination with the extensive powers of these two chambers and the fact that their members were elected by the new National Council of the Judiciary, raise questions about their independence and their vulnerability to politicisation and abuse. This needs to be addressed urgently.”", "(c) Resolution 2359 (2021)", "138. On 26 January 2021 PACE adopted Resolution 2359 (2021) entitled “Judges in Poland and in the Republic of Moldova must remain independent”. The Assembly called on the Polish authorities to:", "14.2. review the changes made to the functioning of the Constitutional [Court] and the ordinary justice system in the light of Council of Europe standards relating to the rule of law, democracy and human rights; following the findings of the Venice Commission included in its Opinion No. 977/2020 of 22 June 2020 concerning in particular the amendments to the Law on the Ordinary Courts introduced since 2017, it would be advisable to:", "14.2.1. revert to the previous system of electing judicial members of the National Council of the Judiciary or adopt a reform of the justice system which would effectively ensure its autonomy from the political power;", "14.2.2. review the composition, internal structure and powers of the Disciplinary Chamber and the Extraordinary [Review] and Public Affairs Chamber of the Supreme Court;", "14.2.3. review the procedure for the election of the First President of the Supreme Court;", "14.2.4. reinstate the powers of the assemblies of judges with respect to the appointment, promotion and dismissal of judges,", "14.3. refrain from taking any legislative or administrative measures or other initiatives which might pose a risk to the rule of law and, in particular, to the independence of the judiciary;", "14.4. co-operate fully with Council of Europe organs and bodies, including the Venice Commission, and with the institutions of the European Union, on issues related to justice reform;", "14.5. institute a constructive and sustainable dialogue on justice reform with all stakeholders, including opposition parties, representatives of the judiciary, bar associations, civil society and academic experts.”", "The Venice Commission", "(a) Report on Judicial Appointments", "139. In its Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007), the European Commission for Democracy Through Law (“Venice Commission”) held as follows (footnotes omitted):", "“3. International standards in this respect are more in favour of the extensive depolitisation of the [judicial appointment] process. However no single non-political ‘model’ of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary....", "5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.", "6. New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges.", "7. In Europe, methods of appointment vary greatly according to different countries and their legal systems; furthermore they can differ within the same legal system according to the type of judges to be appointed....”", "Direct appointment system", "13. In the direct appointment system the appointing body can be the Head of State. This is the case in Albania, upon the proposal of the High Council of Justice; in Armenia, based on the recommendation of the Judicial Council; in the Czech Republic; in Georgia, upon the proposal of the High Council of Justice; in Greece, after prior decision of the Supreme Judicial Council; in Ireland; in Italy upon the proposal of the High Council of the Judiciary; in Lithuania, upon the recommendations submitted by the “special institution of judges provided by law”; in Malta, upon the recommendation of the Prime Minister; in Moldova, upon proposal submitted by the Superior Council of Magistrates; in the Netherlands at the recommendation of the court concerned through the Council for the Judiciary; in Poland on the motion of the National Council of the Judiciary in Romania based on the proposals of the Superior Council of Magistracy; in the Russian Federation judges of ordinary federal courts are appointed by the President upon the nomination of the Chairman of the Supreme Court and of the Chairman of the Higher Arbitration Court respectively - candidates are normally selected on the basis of a recommendation by qualification boards; in Slovakia on the basis of a proposal of the Judiciary Council; in Ukraine, upon the proposal of the High Council of Justice.", "14. In assessing this traditional method, a distinction needs to be made between parliamentary systems where the president (or monarch) has more formal powers and (semi-) presidential systems. In the former system the President is more likely to be withdrawn from party politics and therefore his or her influence constitutes less of a danger for judicial independence. What matters most is the extent to which the head of state is free in deciding on the appointment. It should be ensured that the main role in the process is given to an independent body – the judicial council. The proposals from this council may be rejected only exceptionally, and the President would not be allowed to appoint a candidate not included on the list submitted by it. As long as the President is bound by a proposal made by an independent judicial council (see below), the appointment by the President does not appear to be problematic.”", "(b) Opinion on the Draft [2017 Amending Act], on the Draft [2017 Act on the Supreme Court] proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts", "140. The Opinion on the Draft [2017 Amending Act], on the Draft [2017 Act on the Supreme Court] proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts adopted by the Venice Commission at its 113th Plenary Session on 11 December 2017 (Opinion No. CDL-AD(2017)031), read, in so far as relevant, as follows:", "“17. In the past decades many new European democracies created judicial councils – compound bodies with functions regarding the appointment, training, promotion and discipline of judges. The main function of such a body is to ensure the accountability of the judiciary, while preserving its independence. The exact composition of the judicial councils varies, but it is widely accepted that at least half of the council members should be judges elected by their peers. The Venice Commission recalls its position expressed in the Rule of Law Checklist, in the Report of the Judicial Appointments and in the Report on the Independence of the Judicial System (Part I: The Independence of Judges) to the effect that “a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself”....", "A. The Draft Act on the National Council of the Judiciary", "...", "1. New method of election of 15 judicial members of the NCJ", "...", "24. [The draft 2017 Amending Act] is at odds with the European standards (as far as those countries which have a judicial council are concerned), since the 15 judicial members are not elected by their peers, but receive their mandates from Parliament. Given that six other members of the NCJ are parliamentarians, and four others are ex officio members or appointed by the President of the Republic (see Article 187 § 1 of the Constitution), the proposed reform will lead to a NCJ dominated by political nominees. Even if several ‘minority candidates’ are elected, their election by Parliament will inevitably lead to more political influence on the composition of the NCJ and this will also have immediate influence on the work of this body, which will become more political in its approach ...", "B. The Draft Act on the Supreme Court", "...", "1. Creation of new chambers", "...", "36. In principle, the Venice Commission sees no difficulty with the division of chambers with specialised jurisdiction within a supreme court. However, in the case of Poland, the newly created Extraordinary [Review] and Public Affairs Chamber (hereinafter – the ‘Extraordinary Chamber’) and Disciplinary Chamber are worth particular mention. These two chambers will have special powers which put them over and above the other chambers. They will also include lay members who will be selected by the Senate and appointed on the benches on a case-by-case basis by the First President of the SC.", "37. The Extraordinary Chamber will be de facto above other chambers because it will have the power to review any final and legally binding judgment issued by the ‘ordinary’ chambers (Articles 25 and 86). In addition, this chamber will be entrusted with the examination of politically sensitive cases (electoral disputes, validation of elections and referendums, etc.), and will examine other disputes between citizens and the State.", "38. The Disciplinary Chamber will also be given special status in the sense that it will have jurisdiction over disciplinary cases of judges of ‘ordinary’ chambers (Article 26), and will deal with the cases of excessive length of proceedings in other chambers of the SC. It will also be competent to deal with other disciplinary cases which may fall within the jurisdiction of the SC. That being said, the Venice Commission sees a greater justification for the creation of a special disciplinary chamber entrusted with the competency to deal with disciplinary cases of the SC judges, by comparison with the creation of the Extraordinary Chamber...", "40. The Draft Act proposes to create new chambers, which will be headed by largely autonomous office-holders. The heads of those two new chambers will be appointed directly by the President of the Republic under special rules, and will have a comparable legitimacy with the First President. In respect of the Disciplinary Chamber the First President will have very few powers, which weakens his role within the SC, foreseen by the Constitution. Furthermore, by virtue of their special competencies, the two chambers will be de facto superior to other, “ordinary” chambers of the SC. Establishing such hierarchy within the SC is problematic. It creates “courts within the court” which would need a clear legal basis in the Constitution, since the Constitution only provides for one SC, its decision being final.", "...", "6. Cumulative effect of the proposed amendments", "89. The proposed reform, if implemented, will not only threaten the independence of the judges of the Supreme Court, but also create a serious risk for the legal certainty and enable the President of the Republic to determine the composition of the chamber dealing with the politically particularly sensitive electoral cases. While the Memorandum speaks of the ‘de-communization’ of the Polish judicial system, some elements of the reform have a striking resemblance with the institutions which existed in the Soviet Union and its satellites ...", "92. These two chambers [the Disciplinary Chamber and the Extraordinary Chamber] will have a special status: while notionally they are a part of the SC, in reality they are above all other chambers. Hence, there is a risk that the whole judicial system will be dominated by these new judges, elected with the decisive influence of the ruling majority. Moreover, their powers will extend even back in time, since the “extraordinary control” powers will give the Extraordinary Chamber the possibility to revive any old case decided up to twenty years ago ...", "95. In sum, the two Draft Acts put the judiciary under direct control of the parliamentary majority and of the President of the Republic. This is contrary to the very idea of separation of powers, proclaimed by Article 10 of the Polish Constitution, and of the judicial independence, guaranteed by Article 173 thereof. Both principles form also an integral part of the constitutional heritage of all European states governed by the rule of law. The Venice Commission, therefore, urges the Polish authorities to subject the two Draft Acts to a deep and comprehensive revision.", "IV. Conclusions", "130. Several key aspects of the reform raise particular concern and call for the following recommendations:", "A. The Presidential Draft Act on the National Council of the Judiciary", "- The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act.", "B. The Presidential Draft Act on the Supreme Court", "- The creation of two new chambers within the Supreme Court (Disciplinary Chamber and Extraordinary Chamber), composed of newly appointed judges, and entrusted with special powers, puts theses chambers above all others and is ill ‑ advised. The compliance of this model with the Constitution must be checked; in any event, lay members should not participate in the proceedings before the Supreme Court;", "- The proposed system of the extraordinary review of final judgments is dangerous for the stability of the Polish legal order. It is in addition problematic that this mechanism is retroactive and permits the reopening of cases decided long before its enactment (as from 1997);", "- The competency for the electoral disputes should not be entrusted to the newly created Extraordinary Chamber; ...", "131. The Venice Commission stresses that the combination of the changes proposed by the three documents under consideration, and of the 2016 Act on Public Prosecutor’s Office amplifies the negative effect of each of them to the extent that it puts at serious risks the independence of all parts of the judiciary in Poland.”", "(c) Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe", "141. The Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on Amendments to the Law on the Ordinary Courts, the [2017 Act on the Supreme Court], and some other laws adopted on 16 January 2020 and endorsed by the Venice Commission on 18 June 2020 by written procedure replacing the 123 rd Plenary Session (Opinion No. 977/2020), reads, in so far as relevant, as follows:", "“10. The simultaneous and drastic reduction of the involvement of judges in the work of the [NCJ], filling the new chambers of the Supreme Court with newly appointed judges, mass replacement of court presidents, combined with the important increase of the powers of the President of the Republic and of the Minister of Justice/Prosecutor General – and this was the result of the 2017 reform – was alarming and led to the conclusion that the 2017 reform significantly reduced the independence of the Polish judiciary vis-à-vis the Government and the ruling majority in Parliament ...", "V. Conclusions", "61. Other solutions have to be found. In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the 2017 Opinion of the Venice Commission, namely:", "• to return to the election of the 15 judicial members of the National Council of the Judiciary (the NCJ) not by Parliament but by their peers;", "• to significantly revise the composition and internal structure of the two newly created ‘super-chambers’, and reduce their powers, in order to transform them into normal chambers of the Supreme Court;", "• to return to the pre-2017 method of election of candidates to the position of the First President of the Supreme Court, or to develop a new model where each candidate proposed to the President of the Republic enjoys support of a significant part of the Supreme Court judges;", "• to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; to ensure that court presidents cannot be appointed.”", "Consultative Council of European Judges", "(a) The 2007 Opinion", "142. In Opinion no. 10 (2007) of 23 November 2007 on “the Council for the Judiciary at the service of society” the Consultative Council of European Judges (“CCJE”) made the following relevant observations:", "“15. The composition of the Council for the Judiciary shall be such as to guarantee its independence and to enable it to carry out its functions effectively.", "16. The Council for the Judiciary can be either composed solely of judges or have a mixed composition of judges and non judges. In both cases, the perception of self-interest, self protection and cronyism must be avoided.", "17. When the Council for the Judiciary is composed solely of judges, the CCJE is of the opinion that these should be judges elected by their peers.", "18. When there is a mixed composition (judges and non judges), the CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers....", "III. C. 1. Selection of judge members", "25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.", "26. The selection can be done through election or, for a limited number of members (such as the presidents of Supreme Court or Courts of appeal), ex officio.", "27. Without imposing a specific election method, the CCJE considers that judges sitting on the Council for the Judiciary should be elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels.", "28. Although the roles and tasks of professional associations of judges and of the Council for the Judiciary differ, it is independence of the judiciary that underpins the interests of both. Sometimes professional organisations are in the best position to contribute to discussions about judicial policy. In many states, however, the great majority of judges are not members of associations. The participation of both categories of judges (members and non-members of associations) in a pluralist formation of the Council for the Judiciary would be more representative of the courts. Therefore, judges’ associations must be allowed to put forward judge candidates (or a list of candidates) for election, and the same arrangement should be available to judges who are not members of such associations. It is for states to design an appropriate electoral system including these arrangements.”", "(b) Magna Carta of Judges", "143. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant paragraphs read as follows:", "“ Rule of law and justice", "1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner.", "Judicial Independence", "2. Judicial independence and impartiality are essential prerequisites for the operation of justice.", "3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence.", "4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment.", "Guarantees of independence", "5. Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence....", "Body in charge of guaranteeing independence", "13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.”", "(c) The 2017 Opinion", "144. In its 12 October 2017 “Opinion of the CCJE Bureau following the request of the Polish National Council of the Judiciary to provide an opinion with respect to the Draft Act of September 2017 presented by the President of Poland amending the Act on the Polish National Council of the Judiciary and certain other acts [6] ” (CCJE-BU(2017)9REV), the CCJE stated among other things as follows:", "“11. Thus, the most significant concerns caused by the adopted and later vetoed act on the Council related to:", "- the selection methods for judge members of the Council;", "- the pre-term removal of the judges currently sitting as members of the Council;", "- the structure of the Council.", "12. Out of these concerns, the only significant change in the present draft presented by the President of Poland is the requirement for a majority of 3/5 in Sejm for electing 15 judge members of the Council. However, this does not change in any way the fundamental concern of transferring the power to appoint members of the Council from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure. This risk may be said to be even greater with the new draft, since it provides that if a 3/5 majority cannot be reached, those judges having received the largest number of votes will be elected.", "15. In addition, the CCJE Bureau recalls that the OSCE/ODIHR adopted its Final Opinion on 5 May 2017 on the previous draft, underlining that “the proposed amendments would mean, in brief, that the legislature, rather than the judiciary would appoint the fifteen judge representatives to the Judicial Council and that legislative and executive powers would be allowed to exercise decisive influence over the process of selecting judges. This would jeopardize the independence of a body whose main purpose is to guarantee judicial independence in Poland", "F. Conclusions", "20. The Bureau of the CCJE, which represents the CCJE members who are serving judges from all Council of Europe member States, reiterates once again that the Draft Act would be a major step back as regards judicial independence in Poland. It is also worrying in terms of the message it sends about the value of judges to society, their place in the constitutional order and their ability to provide a key public function in a meaningful way.", "21. In order to fulfil European standards on judicial independence, the judge members of the National Council of the Judiciary of Poland should continue to be chosen by the judiciary. Moreover, the pre-term removal of the judges currently sitting as members of the Council is not in accordance with European standards and it endangers basic safeguards for judicial independence.", "22. The Bureau of the CCJE is deeply concerned by the implications of the Draft Act for the principle of the separation of powers, as well as that of the independence of the judiciary, as it effectively means transferring the power to appoint members of the Polish National Council of the Judiciary from the judiciary to the legislature. The CCJE Bureau recommends that the Draft Act be withdrawn and that the existing law remain in force. Alternatively, any new draft proposals should be fully in line with the standards of the Council of Europe regarding the independence of the judiciary.”", "(d) The 2020 Report", "145. In its “Report on judicial independence and impartiality in the Council of Europe member States (2019 edition)” of 30 March 2020 (9 CCJE-BU(2020)3) the CCJE made the following observations, among other things:", "“17. The ECtHR and the CCJE have recognised the importance of institutions and procedures guaranteeing the independent appointment of judges. The CCJE has recommended that every decision relating to a judge’s appointment, career and disciplinary action be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, to ensure that it is not taken other than on the basis of such criteria. Political considerations should be inadmissible irrespective of whether they are made within Councils for the Judiciary, the executive, or the legislature”.", "GRECO", "146. In the light of the judicial reform of 2016-2018 in Poland, GRECO, Group of States against Corruption, decided at its 78th Plenary meeting (4 ‑ 8 December 2017) to apply its ad-hoc procedure to Poland.", "(a) Rule 34 Report of June 2018", "147. As a result, GRECO adopted addendum to the Fourth Round Evaluation Report on Poland (Rule 34) at its 80th Plenary Meeting (Strasbourg, 18-22 June 2018). It addressed the following recommendations to Poland. Firstly, to amend the provisions on the election of judges to the NCJ, to ensure that at least half of the members of the NCJ are judges elected by their peers. Secondly to reconsider the establishment of the Chamber of Extraordinary Review and Public Affairs and Disciplinary Chamber at the Supreme Court and to reduce the involvement of the executive in the internal organisation of the Supreme Court. In respect of the structural changes in the Supreme Court and creation of two new Chambers, GRECO stated:", "“31. These structural reforms have been subject to extensive criticism in broad consensus by the international community, including bodies such as the Venice Commission, the Consultative Council of European Judges (CCJE), OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the European Commission. For example, concerns have been raised that the procedure of extraordinary appeals is ‘dangerous for the stability of the Polish legal order’ and additionally problematic due to its retroactivity, permitting the reopening of cases determined long before the enactment of the LSC, which is not limited to newly established facts. Furthermore, the establishment of the special chambers for extraordinary appeals and for disciplinary matters has been criticised for creating a hierarchy within the court, in that these two chambers have been granted special status and may be seen as superior to the other ‘ordinary chambers’: the extraordinary appeals chamber may examine decisions taken by the ‘ordinary chambers’ of the SC, the disciplinary chamber having jurisdiction over disciplinary cases of judges sitting in the other chambers as well as a separate budget (and, in addition, judges of the disciplinary chamber receive a 40% higher salary). Moreover, the use of lay judges at the SC, which has been introduced as a way of bringing in a ‘social factor’ into the system, according to the Polish authorities, has also been criticised, partly for being alien to other judicial systems in Europe at the level of supreme courts, but also due to the unsuitability of lay persons for determining significant cases involving legal complexities. The fact that they are elected by the legislature, which has the potential of compromising their independence, is a particular concern in this respect.”", "(b) Rule 34 Report of December 2019", "148. At its 84th Plenary Meeting (Strasbourg, 2 ‑ 6 December 2019, GrecoRC4(2019)23) GRECO adopted a Second Addendum to the Second Compliance Report including Follow-up to the Addendum to the Fourth Round Evaluation Report (Rule 34) of June 2018. The report was published on 16 December 2019. It concluded that “nothing ha[d] been done to amend the provisions on the elections of members of the National Council of the Judiciary, which in its current composition [did] not meet Council of Europe standards, to reduce the involvement of the executive in the internal organisation of the Supreme Court [and] to amend the disciplinary procedures applicable to Supreme Court judges”.", "European UnionEuropean Union law", "European Union law", "European Union law", "(a) The Charter of Fundamental Rights of the European Union", "149. Article 47 of the Charter of Fundamental Rights of the European Union (“the Charter”), reads, in so far as relevant:", "“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.", "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”", "(b) Treaty on European Union", "150. Article 2 of the Treaty on European Union (“TEU”) provides:", "“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are ordinary to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”", "Article 19(1) TEU reads as follows:", "“1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.", "Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”", "(c) Consolidated version of the Treaty on the Functioning of the European Union", "151. Article 267 of the Consolidated version of the Treaty on the Functioning of the European Union (“TFEU”) provides:", "“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:", "(a) the interpretation of the Treaties;", "(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.", "If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”", "(d) Council Directive 2000/78/EC", "152. Article 9 (1) of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Official Journal L 303, p. 16) concerns the “defence of rights” and reads:", "“Member States shall ensure that judicial and/or administrative procedures ... for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.”", "The European Commission", "(a) Initiation of the rule of law framework", "153. On 13 January 2016 the European Commission (“the Commission”) decided to examine the situation in Poland under the Rule of Law Framework. The exchanges between the Commission and the Polish Government were unable to resolve the concerns of the Commission. The Rule of Law Framework provided guidance for a dialogue between the Commission and the member State concerned to prevent the escalation of systemic threats to the rule of law.", "154. On 27 July and 21 December 2016 the Commission adopted two recommendations regarding the rule of law in Poland, concentrating on issues pertaining to the Constitutional Court. In particular, the Commission found that there was a systemic threat to the rule of law in Poland, and recommended that the Polish authorities take appropriate action to address this threat as a matter of urgency. The Commission recommended, inter alia, that the Polish authorities: (a) implement fully the judgments of the Constitutional Court of 3 and 9 December 2015 which required that the three judges who had been lawfully nominated in October 2015 by the previous legislature be permitted to take up their judicial duties as judges of the Constitutional Court, and that the three judges nominated by the new legislature in the absence of a valid legal basis not be permitted to take up their judicial duties without being validly elected; and (b) publish and implement fully the judgments of the Constitutional Court of 9 March 2016, and ensure that the publication of future judgments was automatic and did not depend on any decision of the executive or legislative powers.", "(b) Rule of Law Recommendation (EU) 2017/1520 (third recommendation)", "155. On 26 July 2017 the Commission adopted a third Recommendation regarding the Rule of Law in Poland, which complemented its two earlier recommendations. The concerns of the Commission related to the lack of an independent and legitimate constitutional review, and the new legislation relating to the Polish judiciary, which would structurally undermine the independence of the judiciary in Poland and would have an immediate and concrete impact on the independent functioning of the judiciary as a whole. In its third recommendation, the Commission considered that the situation whereby there was a systemic threat to the rule of law in Poland, as presented in its two earlier recommendations, had seriously deteriorated. The Commission reiterated that, notwithstanding the fact that there was a diversity of justice systems in Europe, ordinary European standards had been established on safeguarding judicial independence. The Commission observed – with great concern – that following the entry into force of the new laws referred to above, the Polish judicial system would no longer be compatible with European standards in this regard.", "(c) Rule of Law Recommendation (EU) 2018/103 (fourth recommendation)", "156. On 20 December 2017 the Commission adopted a fourth Recommendation regarding the rule of law in Poland finding that the concerns raised in earlier recommendations had not been addressed and the situation of systemic threat to the rule of law had seriously deteriorated further. In particular, it stated that “the new laws raised serious concerns as regards their compatibility with the Polish Constitution as underlined by a number of opinions, in particular from the Supreme Court, the [NCJ] and the Polish Commissioner for Human Rights”. However, as explained in the Rule of Law Recommendation of 26 July 2017, an effective constitutional review of these laws was no longer possible. The Commission stated:", "“31. Also, the new regime for appointing judges-members of the [NCJ] raises serious concerns. Well established European standards, in particular the 2010 Recommendation of the Committee of Ministers of the Council of Europe, stipulate that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where such a Council has been established, as it is the case in Poland, its independence must be guaranteed in line with European standards. 32. Until the adoption of the law on the [NCJ], the Polish system was fully in line with these standards since the [NCJ] was composed of a majority of judges chosen by judges. Articles 1(1) and 7 of the law amending the law on the [NCJ] would radically change this regime by providing that the 15 judges-members of the [NCJ] will be appointed, and can be re-appointed, by Sejm. In addition, there is no guarantee that under the new law Sejm will appoint judges-members of the Council endorsed by the judiciary, as candidates to these posts can be presented not only by groups of 25 judges, but also by groups of at least 2 000 citizens. Furthermore, the final list of candidates to which Sejm will have to give its approval en bloc is pre-established by a committee of Sejm. The new rules on appointment of judges-members of the [NCJ] significantly increase the influence of the Parliament over the Council and adversely affect its independence in contradiction with the European standards. The fact that the judges-members will be appointed by Sejm with a three fifths majority does not alleviate this concern, as judges-members will still not be chosen by their peers. In addition, in case such a three fifths majority is not reached, judges-members of the Council will be appointed by Sejm with absolute majority of votes.", "33. This situation raises concerns from the point of view of the independence of the judiciary. For example, a district court judge who has to deliver a judgment in a politically sensitive case, while the judge is at the same time applying for a promotion to become a regional court judge, may be inclined to follow the position favoured by the political majority in order not to put his/her chances to obtain the promotion into jeopardy. Even if this risk does not materialise, the new regime does not provide for sufficient guarantees to secure the appearance of independence which is crucial to maintain the confidence which tribunals in a democratic society must inspire in the public. Also, assistant judges will have to be assessed by a politically influenced [NCJ] prior to their appointment as judge.", "34. The Venice Commission concludes that the election of the 15 judicial members of the National Council of the Judiciary by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far-reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the [NCJ] should be elected by their peers, as in the current Act. It also observed that the law weakens the independence of the Council with regard to the majority in Parliament and contributes to a weakening of the independence of justice as a whole....”", "“3. FINDING OF A SYSTEMIC THREAT TO THE RULE OF LAW", "38. Consequently, the Commission considers that the situation of a systemic threat to the rule of law in Poland as presented in its Recommendations of 27 July 2016, 21 December 2016, and 26 July 2017 has seriously deteriorated further.", "39. The Commission underlines that whatever the model of the justice system chosen, the rule of law requires to safeguard the independence of the judiciary, separation of powers and legal certainty. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary the role of which is to safeguard judicial independence. However, where such a Council has been established by a Member State, as it is the case in Poland where the Polish Constitution has entrusted explicitly the [NCJ] with the task of safeguarding judicial independence, the independence of such Council must be guaranteed in line with European standards. It is with great concern that the Commission observes that as a consequence of the new laws referred to above, the legal regime in Poland would no longer comply with these requirements.”", "(d) Reasoned Proposal in Accordance with Article 7(1) TEU Regarding the Rule of Law in Poland", "157. On 20 December 2017 the Commission launched the procedure under Article 7(1) TEU. This was the first time the procedure had been used. The Commission submitted a Reasoned Proposal (COM/2017/0360) to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach by the Republic of Poland of the rule of law, which was one of the values referred to in Article 2 TEU, and to address appropriate recommendations to Poland in this regard. Its relevant parts read as follows:", "“(135). The law modifies the internal structure of the Supreme Court, supplementing it with two new chambers. A new chamber of extraordinary control and public matters will assess cases brought under the new extraordinary appeal procedure. It appears that this new chamber will be composed in majority of new judges and will ascertain the validity of general and local elections and examining electoral disputes, including electoral disputes in European Parliament elections. In addition, a new autonomous disciplinary chamber composed solely of new judges will be tasked with reviewing in the first and second instance disciplinary cases against Supreme Court judges. These two new largely autonomous chambers composed with new judges raise concerns as regards the separation of powers. As noted by the Venice Commission, while both chambers are part of the Supreme Court, in practice they are above all other chambers, creating a risk that the whole judicial system will be dominated by these chambers which are composed of new judges elected with a decisive influence of the ruling majority. Also, the Venice Commission underlines that the law will make the judicial review of electoral disputes particularly vulnerable to political influence, creating a serious risk for the functioning of Polish democracy ...”", "5. Finding a clear risk of a serious breach of the values referred to in Article 2 TEU", "...", "(172). The Commission is of the opinion that the situation described in the previous sections represents a clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU. The Commission comes to this finding after having considered the facts set out above.", "(173). The Commission observes that within a period of two years more than 13 consecutive laws have been adopted affecting the entire structure of the justice system in Poland: the Constitutional [Court], the Supreme Court, the ordinary courts, the [NCJ], the prosecution service and the National School of Judiciary. The ordinary pattern of all these legislative changes is that the executive or legislative powers have been systematically enabled to interfere significantly with the composition, the powers, the administration and the functioning of these authorities and bodies. The legislative changes and their combined effects put at serious risk the independence of the judiciary and the separation of powers in Poland which are key components of the rule of law. The Commission also observes that such intense legislative activity has been conducted without proper consultation of all the stakeholders concerned, without a spirit of loyal cooperation required between state authorities and without consideration for the opinions from a wide range of European and international organisations.”", "158. The procedure under Article 7(1) TEU is still under consideration before the Council of the European Union.", "The European Parliament", "(a) The 2017 Resolution", "159. On 15 November 2017 the European Parliament adopted a resolution on the situation of the rule of law and democracy in Poland (2017/2931(RSP)). The resolution reiterated that the independence of the judiciary was enshrined in Article 47 of the Charter and Article 6 of the Convention, and was an essential requirement of the democratic principle of the separation of powers, which was also reflected in Article 10 of the Polish Constitution. It expressed deep concern at the redrafted legislation relating to the Polish judiciary, in particular, its potential to undermine structurally judicial independence and weaken the rule of law in Poland. The Polish Parliament and the Government were urged to implement fully all recommendations of the Commission and the Venice Commission, and to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary. In this respect it called for postponement of the adoption of any laws until a proper assessment had been made by the Commission and the Venice Commission.", "(b) The 2020 Resolution", "160. The European Parliament’s resolution of 17 September 2020 on the proposal for a Council decision on the determination of a clear risk of a serious breach of the rule of law by the Republic of Poland (2017/0360R(NLE)), in so far as relevant, reads as follows:", "“The composition and functioning of the Disciplinary Chamber and Extraordinary Chamber of the Supreme Court", "[The European Parliament]", "20. Recalls that, in 2018, two new chambers within the Supreme Court were created, namely the Disciplinary Chamber and the Extraordinary Chamber, which were staffed with newly appointed judges selected by the new National Council of the Judiciary and entrusted with special powers – including the power of the Extraordinary Chamber to quash final judgments taken by lower courts or by the Supreme Court itself by way of extraordinary review, and the power of the Disciplinary Chamber to discipline other judges of the Supreme Court and of ordinary courts, creating de facto a ‘Supreme Court within the Supreme Court’;", "21. Recalls that, in its ruling of 19 November 2019, the Court of Justice, answering a request for a preliminary ruling by the Supreme Court (Labour and Social Security Chamber, hereinafter the ‘Labour Chamber’) concerning the Disciplinary Chamber, ruled that national courts have a duty to disregard provisions of national law which reserve jurisdiction to hear a case where Union law may be applied to a body that does not meet the requirements of independence and impartiality;", "22. Notes that the referring Supreme Court (Labour Chamber) subsequently concluded in its judgment of 5 December 2019 that the Disciplinary Chamber does not fulfil the requirements of an independent and impartial tribunal within the meaning of Polish and Union law, and that the Supreme Court (Civil, Criminal and Labour Chambers) adopted a resolution on 23 January 2020 reiterating that the Disciplinary Chamber is not a court due to its lack of independence and therefore its judgments cannot be considered to be judgments given by a duly appointed court; notes with grave concern that the Polish authorities have declared that those decisions are of no legal significance when it comes to the continuing functioning of the Disciplinary Chamber and the new National Council of the Judiciary, and that the Constitutional [Court] declared the Supreme Court resolution unconstitutional on 20 April 2020, creating a dangerous judiciary duality in Poland in open violation of the primacy of Union law and in particular of Article 19(1) TEU as interpreted by the Court of Justice in that it prevents the effectiveness and application of the Court of Justice’s ruling of 19 November 2019 by the Polish courts;", "23. Notes the order of the Court of Justice of 8 April 2020 instructing Poland to immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber and calls on the Polish authorities to swiftly implement the order; calls on the Polish authorities to fully comply with the order and calls on the Commission to submit an additional request to the Court of Justice seeking that payment of a fine be ordered in the event of persisting non-compliance; calls on the Commission to urgently start infringement proceedings in relation to the national provisions on the powers of the Extraordinary Chamber, since its composition suffers from the same flaws as the Disciplinary Chamber;", "The composition and functioning of the new National Council of the Judiciary", "24. Recalls that it is up to the Member States to establish a council for the judiciary, but that, where such council is established, its independence must be guaranteed in line with European standards and the Member State’s constitution; recalls that, following the reform of the National Council of the Judiciary, which is the body responsible for safeguarding the independence of the courts and judges in accordance with Article 186(1) of the Polish Constitution, by means of the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts, the judicial community in Poland was deprived of the power to delegate representatives to the National Council of the Judiciary, and hence its influence on recruitment and promotion of judges; recalls that before the reform, 15 out of 25 members of the National Council of the Judiciary were judges elected by their peers, while since the 2017 reform, those judges are elected by the Polish parliament; strongly regrets that, taken in conjunction with the premature termination in early 2018 of the mandates of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the National Council of the Judiciary;", "25. Recalls that the Supreme Court, implementing the criteria set out by the Court of Justice in its judgment of 19 November 2019, found in its judgment of 5 December 2019 and in its decisions of 15 January 2020, as well as in its resolution of 23 January 2020, that the decisive role of the new National Council of the Judiciary in the selection of the judges of the newly created Disciplinary Chamber undermines the latter’s independence and impartiality; is concerned about the legal status of the judges appointed or promoted by the new National Council of the Judiciary in its current composition and about the impact their participation in adjudicating may have on the validity and legality of proceedings;", "26. Recalls that the European Network of Councils for the Judiciary suspended the new National Council of the Judiciary on 17 September 2018 because it no longer fulfilled the requirements of being independent of the executive and legislature and initiated the expulsion procedure in April 2020; ...", "67. Calls on the Council to resume the formal hearings - the last of which was held as long ago as December 2018 - as soon as possible and to include in those hearings all the latest and major negative developments in the areas of rule of law, democracy and fundamental rights; urges the Council to finally act under the Article 7(1) TEU procedure by finding that there is a clear risk of a serious breach by the Republic of Poland of the values referred to in Article 2 TEU, in the light of overwhelming evidence thereof as displayed in this resolution and in so many reports of international and European organisations, the case law of the Court of Justice and the European Court of Human Rights and reports by civil society organisations; strongly recommends that the Council address concrete recommendations to Poland, as provided for in Article 7(1) TEU, as a follow‑up to the hearings, and that it indicate deadlines for the implementation of those recommendations; calls furthermore on the Council to commit to assessing the implementation of these recommendations in a timely manner; calls on the Council to keep Parliament regularly informed and closely involved and to work in a transparent manner, to allow for meaningful participation and oversight by all European institutions and bodies and by civil society organisations; ...”", "Court of Justice of the European Union", "(a) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland of 24 June 2019 (Case C-619/18)", "161. On 24 June 2019 the Grand Chamber of the Court of Justice of the European Union (“CJEU”) delivered its judgment in the case of Commission v. Poland, which mainly concerned the lowering of the retirement age for Supreme Court judges to 65 and which applied to judges of the court appointed before the date on which the relevant law had entered into force. The CJEU held, in so far as relevant, as follows:", "“ 111. In that connection, the fact that an organ of the State such as the President of the Republic is entrusted with the power to decide whether or not to grant any such extension is admittedly not sufficient in itself to conclude that that principle has been undermined. However, it is important to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them....", "115. In the second place, with regard to the fact that the New Law on the Supreme Court provides that the National Council of the Judiciary is required to deliver an opinion to the President of the Republic before the latter adopts his or her decision, it is admittedly true that the intervention of such a body, in the context of a procedure for extending the period during which a judge carries out his or her duties beyond the normal retirement age, may, in principle, be such as to contribute to making that procedure more objective.", "116. However, that is only the case in so far as certain conditions are satisfied, in particular in so far as that body is itself independent of the legislative and executive authorities and of the authority to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of criteria which are both objective and relevant and is properly reasoned, such as to be appropriate for the purposes of providing objective information upon which that authority can take its decision.”", "(b) Judgment of the Court of Justice of the European Union (Grand Chamber) of 19 November 2019 ( A.K. and Others, Independence of the Disciplinary Chamber of the Supreme Court; Joined Cases C ‑ 585/18, C ‑ 624/18, C ‑ 625/18)", "162. In August and September 2018, the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before it. The requests mainly concerned the question whether the newly established Disciplinary Chamber of the Supreme Court of Poland satisfied, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required under Article 47 of the Charter of Fundamental Rights of the European Union. The questions read as follows:", "“In Case C ‑ 585/18, the questions referred are worded as follows:", "‘(1) On a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear an action by a national court judge and which must be composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the [NCJ]), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?", "(2) If the answer to the first question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court and is seized of an appeal in a case falling within the scope of EU law should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’", "52. In Cases C ‑ 624/18 and C ‑ 625/18, the questions referred were worded as follows:", "‘(1) Should Article 47 of the [Charter], read in conjunction with Article 9(1) of [Directive 2000/78], be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claim, that court — in order to protect the rights arising from EU law by ordering an interim measure provided for under national law — must refuse to apply national provisions which confer jurisdiction, in the case in which the appeal has been lodged, on a chamber of that court which is not operational by reason of a failure to appoint judges to be its members?", "(2) In the event that judges are appointed to adjudicate within the chamber with jurisdiction under national law to hear and determine the action brought, on a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the [NCJ], which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?", "(3) If the answer to the second question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seized with an appeal in an EU case should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?”", "163. On 27 June 2019 Advocate General Tanchev delivered his opinion in which he stated, among other things:", "“130. In the light of the above considerations, I am of the view that the Disciplinary Chamber forming the subject of the main proceedings does not satisfy the requirements of independence set out in Article 47 of the Charter.", "131. I observe that the NCJ is a body whose mission is to safeguard the independence of courts and judges under the Polish constitution, and its functions include the selection of judges of the Supreme Court, including the Disciplinary Chamber, for appointment by the President of the Republic (see points 16 and 19 of this Opinion). Thus, the NCJ must be free of influence from the legislative and executive authorities in order to duly perform its tasks.", "132. Yet, the manner of appointment of the members of the NCJ itself discloses deficiencies which appear likely to compromise its independence from the legislative and executive authorities. First, this is based on the fact that, according to Article 9a of the Law on the NCJ (see point 22 of this Opinion), the 15 judicial members of the NCJ are no longer appointed by the judges, but instead by Sejm. This means that the NCJ is composed of a majority of 23 of 25 members coming from the legislative and executive authorities.", "133. Moreover, according to Article 11a(2) of the Law on the NCJ, candidates for the judicial members of the NCJ can be proposed by groups of at least 2,000 Polish citizens or 25 judges. Pursuant to Article 11d of that law, the election of those members to the NCJ is carried out by Sejm by a majority of 3/5 of the votes cast in the presence of at least half of the deputies entitled to vote (see points 24 and 25 of this Opinion).", "134. Accordingly, it may be considered that the manner of appointment of the NCJ members entails influence of the legislative authorities over the NCJ, and it cannot be discounted that Sejm may choose candidates with little or no support from judges, with the result that the judicial community’s opinion may have insufficient weight in the process of the election of the NCJ members. Irrespective of the alleged aims of enhancing the democratic legitimacy and the representativeness of the NCJ, this arrangement is apt to adversely affect the independence of the NCJ.", "135. It should also be borne in mind that the changes to the manner of appointment of the judicial members of the NCJ were accompanied by the premature termination of the mandates of the members of the NCJ. It has not been disputed that the Law on the NCJ provides for early termination of the judicial members of the NCJ at the moment of the election of the new members (see points 22 and 26 of this Opinion). Notwithstanding the purported aim to unify the terms of office of the NCJ membership, the immediate replacement of the currently sitting members of the NCJ in tandem with the new regime for appointment of the NCJ may be considered to further impair the NCJ’s independence from the legislative and executive authorities.”", "164. On 19 November 2019 the CJEU delivered a preliminary ruling in Joined Cases C ‑ 585/18, C-624/18, C-625/18. Recalling that the interpretation of Article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, the Court of Justice reiterated the following principles, considered relevant in this context. It held among many other things as follows:", "“133. ... As far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited).", "134. However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland ( Independence of the Supreme Court ), C‑619/18, EU:C:2019:531, paragraph 111).", "136. In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary.", "137. The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82). In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the Sąd Najwyższy (Supreme Court) to the existence of a favourable opinion of the [NCJ] is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office.", "138. However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 116).", "139. The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.", "140. It is for the referring court to ascertain whether or not the [NCJ] offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role.", "141. The referring court has pointed to a series of elements which, in its view, call into question the independence of the [NCJ].", "142. In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable.", "143. Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2,000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the [NCJ] directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ].", "144. For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive.", "145. Furthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sąd Najwyższy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the [NCJ], of the scope of the action which may be brought challenging a resolution of the [NCJ], including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81).", "146. Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the [NCJ] in that regard, the referring court may, for the purposes of ascertaining whether that chamber and its members meet the requirements of independence and impartiality arising from Article 47 of the Charter, also wish to take into consideration various other features that more directly characterise that chamber.", "147. That applies, first, to the fact referred to by the referring court that this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social Security and retirement of judges of the Sąd Najwyższy (Supreme Court), which previously fell within the jurisdiction of the ordinary courts.", "148. Although that fact is not conclusive per se, it should, however, be borne in mind, as regards, in particular, cases relating to the retiring of judges of the Sąd Najwyższy (Supreme Court) such as those in the main proceedings, that the assignment of those cases to the Disciplinary Chamber took place in conjunction with the adoption, which was highly contentious, of the provisions of the New Law on the Supreme Court which lowered the retirement age of the judges of the Sąd Najwyższy (Supreme Court), applied that measure to judges currently serving in that court and empowered the President of the Republic with discretion to extend the exercise of active judicial service of the judges of the referring court beyond the new retirement age set by that law.", "149. It must be borne in mind, in that regard, that, in its judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court) (C ‑ 619/18, EU:C:2019:531), the Court found that, as a result of adopting those measures, the Republic of Poland had undermined the irremovability and independence of the judges of the Sąd Najwyższy (Supreme Court) and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.", "150. Second, in that context, the fact must also be highlighted, as it was by the referring court, that, under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly appointed judges, thereby excluding judges already serving in the Sąd Najwyższy (Supreme Court).", "151. Third, it should be made clear that, although established as a chamber of the Sąd Najwyższy (Supreme Court), the Disciplinary Chamber appears, by contrast to the other chambers of that court, and as is clear inter alia from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.", "171. In the light of all of the foregoing considerations, the answer to the second and third questions referred in Cases C ‑ 624/18 and C ‑ 625/18 is:", "Article 47 of the Charter and Article 9(1) of Directive 2000/78 [7] must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.", "It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”", "(c) Judgment of the Court of Justice of the European Union (Grand Chamber) of 2 March 2021 (C ‑ 824/18)", "165. In a request of 21 November 2018, supplemented on 26 June 2019, the Supreme Administrative Court applied to the CJEU for a preliminary ruling in cases involving persons who had applied for a position of judge at the Supreme Court, Civil and Criminal Chambers, but had not obtained a recommendation of the NCJ, which proposed other candidates instead. The first of the referred cases concerned appellant A.B., who had not been recommended to the Civil Chamber of the Supreme Court and who appealed against NCJ resolution no. 330/2018 to the Supreme Administrative Court. In that case the Supreme Administrative Court decided to stay the enforcement of the impugned resolution of NCJ (see paragraphs 38-45 and 122-125 above).", "166. On 17 December 2020 Advocate General Tanchev delivered his opinion, which he concluded by the following proposal for the interpretation of the Article 19(1) TEU in conjunction with Article 267 TFEU (see paragraphs 150 and 151 above):", "“V. Conclusion", "...", "1. In view of the context and constellation of other elements present in Poland, as pointed out by the referring court ( inter alia : (a) the Polish legislature amending the national legal framework in order to make infringement actions and preliminary references before the Court become devoid of purpose; (b) that in spite of the fact that the referring court had suspended the [NCJ] resolutions at issue, the President of the Republic proceeded anyway to appoint to the position of judge of the Supreme Court concerned eight new judges proposed by the [NCJ] in the resolutions at issue here; and (c) the Polish legislature, in passing the Law of 26 April 2019, ignored rulings from the Constitutional Court which make clear that there should be judicial review of [NCJ] resolutions such as those in the main proceedings), Article 267 TFEU should be interpreted as precluding a national law such as the Law of 26 April 2019 in that that law decreed that proceedings such as those before the referring court should be discontinued by operation of law while at the same time excluding any transfer of the review of the appeals to another national court or the bringing again of the appeals before another national court;", "- the above arising in a context where the national court originally having jurisdiction in those cases has referred questions to the Court of Justice for a preliminary ruling following the successful initiation of the procedure for reviewing the [NCJ] resolutions, undermines the right of access to a court also in so far as, in the individual case pending before the court (originally) having jurisdiction to hear and determine it, it then denies that court both the possibility of successfully initiating preliminary ruling proceedings before the Court of Justice and the right to wait for a ruling from the Court, thereby undermining the EU principle of sincere cooperation.", "The removal of the (right to a) judicial remedy which was until then open in a case such as the one in the main proceedings and, in particular, the application of such a removal to litigants who – much as the applicants in the main proceedings – have already introduced such an action constitutes (in view of the context and constellation of the other elements pointed out by the referring court underlying that elimination) a measure of a nature which contributes to – indeed reinforces – the absence of the appearance of independence and impartiality on the part of the judges effectively appointed within the court concerned as well as the court itself. Such an absence of the appearance of independence and impartiality violates the second subparagraph of Article 19(1) TEU.”", "167. On 2 March 2021 the CJEU delivered a preliminary ruling. The CJEU noted that under the rules amended in July 2018 it was provided that unless all the participants in a procedure for appointment to a position as judge at the Supreme Court challenged the relevant resolution of the NCJ, that resolution became final. In 2019 the rules were changed again, and it became impossible to lodge appeals against decisions of the NCJ concerning the recommendation or non-recommendation of candidates for appointment to judicial positions of the Supreme Court. Moreover, that reform declared such still pending appeals to be discontinued by operation of law, de facto depriving the Supreme Administrative Court of its jurisdiction on such matters. The court ruled:", "“Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the Sąd Najwyższy (Supreme Court, Poland) against decisions of a body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling:", "...", "– the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.", "Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.”", "(d) Pending cases before the Court of Justice of the European Union", "(i) Case C-791/19", "168. The Commission brough proceedings against Poland for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU and the second and third paragraphs of Article 267 TFEU on account of national measures establishing the new disciplinary regime for the judges of the Supreme Court and the ordinary courts instituted by legislation adopted in 2017. In particular the Commission contended that the Republic of Poland has infringed the second subparagraph of Article 19(1) TEU on four grounds regarding: first, the treatment of the content of judicial decisions as a disciplinary offence; second, the lack of independence and impartiality of the Disciplinary Chamber of the Supreme Court, third, the discretionary power of the President of that Chamber to designate the competent court, which prevents disciplinary cases from being decided by a court established by law; and, fourth, the failure to guarantee the examination of disciplinary cases within a reasonable time and the rights of the defence of accused judges.", "The Commission also claimed that Poland had infringed the second and third paragraphs of Article 267 TFEU because the right of national courts to make a reference for a preliminary ruling was limited by the possible initiation of disciplinary proceedings against judges who exercised that right.", "169. On 8 April 2020 the CJEU (Grand Chamber) issued an interim order in a case initiated by the Commission and concerning disciplinary proceedings against judges pending before the Disciplinary Chamber of the Supreme Court. The interim order stated (translated from French):", "“The Republic of Poland is required, immediately and until the delivery of the judgment bringing to an end the proceedings in Case C-791/19,", "- to suspend the application of the provisions of Article 3(5), Article 27 and Article 73(1) of the [Act on the Supreme Court of 8 December 2017], as amended, constituting the basis for the jurisdiction of the [Disciplinary Chamber of the Supreme Court] to decide, both at first instance and on appeal, in disciplinary cases relating to judges;", "- to refrain from transferring cases pending before the [Disciplinary Chamber of the Supreme Court] to a judicial formation that does not meet the requirements of independence defined, inter alia, in the judgment of 19 November 2019, A. K. and others (Independence of the Disciplinary Chamber of the Supreme Court) (C ‑ 585/18, C-624/18 and C-625/18, EU:C:2019:982); and", "- to communicate to the European Commission, no later than one month after the notification of the Court’s order ordering the requested interim measures, all the measures it has adopted in order to comply fully with that order.”", "170. On 6 May 2021 Advocate General Tanchev delivered his opinion in which he considered the complaints raised by the Commission to be well founded. With respect to the CJEU judgment of 19 November 2019 in the joined cases (see paragraph 164 above) the Advocate General stated:", "“95...Indeed, in my view, the judgment in A. K. and Others provides strong support for finding that, on the basis of the combination of elements invoked by the Commission and which were examined in that judgment, the Disciplinary Chamber does not meet the requirements of independence and impartiality under the second subparagraph of Article 19(1) TEU. As I concluded in my Opinion in that case, the mandates of the previous [NCJ] members were prematurely terminated and the changes to the method of appointment of the judicial members means that 23 out of 25 [NCJ] members come from the legislative and executive authorities which, taken together, disclose deficiencies that compromise the [NCJ’s] independence (See Opinion in A.K. and Others (points 131 to 137) .”", "The opinion concluded with a following proposal to the CJEU:", "“(1) declare that by allowing, pursuant to Article 107(1) of the Law on the ordinary courts and Article 97(1) and (3) of the Law on the Supreme Court, the content of judicial decisions to be treated as a disciplinary offence; by failing to guarantee, pursuant to Articles 3(5), 27 and 73(1) of the Law on the Supreme Court and Article 9a of the Law on the [NCJ], the independence and impartiality of the Disciplinary Chamber; by granting, pursuant to Articles 110(3) and 114(7) of the Law on the ordinary courts, the President of the Disciplinary Chamber the power to designate the competent disciplinary court of first instance in cases concerning ordinary court judges; by granting, pursuant to Article 112b of the Law on the ordinary courts, the Minister for Justice the power to appoint a Disciplinary Officer of the Minister for Justice and by providing, pursuant to Article 113a of the Law on the ordinary courts, that activities related to the appointment of ex officio defence counsel and that counsel’s taking up of the defence do not have a suspensive effect on the course of the proceedings and, pursuant to Article 115a(3) of the Law on the ordinary courts, that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his or her defence counsel, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;", "(2) declare that, by allowing the right of national courts to make a reference for a preliminary ruling to be limited by the possibility of the initiation of disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;”", "The date for the delivery of judgment in the case was set for 15 July 2021.", "(ii) Case C-508/19 M.F. v J.M.", "171. On 3 July 2019 the Supreme Court lodged with the CJEU a request for a preliminary ruling concerning the process of judicial appointments to the Disciplinary Chamber of the Supreme Court. The domestic proceedings concerned a District Court judge, M.F., against whom, on 17 January 2019, disciplinary proceedings were instituted. In those proceedings it was alleged that her conduct resulted in overly lengthy proceedings and that she had failed to draw up written grounds for her judgments in a timely manner. On 28 January 2019, J.M., acting as a judge of the Supreme Court performing the duties of the President of the Supreme Court who directed the work of the Disciplinary Chamber, issued an order rendering the disciplinary court competent to hear her case at first instance. M.F. brought an action for a declaratory judgment together with an application for an injunction against J.M., seeking to establish that the latter was not a judge of the Supreme Court because he had not been appointed to the position of judge of the Supreme Court in the Disciplinary Chamber. According to the claimant his appointment on 20 September 2018 was ineffective because he had been appointed: (i) after the selection procedure had been conducted by the NCJ on the basis of an announcement of the President of the Republic of Poland, of 29 June 2018, which had been signed by the President without the countersignature of the Prime Minister; (ii) after the resolution of the NCJ which contained the motion to appoint J.M. to the position of Supreme Court judge in the Disciplinary Chamber had been appealed against to the Supreme Administrative Court on 17 September 2018 by one of the participants in the selection procedure, and before that court had ruled on the appeal. By order of 6 May 2019, the First President of the Supreme Court designated the Labour and Social Security Chamber to hear the case; the latter decided to stay the proceedings and refer questions to the CJEU for a preliminary ruling.", "172. On 15 April 2021 Advocate General Tanchev delivered his opinion, in which he observed as follows:", "“22. I consider (as does the [Polish Commissioner for Human Rights]) that the connecting factors between the action in the main proceedings and the EU law provisions raised in the questions referred relate to the fact that a national judge (M.F.) who may rule on the application or interpretation of EU law is asking that she is afforded, in the context of a disciplinary action levelled against her, the benefit of the effective judicial protection guaranteed by Article 19(1) TEU in the light of Article 47 of the Charter. Such protection implies an obligation for the Member States to ‘provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions’, (3) which means that M.F. has a right to be judged by an independent and impartial court established by law. That also means that the tribunal called upon to rule on her disciplinary procedure cannot be appointed by a judge whose own appointment breached the very same provision of EU law even though he himself gives rulings relating to the application or interpretation of EU law...", "26. Indeed, it follows from the order for reference that there were numerous potentially flagrant breaches of the law applicable to judicial appointments in the appointment procedure in respect of J.M.: (i) the procedure was opened without the ministerial countersignature required under the Constitution, which it is claimed renders the procedure void ab initio; (ii) it involved the new [NCJ] whose members were appointed under a new legislative process, which is unconstitutional and does not guarantee independence; (iii) there were diverse deliberate impediments to the preliminary judicial review of the act of appointment, as: (a) the [NCJ] deliberately failed to forward the action brought against its resolution to the Supreme Administrative Court, at the same time as it sent it to the President of the Republic, before the deadline to do so before that court expired; (b) the President of the Republic appointed the judges proposed in that resolution before the judicial review of that resolution was closed and without waiting for the answer of the Court of Justice to the questions referred to it in case C‑824/18, concerning the conformity of the modalities of that control with EU law. Therefore, the President of the Republic committed a potentially flagrant breach of fundamental norms of national law...", "34. Unlike the Commission, I consider that this is an extension of the answer given to the first question and, as follows from my Opinion and from the judgment in A.B. and Others, an executive authority of a Member State is required to refrain from delivering a document of appointment to the position of judge until a national court, taking into account the judgment given by the Court of Justice on the reference for a preliminary ruling, has ruled on the compatibility of national law with EU law with respect to the procedure for appointing members of a new organisational unit in the court of final instance of that Member State. Failure to do so would be an infringement of the principle of effective judicial protection, since at the very least it creates a serious risk that judicial authorities which do not meet EU standards will be established, even if only temporarily. I agree with the [Polish Commissioner for Human Rights] that it would also potentially infringe Articles 4(3) TEU and 267 TFEU, as the President of the Republic would limit the effet utile of the preliminary ruling procedure and would circumvent the binding character of the decisions of the Court.", "35. National courts should have a remedy to treat as a qualified breach of the principle of effective judicial protection any actions taken by the authorities of a Member State following a request for a preliminary ruling made by a national court where the purpose or effect of such actions might be to nullify or limit the principle of the retroactive ( ex tunc ) effect of preliminary rulings given by the Court.", "36. What is important in the context of the present case, and as was pointed out by the referring court, is that the delivery of the document of appointment to the position of judge in the Disciplinary Chamber may constitute an intentional infringement of the principle of effective judicial protection. Moreover, this was, it seems, accompanied by the conviction, stemming from previous national case-law, that the appointment to the position of judge of the Supreme Court is irreversible. As follows from the answer to the first question, that conviction is wrong.", "37. In addition, I agree with the referring court that a person appointed to the position of judge of the Supreme Court in such circumstances may well remain dependent on how the authorities involved in his appointment assess his judicial activity during the period in which he performs his judicial mandate. The referring court states that in its view such dependence exists, especially on the executive, that is, the President of the Republic....", "39. ...The referring court must, in that respect, assess the manifest and deliberate character of that breach as well as the gravity of the breach and must take into account the fact that J.M. was appointed despite a prior appeal to the competent national court against the resolution of the [NCJ], which included a motion for the appointment of that person to the position of judge and which was still pending at the relevant time...", "53. ... In view of the fact that the review of the validity of J.M. (the defendant judge’s) appointment cannot be carried out in any other national procedure and that the only possibility to examine that status as judge is in the context of a disciplinary procedure exposing M.F. (the applicant judge) to sanctions which is not compliant with the requirements of the principle of effective judicial protection, the referring court should be able to rule that that appointment did not exist in law even where national law does not authorise it to do so.", "54. In that respect, I consider (as does the [Polish Commissioner for Human Rights]) that the national authorities may not take refuge behind arguments based on legal certainty and irremovability of judges. Those arguments are just a smokescreen and do not detract from the intention to disregard or breach the principles of the rule of law. It must be recalled that law does not arise from injustice ( ex iniuria ius non oritur ). If a person was appointed to such an important institution in the legal system of a Member State as is the Supreme Court of that State in a procedure which violated the principle of effective judicial protection, then he or she cannot be protected by the principles of legal certainty and irremovability of judges.”", "(iii) Case C-487/19 W.Ż.", "173. On 26 June 2019 the Civil Chamber of the Supreme Court lodged a request with the CJEU for a preliminary ruling. The case originated in proceedings brought by Judge W.Ż. seeking the withdrawal of judges of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On 8 March 2019 the Chamber of Extraordinary Review and Public Affairs, sitting as a single Judge, A.S., dismissed the appeal lodged by W.Ż. against a resolution of the NCJ discontinuing the proceedings concerning his transfer from the second-instance to a first-instance division of a Regional Court. W.Ż. was a member and spokesperson of the former NCJ and has publicly criticised the judicial reforms in Poland carried out by the ruling party.", "174. On 15 April 2021 Advocate General Tanchev delivered his opinion, in which he observed as follows:", "“39. The referring court has already established that in the appointment procedure by which A.S. was appointed as a judge of the Supreme Court there were flagrant and deliberate breaches of Polish laws relating to judicial appointments. ...", "(1) First limb of the question referred: appointment of judges before the Supreme Administrative Court gave a ruling in the pending action attacking [NCJ] resolution No 331/2018", "50. The salient point here is whether the fact that there was an ongoing judicial review of [NCJ] resolutions (adopted in the course of the Supreme Court appointment procedure) has (or should have) suspensory effect...", "57. In making its assessment the national court will need to have regard to the guidance provided here and in the judgment A.B. and Others and to any other relevant circumstances of which it may become aware, taking account, where appropriate, of the reasons and specific objectives alleged before it in order to justify the measures concerned. In addition, the court will need to assess whether national provisions, such as those contained in Article 44(1a) to (4) of the [2011 Act on the NCJ as amended by the 2017 Amending Act], are such as to give rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed on the basis of the [NCJ] resolutions to external factors and, in particular, to the direct or indirect influence of the Polish legislature and executive, and as to their neutrality with respect to any interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law. ...", "60. As the [Polish Commissioner for Human Rights] rightly submitted, in accordance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the appointment process must not give rise to reasonable doubts, in the minds of the subjects of the law, as to the imperviousness of the judges concerned to external factors, once the interested parties are appointed as judges. Therefore, given the key role played by the [NCJ] in the judicial appointment process and the absence of legal review of the decisions of the President of the Republic appointing a judge, it is necessary that effective legal review exists for the judicial candidates. That is particularly the case where, as in this instance, the State, by way of its conduct, is interfering in the process of appointing judges in a manner which risks compromising the future independence of those judges. The required legal review should: (a) happen before the appointment, as the judge is thus protected a posteriori by the principle of irremovability; (b) cover at least an ultra vires or improper exercise of authority, error of law or manifest error of assessment; and (c) allow clarification of all the aspects of the appointment procedure, including the requirements under EU law, if appropriate, by submitting questions to the Court inter alia concerning the requirements stemming from the principle of effective judicial protection. ...", "63. As a consequence, the act of appointment as judge of the Supreme Court adopted by the President of the Republic before the Supreme Administrative Court ruled definitively on the action brought against Resolution No 331/2018 of the [NCJ] constitutes a flagrant breach of national rules governing the procedure for the appointment of judges to the Supreme Court, when those rules are interpreted in conformity with applicable EU law (in particular, the second subparagraph of Article 19(1) TEU).", "(2) Second limb of the question referred: appointment to the post of judge of the Supreme Court despite the order of the Supreme Administrative Court suspending the execution of the [NCJ] resolution proposing the appointment of candidates", "64. It will ultimately be for the referring court to assess this point on the basis of all the relevant elements, but to my mind the irregularity committed during the appointment of the judge of the CECPA ( 22 ) in question (judge A.S.) stems a fortiori from the fact that he was appointed within the Supreme Court and within that chamber despite the decision of the Supreme Administrative Court ordering that the execution of [NCJ] resolution No 331/2018 be stayed.§ 65. Therefore, I agree with the referring court and also W.Ż., the [Polish Commissioner for Human Rights] and the Commission that the deliberate and intentional infringement by the executive branch of a judicial decision, in particular a decision of the Supreme Administrative Court ordering interim measures (that is, the order of 27 September 2018) – manifestly with the aim of ensuring that the government has an influence on judicial appointments – demonstrates a lack of respect for the principle of the rule of law and constitutes per se an infringement by the executive branch of ‘fundamental rules forming an integral part of the establishment and functioning of that judicial system’ within the meaning of paragraph 75 of judgment of 26 March 2020, Review Simpson and HG v Council and Commission (C ‑ 542/18 RX ‑ II and C ‑ 543/18 RX ‑ II, EU:C:2020:232) (‘the judgment in Simpson and HG’). ...", "77. In Ástráðsson v. Iceland, the Grand Chamber of the ECtHR – largely upholding the chamber ruling of 12 March 2019 – ruled that, given the potential implications of finding a breach and the important interests at stake, the right to a ‘tribunal established by law’ should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right. The ECtHR thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law: step 1, whether there has been a manifest breach of domestic law (§§ 244 and 245 of that judgment); step 2, whether breaches of domestic law pertained to any fundamental rule of the judicial appointment procedure (§§ 246 and 247); and step 3, whether the alleged violations of the right to a ‘tribunal established by law’ were effectively reviewed and remedied by the domestic courts (§§ 248 to 252).", "78. The above principles apply not only in the case of infringements of provisions governing specifically the appointment procedure stricto sensu, but, as the present case shows, they must also apply in the case of disregard of judicial control introduced in relation to previous acts of appointment having a constitutive character vis-à-vis that appointment (such as [NCJ] resolution No 331/2018 here).", "79. As the Commission pointed out, in relation to the rules of appointment of judges, it is not surprising that both the ECtHR (in the judgment of 1 December 2020 Ástráðsson v. Iceland, § 247) and the Court (in the judgment in Simpson and HG, paragraph 75) make a direct link between the requirement that a tribunal must be established by law and the principle of judicial independence in the sense that it is necessary to examine whether an irregularity committed during the appointment of judges ‘create[s] a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned’ ( Simpson and HG, paragraph 75). ...", "84. As far as the requirement ‘established by law’ is concerned, as pointed out by the [Polish Commissioner for Human Rights], the strict respect of appointment rules is necessary, as it gives the appointed judge the feeling that he or she obtained the position purely on the basis of their qualifications and objective criteria and at the end of a reliable procedure, avoiding the creation of any relation of dependence between the judge and the authorities intervening in that appointment. In the present case, the referring court established, in a convincing manner, on the one hand, that the effective legal review of the judicial appointment process constitutes a requirement flowing from the constitutional principles relating to the independence of the judiciary and to the subjective rights of access to a public function and to a court or tribunal and, on the other hand, that the appointment of the judge concerned arose in breach of that effective legal review and of the judicial decision having suspended the enforceability of [NCJ] resolution No 331/2018. ...", "87. The manifest and deliberate character of the violation of the order of the Supreme Administrative Court staying the execution of [NCJ] Resolution No 331/2018, committed by such an important State authority as the President of the Republic, empowered to deliver the act of appointment to the post of judge of the Supreme Court, is indicative of a flagrant breach of the rules of national law governing the appointment procedure for judges.", "88. In relation to the criterion of gravity, to my mind, given the general context of the contentious judicial reforms in Poland, the gravity of the breaches in the present case is more serious than the irregularities at issue in Ástráðsson v. Iceland.", "89. In any event, the very fact that the President of the Republic paid no heed to the final decision of the Supreme Administrative Court – that is, the administrative court of final instance – ordering interim measures and staying the execution of [NCJ] Resolution No 331/2018 until that court rules on the main action pending before it, indicates the gravity of the breach that was committed.", "90. The Court has already made clear that the respect by competent national authorities of a Member State of interim measures ordered by national courts constitutes ‘an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.’", "(c) Effects on the act of appointment of A.S. to the post of judge of the Supreme Court and/or on the order of 8 March 2019 in the light of the principles of legal certainty and of irremovability of judges", "91. In order to provide the referring court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions, it is necessary also to examine the effects of the finding that A.S. sitting in a single-judge formation may not constitute a tribunal established by law. ...", "105. In other words, in the present case, a potential infringement in the case in the main proceedings of the requirement for a tribunal to be previously established by law does not imply that the act of appointment of judge A.S. – the judge who gave the order of inadmissibility – is invalid per se.", "106. For the reasons set out above, I propose that the Court should answer the question referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) as follows:", "The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that a court such as the court composed of a single person of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (Poland) does not meet the requirements to constitute such a tribunal established by law in a situation where the judge concerned was appointed to that position in flagrant breach of the laws of the Member State applicable to judicial appointments to the Supreme Court, which is a matter for the referring court to establish. The referring court must, in that respect, assess the manifest and deliberate character of that breach as well as the gravity of the breach and must take into account the fact that the above appointment was made: (i) despite a prior appeal to the competent national court against the resolution of the National Council of the Judiciary, which included a motion for the appointment of that person to the position of judge and which was still pending at the relevant time; and/or (ii) despite the fact that the implementation of that resolution had been stayed in accordance with national law and those proceedings before the competent national court had not been concluded before the delivery of the appointment letter.”", "European Network of Councils for the Judiciary", "175. On 16 August 2018 the European Network of Councils for the Judiciary (ENCJ) adopted its “Position Paper of the Board of the ENCJ on the membership of the [NCJ] of Poland” and formulated a proposal to suspend the NCJ’s membership. Accordingly, on 17 September 2018, the Extraordinary General Assembly of the ENCJ decided to suspend the membership of the Polish NCJ (see paragraph 15 above). The relevant parts of the Position Paper read as follows:", "“The present law concerning the [NCJ] came into effect in January 2018. The essence of the reform is that the judicial members of the [NCJ] are no longer elected by their peers but are instead appointed by Parliament. Judges may be appointed by Parliament if they are supported by 25 judges or a group of 2000 citizens. The Board considers that this is a departure from the ENCJ standard that judges in a council should be elected by their peers. Although, non-compliance with this standard does not automatically imply that a council is not independent from the executive, in the case of the Polish Council the Board finds so many additional circumstances that it has reached the conclusion that the [NCJ] is no longer independent from the executive. These circumstances include the following:", "- The law on the [NCJ] is part of an overall reform to strengthen the position of the executive, infringing very seriously the independence of the judiciary;", "- The reasons given for these reforms are not convincing to the Board;", "- It is not clear to the Board whether, and if so, in what way the reforms should and will contribute to the official goals of the government on the subject of the alleged corruption, inefficiency and communist influence;", "- The reforms are not the fruit of the required involvement of the judiciary in the formation and implementation of plans for reform;", "- The term of office of four of the sitting [NCJ]-members has been shortened;", "- In the selection process of a judicial member of the [NCJ] the lists of supportive judges are not made public, and so it cannot be checked whether the list consists primarily of judges seconded to the Ministry of Justice, or of the same 25 judges for every candidate; The judicial members of the [NCJ] have not published the list of supporting judges themselves, but they have instead provided the ENCJ only with a list showing the number of judges they were supported by;", "- The associations of judges informed the Board that four of the present judicial members were until shortly before their election as member of the [NCJ] seconded to the Ministry of Justice; They also informed the Board that five of the members of the [NCJ] were appointed president of a court by the Minister of Justice shortly before their election as members of the [NCJ], using a law mentioned in paragraph 4.3;", "- Thirdly, they informed the Board that a majority of the members of the [NCJ] (14 out of 25) are either a member of the Law and Justice Party, a member of the government or are chosen by Parliament on the recommendation of the Law and Justice Party. The [NCJ] decides by simple majority;", "- The judicial members of the [NCJ] support all the justice reforms from the government, although they admit that the majority of the judges are of the opinion that the reforms are in violation of the Constitution and are infringing the independence of the judiciary;", "- Several members of the [NCJ] expressed the opinion that judges who publicly speak out against the reforms and/or speak out in defence of the independence of the judiciary should be disciplined because of unlawful political activity;", "- The [NCJ] does not speak out on behalf of the judges who defend the independence of the judiciary. For example: the judges in Krakow were publicly called criminals by the Prime Minister of Poland, and the [NCJ] did not object to it. The same goes for the [NCJ]’s attitude concerning the position of the First President of the Supreme Court;", "- A large portion of the 10,000 Polish judges believe that the [NCJ] is politicised.", "In short: The Board considers that the [NCJ] is no longer the guardian of the independence of the judiciary in Poland. It seems instead to be an instrument of the executive.", "6. Conclusion", "The Board considers that the [NCJ] does not comply with the statutory rule of the ENCJ that a member should be independent from the executive.", "The Board believes that the [NCJ] is no longer an institution which is independent of the executive and, accordingly, which guarantees the final responsibility for the support of the judiciary in the independent delivery of justice.", "Moreover, the Board feels that actions of the [NCJ] or the lack thereof, as set out in paragraph 5, are constituting a breach of the aims and objectives of the network, in particular the aim of improvement of cooperation between and good mutual understanding amongst Councils for the Judiciary of the EU and Candidate Member States in accordance with article 3 of the Statutes.", "7. Proposal of the Board", "In the circumstances, the Board proposes to the General Assembly, convening in Bucharest on the 17th September 2018, that the membership of the [NCJ] be suspended.", "With this measure, the ENCJ sends a clear message to the Polish government and the Polish judges that the ENCJ considers that the [NCJ] is no longer independent from the executive.", "By suspension – and not expulsion - the ENCJ also intends to express an open mind for the possibility for improvement on the topic of judicial independence in Poland. In this way it can continue to monitor the situation concerning the Rule of Law in Poland, for instance as to the disciplinary actions against judges who oppose the reforms.", "The Board sincerely hopes that the time will come when the suspension can be lifted, but that will only be when the principle of judicial independence is properly respected in Poland.”", "176. On 27 May 2020 the Executive Board of the ENCJ adopted a “Position Paper of the board of the ENCJ on the membership of the [NCJ] (expulsion)”. In that paper the Board set out the reasons for its proposal to the General Assembly to expel the NCJ from the network. No decision has yet been taken on that proposal. The relevant parts of the paper read as follows:", "“... the Executive Board is of the opinion that the situation has not improved from 17 September 2018 until now, but has deteriorated on several issues.", "First. The relations between the [NCJ] and the Minister of Justice are even closer than suspected in the position paper of 16 August 2018. At the meeting of November 2019 the [NCJ] did not criticize the government at all. After enormous pressure, the lists of judges who supported the present members of the [NCJ] as candidates (a minimum of 25 supporting judges was required to be appointed), show support by a narrow group of judges associated with the Minister of Justice, including 50 judges seconded to the ministry. One candidate was appointed without the required minimum of 25 signatures from judges.", "Secondly. The [NCJ] openly supports the Executive and Legislature in its attacks on the independence of the Judiciary, especially by means of disciplinary actions. The answers of the [NCJ] in the letter of 13 March 2020 on these points strengthen the Executive Board in its opinion. In the answer to question 1, the [NCJ] acknowledges that 49 judges supporting the appointment of members of the [NCJ] were seconded to the Ministry of Justice, and thus cannot be viewed as independent from the ministry for the purposes of the ENCJ. In the answer to question 2, the [NCJ] acknowledges that many signatures of judges supporting the candidacy of member N. had been withdrawn before the election, thus casting doubt on the validity of his election, yet he continues to fulfil the role of a validly elected member of the council. In the answer to question 3, the [NCJ] only reiterates that it is not its task to monitor the declarations of the Minister of Justice and does not deny that the Minister of Justice has said in the Senate that he proposed judges to be appointed in the [NCJ] who, in his opinion, were ready to cooperate in the reform of the Judiciary. This amounts to a failure to promote the independence of the council and its members from the executive. In the answer to question 4, the [NCJ] argues that the members of the [NCJ] are not the representatives of judges, which is incompatible with the ENCJ Budapest Declaration 2008 that judicial members of a council must act as the representatives of the entire judiciary. The letter of 20 May 2020 makes no convincing argument against the conclusion that the [NCJ] does not fulfil the requirement of being independent of the executive.", "On the basis of both its actions and its responses the Executive Board concludes that the [NCJ] is still not independent of the Executive and the Legislature.", "...", "10. Conclusion of the Executive Board", "First. The Board considers that the [NCJ] does not comply with the statutory rule of the ENCJ that a member should be independent from the executive.", "Second. The Board considers that the [NCJ] is in blatant violation of the ENCJ rule to safeguard the independence of the Judiciary, to defend the Judiciary, as well as individual judges, in a manner consistent with its role as guarantor, in the face of any measures which threaten to compromise the core values of independence and autonomy.", "Third. The Board considers that the [NCJ] undermines the application of EU Law as to the independence of judges and tribunals, and thus its effectiveness. In doing so, it acts against the interests of the European Area of freedom, security and justice, and the values it stands for....", "“11. Proposal of the Executive Board", "In the circumstances, the Board proposes to the General Assembly, convening as soon as possible as the Covid-19 pandemic allows it, that the [NCJ] be expelled as a member of the network.", "With this measure, the ENCJ sends a clear message to the Polish government and the Polish judges that the ENCJ considers that the [NCJ] is no longer a member of the European family of Members and Observers who believe in, and support the European Area of freedom, security and justice, and the values it stands for.", "The ENCJ wants to make absolutely clear that it remains very much committed to the independence of the Polish Judiciary, our Colleague European Union Judges, and that it will continue to cooperate with all the judicial associations in order to defend and restore the independence of the Polish judiciary as soon as possible. Once a Council of the Judiciary in Poland again believes in and acts in support of the values of the ENCJ, the ENCJ will be happy to welcome any such Council back as a member.”", "THE LAW", "PRELIMINARY REMARKS", "177. The present case belongs to a group of thirty-eight applications against Poland, lodged in 2018-2021, concerning various aspects of the reorganisation of the Polish judicial system initiated in 2017 (see also paragraphs 1-125 above). As of the date of adoption of the present judgment the Court has given notice of twenty-two applications to the Polish Government, in accordance with Rule 54 § 2 (b). The Chamber of the First Section of the Court has also decided that all the current and future applications belonging to that group be given priority, pursuant to Rule 41.", "In most cases (twenty apart from the present one), the applicants’ complaints either relate to the issue of whether the newly established chambers of the Supreme Court, in particular the Disciplinary Chamber, have attributes required of a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention or to the questions linked with the jurisdiction of the Disciplinary Chamber in disciplinary proceedings concerning judges, prosecutors and members of the legal profession. Some cases also concern allegations that judicial formations including judges of the ordinary courts appointed by the President of Poland following a recommendation from the “new” NCJ, as composed by virtue of the 2017 Amending Act, fail to meet the requirements of a “tribunal established by law.", "There are also two cases concerning a premature termination of the term of office of judicial members of the “old” NCJ under the 2017 Amending Act and allegations of a breach of Article 6 § 1 of the Convention on account of the lack of access to a court to contest their dismissal from the “old” NCJ, in breach of Article 6 of the Convention. One of those cases – Grzęda v. Poland (no. 43572/18) – is currently pending before the Grand Chamber of the Court.", "Having regard to the variety of legal and factual issues arising in the above group of cases, the Court would emphasise at the outset that its task in the present case is not to consider the legitimacy of the reorganisation of the Polish judiciary as a whole but to assess the circumstances relevant for the process of appointment of judges to the Disciplinary Chamber of the Supreme Court following the entry into force of the 2017 Act on the Supreme Court establishing that Chamber (see paragraphs 66 ‑ 69 above and paragraph 178 below).", "MATERIAL BEFORE THE COURT", "178. The Court further notes that it is a matter of common knowledge that the reorganisation of the judiciary in Poland initiated by the Government in 2017 and implemented by the successive amending laws (see paragraphs 8-25 above) has, since then, been the subject not only of intense public debate in Poland and at European level but also of numerous proceedings before the Polish courts and the CJEU, of other actions before the European Union’s institutions, including the procedure under Article 7(1) TEU before the European Commission, of European Parliament resolutions, of the PACE monitoring procedure and its resolutions, and of various reports of the Council of Europe’s bodies, the UN, the OSCE/ODIHR and the ENCJ (see paragraphs 126-176 above). In view of the foregoing, the Court in its examination of the case will take into account the submissions of the parties and the third-party interveners and evidence produced by them in support of their arguments, and will also take judicial notice of the material available in the public domain, as summarised above and in so far as relevant for the determination of the applicant’s complaints alleging a breach of Article 6 § 1 of the Convention in that she did not have her case heard by an impartial and independent tribunal established by law.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW", "179. The applicant complained under Article 6 § 1 of the Convention that the Disciplinary Chamber of the Supreme Court, which had dealt with her case, had not been a “tribunal established by law” within the meaning of that provision. The applicant relied on Article 6 § 1 of the Convention, which, in its relevant part, reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”", "AdmissibilityApplicability of Article 6 § 1", "Applicability of Article 6 § 1", "Applicability of Article 6 § 1", "(a) The parties’ submissions", "180. The Government did not dispute the applicability of Article 6 § 1 of the Convention under its civil head to the disciplinary proceedings in the applicant’s case.", "181. The applicant submitted that Article 6 § 1 of the Convention applied to her case under its criminal head. She noted that the disciplinary proceedings had first been conducted by the disciplinary bodies of the Bar Association. The penalty imposed by them had been of a punitive character and consisted of the suspension of her right to practise as a barrister for a period of three years. The severity of the sanction by itself had brought the offence into the criminal sphere. Moreover, the Polish Code of Criminal Procedure had been applicable to those proceedings as they concerned a violation of the Code of Ethics of Barristers.", "(b) The Court’s assessment", "182. The Court notes that the Government have not raised an objection of incompatibility ratione materiae with the provisions of Article 6 § 1 of the Convention. However, the parties disagreed as to whether this Article applied to the case under its civil or criminal head.", "183. It is the Court’s well-established case-law that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “ contestations ” (disputes) over civil rights within the meaning of Article 6 § 1 (see for instance, Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997 ‑ IV, and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II). This principle has been applied with regard to proceedings conducted before various professional disciplinary bodies and in particular as regards judges in Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016, prosecutors in Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, § 160, 17 October 2019, and practising lawyers in Malek v. Austria, no. 60553/00, § 39, 12 June 2003, and Helmut Blum v. Austria, no. 33060/10, § 60, 5 April 2016.", "184. The applicant in the present case is a practising lawyer, a barrister, who was temporarily suspended from her duties as a consequence of the disciplinary proceedings. The Court sees no reason to depart from its case-law cited above. It considers that there is no basis for finding that the disciplinary proceedings against the applicant concerned the determination of a criminal charge against her within the meaning of Article 6 of the Convention as submitted by the applicant (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 127, 6 November 2018, and Müller-Hartburg v. Austria, no. 47195/06, § 49, 19 February 2013).", "185. Accordingly, Article 6 § 1 of the Convention under its civil head applies to the impugned proceedings before the Disciplinary Chamber of the Supreme Court.", "Conclusion as to admissibility", "186. The Court notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other of the grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions before the Court", "Submissions before the Court", "Submissions before the Court", "(a) The parties", "(i) The applicant", "187. The applicant submitted that her case had not been heard by an impartial and independent “tribunal established by law” and that this constituted a breach of Article 6 § 1 of the Convention. Firstly, the judges who had dealt with her case had been selected on a political basis and had not been independent or impartial. Secondly, the entire Disciplinary Chamber of the Supreme Court was of a political character, as shown by its activity against the judges who had opposed the reforms of the judicial system.", "188. The applicant stated that, in accordance with the Court’s case-law, in particular the judgment in Guðmundur Andri Ástráðsson ([GC], no. 26374/18, 1 December 2020), a court must always be “established by law”. In the light of this requirement the Court was called upon to examine whether the domestic law had been complied with. In the present case the long series of irregularities which had resulted in the conclusion that the panel of judges of the Disciplinary Chamber which examined her case had not been a “tribunal established by law” had started with the structural changes to the NCJ. Contrary to the Constitution, which held that Sejm should only select four members of the NCJ, the 2017 Amending Act entrusted Sejm with the election of fifteen additional members, from among judges, who had so far been elected by their peers. As a result, the legislative and executive branches of power had granted themselves a quasi-monopoly to appoint the members of the NCJ in that they were to appoint twenty-three out of twenty-five members. This amounted to a breach of the Constitutional principle of separation of powers and ran counter to the previous case-law of the Constitutional Court from 2007. As a result, the NCJ had lost the ability to contribute to making the judicial appointment process objective. The applicant drew the Court’s attention to other cases pending before the Court concerning the termination of the terms of office of previous members of the NCJ ( Grzęda v. Poland, no. 43572/18) and the Disciplinary Chamber’s rulings against judges who had criticised the “reforms of the judiciary” ( Tuleya v. Poland, no. 21181/19). These cases showed that the activity of the Disciplinary Chamber was strongly politicised.", "189. The process of appointment of Supreme Court judges had not been transparent or independent, and was in breach of domestic law, including the Constitution, in that the President had announced vacancies at the Supreme Court without the countersignature of the Prime Minister contrary to Article 144 § 2 of the Constitution. The selection process carried out by the NCJ had been superficial and did not offer guarantees of the independence or impartiality of the candidates selected. For instance, only 216 candidates had applied for forty-four announced positions. The NCJ had carried out a short, chaotic, and superficial examination of applications and individual interviews had taken a dozen minutes per candidate. As a result, only those candidates who had been supported by the authorities, and connected to them, had been selected.", "190. The applicant pointed to the particular status of the Disciplinary Chamber as a newly established chamber of the Supreme Court. The real objective behind its creation had been to increase the total number of judges sitting in the Supreme Court from 83 to 120 and to suppress any judicial opposition to radical and far-reaching changes in the Polish legal system implemented by the current government. The Disciplinary Chamber had been granted a budget which was separate from that of the other chambers and had an independent Statute. The applicant further stated that the CJEU had given several judgments and, in particular, an interim ruling of 8 April 2020 ordering the suspension of relevant provisions governing the activity of the Disciplinary Chamber in the disciplinary proceedings concerning judges. Pursuant to the CJEU judgment of 19 November 2019, the Polish Supreme Court had delivered the judgment of 5 December 2019 and the resolution of the joined Chambers of 23 January 2020. The conclusions of both rulings of the Supreme Court were of great relevance to the case at hand.", "191. Lastly, the applicant argued that comparisons between single elements of constitutional and legal systems in Europe, as relied on by the Government to justify the choices of the Polish legislator, might be misleading. While every member State could apply different procedures, a broader context should nevertheless be taken into consideration to assess the fulfilment of the requirement of independence and impartiality of a court, established by law, as guaranteed by the Convention. Notwithstanding the margin of appreciation afforded to the States in applying and implementing the Convention, no State should have a right to violate its Constitution for political benefit. The applicant concluded that the domestic law had been breached in the instant case and stressed the importance to the present case of the Court’s case-law on the principles of the rule of law and the separation of powers.", "(ii) The Government", "192. The Government submitted that the court which dealt with the applicant’s case had been a “tribunal established by law” as required by Article 6 § 1 of the Convention. In particular, there had been no manifest breach of domestic law in the process of appointment of judges to the Supreme Court. The Government considered that in the light of the Grand Chamber judgment in Guðmundur Andri Ástráðsson (cited above, §§ 216 and 247) the impugned violations of the domestic law must be manifest”, i.e., must be of a fundamental nature and must form an integral part of the judges’ appointment process.", "193. Under the second element of the test developed in the Guðmundur Andri Ástráðsson judgment, the key question was whether there was a real risk that the other organs of government, in particular the executive, had exercised undue discretion undermining the integrity of the appointment process to an extent not envisaged by the domestic rules in force at the material time. However, in the present case, there had been no violation of the ability of the judiciary to perform their duties free of undue interference and thereby to preserve the rule of law and the separation of powers. According to the Government, it was thus unnecessary to carry out the third step of the test as set out in the Guðmundur Andri Ástráðsson judgment (cited above) related to the examination of whether the violations had effectively been reviewed.", "194. They stressed that all judges in Poland, including those sitting in the Disciplinary Chamber of the Supreme Court, were appointed by the President, upon a proposal of the NCJ, for an indefinite period of time. The President was not bound by the recommendation of the NCJ in that he could decide not to appoint a person indicated by it. However, the President could not appoint a person who was not recommended by the NCJ. The mere fact that the judges were appointed by an executive body, the President, did not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality if once appointed they were free from influence or pressure when carrying out their role. In that respect the Government pointed to the judgment of the CJEU of 19 November 2019, which had confirmed this principle.", "195. The Government referred to systems of judicial appointments in Europe and concluded that the Polish approach did not differ from other countries. The fact that the judges were appointed by the executive seemed to be a rule in European States. They considered that in Europe the participation of representatives of judicial authorities in the procedure for appointment of judges, particularly those of the Supreme Court, was limited or not foreseen at all. In Poland, however, the judiciary participated in the procedure to a rather broad extent. The risk of excessive influence of the executive on the process of appointment of judges had thus been reduced.", "196. Furthermore, the Convention did not imply an obligation to apply a specific mode of appointment of judges to the highest courts of the Contracting States. The Convention did not require the appointment of judicial councils or their participation in the procedure for appointment of judges. Moreover, the Convention did not require the States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interactions. A certain interaction between the three branches of government was not only inevitable but also necessary to the extent that the respective powers did not unduly encroach upon one another’s functions and competencies. The Contracting States should thus be “afforded a certain margin of appreciation in connection [with] these issues since the domestic authorities [were] in principle better placed [than] the Court to assess how the interests of justice and the rule of law – with all its conflicting components – would be best served”.", "197. The Government emphasised that amendments made to the method of electing members of the NCJ and terminations of service established prior to this amendment had been proportionate, since they were aimed at adjusting the election to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in judgment no. K 5/17. The amendments had fallen within the ambit of the legislator’s margin of appreciation, limited only by the constitutional provisions pertaining to the NCJ. As a matter of fact, Article 187 § 1 (2) of the Constitution provided for an election of the judicial members of the NCJ from among judges. The Constitution did not determine, however, who would elect these judges or how they would be elected. Consequently, it could be seen from the relevant provisions of the Constitution who could be elected as a judicial NCJ member, yet there was no mention of any modalities of the election of judges to the NCJ. In accordance with Article 187 § 4 of the Constitution these modalities were to be regulated by statute. Elections by representatives of the judiciary had not been annulled, yet the position that assemblies of judges were the only competent electoral bodies was unsubstantiated on the ground of the Constitution. Whereas Article 187 § 1 (3) of the Constitution clearly stipulated that the MPs sitting on the NCJ be elected by Sejm and that senators sitting on it be elected by the Senate, the Constitution did not contain any precise provision with reference to the judicial members of the NCJ.", "198. According to the Government, this meant that the Constitution did not provide for any particular way of electing judges to the NCJ. Such a manner of regulation of this matter had been chosen by the constitutional lawmaker consciously, with a view to setting it out at the level of a statute. It was therefore legitimate that this question should be regulated within the limits of the legislator’s margin of appreciation. In this respect, the Constitution laid down a certain minimum number of fundamental safeguards. They also noted that after the amendments had entered into force, the NCJ would be elected by Sejm by a qualified majority of three-fifths of the votes, in the presence of at least half of those entitled to vote, which made this election the result of a cross-party agreement between various groups represented in Sejm and thus ensured high democratic legitimacy for the members of that body. The high qualified majority required for the election of the members of the NCJ who were judges distinguished the way in which they were elected from members who were MPs. In the latter case, the election was by a simple majority.", "199. The Government stressed that although the Court could examine both the formal aspect of the existence of law and the issues related to the process of appointment of judges within the domestic legal system, it had limited power to interpret domestic law. Moreover, the Court was limited by the principle of subsidiarity, which allowed the High Contracting States to decide which measures to take to ensure the rights and freedoms of individuals and to implement the Convention guarantees.", "200. According to the Government, the reform of the NCJ and Supreme Court had been carried out in accordance with the Constitution and national legislation. In particular, the changes to the method of electing the judicial members of the NCJ sought to implement the Constitutional Court’s judgment of 20 June 2017 (K 5/17); see paragraph 109 above), which had held that both the individual nature of the term of office of the NCJ’s judicial members and the manner of their appointment were unconstitutional. The Constitutional Court also found that the previous system had led to a differentiation in the voting power between judges of different levels of jurisdiction, which had meant that the votes cast had not been equal but had carried different weight depending on the court’s level. The Government disagreed with the applicant’s allegation that the new members of the NCJ had been associated with the authorities and maintained that the new system had strengthened the transparency of the election of the members of the NCJ and had enabled a public debate on the nominated candidates. The new system allowing the candidates to be presented by a group of citizens or other judges ensured greater representativeness of the NCJ and better reflected the structure of the Polish judiciary.", "201. The Government reiterated that even in its judgment of 19 November 2019 (nos. C-585/18, C-624/18, C-625/18) the CJEU had not challenged the legitimacy of the NCJ or the Disciplinary Chamber of the Supreme Court. It had merely pointed out that the national court could assess, in an individual case, whether the national authority – competent under national law – was an independent and impartial tribunal within the meaning of Article 47 of the Charter of Fundamental Rights. Thereby, the CJEU had confirmed that it respected the areas reserved for the member States. Although it observed in its ruling that any political factor involved in the appointment of judges might give rise to doubts and trigger an assessment of whether the court was an independent court, it also pointed out that it was only a set of factors that could lead to a final conclusion ruling out the existence of the attributes of independence and impartiality. In this context, it was also worth mentioning the CJEU judgment of 24 June 2019 (no. C-619/18), concerning the independence of the Supreme Court, in which the CJEU had emphasised the principle of the irremovability of judges. Therefore, the interpretation of the judgment of 19 November 2019, leading to the conclusion that it was permissible to deprive judges and the competent court of their right to adjudicate, was unacceptable. Such an interpretation would be contrary to the fundamental principle of the European Union – the principle of the irremovability of judges.", "202. The Government stressed that there had been no manifest violation of domestic law in the process of the appointment of judges to the Supreme Court. Any doubts regarding the Disciplinary Chamber of the Supreme Court arising in view of the Supreme Court’s resolution of 23 January 2020 had been removed by the judgment of the Constitutional Court of 20 April 2020 (U 2/20; see paragraphs 115-117 above).", "203. Finally, according to the Government, the President had not breached the Constitution when announcing vacancies at the Supreme Court as such decision was one of his constitutional prerogatives and had not necessitated the countersignature of the Prime Minister.", "(b) The third-party interveners", "(i) The Commissioner for Human Rights of the Republic of Poland", "204. The Commissioner for Human Rights of the Republic of Poland (“the Commissioner”), stressed that the case disclosed systemic and intentional irregularities. It was of paramount importance to the domestic judicial system since it concerned doubts relating to the composition of the top judicial body, which exercised a supervisory function over all ordinary courts in Poland. The rulings of the Supreme Court were not subject to review by another judicial body which, subject to meeting Convention standards, could resolve doubts and remedy deficiencies.", "205. The Commissioner submitted that persons appointed to the Supreme Court since 2018 had been appointed in flagrant violation of domestic law. The deficiencies in the appointment of the Supreme Court judges since 2018 were due in particular to the participation of the NCJ – a body created and appointed in a manner manifestly incompatible with the national law. In order to assess whether the NCJ met the necessary requirements, the Commissioner looked at the following elements: (a) the legislative procedure and nature of changes introduced by the 2017 Amending Act; (b) the election process of the members of the NCJ; (c) activities of the new NCJ after its creation.", "206. With respect to point (a) above, the Commissioner stressed that the election of fifteen judges, previously elected by other judges, had been entrusted to Sejm contrary to their constitutional role and the previous case-law of the Constitutional Court (judgment of 18 July 2007, K 25/07, see paragraph 107 above). In consequence, the legislative and executive branches now elected twenty-three out of twenty-five members of the NCJ, which granted them excessive influence over the process of appointments to the Supreme Court. At the same time the constitutionally protected four-year term of office of members of the NCJ had been prematurely terminated. The Commissioner also pointed to a general boycott of the elections to the new NCJ by the judges as a result of which out of a total of 10,000 Polish judges eligible, only eighteen candidates had applied for fifteen positions. Moreover, the transparency of the process had been heavily compromised by the authorities as they had refused to disclose the lists of support for the candidates in spite of the binding ruling of the Supreme Administrative Court ordering their disclosure (judgment of 28/06/2019, I OSK 4282/18).", "207. The Commissioner further submitted that the members of the NCJ included persons with strong links to the executive: judges seconded to the Ministry of Justice and those recently appointed by the Minister of Justice to the posts of president and vice-president of the courts. The Supreme Court in its resolution of 23 January 2020 had established that Judge M.N. had been elected to the NCJ in breach of the 2017 Amending Act as he had not obtained the required number of signatures to support his candidature. The NCJ had not intervened in cases of judges prosecuted in politically motivated disciplinary or criminal proceedings. The NCJ had taken actions aimed at legitimising its own status by applying to the Constitutional Court to confirm the constitutionality of the 2017 Amending Act. As a result, the Commissioner concluded that the NCJ no longer fulfilled its constitutional role as guardian of judicial independence.", "208. The process of appointment of judges to the Supreme Court was also flawed and amounted to a flagrant breach of the regulations and principles of domestic law and European standards. The Commissioner took the view that the act announcing the vacancies at the Supreme Court issued by the President had not been valid as it had not been countersigned by the Prime Minister, as required by the Constitution. The competition for posts of judge had been boycotted by the whole legal profession in Poland as only 216 candidates had applied for forty-four positions. The NCJ had carried out a rudimentary selection process based mostly on the material presented by the candidates themselves and spending a dozen minutes per interviewed candidate. As a result, the NCJ had recommended only those candidates who were associated with the authorities and had their support. Moreover, the resolutions of the NCJ recommending some candidates for posts at the Supreme Court had been appealed against by rejected candidates. Although the Supreme Administrative Court had suspended the execution of a number of such resolutions, the President had gone ahead and had given letters of appointment to the candidates recommended by the NCJ and they had accepted them. The right to appeal against the NCJ resolutions, allowed at the beginning of the competition, had been entirely excluded by an amendment that had entered into force during the process of selection of the Supreme Court judges.", "209. The Commissioner concluded that the irregularities disclosed above should be assessed in the light of a cumulative formula and should lead to a conclusion that the Supreme Court had not been properly established. The challenges against the new members of the NCJ and newly appointed judges of the Supreme Court showed that the infringements had been committed intentionally in order to ensure that the political authorities had a dominant influence on the appointments of judges.", "210. Lastly, the Commissioner submitted that the principle of legal certainty and the guarantee of irremovability of judges could not reward the intentional and systemic violation of the law by national authorities. The systemic dimension of the changes introduced in Polish law encompassed the entire justice system; for instance the Constitutional Court no longer fulfilled its role and was used to legitimise actions that were incompatible with the Constitution. The Commissioner proposed to differentiate the consequences of the refusal to recognise the status of unlawfully appointed Supreme Court judges in order to protect the legal security of private parties to the relevant proceedings. At the same time the Commissioner considered that no protection should be afforded to the bodies unlawfully established or to persons lacking the attributes of a judge.", "(ii) International Commission of Jurists", "211. The International Commission of Jurists (“the ICJ”) stressed that judicial councils played an important role in the self-governance, independence, and impartiality of the judiciary in many European countries. An independent judiciary, operating within the system that respected the separation of powers was an essential element of the rule of law and a necessary condition for effective protection of human rights. The ICJ referred to the Magna Carta of Judges which clearly stated that councils for the judiciary had to be independent of legislative and executive bodies and composed in a substantial majority of judges elected by their peers. Those principles had been reiterated by other international authorities, for instance in the Universal Charter of the Judge and by the UN Special Rapporteur on the Independence of judges and lawyers, in his annual report of 2 May 2018. The international standards on the independence of the judiciary enshrined the principle that the political powers – legislative and executive – should not be responsible for, or otherwise interfere with, the appointment, functioning, or removal of members of judicial councils. Moreover, the substantive conditions and detailed procedural rules governing the appointment decisions should not give rise to doubts as to the imperviousness of the judges concerned and their neutrality, as reiterated by the CJEU in the judgment of 19 November 2019 (see paragraph 164 above).", "212. The intervener submitted that since 2015 the Government of Poland had adopted and implemented a series of legislative and policy measures that had severely undermined the independence of the judiciary. The authorities had politicised the process of appointments to the NCJ following the 2017 Amending Act, which had given Parliament the power to appoint fifteen judicial members although the Constitution expressly gave Parliament the power to appoint only six lay members. Six judges out of fifteen appointed to the NCJ by Parliament on 5 March 2018 had been in the past six months appointed as president or vice-president of a court by the Minister of Justice. Moreover, the terms of office of all former members of the NCJ had been terminated, and this had raised concerns about compliance with the Constitution and had further impaired the NCJ’s independence from legislative and executive authorities.", "213. The ICJ drew the Court’s attention to an amendment to the Act on Organisation of Ordinary Courts, which had also entered into force in August 2017. It had allowed the Minister of Justice to dismiss and appoint the presidents and vice presidents of ordinary courts. Within the first six months of its application the Minister of Justice had dismissed and re-appointed over 130 presidents or vice-presidents of courts in Poland, which amounted to replacing 18% of posts of this type in the entire country.", "214. In respect of the Disciplinary Chamber of the Supreme Court, the intervener submitted that it was composed exclusively of judges elected upon the recommendation of the new NCJ. The President of the Disciplinary Chamber had been appointed by the President of Poland in February 2019. The new Chamber was empowered to adjudicate in disciplinary proceedings against judges, including the power to reopen any closed disciplinary proceedings. These proceedings had to be initiated by the NCJ and could result in removal from the office of judge.", "215. The intervener concluded that a court might not be considered independent if “the body that had appointed its members lacked guarantees of independence from the executive and legislative powers”. It followed that a “court composed by judges appointed by a non-independent body or in [a] non-independent procedure [would] not be capable of constituting an independent and impartial tribunal” as required by the Convention.", "The Court’s assessment", "(a) General principles", "216. In its recent judgment in Guðmundur Andri Ástráðsson (cited above, § 218 ) the Grand Chamber of the Court clarified the scope of, and meaning to be given to, the concept of a “tribunal established by law”. The Court reiterated that the purpose of the requirement that the “tribunal” be “established by law” was to ensure “that the judicial organisation in a democratic society [did] not depend on the discretion of the executive, but that it [was] regulated by law emanating from Parliament” (ibid., § 214 with further references). The Court analysed the individual components of that concept and considered how they should be interpreted so as to best reflect its purpose and, ultimately, ensure that the protection it offered was truly effective.", "217. As regards the notion of a “tribunal”, in addition to the requirements stemming from the Court’s settled case-law, it was also inherent in its very notion that a “tribunal” be composed of judges selected on the basis of merit – that is, judges who fulfilled the requirements of technical competence and moral integrity. The Court noted that the higher a tribunal was placed in the judicial hierarchy, the more demanding the applicable selection criteria should be (ibid., §§ 220 ‑ 222).", "218. As regards the term “established”, the Court referred to the purpose of that requirement, which was to protect the judiciary against unlawful external influence, in particular from the executive, but also from the legislature or from within the judiciary itself. In this connection, it found that the process of appointing judges necessarily constituted an inherent element of the concept “established by law” and that it called for strict scrutiny. Breaches of the law regulating the judicial appointment process might render the participation of the relevant judge in the examination of a case “irregular” (ibid., §§ 226 ‑ 227).", "219. As regards the phrase “by law”, the Court clarified that the third component also meant a “tribunal established in accordance with the law”. It observed that the relevant domestic law on judicial appointments should be couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process (ibid., §§ 229-230).", "220. Subsequently, the Court examined the interaction between the requirement that there be a “tribunal established by law” and the conditions of independence and impartiality. It noted that although the right to a “tribunal established by law” was a stand ‑ alone right under Article 6 § 1 of the Convention, a very close interrelationship had been formulated in the Court’s case-law between that specific right and the guarantees of “independence” and “impartiality”. The institutional requirements of Article 6 § 1 shared the ordinary purpose of upholding the fundamental principles of the rule of law and the separation of powers. The Court found that the examination under the “tribunal established by law” requirement had to systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the aforementioned fundamental principles and to compromise the independence of the court in question (ibid., §§ 231 ‑ 234).", "221. In order to assess whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law, and whether the balance between the competing principles had been struck by State authorities, the Court developed a threshold test made up of three criteria, taken cumulatively (ibid., § 243).", "222. In the first place, there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable. However, the absence of such a breach does not rule out the possibility of a violation of the right to a tribunal established by law, since a procedure that is seemingly in compliance with the domestic rules may nevertheless produce results that are incompatible with the object and purpose of that right. If this is the case, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a “tribunal established by law” within the meaning of the Convention (ibid., §§ 244 ‑ 245).", "223. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement must be considered to be in violation of that requirement (ibid., § 246).", "224. Thirdly, the review conducted by national courts, if any, as to the legal consequences – in terms of an individual’s Convention rights – of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such a breach amounted to a violation of the right to a “tribunal established by law”, and thus forms part of the test itself. The assessment by the national courts of the legal effects of such a breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom (ibid., §§ 248 and 250).", "(b) Application of the principles to the present case", "(i) Preliminary remarks", "225. In the present case the alleged violation of the right to a “tribunal established by law” concerns the Disciplinary Chamber of the Supreme Court, constituted following the recent reorganisation of the Polish judicial system. In particular, the applicant alleged that the judges of that Chamber were appointed by the President of Poland upon the NCJ’s recommendation in manifest breach of the domestic law and the principles of the rule of law, separation of powers and independence of the judiciary.", "226. Accordingly, the Court will examine whether the fact that the applicant’s case was heard by the Disciplinary Chamber of the Supreme Court – a court to which all the sitting judges were appointed in the impugned procedure – gave rise to a violation of the applicant’s right to a “tribunal established by law”. It will do so in the light of the three-step test formulated by the Court in the case of Guðmundur Andri Ástráðsson (ibid., § 243).", "(ii) Whether there was a manifest breach of the domestic law", "227. Under the first element of the test the Court has to determine whether the relevant domestic law was contravened in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court.", "The parties disagreed on that issue. In support of their arguments they relied on contradictory views expressed, on the one hand, by the Supreme Court and, on the other, by the Constitutional Court in their respective rulings given in 2017-2020.", "228. The applicant heavily relied on the Supreme Court’s conclusions in the judgment of 5 December 2019 and its interpretative resolution of 23 January 2020, stressing that that court had clearly established a fundamental breach of domestic and international law and the principles of the rule of law, separation of powers and independence of the judiciary in the process of appointment of judges to the Disciplinary Chamber.", "In particular, the applicant maintained that the domestic law had been breached, first, as a result of the change in the manner of electing judicial members of the NCJ under the 2017 Amending Act, which had stripped this body of independence from the legislative and executive powers. As a result, the NCJ’s involvement in the selection of candidates to sit as judges of the Supreme Court and its recommendations of selected persons presented to the President had compromised the procedure for judicial appointments. She also asserted that, as the Supreme Court had held, the domestic law had been breached for a second time by the President of Poland on account of his announcement of vacant positions in the Supreme Court without the Prime Minister’s countersignature, thus rendering invalid ab initio his appointment of the candidates previously presented by the NCJ (see paragraphs 188-189 above).", "229. The Government, for their part, asserted that the reform of the NCJ and the Supreme Court had been carried out in accordance with the Constitution and national legislation. They stressed that the modification of the legal provisions governing the organisation of the NCJ, granting Sejm the power to elect the NCJ’s judicial members, had been introduced by the 2017 Amending Act in order to implement the Constitutional Court’s judgment of 20 June 2017 (K 5/17; see paragraphs 108-111 above), holding that both the individual character of the term of office of the NCJ’s judicial members and the manner of their election under the 2011 Act on the NCJ were unconstitutional.", "Furthermore, in their view, the President’s announcement of the vacant positions at the Supreme Court was not of such a nature as to require a countersignature by the Prime Minister for it to be valid (see paragraph 203 above).", "As regards the Supreme Court’s resolution of 23 January 2020, the Government took the view that its findings and conclusions could not be taken into account in the Court’s assessment because, in their words, it had been “removed” by the Constitutional Court’s judgment of 20 April 2020 (U 2/20; see paragraphs 115-117 and 202 above), holding that the resolution was inconsistent with several constitutional provisions.", "230. Being confronted with two fundamentally opposite views of the Polish highest courts as to whether or not there was a manifest breach of the domestic law, the Court would emphasise, as it has done on many previous occasions, that it will normally cede to the national courts’ interpretation of whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law, unless the national court’s findings can be regarded as arbitrary or manifestly unreasonable (see Guðmundur Andri Ástráðsson, cited above, § 244, with further references to the Court’s case-law.", "However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its own assessment for that of the national courts. Accordingly, while the national courts have discretion in determining how to strike the relevant balance, they are nevertheless required to comply with their obligations deriving from the Convention when they are undertaking that balancing exercise (ibid. § 251, with further references to the Court’s case-law).", "231. The Court’s task in the present case is therefore not to resolve the existing conflict of opinions as to the application and interpretation of the domestic law or to substitute itself for the national courts in their assessment of the applicable provisions, but to review, in the light of the above principles, whether the Polish courts in their respective rulings struck the requisite balance between the various interests at stake and whether, in carrying out that exercise and reaching their conclusions, they paid due regard to, and respect for, the Convention standards required of a “tribunal established by law”.", "232. As regards the domestic legal provisions applicable to the judicial appointment procedure, it is common ground that they are set out in the Constitution, the 2011 Act on the NCJ as amended by 2017 Amending Act, and the 2017 Act on the Supreme Court. Pursuant to these provisions read as a whole, judges are appointed to all levels and types of courts, including the Supreme Court, by the President of Poland following a recommendation of the NCJ – a recommendation which the NCJ issues after a competitive selection procedure in which it evaluates and nominates the candidates. The NCJ’s proposal of candidates to the President of Poland is a condition sine qua non for any judicial appointment (see Article 179 of the Constitution at paragraph 59 above). The President may not appoint a judge who has not been so recommended but, at the same time, as submitted by the Government, he is free not to appoint a recommended judge.", "233. The NCJ itself is a constitutional body whose main role, in accordance with Article 186 § 1 of the Constitution, is to safeguard the independence of courts and judges. The composition of the NCJ is determined by Article 187 § 1 of the Constitution, which provides that the NCJ is composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; and (3) four members elected by Sejm from among its Deputies and two members elected by the Senate from among its Senators. Pursuant to Article 187 § 4 of the Constitution, the organisational structure, scope of activity and the NCJ’s working procedures, as well as the manner of choosing its members, are specified by statute (see paragraph 59 above).", "234. As noted above, the applicant’s primary argument is that the first manifest breach of the domestic law originated in the 2017 Amending Act, which had changed the manner of electing the fifteen judicial members of the NCJ, who were henceforth to be elected by Sejm and not, as previously, by their peers, and which had resulted in that body no longer being independent from the legislative and executive powers.", "235. By way of a preliminary remark, the Court would observe that the impugned law is part and parcel of the legislation on the reorganisation of the Polish judiciary initiated by the government in 2017 and, as such, must be seen not in isolation but in the context of coordinated amendments to Polish law effected for that purpose and having regard to the fact that those amendments and their impact on the Polish judicial system have drawn the attention and prompted the concern of numerous international organisations and bodies, and have become the subject of several sets of proceedings before the CJEU (see also paragraphs 177-178 above).", "236. According to the Government, the 2017 Amending Act was introduced in order to implement the Constitutional Court’s judgment of 20 June 2017, which had found that the provisions governing the procedure for electing members of the NCJ from among the judges of the ordinary courts and administrative courts were incompatible with Article 187 § 1 (2) in conjunction with Article 2 of the Constitution, the latter provision enshrining the rule of law principle (see paragraphs 109 and 197 above).", "Under the previous regulation, the judicial members of the NCJ were elected by judges, a rule which – until the said judgment of 20 June 2017 – had been firmly established in the Polish legal order and confirmed in unequivocal terms by the Constitutional Court in its judgment of 18 July 2007 (see paragraph 107 above). The Government, in line with the Constitutional Court’s position in the June 2017 judgment, argued that the previous model had been replaced by a “more democratic” one and that that change had been prompted by the need to remove the hitherto existing – in their view unjustified – difference of treatment with regard to the election of judges at various court levels, which had discriminated against judges sitting in lower courts as it had not provided them with equal opportunities of standing for election (see paragraph 200 above).", "237. The Court accepts that the aim pursued and the general reasons given for the new model of election of judicial members to the NCJ could prima facie be considered legitimate. However, this justification alone cannot be seen as sufficient to substantiate the Constitutional Court’s complete reversal of its previous case-law without being based, as emphasised above, on a duly conducted assessment, weighing in the balance the competing interests at stake, as required under the Convention (see paragraph 230 above).", "238. In this connection, the Court observes that, apart from its statement of dissent that “the Constitutional Court in its current composition does not agree with the [Constitutional Court’s] position in the judgment [of 18 July 2007] that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges”, the Constitutional Court did not engage substantively with legal arguments contained in the earlier ruling. While it is true that the judgment was given after the composition of the Constitutional Court had changed following the December 2015 election of five new judges (for factual details see the information on the election process in Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 8-35, 7 May 2021 (not yet final); see also paragraph 112 above), this by itself could not serve as a ground for creating a new and divergent interpretation of the Constitution. Nor should it be an obstacle for the Constitutional Court judges to give convincing reasons – or explain specific legal considerations – for their departure from the final judgment, universally binding in its application, given by their predecessors, a judgment which had been in force for the previous ten years (see also Article 190 of the Polish Constitution cited in paragraph 59 above).", "239. The purported aim to be achieved by means of the new interpretation of the Constitution, radically changing the existing election model, was to ensure that all the judges would have equal opportunities to stand for election to the NCJ. However, the Court has been unable to detect any attempt on the part of the Constitutional Court to explain in its judgment why and how the new election model would better serve the interests of the judiciary and equal opportunities or whether, and if so how, it would impact upon the NCJ’s primary constitutional obligation of safeguarding the independence of courts and judges, as laid down in Article 186 § 1 of the Constitution. Likewise, in the Constitutional Court’s assessment no consideration appears to have been given to the Convention case-law or the fundamental Convention principles of the rule of law, separation of powers and independence of the judiciary, principles which are also enshrined in the Polish Constitution and were obviously relevant in the context of the new interpretation.", "Furthermore, as demonstrated by subsequent developments, both at domestic and international level, the Constitutional Court appears to be isolated in its perception and assessment of the necessity and legitimacy of the change in the procedure for election of the judicial members of the NCJ.", "240. To begin with, already at the early stage, the bill, which was to become the 2017 Amending Act, proposing that the judicial members of the NCJ be elected by Sejm, raised serious concerns as to its compliance with the European standards and its impact on the independence of this body and the Polish judiciary as a whole.", "241. On 11 October 2017, PACE, in its resolution entitled “New threats to the rule of law in the Council of Europe States”, called on the Polish authorities to refrain from amending the 2011 Act on the NCJ in a manner that would modify the procedure for election of its judicial members and would establish political control over that procedure (see paragraph 136 above).", "242. The OSCE/ODIHR and the Venice Commission in their opinions issued, respectively, on 5 May 2017 and 11 December 2017 spoke with one voice when assessing the consequences of the contemplated amendments.", "The OSCE/ODIHR said that “the proposed amendments raise[d] serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of [the] judiciary”; that “the changes proposed ... could also affect the public trust in the judiciary, as well as its legitimacy and credibility” and that “if adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law”. It recommended that the proposed amending law “be reconsidered in its entirety and that the legal drafters ... not pursue its adoption” (see paragraph 128 above).", "The Venice Commission, for its part, stated that while the exact composition of judicial councils varied, it was widely accepted – as regards the States which had such a council – that at least half of the council members should be judges elected by their peers. It further emphasised that “the 2017 Amending Act was at odds with the European standards since the fifteen judicial members were not elected by their peers, but received their mandates from Parliament”. It also took the view that the proposed reform would lead to the NCJ being dominated by political nominees, “[g]iven that six other members of the NCJ [were] parliamentarians, and four others ex officio members or appointed by the President of the Republic”. It recommended that judicial members should be elected by their peers, as in the 2011 Act on the NCJ (see paragraph 140 above).", "243. The CCJE, in its opinion of 12 October 2017, shared the above views, referring to a “fundamental concern of transferring the power to appoint members of the [NCJ] from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure”. It considered that the judicial members of the NCJ should continue to be elected by the judiciary and that the proposed amendment was a “major step back as regards judicial independence in Poland”, adding that it was “deeply concerned” by the implications of the amendment for the principles of the separation of powers and the independence of the judiciary (see paragraph 144 above).", "244. Further international reports that followed the Act’s entry into force concurred with that assessment.", "The UN Special Rapporteur on the Independence of Judges and Lawyers, in his report of 5 April 2018 following his mission to Poland, noted that the reorganisation of the Polish judicial system had been “undertaken by the governing majority in haste and without proper consultation with the opposition, the judiciary and civil society actors” and recommended that the 2017 Amending Act be “amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and separation of powers” by removing the provisions concerning the new election procedure and ensuring that the fifteen judicial members of the NCJ were elected by their peers (see paragraph 127 above).", "The Council of Europe Commissioner for Human Rights, in her report published on 28 June 2019 in the wake of her visit to Poland, expressed serious concerns regarding the composition and independence of the newly created NCJ and considered that entrusting the legislature with the task of electing its members undermined its independence (see paragraph 135 above).", "GRECO, in its two successive reports of June 2018 and December 2019, recommended that Poland amend the 2017 Amending Act to ensure that at least half of its members were judges elected by their peers (see paragraphs 147-148 above).", "245. On 17 September 2018 the Extraordinary General Assembly of the ENCJ suspended the NCJ’s membership in that organisation for non-compliance with the NCJ’s statutory rule that a member should be independent from the executive, believing that the NCJ no longer guaranteed its “final responsibility for the support of [the] judiciary in the independent delivery of justice”. The 2020 ENCJ Executive Board proposal for expulsion of the NCJ from the organisation on the grounds that, among other things, it undermined the application of EU law on the independence of judges and its effectiveness and acted against the interests of the European Area of freedom, security and justice, and the values it stood for (see paragraphs 175-176 above).", "246. At the same time, the European Union institutions noted, with similarly grave concern, legislative changes affecting the organisation and structure of the Supreme Court which had been introduced in tandem with the 2017 Amending Act by means of the 2017 Act on the Supreme Court and comprised various modifications, such as lowering the retirement age of the judges currently sitting in the court, removing the power of the First President of the Supreme Court to announce vacant positions in the court and creating two new chambers – the Disciplinary Chamber and that of Extraordinary Review, which, in contrast to all other chambers, were not subordinate to the First President of the Supreme Court and were given considerable autonomy, a separate, independent budget and structure, and, last but not least, an increased salary. In a unanimous assessment of the European Union institutions, the reorganisation of the Polish judicial system has been seen as creating a “clear risk of a serious breach of the values referred to in Article 2 of TEU” by Poland and a “systemic threat” to the rule of law in Poland, in particular the principle of the independence of the judiciary (see paragraphs 153 ‑ 160 above).", "247. As in the case of the 2017 Amending Act, the Venice Commission raised its concerns about the 2017 Act on the Supreme Court and the Disciplinary Chamber already before the Act’s entry into force, in its report adopted on 11 December 2017. It considered that the proposed creation of new chambers – the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs “[would] not only threaten the independence of the judges of the Supreme Court, but also create a serious risk for the legal certainty”. In sum, considering the cumulative effect of the amendments proposed under both Acts, the Venice Commission concluded that they would put the judiciary under direct control of the parliamentary majority and of the President of Poland, contrary to the very idea of the separation of powers and judicial independence laid down in Articles 10 and 173 of the Polish Constitution (see paragraph 140 above). Similar views were expressed subsequently, after the Act entered into force, by PACE and the Council of Europe’s Commissioner for Human Rights (see paragraphs 135 and 137-138 above).", "248. At domestic level, the same concerns and serious doubts as to whether the Disciplinary Chamber, given the involvement of the NCJ in the appointment procedure for the judges and the characteristics of this body, gave rise to the requests to the CJEU from the Supreme Court’s Chamber of Labour and Social Security for a preliminary ruling in three cases. The requests were made in August and September 2018 (see paragraphs 46 and 71 above).", "249. On 19 November 2019 the CJEU, after obtaining an opinion from Advocate General Tanchev concluding that the Disciplinary Chamber did not satisfy the requirements of independence set out in Article 47 of the Charter, and recalling that the interpretation of Article 47 was borne out by the Court’s case-law under Article 6 § 1, delivered a preliminary ruling reiterating the elements that were relevant for the referring court in its own assessment (see paragraph 164 above). The indications formulated by the CJEU can be summarised as follows:", "(1) While the mere fact that the Disciplinary Chamber’s judges were appointed by the President of Poland did not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality if, once appointed, they were free from influence and pressure when carrying their role, it was still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions were such that they could not give rise to reasonable doubt, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interest before them.", "(2) The participation of a body such as the NCJ, empowered under Article 186 of the Constitution to ensure the independence of the courts and the judiciary in the context of judicial appointments might, as such, contribute to making that process more objective; in particular, the fact of subjecting, to a favourable opinion of the NCJ, the very possibility for the President of Poland to appoint a judge to the Supreme Court could be seen as being capable of objectively circumscribing the President’s discretion. However, this would be the case only where that body itself was sufficiently independent from the legislature and the executive and from the authority to which it delivered its appointment proposal.", "(3) The degree of independence of the NCJ in respect of the legislature and the executive in exercising its responsibilities could become relevant in ascertaining whether the judges it selected would be capable of meeting the requirements of independence and impartiality under Article 47 of the Charter.", "(4) The circumstances in which the members of that body were appointed and the way in which that body actually exercised its role were relevant for that assessment.", "( 5) Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber had been appointed or the NCJ’s role in that regard, there were various other features of concern, such as the exclusive jurisdiction of that Chamber in cases involving the employment, social security and retirement of the Supreme Court judges, the fact that it had been constituted solely of newly appointed judges – as judges who had previously been sitting in the Supreme Court were excluded – and the particularly high degree of autonomy within that court.", "250. As to the application of Article 47 of the Charter and Article 9(1) of Directive 2000/78 (see paragraphs 152 and 164 above), the CJEU held as follows:", "“Article 47 of the Charter and Article 9(1) of Directive 2000/78 must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.", "It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”", "251. On 5 December 2019 the Labour and Social Security Chamber of the Supreme Court gave judgment in the first of three cases referred for a preliminary ruling to the CJEU. Emphasising that in that case it was performing exclusively the role of an EU court implementing the CJEU ruling and that it was not examining the constitutionality of the 2017 Amending Act but rather its compatibility with EU law (see paragraphs 72 and 75 above), the Supreme Court made an extensive analysis of the domestic legislation in the light of the CJEU’s guidance and the Convention case-law under Article 6 of the Convention (see paragraphs 71-86 above).", "252. As regards the circumstances in which the NCJ had been created and the Constitutional Court judgment of 20 June 2017 that had given rise to the change in the election procedure, the Supreme Court observed that, given the absence of any amendment to the Constitution, the Constitutional Court had not so much changed the position taken in the 2007 judgment but, rather, had created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial and fundamental obligations under EU law. In its view, the new interpretation was not supported by legal theory and the judgment itself had been a manifestation of a constitutional crisis in Poland as it had been delivered by a formation including two members appointed in an unlawful procedure (see paragraph 73 above).", "253. It further found that under the 2017 Amending Act, which had been enacted notwithstanding the long tradition of judicial members of the NCJ being elected by their peers and the principle of the separation of powers, the legislature and the executive had gained almost a monopolistic position in deciding on NCJ membership, since twenty-three out of twenty-five its members were ultimately appointed by authorities other than the judiciary. In consequence, the principle of division of State powers and their separation, laid down in Article 10 of the Constitution, had been disregarded.", "254. As regards the manner in which the NCJ had exercised its role of safeguarding the independence of the courts and judges in practice, the Supreme Court found that it had failed to fulfil its constitutional obligation in that respect since it had taken no action in defence of the Supreme Court’s independence or in order to forestall attempts to force the Supreme Court judges into retirement after the 2017 Act on the Supreme Court took effect. Moreover, the NCJ members had publicly demanded that disciplinary action be taken against judges filing requests for a preliminary ruling to the CJEU and had challenged the right to make such requests (see paragraph 80 above). Having regard to all the relevant circumstances, the Supreme Court concluded that that NCJ did not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure (see paragraph 81 above).", "255. As to the Disciplinary Chamber, the Supreme Court followed the guidance given by the CJEU in the judgment of 19 November 2019 and looked at various elements. It considered that, when taken separately, they were not conclusive of that chamber’s failure to comply with the standards set out in Article 47 of the Charter, Article 6 of the Convention and Article 45 § 1 of the Constitution. However, in view of such circumstances, taken together, as:", "(i) the chamber being created from scratch;", "(ii) its being composed of persons with very strong connections to the legislative and executive powers and who, prior to their appointment, had been beneficiaries of the reorganisation of the justice system;", "(iii) the chamber being afforded a broad autonomy within the Supreme Court, with a distinctive structure and jurisdiction which included competences taken away from other courts and other chambers of the Supreme Court; and", "(iv) the fact that its members were selected and proposed for judicial appointment by the NCJ, which lacked independence from the legislature and the executive;", "the Disciplinary Chamber clearly and unequivocally was not a “tribunal” or “court” within the meaning of the above provisions.", "256. The above conclusions regarding the NCJ’s lack of independence and the Disciplinary Chamber’s lack of attributes of a “tribunal” were fully endorsed by the Supreme Court, sitting in a formation of fifty-nine judges of the joined Civil, Criminal and Social Security Chambers, in its interpretative resolution of 23 January 2020. In that context, it is to be noted that this resolution resulted from a divergence in the Supreme Court’s case-law, having been caused, in particular, by the resolution of the Chamber of Extraordinary Review and Public Affairs, which, in contrast to the above judgment of 5 December 2019, had interpreted narrowly the consequences for the Disciplinary Chamber of the CJEU ruling of 19 November 2019 (see paragraphs 48 ‑ 50 and 89 above).", "257. The joined Chambers found that, following the change in the election procedure under the 2017 Amending Act and the circumstances in which the NCJ had been constituted, this body lacked the necessary independence from the legislative and executive powers and that a judicial formation including a person appointed upon its recommendation – be it a judge appointed to the Supreme Court or to military or ordinary courts – was contrary to the law and amounted to a breach of Article 47 of the Charter, Article 6 § 1 of the Convention and Article 45 § 1 of the Constitution (see paragraphs 89-105 above).", "These conclusions, explained in extensive reasoning, were reached after a thorough, meticulous assessment of all the elements relevant to an “independent and impartial tribunal established by law” in the light of the constitutional principles governing the NCJ’s functioning, including the principle of the separation and balance of the legislative, executive and judicial powers and the principle of the independence of the judiciary (see paragraphs 93-94 above).", "258. The Government submitted that the Supreme Court’s interpretative resolution had been “removed” by the Constitutional Court’s judgment of 20 April 2020 holding that the President of Poland’s decisions on judicial appointments could not be subject to any type of review, including by the Supreme Court, and declaring that the resolution was incompatible with a number of constitutional provisions, including, inter alia, the principle of the rule of law (Article 2), the obligation to respect international law binding on Poland (Article 9), the principle of legality (Article 7), the right to a fair hearing before an impartial and independent court (Article 45 § 1) and the provision setting out the President’s prerogative to appoint judges (Article 144 § 3 (17)), and that it was also in breach of Articles 2 and 4(3) of TEU and Article 6 § 1 of the Convention.", "259. The Court does not share this assessment for a number of reasons stated below. In that regard, it would again stress that it is not this Court’s task to interpret the Polish Constitution and that the statements below are not to be read as in any way implying that the Court seeks to substitute itself for the Constitutional Court in its role (see paragraph 231 above). However, this Court has a treaty-given power under Article 32 § 1 of the Convention to rule on all matters concerning the interpretation and application of the Convention. In the exercise of that power, in accordance with its case-law, it may review the domestic courts’ decisions so as to ascertain whether those courts struck the requisite balance between the various competing interests at stake and correctly applied the Convention standards (see paragraph 230 above)", "260. In this context, the Court reiterates that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society (see Guðmundur Andri Ástráðsson, cited above, § 237).", "It is also to be reiterated that although the right to a “tribunal established by law” is a stand ‑ alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (see Guðmundur Andri Ástráðsson, cited above, §§ 232 ‑ 233).", "261. Turning to the present case, the Court is not persuaded that the Constitutional Court’s judgment relied on by the Government deprived the Supreme Court’s resolution of its meaning or effects for the purposes of this Court’s ruling as to whether there has been a “manifest breach of the domestic law” in terms of Article 6 § 1. This judgment appears to focus mainly on protecting the President’s constitutional prerogative to appoint judges and the status quo of the current NCJ, leaving aside the issues which were crucial in the Supreme Court’s assessment, such as an inherent lack of independence of the NCJ which, in that court’s view, irretrievably tainted the whole process of judicial appointments, including to the Disciplinary Chamber. The Constitutional Court, while formally relying on the constitutional principles of the separation of powers and the independence of the judiciary, refrained from any meaningful analysis of the Supreme Court’s resolution in the light of these principles.", "The same is true in respect of the Constitutional Court’s interpretation of the standards of independence and impartiality of a court under Article 6 § 1 of the Convention that led it to the conclusion that the Supreme Court’s interpretative resolution was incompatible with that provision. In particular, the Constitutional Court found that those Convention standards excluded the power of “other judges” to generally question a “judge’s right to adjudicate” or to verify “the regularity of the procedure preceding the appointment of a judge by the President” (see paragraph 116 above).", "The Court sees no conceivable basis in its case-law for such a conclusion. In that regard, it would reiterate that “independence of a tribunal established by law” refers to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234 and the case-law cited therein).", "262. Considering the apparent absence of a comprehensive, balanced and objective analysis of the circumstances before it in Convention terms, the Court finds that the Constitutional Court’s evaluation must be regarded as arbitrary and as such cannot carry any weight in the Court’s conclusion as to whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law involved in the procedure for judicial appointments to the Disciplinary Chamber (see paragraph 259 above).", "263. Furthermore, in the Court’s view this judgment must be seen in conjunction with the general context in which the Constitutional Court has operated since the end of 2015 and its actions aimed at undermining the Supreme Court resolution’s finding as to the manifest breach of domestic and international law due to the deficient judicial appointment procedure involving the NCJ.", "These actions started from an unprecedented interim decision of 28 January 2020, suspending the Supreme Court’s jurisdiction to issue resolutions concerning the compatibility, with international law and the case-law of international courts, of the NCJ’s composition, the procedure for judicial appointments conducted by that body and the President’s prerogative to appoint judges (see paragraph 119 above). The Court considers that this kind of interference with a judicial body, aimed at incapacitating it in the exercise of its adjudicatory function in the application and interpretation of the Convention and other international treaties, must be characterised as an affront to the rule of law and the independence of the judiciary.", "The Constitutional Court’s final decision on that matter given on 21 April 2020 perpetuated this state of affairs, in holding that the Supreme Court had “no jurisdiction” to issue resolutions on the interpretation of legal provisions that could lead to “modification of the legal situation regarding the organisational structure of the judiciary” (see paragraphs 120 ‑ 121 above).", "Lastly, the Court would note in passing that the bench of the Constitutional Court that issued all four above-mentioned rulings of 20 June 2017 and 28 January, 20 and 21 April 2020 included Judge M.M. (see paragraphs 112, 116 and 120 above), whose own appointment to the Constitutional Court raised doubts as to whether it was lawful and whose participation in the Constitutional Court formation has been the subject of the Court’s assessment as to whether such formation met the criteria of a “tribunal established by law” in a judgment given by the Court in the case of Xero Flor w Polsce sp. z o.o. (cited above).", "264. Having regard to all the above considerations, and in particular to the convincing and forceful arguments of the Supreme Court in the judgment of 5 December 2019 and the resolution of 23 January 2020, and that court’s conclusions as to the procedure for judicial appointments to the Disciplinary Chamber being contrary to the law – conclusions reached after a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention’s fundamental standards and of EU law, and in application of the CJEU’s guidance and case-law – the Court finds it established that in the present case there was a manifest breach of the domestic law for the purposes of the first step of the Ástráðsson test.", "265. The applicant alleged a second breach of the domestic law in that the President of Poland’s announcement of vacant positions in the Supreme Court had lacked the Prime Minister’s countersignature (see paragraph 189 above).", "The Court notes that, in that respect, the Government’s position on the matter differs from opinions expressed by the Supreme Court and, most recently, the Supreme Administrative Court (see paragraphs 97 and 122 ‑ 125 above). However, given that, as established above, the process of judicial appointments to the Disciplinary Chamber was inherently defective on account of the involvement of the NCJ as a body lacking independence from the legislature and executive, the Court does not find it necessary to ascertain whether in addition there was a separate breach of the domestic law resulting from the fact that the President’s announcement of vacant positions in the Supreme Court was made without the Prime Minister’s countersignature.", "(iii) Whether the breach of the domestic law pertained to a fundamental rule of the procedure for appointing judges", "266. When determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a “tribunal established by law”, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive or the legislature with the judiciary, and whether the breach in question undermined the very essence of the right to a “tribunal established by law” (see Guðmundur Andri Ástráðsson, cited above, §§ 226 and 255).", "267. The process of appointment of judges may be open to such undue interference, and it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case “irregular”, given the correlation between the procedure for the appointment of a judge and the “lawfulness” of the bench on which such a judge subsequently sits (ibid., § 226).", "268. In that context, the Court would also refer to the following statement in the CJEU preliminary ruling of 19 November 2019:", "“139 The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.”", "269. As regards the degree of independence of the NCJ and the issue whether there was undue interference by the legislative and executive powers with the appointment process, the Court would first refer to the various – and in substance unanimous – opinions of the international organisation and bodies which have already been cited above, according to which the changes in the election procedure for the judicial members of the NCJ introduced under the 2017 Amending Act resulted in the NCJ no longer being independent or able to fulfil its constitutional obligation of safeguarding the independence of courts and judges (see paragraphs 240 ‑ 245 above).", "270. In that context, the Court also finds it important to take into account the circumstances in which the new NCJ was constituted.", "271. After the entry into force of the 2017 Amending Act on 17 January 2018, Sejm proceeded with an examination of the applications from candidates to the new NCJ and elected its fifteen judicial members on 6 March 2018 (see paragraph 14 above). As submitted by a third-party intervener, the Polish Commissioner for Human Rights, the elections were apparently boycotted by the legal community as only eighteen candidates applied for fifteen positions to the new NCJ (see paragraph 206 above). As pointed out by the second intervener, the ICJ, six judges out of fifteen appointed to the NCJ by the Parliament had been in the past six months appointed as president or vice-president of courts by the Minister of Justice (see paragraph 212 above). The concerns were raised by the Council of Europe Commissioner for Human Rights (see paragraph 29 of the report of 28 June 2019 in paragraph 135 above) and the ENCJ (see paragraph 175 above) that the majority of the members of the current NCJ were either members of the ruling party, holders of governmental office or chosen by Parliament on the recommendation of the ruling party.", "272. The Supreme Court, in its judgment of 5 December 2019, found that it was the executive, through persons directly or indirectly subordinate to it, which proposed most of the candidates for election as judicial members of the NCJ (see paragraphs 77-79 above).", "The Supreme Court, in its resolution of 23 January 2020, established that there had been a significant influence exerted by the Minister of Justice, who was also the Prosecutor General, on the composition of the NCJ. It noted that this had been confirmed by the official statement of the Minister himself in the Senate of the Republic of Poland (see paragraph 100 above).", "273. There also appears to have been some controversy surrounding the initial non-disclosure of the endorsement lists by the executive authorities, which had made it impossible to verify whether the candidates had obtained the required number of signatures of judges to endorse their candidatures for election to the NCJ (see paragraphs 16-22 above). In the Court’s view, a situation where the public is not given official clarification as to whether the formal requirement of obtaining sufficient support for the candidates for the NCJ has been met may raise doubts as to the legality of the process of election of its members. Moreover, a lack of scrutiny of who had supported the candidates for the NCJ may raise suspicions as to the qualifications of its members and to their direct or indirect ties to the executive. According to the information now in the public domain, the NCJ had been elected with the support of a narrow group of judges with strong ties to the executive (judges seconded to the Ministry of Justice and the presidents and vice-presidents of courts recently promoted to those offices by the Minister of Justice; see also paragraph 176 above). As indicated by the Supreme Court, there were also doubts as to whether all elected members of the NCJ had fulfilled the legal requirement of having been supported by twenty-five active judges (see paragraphs 78 and 96 above and the statement by the third-party intervener at paragraph 207 above).", "274. In view of the foregoing, the Court finds that by virtue of the 2017 Amending Act, which deprived the judiciary of the right to nominate and elect judicial members of the NCJ – a right afforded to it under the previous legislation and recognised by international standards – the legislative and the executive powers achieved a decisive influence on the composition of the NCJ (see paragraphs 126-148 and 155-176 above). The Act practically removed not only the previous representative system but also the safeguards of independence of the judiciary in that regard. This, in effect, enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities took advantage – as shown, for instance, by the circumstances surrounding the endorsement of judicial candidates for the NCJ (see paragraphs 271-272 above).", "275. At the same time, under the 2017 Act on the Supreme Court, the First President of the Supreme Court was divested of her prerogative to announce vacant positions in that court, this prerogative being taken away from her in favour of the President of Poland. Even though the Court has not found it necessary to ascertain whether or not the President’s announcement of vacant positions in the Disciplinary Chamber was contrary to the domestic law (see paragraph 265 above), it must note that depriving the First President of that prerogative further weakened the involvement of the judiciary in the judicial appointment process, in particular appointments to the Supreme Court.", "276. Assessing all the above circumstances as a whole, the Court finds that the breach of the domestic law that it has established above, arising from non-compliance with the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure since, as a consequence of that breach, the recommendation of candidates for judicial appointment to the Disciplinary Chamber – a condition sine qua non for appointment by the President of Poland – was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. A procedure for appointing judges which, as in the present case, discloses an undue influence of the legislative and executive powers on the appointment of judges is per se incompatible with Article 6 § 1 of the Convention and as such, amounts to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed.", "277. In sum, the breaches in the procedure for the appointment of judges to the Disciplinary Chamber were of such gravity that they impaired the very essence of the right to a “tribunal established by law”.", "(iv) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts", "278. The Government considered that it was not necessary to carry out the third step of the test (see paragraph 193 above). Neither the Government nor the applicant argued that there had been a procedure under Polish law whereby the applicant could challenge the alleged defects in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court.", "279. The Court finds that there was no such procedure directly available to the applicant. Consequently, no remedies were provided (see Guðmundur Andri Ástráðsson, cited above, § 248).", "(v) Overall conclusion", "280. The Court has established that there was a manifest breach of the domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court, since the appointment was effected upon a recommendation of the NCJ, established under the 2017 Amending Act, a body which no longer offered sufficient guarantees of independence from the legislative or executive powers.", "The irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continues to lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1. The very essence of the right at issue has therefore been affected.", "281. In the light of the foregoing, and having regard to its overall assessment under the three-step test set out above, the Court concludes that the Disciplinary Chamber of the Supreme Court, which examined the applicant’s case, was not a “tribunal established by law”.", "282. Accordingly, there has been a violation of Article 6 § 1 of the Convention in that regard.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS the RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL", "283. The applicant complained that the facts of the case also disclosed a breach of the right to an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention. The Government contested this view and argued that there had been no violation of this provision of the Convention.", "284. The Court notes that in the present case the complaints concerning the “tribunal established by law” and “independence and impartiality” requirements stem from the same underlying problem of an inherently deficient procedure for judicial appointments to the Disciplinary Chamber of the Supreme Court. As the Court has found above, the irregularities in question were of such gravity that they undermined the very essence of the right to have the case examined by a tribunal established by law (see paragraphs 280-281 above).", "Having made that finding, the Court concludes that the remaining question as to whether the same irregularities have also compromised the independence and impartiality of the same court has already been answered (see paragraphs 227-280 above) and does not require further examination.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "285. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "286. The applicant claimed 135,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 for non-pecuniary damage.", "287. The Government contested the claims and considered them excessive.", "288. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "289. The applicant, who was represented by a lawyer of her choice and was granted legal aid, also claimed EUR 420 for the costs and expenses incurred before the Court.", "290. The Government considered that the applicant’s claims should be rejected as unsubstantiated.", "291. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award – in addition to the amount of EUR 850 received under the Court’s legal aid scheme – the claimed sum in full, plus any tax that may be chargeable to the applicant.", "Default interest", "292. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "13. The Court considers it essential to the understanding of the nature and context of the applicant’s complaint, as well as of the circumstances in which it arose, which are outlined in greater detail in paragraphs 29 et seq. below, to provide the broader domestic background to the present proceedings.", "BACKGROUND AND CONTEXT OF THE CASE", "14. A candidate of the Law and Justice ( Prawo i Sprawiedliwość ) Party won the presidential elections in May 2015 and took office in August 2015. In the general election of 25 October 2015, a coalition led by the same party obtained a majority in the Sejm (the lower house of Parliament) and formed a government. It fell short of the majority required to change the Constitution.", "15. One of the first actions of the new majority concerned the Constitutional Court. On 8 October 2015 the previous, seventh-term Sejm had elected five new judges of the Constitutional Court. Three of these were to replace judges whose terms of office were to come to an end on 6 November 2015, i.e. within the term of the previous Sejm, and two were to replace those whose terms of office were due to expire on 2 and 8 December 2015. The President of the Republic declined to swear them in. The new, eighth ‑ term Sejm held its first session on 12 November 2015, which marked the beginning of its term. On 25 November 2015 the new Sejm, in an unprecedented move, adopted resolutions revoking the election of the five judges by the previous Sejm. Then, on 2 December 2015, it elected five judges who were immediately sworn in by the President of the Republic. In its judgment of 3 December 2015 (no. K 34/15), the Constitutional Court held that a judge of that body should be elected by the Sejm whose term covered the date on which his or her seat became vacant. It confirmed that finding in four subsequent rulings [2]. In consequence, the seventh-term Sejm had had the power to elect three judges, while the eighth-term Sejm could validly elect two. The election of three judges (M.M., L.M. and H.C.) in December 2015 to seats that had been already filled in October sparked an intense legal controversy and marked the beginning of what is widely referred to by analysts as the rule of law crisis in the country.", "16. A detailed account of the relevant facts relating to the Constitutional Court can be found in the judgment in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, §§ 4-63, 7 May 2021). In that judgment, the Court held that there had been a violation of Article 6 § 1 as regards the right to a “tribunal established by law” on account of the participation in the proceedings before the Constitutional Court of the above-mentioned Judge M.M., whose election it found to have been vitiated by grave irregularities.", "17. In January 2017 the Government announced plans to reform the ordinary courts, the National Council of the Judiciary ( Krajowa Rada Sądownictwa; “the NCJ”) and the Supreme Court.", "18. With regard to the ordinary courts, the Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts increased the powers of the Minister of Justice, who is at the same time the Prosecutor General (see paragraph 38 below), in relation to the internal organisation of the courts and to the appointment and dismissal of the presidents and vice-presidents of the courts. It also extended his powers in the areas of promotion and discipline. The Act of 12 July 2017 provided that within the six-month period following its adoption, the Minister could dismiss and appoint court presidents and vice-presidents at his discretion. Two court vice-presidents removed from their posts under this legislation lodged their applications with the Court, complaining that their premature removal was not amenable to judicial review. In its judgment in Broda and Bojara v. Poland (nos. 26691/18 and 27367/18, 29 June 2021) the Court found that the applicants had been deprived of the right of access to a court, in violation of Article 6 § 1, in relation to the Minister’s decisions removing them from their posts before the expiry of their respective terms of office.", "19. In July 2017 Parliament also adopted the Act Amending the Act on the NCJ and the Act on the Supreme Court. However, the President of the Republic vetoed them. Subsequently, the President submitted to the Sejm his own legislative proposals for the institutions concerned.", "20. In December 2017 Parliament adopted the Act Amending the Act on the NCJ (“the 2017 Amending Act”). The 2017 Amending Act transferred the power to elect the fifteen judicial members of the NCJ from respective assemblies of judges to the Sejm. It also terminated prematurely the terms of office of those judicial members who, like the applicant, had been elected under the previous regulations (see paragraphs 52 and 54 below).", "21. In December 2017 Parliament also adopted the new Act on the Supreme Court. The Act, inter alia, modified the organisation of the Supreme Court by creating two new chambers: (1) the Disciplinary Chamber ( Izba Dyscyplinarna ) and (2) the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ). The judges of these new chambers were appointed by the President of the Republic on the recommendation of the new NCJ. In the Reczkowicz v. Poland (no. 43447/19, 22 July 2021) judgment, the Court held that the Disciplinary Chamber of the Supreme Court was not a “tribunal established by law” and found a violation of Article 6 § 1 of the Convention in that regard. This judgment became final on 22 November 2021 when the panel of the Grand Chamber took note of the Government’s withdrawal of its request to refer that case to the Grand Chamber. In its judgment in Dolińska ‑ Ficek and Ozimek v. Poland (nos. 49868/19 and 57511/19, 8 November 2021, not yet final on the date of adoption of the present judgment) the Court found a similar breach of Article 6 § 1 of the Convention, having concluded that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court was not a “tribunal established by law” [3].", "22. The new Act on the Supreme Court also lowered the retirement age for Supreme Court judges from 70 to 65 years, with the consequence that about one-third of the judges of that court would have to leave their posts prematurely, including the First President of the Supreme Court. The President of the Republic was granted discretion to decide whether to allow the persons concerned to continue in office beyond that age. The European Commission brought an infringement action against Poland in connection with the adoption of the law. The Court of Justice of the European Union (“the CJEU”) issued an interim order on 17 December 2018 suspending the application of the relevant provisions of the law (C ‑ 619/18 R, EU:C:2018:1021). It then held in its judgment of 24 June 2019 (C ‑ 619/18, Commission v. Poland (Independence of the Supreme Court), EU:C:2019:531) that lowering the retirement age in respect of sitting judges failed to fulfil Poland’s obligations under EU law. Following the interim order of 17 December 2018, Parliament amended the Act on the Supreme Court. It limited the application of the new retirement age of 65 solely to judges of the Supreme Court who had entered into service after 1 January 2019 and allowed the reinstatement to that court of judges who had entered into service before that date and who had been obliged to retire under the contested legislation.", "23. Furthermore, the rules on the disciplinary liability of judges were significantly changed by the Act of 8 December 2017 on the Supreme Court amending the Act on the Organisation of Ordinary Courts. The amended legislation considerably increased the role of the Minister of Justice/Prosecutor General in the area of judicial discipline. According to the Venice Commission, there was “an intensification of the disciplinary procedures against ordinary judges” and “inquiries ... were opened ... in respect of more than forty judges who were vocal in criticising the reform” [4]. In October 2019 the European Commission brought infringement proceedings on the grounds that Poland had failed to fulfil its obligations under EU law by adopting the new disciplinary regime for judges. On 8 April 2020 the CJEU in its interim decision ordered Poland to suspend the application of the provisions on the powers of the Disciplinary Chamber with regard to disciplinary cases concerning judges pending the resolution of the case (C ‑ 791/19 R, EU:C:2020:277). Despite the CJEU’s interim decision, the Disciplinary Chamber has continued to operate and has decided, for example, to lift immunity from prosecution in cases against judges. In its judgment of 15 July 2021 (C-791/19, Commission v. Poland (Disciplinary regime for judges), EU:C:2021:596), the CJEU held that the disciplinary regime for judges in Poland was not compatible with EU law (see paragraphs 160-161 below).", "24. On 20 December 2017 the European Commission initiated for the first time the procedure under Article 7(1) of the Treaty on European Union (TEU). The Commission submitted a reasoned proposal to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach of the rule of law by the Republic of Poland. It referred, inter alia, to the threats to the independence of the ordinary judiciary. The Commission observed that over a period of two years more than thirteen consecutive laws had been enacted affecting the entire structure of the justice system in Poland. The common pattern in all these legislative changes was that the executive or legislative branches were systematically enabled to interfere significantly with the composition, powers, administration and functioning of those authorities and bodies (see paragraph 163 below).", "25. In December 2019 Parliament passed the Act Amending the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts (“the 2019 Amending Act”). The 2019 Amending Act, which entered into force on 14 February 2020, introduced new disciplinary offences and sanctions for judges, including for questioning the lawfulness of judicial appointments made with the participation of the new NCJ. On 31 March 2021 the European Commission commenced infringement proceedings in respect of that law. It considered that the law undermined the independence of Polish judges and was incompatible with the primacy of EU law. Moreover, the law prevented Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from making references for preliminary rulings on such questions to the CJEU. The Commission also decided to ask the CJEU to order interim measures until it had given a judgment in the case. On 14 July 2021 the Vice-President of the CJEU issued an interim order in the case (C ‑ 204/21 R, EU:C:2021:593). Poland was required to suspend, inter alia, the application of several provisions of the Act on the Supreme Court and the Act on the Organisation of Ordinary Courts, as amended by the 2019 Amending Act, relating to the competences of the Disciplinary Chamber of the Supreme Court. On 27 October 2021 the Vice-President of the CJEU ordered Poland to pay to the European Commission a periodic penalty payment of EUR 1,000,000 per day until such time as that Member State complies with the obligations arising from the order of 14 July 2021, or, if it fails to do so, until the date of delivery of the final judgment in the case (C ‑ 204/21 R, EU:C:2021:878).", "26. On 29 March 2021 the Prime Minister lodged an application with the Constitutional Court asking it to review, inter alia, the constitutionality of Article 19(1), second subparagraph, in conjunction with Article 4(3) of the TEU interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law was authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution. The Prime Minister further challenged the constitutionality of Article 19(1), second subparagraph, in conjunction with Article 2 TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic and to review a resolution of the NCJ concerning a proposal to the President of the Republic for appointment of a judge. In its judgment of 7 October 2021 (no. K 3/21), the Constitutional Court held that the contested provisions of the TEU were incompatible with the Constitution (see paragraphs 96-97 below).", "27. On 27 July 2021 the Prosecutor General (on the connection between this office and that of Minister of Justice see paragraph 38 below) lodged an application with the Constitutional Court challenging the constitutionality of Article 6 § 1 of the Convention in connection with the Court’s judgment in Xero Flor w Polsce sp. z o.o. v. Poland (cited above). He alleged that Article 6 § 1 of the Convention was unconstitutional, in so far as (1) the term \"tribunal\" used in that provision included the Constitutional Court, (2) it allowed the proceedings before that court to be covered by the requirements ensuing from Article 6 of the Convention, and (3) it encompassed the review by the Court of the legality of the election of Constitutional Court judges in order to determine whether that court was an independent and impartial tribunal established by law. In its judgment of 24 November 2021 (no. K 6/21), the Constitutional Court partly upheld this challenge (see paragraphs 98-99 below).", "28. On 9 November 2021 the Prosecutor General lodged an application with the Constitutional Court alleging that Article 6 § 1 of the Convention was incompatible with several constitutional provisions. This application is related to the Court’s judgments in the cases of Broda and Bojara v. Poland and Reczkowicz v. Poland (both cited above). He claimed that Article 6 § 1 of the Convention was unconstitutional, in so far as (1) it authorised the Court to create under domestic law the subjective right of a judge to hold an administrative post in the judiciary, (2) the requirement of a “tribunal established by law” in that provision did not take account of the universally binding provisions of the Polish Constitution and statutes, as well as the final and universally binding judgments of the Polish Constitutional Court, and (3) it allowed domestic or international courts to determine the compatibility of laws concerning the organisation of the judiciary, the jurisdiction of the courts, and the NCJ with the Polish Constitution and the Convention, in order to ascertain whether the requirement of a “tribunal established by law” was fulfilled. The case is pending before the Constitutional Court (no. K 7/21).", "THE CIRCUMSTANCES OF THE CASE", "29. The applicant was born in 1956 and lives in Piła.", "30. In 1986 the applicant was appointed as judge of the Trzcianka District Court, and subsequently as judge of the Poznań Regional Court. In April 1999 he was appointed as judge of the Supreme Administrative Court. At the relevant time he was a member of the Gorzów Wielkopolski Regional Administrative Court.", "31. On 11 January 2016 the applicant was elected by the General Assembly of Judges of the Supreme Administrative Court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts as a member of the National Council of the Judiciary for a four-year term of office, that is until 11 January 2020 (see the relevant constitutional and legislative provisions at paragraphs 66 and 68 below).", "32. The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The candidates proposed by the NCJ are submitted to the President of the Republic for appointment.", "33. Article 187 § 1 of the Constitution provides that the NCJ is composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; and (3) four members elected by the Sejm from among its deputies and two members elected by the Senate from among its senators (see paragraph 66 below).", "34. In January 2017 the government announced plans for a large-scale judicial reform regarding the NCJ, the Supreme Court and the ordinary courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia, increase the efficiency of the administration of justice and make the election of NCJ members more democratic.", "35. On 14 March 2017 the government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the 2011 Act on the National Council of the Judiciary. The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills on the Supreme Court and the Organisation of Ordinary Courts were introduced by the deputies of the majority.", "36. The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) in their respective opinions of 30 and 31 January, 5 and 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ.", "37. In the framework of the legislative process, the Government appointed a number of constitutional law experts with a view to assessing the constitutionality of the proposed measures concerning the NCJ. Those experts stated that the existing practice of electing judicial members of the NCJ from among judges for an individual term of office – instead of a joint term – was not based on the Constitution. The Government did not produce the opinions of the above-mentioned experts.", "38. On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28 January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o Krajowej Radzie Sądownictwa; “the 2011 Act on the NCJ”). According to the Polish Constitution, the Prosecutor General is entitled to apply to the Constitutional Court (Article 191 § 1(1) of the Constitution). The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that treating their terms of office as individual in nature was contrary to the Constitution.", "39. The Constitutional Court gave judgment on 20 June 2017 (no. K 5/17) in a bench composed of judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P.", "40. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured the balance of and cooperation between the different powers of government.", "41. The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [5] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same went for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court.", "42. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. The Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had one, joint term of office and this applied equally to judges, deputies and senators. Accepting the individual character of the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, as another category of elected members of the Council. The Constitutional Court found that the proper interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character.", "43. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant:", "“The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.”", "44. The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18 July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure.", "45. In July 2017 the adoption by Parliament of the three bills referred to above (see paragraphs 18-19 above) sparked large public protests. On 31 July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force.", "46. Subsequently, on 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ (see paragraph 19 above).", "47. In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The bill referred to the finding made in the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If election by qualified majority proved impossible, a supplementary election by means of a roll call vote was to be carried out.", "48. One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving.", "49. The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017.", "50. The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted by the Sejm and the Senate on 8 and 15 December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17 January 2018.", "51. According to the Government, the 2017 Amending Act took into account the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) and introduced a joint term of office for the judicial members of the NCJ (see paragraph 175 below).", "52. The 2017 Amending Act transferred to the Sejm the competence to elect judicial members of the NCJ (section 9a(1)). It provided in section 9a(3) that the joint term of office of new members of the NCJ was to begin on the day following that of their election (see paragraph 71 below). Section 6 of the 2017 Amending Act provided that the terms of office of the judicial members of the NCJ elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of the new members of the NCJ (see paragraph 76 below).", "53. Eighteen judges, out of about ten thousand, decided to stand for election to the new NCJ. None of the sitting members decided to stand. A candidate for election to the new NCJ had to be supported either by a group of 2,000 citizens or by 25 fellow judges.", "54. On 6 March 2018 the Sejm elected, in a single vote, fifteen judges as new members of the NCJ by the three-fifths majority. On the same date, the applicant’s term of office as a member of the NCJ was terminated ex lege pursuant to section 6 of the 2017 Amending Act. The applicant did not receive any official notification regarding the termination.", "55. Thirteen of the new judicial members of the NCJ were district court judges (first level of the ordinary courts), one was a regional court judge (second level of the ordinary courts) and one was a regional administrative court judge. There were no representatives of the courts of appeal, the Supreme Court or the military courts.", "56. The applicant claimed that the 2017 Amending Act did not provide for any procedure, judicial or otherwise, with a view to contesting the premature termination of his term of office.", "57. The applicant remains in office as a judge of the Supreme Administrative Court.", "58. There was some controversy related to the fact that the endorsement lists for candidates to the Council were kept confidential by the Speaker of the Sejm, despite allegations that some candidates had not obtained the required number of signatures or that they had been supported by only a handful of judges close to the Government, since the great majority had boycotted these elections (see paragraph 224 below, the submissions of Iustitia, a third-party intervener). At the time of the election of new members of the Council, and for nearly two years after that, the endorsement lists remained confidential. The lists were disclosed on 14 February 2020 after the Supreme Administrative Court had ordered so in its judgment of 28 June 2019 (no. I OSK 4282/18).", "59. On 17 September 2018 the General Assembly of the European Network of Councils for the Judiciary (“the ENCJ”) suspended the NCJ’s membership of the Network. The decision was motivated by the General Assembly’s view that the new NCJ was no longer independent from the legislative and executive powers. On 28 October 2021, the General Assembly of the ENCJ expelled the NCJ from the Network. The General Assembly based its decision on the finding that the new NCJ failed to comply with one of the statutory conditions for membership, namely that of being independent from the executive and legislative powers. Furthermore, it considered that the new NCJ was failing to safeguard the independence of the Polish judiciary.", "60. On 2 November 2018 the NCJ, in its new composition, lodged an application with the Constitutional Court challenging several provisions of the 2011 Act on the NCJ (as amended in December 2017), inter alia, section 9a governing the new manner of electing the judicial members of the Council and the nature of their term of office. On 14 February 2019 a group of senators lodged an identical application. The Constitutional Court decided to examine the two applications jointly as case no. K 12/18. The Commissioner for Human Rights requested that the Constitutional Court discontinue the proceedings as inadmissible since the new NCJ was seeking to confirm the constitutionality of the law.", "61. On 25 March 2019 the Constitutional Court gave judgment in the case. The bench was composed of Judges J.P. (the president), G.J., Z.J., J.Pi. (the rapporteur) and A.Z. Judge J.Pi. had been elected as judge of the Constitutional Court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had already been filled. The judgment was given after hearings held in camera on 14 and 25 March 2019.", "62. The Constitutional Court held that section 9a of the 2011 Act on the NCJ (as amended), granting to the Sejm the competence to elect judicial members of the NCJ and providing that the joint term of office of new members of the NCJ would begin on the day following the date of their election, was compatible with Articles 187 § 1 (2) and § 4 in conjunction with Articles 2, 10 § 1 and 173 as well as with Article 186 § 1 of the Constitution. It essentially relied on the reasoning of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17).", "63. On 26 March 2019 seven judges of the Constitutional Court made public the following statement:", "“In connection with the speculations that appeared after the hearing of the Constitutional Court on 14 March 2019 concerning the Act on the NCJ we feel obliged to inform public opinion:", "On 13 March 2019, the seven judges of the Constitutional Court: [L.K., P.P., M.P-S., S.R., P.T., S.W-J. and M.Z.], sent, by email, their position to the President of the Constitutional Court [J.P.]. They requested that action be taken in order for case no. K 12/18 to be considered by the full bench of the Constitutional Court at a [public] hearing. They pointed out that the examination of the case by a panel of judges once again appointed in disregard of the alphabetical order required by law [i.e. the Act on Organisation and Procedure before the Constitutional Court] deprived the Constitutional Court of transparency and credibility.", "In matters concerning the [Constitutional] Court and the Constitution, every constitutional judge has the right and duty to present his or her position also in non ‑ judicial procedures. The communicated position constituted an exercise of that right.”" ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAW AND PRACTICEDomestic lawConstitutional provisions", "Domestic lawConstitutional provisions", "Constitutional provisions", "Domestic lawConstitutional provisions", "Constitutional provisions", "Constitutional provisions", "(a) Constitutional provisions prior to the Constitution of 1997", "64. The proposal to establish the NCJ was one of the results of “the round table” negotiations between the communist regime and the democratic opposition in 1989.", "65. The Act of 7 April 1989 amending the 1952 Constitution of the Polish People’s Republic established the NCJ. In accordance with Article 60 § 1 of the amended 1952 Constitution, judges were to be appointed by the President on the motion of the National Council of the Judiciary. The competences and the composition of the NCJ were to be regulated by statute (Article 60 § 3). The Constitutional Act of 17 October 1992 retained the rule that judges were to be appointed by the President on the motion of the NCJ (Article 42).", "(b) The Constitution of the Republic of Poland of 1997", "66. The Constitution of the Republic of Poland was adopted by the National Assembly on 2 April 1997 and ratified in a referendum on 25 May 1997. It entered into force on 17 October 1997. The relevant provisions of the Constitution read as follows:", "Article 2", "“The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.”", "Article 7", "“The organs of public authority shall function on the basis of, and within the limits of, the law.”", "Article 8", "“1. The Constitution shall be the supreme law of the Republic of Poland.", "2. The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.”", "Article 10", "“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.", "2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.”", "Article 60", "“Polish citizens enjoying full public rights shall have a right of access to public service based on the principle of equality.”", "Article 91", "“1. After promulgation thereof in the Journal of Laws of the Republic of Poland, a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.", "2. An international agreement ratified upon prior consent granted by statute shall take precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.", "3. If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and take precedence in the event of a conflict of laws.”", "Article 173", "“The courts and tribunals shall constitute a separate power and shall be independent of other branches of power.”", "Article 178 § 1", "“Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.”", "Article 179", "“Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.”", "Article 186", "“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.", "2. The National Council of the Judiciary may make application to the Constitutional Court regarding the conformity with the Constitution of normative acts to the extent to which they relate to the independence of courts and judges.”", "Article 187", "“1. The National Council of the Judiciary shall be composed as follows:", "(1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;", "(2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts;", "(3) four members elected by the Sejm from among its deputies and two members elected by the Senate from among its senators.", "2. The National Council of the Judiciary shall elect, from among its members, a chairperson and two deputy chairpersons.", "3. The term of office of those elected as members of the National Council of the Judiciary shall be four years.", "4. The organisational structure, the scope of activity and working procedures of the National Council of the Judiciary, as well as the manner of electing its members, shall be specified by statute.”", "Article 238 § 1", "“The term of office of constitutional organs of public authority and the individuals composing them, whether elected or appointed before the entry into force of the Constitution, shall end with the completion of the period specified in provisions valid before the day on which the Constitution comes into force.”", "The previous Acts on the National Council of the Judiciary", "67. The first Act on the NCJ was enacted on 20 December 1989. The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges, at different levels and from different types of court. The 2001 Act on the NCJ expressly stated that judicial members of the NCJ were to be elected for the term of office.", "The Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa; – “the 2011 Act on the NCJ”)", "68. The relevant provisions of the 2011 Act on the NCJ, as in force until 17 January 2018, read as follows:", "Section 3", "“1. The competences of the Council include:", "(1) examination and evaluation of candidates for posts of Supreme Court judges and posts of judges in ordinary courts, administrative courts and military courts as well as posts of junior judges in administrative courts;", "(2) submitting to the President of the Republic of Poland applications for appointment of judges in the Supreme Court, ordinary courts, administrative courts and military courts, and the appointment of junior judges in administrative courts;", "...", "(3) adopting rules of professional ethics of judges and junior judges and ensuring their observance;", "(4) expressing opinions on the condition of the judicial staff;", "(5) expressing opinions on matters relating to the judiciary, judges and junior judges submitted to it by the President of the Republic of Poland, other public authorities or bodies of judicial self-government;", "(6) issuing opinions on draft normative acts concerning the judiciary, judges and junior judges as well as presenting motions in this regard; ...", "2 In addition, the Council performs other tasks specified in statutes, in particular:", "(1) adopts resolutions on applications to the Constitutional Court to review the conformity to the Constitution of normative acts to the extent to which they relate to the independence of courts and judges;", "(2) considers applications to retire a judge;", "(3) considers requests of retired judges to return to a judicial post;", "(4) elects a disciplinary representative for ordinary court judges and junior judges and a disciplinary representative for military court judges;", "(5) expresses an opinion on the dismissal of a president or vice-president of the ordinary court and a president or vice-president of the military court; ...”", "Section 11", "“1. The general assembly of judges of the Supreme Court elects two members of the Council from among the judges of that court.", "2. The general assembly of judges of the Supreme Administrative Court, together with the representatives of general assemblies of regional administrative courts, elects two members of the Council from among the judges of the administrative courts.", "3. The meeting of representatives of general assemblies of judges of courts of appeal elects two members of the Council from among judges of the courts of appeal.", "4. The meeting of representatives of general assemblies of regional court judges elects eight members of the Council from among their number.", "5. The assembly of judges of military courts elects one member of the Council from among its body.”", "Section 12", "“1. General assemblies of judges of regional administrative courts elect two representatives from among their members.", "2. Representatives of general assemblies of judges of regional administrative courts are elected at the latest one month before the expiry of the term of office of the Council members, elected from among the judges of the administrative courts. The representatives are elected for a period of four years.”", "Section 13", "“1. General assemblies of judges of courts of appeal elect representatives of general assemblies of judges of courts of appeal from among judges of the courts of appeal in the proportion of one fifth of the number of those judges.", "2. General assemblies of regional court judges elect representatives of the general assemblies of regional court judges from among their members in the proportion of one fiftieth of the number of regional court judges.", "3. The election of representatives referred to in §§ 1-2 shall be carried out at the latest one month before the expiry of the term of office of the members of the Council, elected from among the judge of ordinary courts. The representatives are elected for a period of four years. ...”", "Section 14", "“1. The service of an elected member of the Council expires before the end of the term of office in the event of:", "(1) death;", "(2) resignation from office;", "(3) expiry of the term of office as deputy or senator;", "(4) appointment of a judge to another judicial post, except for appointment of a district court judge to the post of regional court judge ... or a regional administrative court judge to the post of Supreme Administrative Court judge;", "(5) expiry or termination of the judge’s official term of office;", "(6) taking or being placed on retirement.", "2. Resigning from the seat in the Council becomes effective at the time when the Chairman of the Council is informed thereof in writing. The Chairman immediately notifies the body which elected the member [concerned].", "3. Election of a new member of the Council should take place within two months of the date of the expiry of the term of office.”", "69. Section 50 of the 2011 Act on the NCJ provided that the terms of office of members of the NCJ and members of the NCJ’s Praesidium elected on the basis of the previous regulations would last until the end of the period for which they had been elected.", "The 2017 Amending Act", "70. The Act Amending the Act on the National Council of the Judiciary and Certain Other Acts ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted on 8 December 2017. This Act entered into force on 17 January 2018, except for certain provisions which became effective earlier.", "71. Section 9a added by the 2017 Amending Act introduced a new manner of electing judicial members of the NCJ. It reads as follows:", "“1. The Sejm shall elect from among judges of the Supreme Court, the ordinary, administrative and military courts, fifteen members of the Council for a joint four-year term of office.", "2. When conducting the election referred to in subsection 1, the Sejm, to the extent possible, shall take into account the need for representation of judges of particular types and levels of court in the Council.", "3. The joint term of office of the new members of the Council elected from among the judges shall begin on the day following that on which they were elected. Members of the Council from the previous term shall perform their duties until the first day of the joint term of office of new members of the Council.”", "72. New sections 11a-11e regulate in detail the procedure of nomination and election of judicial members of the Council under the new regime.", "73. Section 11a provides, in so far as relevant:", "“1. The Speaker of the Sejm, not earlier than one hundred and twenty days and not later than ninety days before the expiry of the term of office of the members of the Council elected from among the judges, shall announce in the Official Gazette of the Republic of Poland, Monitor Polski, the commencement of the procedure for submitting candidatures for election to the Council.", "2. The entities entitled to nominate a candidate for the Council shall be groups of at least;", "(1) two thousand citizens of the Republic of Poland who are over eighteen years of age, have full capacity to perform legal acts and enjoy full public rights;", "(2) twenty-five judges, excluding retired judges.", "3. One application may concern only one candidate for election to the Council. The entities referred to in subsection 2 may submit more than one application.", "4. Candidates for election to the Council shall be notified to the Speaker of the Sejm within thirty days from the date of the announcement referred to in subsection 1.“", "74. Section 11d provides, in so far as relevant:", "“1. The Speaker of the Sejm shall request the parliamentary groups to indicate, within seven days, their candidates for election to the Council.", "2. [Each] parliamentary group shall indicate, from among the judges whose candidatures have been put forward under section 11a, no more than nine candidates for election to the Council.", "3. If the total number of candidates indicated by the parliamentary groups is less than fifteen, the Presidium of the Sejm shall indicate, from among the candidates nominated under the section 11a procedure, the number of candidates that are lacking up to fifteen.", "4. The competent committee of the Sejm shall establish the list of candidates by selecting, from among the candidates indicated pursuant to the provisions of subsections 2 and 3, fifteen candidates for election to the Council, with the proviso that the list shall include at least one candidate indicated by each parliamentary group which has been active within sixty days from the date of the first sitting of the Sejm during the term of office in which the election is to take place, provided that such candidate has been indicated by the group within the framework of the indication referred to in subsection 2.", "5. The Sejm shall elect the members of the Council, for a joint four-year term of office, at its next sitting, by a three-fifths majority in the presence of at least one half of the statutory number of Deputies, voting on the list of candidates referred to in subsection 4.", "6. In the event of failure to elect members of the Council in accordance with the procedure set forth in subsection 5 the Sejm shall elect the members of the Council by an absolute majority of votes cast in the presence of at least a half of the statutory number of members, voting on the list of candidates referred to in subsection 4.", "7. If, as a result of the procedure referred to in subsections 1-6, fifteen members of the Council are not elected, the provisions of sections 11a-11d shall apply accordingly.”", "75. Section 11e(1) and (3) provides that should a position of the judicial member of the NCJ become vacant before the expiry of the joint term of office, a new judicial member is to be elected for the remaining duration of the original term of office.", "76. Section 6 of the 2017 Amending Act provided for termination of the term of office of the judicial members of the NCJ elected under the previous provisions. It reads as follows:", "“The term of office of the members of the NCJ referred to in Article 187 § 1 (2) of the Constitution, elected under the previous provisions, shall continue until the day preceding the term of office of the new members of the NCJ without, however, exceeding 90 days from the date of the entry into force of the present Act, unless their term of office has expired earlier.”", "Domestic practiceCase-law of the Constitutional Court", "Case-law of the Constitutional Court", "Case-law of the Constitutional Court", "(a) Judgment of 26 May 1998, no. K 17/98", "77. A group of deputies of the Sejm challenged the constitutionality of section 121a, as added to the Act on Elections to Municipal Councils by the Amending Act of 20 March 1998. The impugned provision stipulated that the date for elections to municipal councils in 1998 would be set on a public holiday falling within one hundred and twenty days of the expiry of the term of office of previous councils, in connection with the recomposition of the system of local government. The Constitutional Court held that the impugned provision was in conformity with the Constitution.", "78. The relevant extract from the judgment concerning the term of office of a public body read as follows:", "“Any changes to the duration of a term of office should have effects pro futuro, in relation to bodies that are to be elected in the future ... The principle in question does not preclude the introduction of regulations permitting the term of office of a given body to be shortened. Regulations indicating the rules for the shortening of the term of office of a body should also be adopted before the beginning of the term of office of the body concerned and should not, in principle, be amended with regard to the body currently in office. In specific situations, however, it may be permissible to amend the regulation in force and to shorten the term of office of a body, even though the law did not originally provide for this at all, or specified the conditions for the shortening of the term of office in a more restrictive manner. Such a solution is admissible only if a specific constitutional provision does not prohibit it and on condition that special circumstances militate in favour of it.”", "(b) Judgment of 23 March 2006, no. K 4/06", "79. In this case, the Constitutional Court examined the constitutionality of several provisions of the Act of 29 December 2005 on Transformations and Modifications of the Division of Tasks and Competences of State Bodies Responsible for Communications and Broadcasting. The Commissioner for Human Rights and two groups of deputies challenged, in particular, section 21(1) of the Act which provided for the early termination of the terms of office of the then members of the National Broadcasting Council (“the NBC”). The term of office of the NBC members was regulated by the 1992 Broadcasting Act.", "80. The Constitutional Court, sitting as a full bench composed of fifteen judges, unanimously held that section 21(1) was incompatible with Article 2 (the rule of law) and Article 7 (legality) in conjunction with Article 213 § 1 of the Constitution. The Constitutional Court found as follows:", "“3.1. Continuity in the operation of a constitutional body", "... The proper exercise by the NBC of its constitutional functions in relation to such important values as freedom of speech, the right to information and the public interest in broadcasting, requires that the independence of the Council members be ensured. One of the most important guarantees of this independence is stability in office, which means the prohibition of arbitrary dismissal before the expiry of the term of office ... On the assumption that stability is ensured in the election of members of the NBC, which is closely linked to the guarantee of the independence of the entire body, regulations leading to the immediate expiry of the terms of office of members of the NBC, without bearing any relation to the reasons for such expiry stipulated in the existing legislation and without the presence of special circumstances that would justify them, should be regarded as unacceptable. ...", "The Constitutional Court does not discern sufficient and constitutionally valid reasons to explain why the change made to the model of operation of the NBC required the immediate shortening of the existing terms of office of the members of the NBC. ... During the parliamentary work, the adoption of transitional provisions, which would respect the guarantees of independence of the NBC members and the requirement of stability of their office, was not even considered. The allegation that the adopted [legislative] changes were arbitrary is therefore upheld, thus entailing a violation of Article 2 and Article 7 in conjunction with Article 213 § 1 of the Constitution.”", "81. The Constitutional Court further found that the principle of the protection of vested rights, as derived from the rule of law principle (Article 2 of the Constitution), did not apply to membership of the NBC, and could not therefore serve as a basis upon which to assess the shortening of terms of office of the NBC’s members.", "(c) Judgment of 18 July 2007, no. K 25/07", "82. In this judgment, the Constitutional Court reviewed, on an application from the NCJ, the constitutionality of two provisions added to the 2001 Act on the Ordinary Courts by the Act of 16 March 2007 amending the Act on the NCJ of 2001 which introduced the incompatibilitas rule, namely that the position of judicial member of the NCJ would be incompatible with the position of president or vice-president of an ordinary court. The first of the impugned provisions (section 25a) stipulated (1) that a judge elected as member of the NCJ could not be appointed to the post of president or vice ‑ president of a court, and (2) that the appointment to such post would be terminated on election to the NCJ. The second of the impugned provisions (section 5) extended the rule included in section 25a to judicial members of the NCJ during their term of office. The Constitutional Court held (by four votes to one) that both provisions were incompatible with Article 187 § 1 (2) of the Constitution, and that the second of these provisions was also incompatible with Article 2 of the Constitution (rule of law).", "83. In that judgment, the Constitutional Court first set out some important principles regarding the constitutional position of the NCJ. It stated that the NCJ was a constitutional collegial State authority and that its functions were related to judicial power as it could be inferred from the Constitution’s structure as well as from the NCJ’s composition and competences.", "84. The Constitutional Court held, in so far as relevant:", "“3. ... In vesting the Council with competences relating to the protection of the independence of courts and judges, the Constitution also introduced a mechanism protecting the independence of the Council. Article 187 § 1 of the Constitution provides that the composition of the Council is hybrid: it connects representatives of the judiciary (with compulsory participation of the Presidents of the Supreme Court and the Supreme Administrative Court) with representatives of the executive (the Minister of Justice and a person appointed by the President of the Republic), together with four deputies and two senators. The [1997] Constitution introduced – in comparison to earlier provisions of constitutional rank – constitutional rules concerning the composition of the Council and specified the term of office of its members and the manner of their appointment or election. In the composition of the Council the Constitution gave a significant majority to elected judges of the ordinary, administrative and military courts and judges of the Supreme Court. The regulations concerning election of judges to the Council are of constitutional rank and of particular constitutional significance, since their status de facto determines the independence of this constitutional organ and the effectiveness of the Council’s work... In its judgment of 24 June 1998 (no. K 3/98), the Constitutional Court emphasised that the Council – like no other constitutional State organ – is called to protect the independence of courts and judges.", "4. The Constitution regulates directly in Article 187 § 1 (2) the principle of election of judges to the NCJ, determining in that way the personal composition of the NCJ. It expressly provides that judges – elected by judges – may be members of the NCJ, without stipulating other additional conditions that would have to be met for their membership in the NCJ. The election is made from among four groups of judges mentioned in Article 187 § 1 (2) of the Constitution. The Constitution does not provide for their [judicial members of the NCJ] removal [from the NCJ], stipulating their four-year term of office in the NCJ. The election procedure set out in the [2001] Act on the NCJ... falls within the boundaries laid down in Article 187 § 1 (2) of the Constitution, securing the principle of election of judges by judges...”", "85. The Constitutional Court further held with respect to the specific provisions challenged, in so far as relevant:", "“6. ...The Constitution provides in Article 187 § 3 that the term of office of members of the NCJ is four years. The Act on the NCJ contains an exhaustive list of reasons for terminating the office [of the NCJ member]. The reasons specified in section 10 of the 2001 Act on the NCJ (e.g. death, resignation, ... retirement, appointment to another judicial post) have an important substantive justification related to the objective inability to hold office... This [the new rule of incompatibilitas ] would result in the termination of office of members of the NCJ specified in section 25a of the Act on Ordinary Courts during their term of office and therefore a partial change in the personal composition of the Council prior to the expiry of their term of office or in the shortening of their term of office as presidents and vice-presidents of courts [while] retaining the office of a member of the NCJ.", "Imposing new obligations or restrictions on persons holding office – during their term of office – is not prohibited in principle. The Constitutional Court did not find it unconstitutional to introduce certain restrictions during the term of office aimed at eliminating circumstances favourable to corruption ... or a provision regulating the expiry of a term of office in the event of a conviction for an offence committed intentionally... However, in both cases, there was an important public interest [present]...", "However, in the case of imposing new obligations or restrictions, the principle of protecting trust in the State and its laws requires laying down a period of adaptation to new provisions. This is of particular importance for citizens in terms of the rights and obligations of persons discharging their functions or appointed for a specific term of office, as well as in respect of expectations on the part of those who elected them.", "... Neither a representative of the Sejm nor a representative of the Prosecutor General demonstrated extraordinary, constitutionally justified reasons for the adopted regulation, and only such reasons could possibly justify a breach of tenure...", "The challenged law entered into force during the term of office of the elected members of the Council and of the presidents and vice-presidents of the courts, requiring the persons covered by it to fulfil a condition which did not exist either at the time when their candidatures were submitted or at the time of their election. In the present case, the legislature, during the term of office, introduced a new condition requiring certain persons elected to the Council to resign from their office as members of the Council. ...", "In its case-law concerning the principle of proportionality, in its aspect regarding the examination of the usefulness and necessity of the norms under review, the Constitutional Court has consistently indicated that if a given aim is achievable through the application of a different measure imposing lesser restrictions on rights and freedoms, then the application of the more onerous measure by the legislature goes beyond what is necessary, and thus violates the Constitution ...", "In this light, the Constitutional Court assesses the [challenged law], subjected to constitutional review, introduced with a 14-day vacatio legis during the term of office of the Council members, as a disproportionate interference in the constitutionally determined system of appointment and functioning of the NCJ – a constitutional body based on the tenure of elected members. Such changes [introduced by the impugned law] in the organisation of the Council and in the legal situation of judges – members of the Council – would have to be, in order to respect an appropriate adjustment period and to take account of the principle of the term of office, while respecting the requirement of ensuring trust in the State and its laws, implemented with effect from the beginning of the next term of office of the Council members.", "The Constitutional Court finds that section 5 in conjunction with section 6 of the amending Act is incompatible with Article 2 and Article 187 § 1 (2) of the Constitution on account of introducing changes during the term of office of Council members.”", "(d) Judgment of 20 June 2017, no. K 5/17", "86. In this judgment of 20 June 2017, on the application of the Prosecutor General, the Constitutional Court declared unconstitutional certain provisions of the 2011 Act on the NCJ (see paragraphs 38-44 above).", "(e) Judgment of 25 March 2019, no. K 12/18", "87. In its judgment of 25 March 2019, the Constitutional Court found, inter alia, that section 9a of the 2017 Amending Act was compatible with the Constitution (see paragraphs 60-62 above).", "(f) Judgment of 20 April 2020, no. U 2/20", "88. On 24 February 2020 the Prime Minister lodged an application with the Constitutional Court, alleging that the resolution of the joined Chambers of the Supreme Court of 23 January 2020 (see paragraphs 110-116 below) was incompatible, inter alia, with several constitutional provisions, certain provisions of the Treaty on the EU and Article 6 § 1 of the Convention.", "89. In its judgment of 20 April 2020, the Constitutional Court, by a majority of eleven to three, first found that it had jurisdiction to review the constitutionality of the Supreme Court’s resolution, having considered that it could be regarded as “legal provisions” issued by the central State bodies within the meaning of Article 188 (3) of the Constitution. The Constitutional Court then held that the resolution was incompatible with (a) Articles 179, 144 § 3 (17), 183 § 1, 45 § 1, 8 § 1, 7 and 2 of the Constitution; (b) Articles 2 and 4(3) of the TEU; and (c) Article 6 § 1 of the Convention.", "90. The Constitutional Court’s judgment was given by a full bench composed of fourteen judges, including Judges M.M. and J.W. The latter was elected judge of the Constitutional Court following the death of Judge H.C., one of the judges elected in December 2015 to a seat that had already been filled.", "(g) Decisions of 28 January and 21 April 2020, no. Kpt 1/20", "91. On 22 January 2020 the Speaker of the Sejm referred a question to the Constitutional Court as to whether there was a “conflict of competence between the Sejm and the Supreme Court and between the President of Poland and the Supreme Court”. As regards the first aspect, the Speaker inquired whether the Supreme Court was competent, by means of a resolution, to change the normative regulation regarding the organisation of the judiciary or whether such competence was vested solely with the legislature. As regards the second aspect, the Speaker asked, inter alia, whether the President of the Republic’s competence to appoint judges could be interpreted in such a manner that the Supreme Court had jurisdiction to assess the validity of the President’s decisions appointing judges.", "92. On 28 January 2020 the Constitutional Court issued an interim decision, whereby it suspended the enforcement of the Supreme Court’s resolution of 23 January 2020 (see paragraphs 110-116 below) and suspended the prerogative of the Supreme Court to issue resolutions concerning the compatibility with national or international law or the case-law of international courts of the composition of the NCJ, the procedure for presenting candidates for judicial office to the President of the Republic, the prerogative of the President to appoint judges and the competence to hold judicial office by a person appointed by the President of the Republic upon recommendation of the NCJ.", "93. On 21 April 2020 the Constitutional Court gave a decision [6], finally ruling on the matter of the “conflict of competence”, sitting as a full bench composed of thirteen judges, which included Judge M.M. The Constitutional Court decided to [7] :", "“1. Resolve the conflict of competence between the Supreme Court and the Sejm of the Republic of Poland as follows:", "(a) The Supreme Court – also in connection with a ruling of an international court – has no jurisdiction to make a ‘law-making interpretation’ ( wykładnia prawotwórcza ) of legal provisions, by means of [a resolution] which leads to modification in the legal situation regarding the organisational structure of the judiciary;", "(b) pursuant to Article 10, Article 95 § 1, Article 176 § 2, Article 183 § 2 and Article 187 § 4 of the Constitution, the introduction of any modification within the scope specified in point 1(a) shall be within the exclusive competence of the legislature.", "2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows:", "(a) under Article 179 in conjunction with Article 144 § 3 (17) of the Constitution, an appointment of a judge constitutes the exclusive competence of the President of the Republic of Poland, which he exercises upon the request of the National Council of the Judiciary personally, irrevocably and without any participation or interference of the Supreme Court;", "(b) Article 183 of the Constitution does not provide that the Supreme Court has jurisdiction to oversee the President of the Republic of Poland in his exercise of the competence referred to in Article 179 in conjunction with Article 144 § 3 (17) of the Constitution including [the Supreme Court’s jurisdiction] to give a binding interpretation of legal provisions to specify prerequisites for the President’s effective exercise of the said competence.”", "(h) Judgment of 14 July 2021, no. P 7/20", "94. On 9 April 2020 the Disciplinary Chamber of the Supreme Court referred a legal question to the Constitutional Court on the conformity of certain provisions of the TEU with the Constitution in so far as they concerned the obligation of a member State of the EU to execute interim measures relating to the organisation of the judicial authorities of that State.", "95. On 14 July 2021 the Constitutional Court, sitting as a bench of five judges, held a hearing and gave judgment in the case. It held, by majority, as follows:", "“The second sentence of Article 4(3) of the TEU, in conjunction with Article 279 of the TFEU, to the extent that the Court of Justice of the European Union imposes ultra vires obligations on the Republic of Poland, as a member State of the European Union, by issuing interim measures relating to the organisation and jurisdiction of the Polish courts and the procedure before those courts, is incompatible with Article 2, Article 7, Article 8 § 1 and Article 90 § 1 in conjunction with Article 4 § 1 of the Constitution of the Republic of Poland and to that extent is not subject to the principles of primacy and direct applicability [of a ratified international agreement] set out in Article 91 § 1 to 3 of the Constitution.”", "(i) Judgment of 7 October 2021, no. K 3/21", "96. On 29 March 2021 the Prime Minister lodged an application with the Constitutional Court, alleging that (1) Article 1, first and second paragraphs in conjunction with Article 4(3) of the TEU; (2) Article 19(1), second subparagraph in conjunction with Article 4(3) of the TEU; and (3) Article 19(1), second subparagraph in conjunction with Article 2 of the TEU were incompatible with several provisions of the Constitution.", "97. On 7 October 2021 the Constitutional Court delivered its judgment, sitting in a full bench composed of twelve judges, which included Judges M.M., J.P. and J.W. [8] The operative part of the judgment, which was published in the Journal of Laws on 12 October 2021 (item 1852), reads as follows [9] :", "“1. Article 1, first and second paragraphs, in conjunction with Article 4(3) of the TEU ... – in so far as the European Union, established by equal and sovereign States, creates ‘an ever closer Union among the peoples of Europe’, the integration of whom – brought about on the basis of EU law and through the interpretation of EU law by the Court of Justice of the European Union – enters ‘a new stage’ in which:", "(a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties;", "(b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application;", "(c) the Republic of Poland may not function as a sovereign and democratic State,", "– is incompatible with Article 2, Article 8 and Article 90 § 1 of the Constitution.", "2. Article 19(1), second subparagraph, of the TEU – in so far as for the purpose of ensuring effective legal protection in the areas covered by EU law – it grants domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to:", "(a) bypass the provisions of the Constitution in the course of adjudication, is incompatible with Article 2, Article 7, Article 8 § 1, Article 90 § 1 and Article 178 § 1 of the Constitution;", "(b) adjudicate on the basis of provisions which are not binding, having been repealed by the Sejm and/or found by the Constitutional Court to be incompatible with the Constitution, is incompatible with Article 2, Article 7, Article 8 § 1, Article 90 § 1, Article 178 § 1 and Article 190 § 1 of the Constitution.", "3. Article 19(1), second subparagraph, and Article 2 of the TEU – in so far as for the purpose of ensuring effective legal protection in the areas covered by EU law and of ensuring the independence of judges – they grant domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to:", "(a) review the legality of the procedure for appointing a judge, including the review of the legality of the act in which the President of the Republic appoints a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 179, in conjunction with Article 144 § 3 (17) of the Constitution;", "(b) review the legality of the National Council of the Judiciary’s resolution to refer a motion to the President of the Republic for the appointment of a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 186 § 1 of the Constitution;", "(c) determine the defectiveness of the process for appointing a judge and, as a result, to refuse to regard a person appointed to judicial office in accordance with Article 179 of the Constitution as a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 179, in conjunction with Article 144 § 3 (17) of the Constitution.”", "(j) Judgment of 24 November 2021, no. K 6/21", "98. As previously indicated (see paragraph 27 above), this judgment was given on an application by the Prosecutor General, who is at the same time the Minister of Justice, challenging the constitutionality of Article 6 § 1 of the Convention in relation to the Court’s judgment in Xero Flor w Polsce sp. z o.o. v. Poland (cited above). The Prosecutor General requested the Constitutional Court to hold that:", "“1. Article 6 § 1, first sentence, of the [Convention] in so far as the term ‘tribunal’ used in that provision includes the Constitutional Court of the Republic of Poland, is incompatible with Article 2, Article 8 § 1, Article 10 § 2, Article 173 and Article 175 § 1 of the Constitution;", "2. Article 6 § 1, first sentence, of the [Convention] in so far as it identifies the guarantee arising therefrom to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of one’s civil rights and obligations or of any criminal charge against him, with the competence of the Constitutional Court to adjudicate upon the hierarchical conformity of provisions and normative acts stipulated in the Constitution ..., and thereby allows to subject proceedings before the Constitutional Court to the requirements ensuing from Article 6 of the Convention, is incompatible with Article 2, Article 8 § 1, Article 79 § 1, Article 122 §§ 3 and 4, Article 188 (1-3 and 5) and Article 193 of the Constitution;", "3. Article 6 § 1, first sentence, of the [Convention] in so far as it encompasses the review by the European Court of Human Rights of the legality of the process of election of Constitutional Court judges in order to determine whether the Constitutional Court is an independent and impartial tribunal established by law, is incompatible with Article 2, Article 8 § 1, Article 89 § 1 (3) and Article 194 § 1 of the Constitution.”", "99. On 24 November 2021 the Constitutional Court, sitting as a bench of five judges, held a hearing and gave unanimous judgment in the case. The reasons for that judgment had not been yet published at the time of adoption of the present judgment. The operative part of the Constitutional Court’s judgment, which was published in the Journal of Laws on 26 November 2021 (item 2161), reads as follows:", "“1. Article 6 § 1, first sentence, of the [Convention] – in so far as the term ‘tribunal’ used in that provision comprises the Constitutional Court of the Republic of Poland – is incompatible with Article 173 in conjunction with Article 10 § 2, Article 175 § 1 and Article 8 § 1 of the Constitution of the Republic of Poland;", "2. Article 6 § 1, first sentence, of the Convention referred to in point 1 – in so far as it grants the European Court of Human Rights the jurisdiction to review the legality of the election of judges to the Constitutional Court – is incompatible with Article 194 § 1 in conjunction with Article 8 § 1 of the Constitution.”", "The Constitutional Court discontinued the proceedings for the remainder.", "Case-law of the Supreme Court", "(a) Judgment of 5 December 2019, no. III PO 7/18", "100. On 5 December 2019 the Supreme Court, sitting in a bench of three judges in the Labour and Social Security Chamber, gave judgment in the first of three cases that had been referred for a preliminary ruling to the CJEU, following the latter’s judgment of 19 November 2019 (joined cases C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18; see paragraphs 150-152 below). It quashed the negative resolution of the NCJ of 27 July 2018 concerning the continued exercise by A.K. of the office of a judge of the Supreme Administrative Court. The Supreme Court held that the NCJ in its current formation was neither impartial nor independent of the legislature or the executive. It further found that the Disciplinary Chamber did not fulfil the requirements of an independent and impartial tribunal.", "101. As regards its jurisdiction to examine the compatibility of domestic laws with EU law, the Supreme Court stated as follows [10] :", "“32. It must be stressed that Article 91 § 3 of the Constitution directly empowers the Supreme Court to examine the compatibility of statutes such as the Act on the Supreme Court and the Act on the NCJ with EU law. That provision directly implies, with no reservation or limitation, that statutes have to be compatible with EU law and the Convention, and not the other way round. The jurisdiction to review the compatibility of statutes with EU law rests, according to the Constitution, not with the Constitutional Court but, as a condition of EU accession, with any Polish court examining a case falling within an area covered by EU law.”", "102. The Supreme Court made the following observations with regard to the Constitutional Court’s judgment of 20 June 2017, no. K 5/17 (see paragraphs 38-44 above):", "“33. The foregoing remarks are all the more important when considering the judgment of the Constitutional Court concerning the existing model of election of members of the NCJ (cf. judgment of 20 June 2017, K 5/17 ...). In that judgment, the Constitutional Court called into question its earlier position taken in the judgment of 18 July 2007, K 25/07 ..., to the effect that NCJ members must be judges elected by other judges. This implies that, in the absence of any amendment to the Constitution, the Constitutional Court not so much changed its position as regards appointment to the NCJ (judgment in K 5/17 vs. judgment in K 25/07) as created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial enshrined in the national constitution and fundamental obligations of Member States of the European Union as a Union (community) of law. In that context, the two judgments of the Constitutional Court are evidently in conflict with each other. The interpretation offered in K 5/17 is not supported by legal theory, which considers that judgment to be a manifestation of a constitutional crisis, as it was rendered by a formation that included two members appointed to non-vacant positions of judges ... One should also consider information in the public domain, including statements of those members of the Constitutional Court, concerning various cases of dependence on, and informal relations with, politicians, which do not permit the Constitutional Court to be regarded as a court offering guarantees of independence in the exercise of its constitutional powers (Article 195 of the Constitution).”", "103. As regards the standards set out in the preliminary ruling of the CJEU, the Supreme Court held:", "“35. The CJEU judgment of 19 November 2019 sets a standard which includes a comprehensive assessment of safeguards of the right to a fair trial by an independent and impartial court. Such assessment follows a two-step rule: (a) assessment of the degree of independence enjoyed by the NCJ in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered to ensure the independence of the courts and judges, since the independence of the NCJ will determine whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter of Fundamental Rights (judgment in C-585/18, §§ 139-140); (b) assessment of the circumstances in which the new judges of the Disciplinary Chamber of the Supreme Court were appointed and the role of the Council in that regard (judgment in C-585/18, § 146)...", "37. Following the guidance provided in the CJEU judgment of 19 November 2019, C-585/18, one should in the first place consider the circumstances concerning the NCJ. That assessment requires no evidential proceedings; in any case, such proceedings would be beyond the remit of the Supreme Court and consist in the consideration of positions that are publicly known and available to all parties to the proceedings.", "38. With respect to the NCJ, the CJEU judgment of 19 November 2019 requires the examination of the following: (-) the objective circumstances in which that body was formed; (-) the means by which its members have been appointed; (-) its characteristics; (-) whether the three aforementioned aspects are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that body to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it.”", "104. The Supreme Court further underlined its role as an EU court implementing the CJEU judgment:", "“39. ... [T]he Supreme Court categorically declares (once again) that, acting as an EU court in the enforcement of the CJEU judgment of 19 November 2019, it does not examine the constitutionality of the provisions of the Act on the NCJ in the wording effective as of 2018 but their compatibility with EU law. The Supreme Court has the jurisdiction to undertake such examination not only in the light of uniform well-established case law (cf. CJEU judgment of 7 September 2006, C-81/05) but also under the unequivocal powers vested in it by the Constitution which require no complex interpretation in the case in question. Article 91 § 3 of the Constitution provides clearly and beyond any doubt: ‘If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.’ Furthermore, the examination of how the applicable provisions governing the functioning of the Council and its practice in the performance of functions under the Constitution and provisions of national law influence the fulfilment of the requirements of independence and impartiality under EU law by a court formed with the participation of the Council represents a typical judicial examination of certain facts and provisions of law. It should be recalled once again that such examination is completely unrelated to the jurisdiction vested in the Constitutional Court by the Constitution and the Act on the Constitutional Court.”", "105. With regard to the new NCJ, the Supreme Court held, in so far as relevant:", "“40. With regard to the circumstances in which the [new] NCJ was established, one should bear in mind the shortening of the term of office of the previous NCJ, a constitutional body under Article 187 § 3 of the Constitution. It concerns section 6 of the [2017 Amending Act]. As intended by the legislature, the new provisions were to ensure conformity with the Constitution in connection with the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17...), pursuant to which sections 11 §§ 2-4 and 13 § 3 of the Act on the NCJ are incompatible with the Constitution to the extent that they provide for the individual term of office of judicial members of the Council. In this respect, the Supreme Court finds that the afore-mentioned ‘judgment’ of the Constitutional Court was given with the participation of judges elected in breach of Article 190 § 1 of the Constitution, as ascertained in the Constitutional Court’s judgments of 16 December 2015, K 34/15 ..., of 9 March 2016, K 47/15 ... and of 11 August 2016, K 39/16 ... Furthermore, the Constitutional Court’s argument concerning the harmonisation of the term of office of members of the NCJ is indefensible on the grounds of Article 194 § 1 of the Constitution. This provision concerns the individual election of the Constitutional Court’s judges rather than their individual term of office. While one is the function of the other, the objective of this provision was also to proscribe electing judges [of the Constitutional Court] en bloc, which fully justifies its wording, different from that of Article 187 § 3 of the Constitution ... The Constitutional Court understood that the election of the NCJ’s members is to be aligned with the term of office of the Sejm. This means that Article 187 § 3 of the Constitution aligned the term of office of the NCJ with the term of office of the Sejm, by analogy with the State Tribunal ( Trybunał Stanu ). Such a position cannot be reliably justified. Had this been its intended purpose, Article 187 § 3 of the Constitution would have been drafted in analogous terms to those of Article 199 § 1 of the Constitution. Yet, since the two provisions employ different terms (“four years” and “the term of office of the Sejm ”), their respective meanings ought to be different on the assumption that the law (the Constitution) is rational. There are no arguments to justify such differentiation for other reasons. Consequently, it should be assumed that the systemic interpretation that the Constitutional Court attempted to rely on, contradicts its findings ... The foregoing leads to the conclusion that the terms of office of former members of the NCJ were terminated by the legislature on the basis of the domestic Constitutional Court’s judgment delivered by a formation contrary to the constitutional standard arising from the Constitutional Court’s case-law.", "41. Secondly, the manner of appointing members of the Council needs to be analysed. ... the analysis should commence with a brief historical note of the model of electing the NCJ’s members. The issue of establishing the NCJ was already discussed by legal experts during the “roundtable” talks. The report of the subcommittee on Reform of Law and Courts concluded that judges would be elected to that body [the NCJ] by general assemblies of courts ... The Act of 20 December 1989 on the NCJ ... provided that the Sejm elects members of the Council from among its deputies, the Senate – from among senators, and general assemblies of judges of courts of all levels from among judges. Such a mechanism for electing members of the Council was in effect on the date of entry into force of the Constitution of 2 April 1997 ..., which regulated in Article 186 the status of the NCJ as a constitutional body... Decisions made during a session of the Subcommittee for Institutions of Legal Protection and Bodies of Administration of Justice (e.g. that of 7 December 1994 held as part of the Constitutional Committee of the National Assembly) take on special importance, where the model of electing Council members was debated, judges being entrusted with the task of electing some of those members. The intention of entrusting the election of judicial members of the NCJ exclusively to the judicial community was expressed in particular during a session of the Constitutional Committee of the National Assembly on 13 November 1996 ... and the debate held during the Constitutional Committee’s session on 5 September 1995 ... This state of affairs is corroborated by a joint statement of Professors A. Zoll [11] and A. Strzembosz [12], published by [daily] Rzeczpospolita on 7 March 2018, indicating that concepts tabled by “Solidarity” during the 1980s have been incorporated into the Constitution. Appointing judicial members of the NCJ by judges seemed obvious since only a majority judicial representation on the Council would safeguard the independence of the judiciary from the legislature and the executive. The authors of the said statement already then emphasised that the current NCJ in its present form – as appointed in its new formation – does not have the characteristics and competencies bestowed upon it pursuant to the Constitution; consequently, its resolutions are invalid by nature...", "42. In implementing these constitutional concepts, the Act of 27 July 2001 on the NCJ ... maintained the mechanism of electing judicial members of the Council by judges. The Act of 12 May 2011 on the NCJ also (in its initial version ...) adopted the same mechanism of electing members of the NCJ ... The composition of the Council established in this manner was considered a logical conclusion of the Council being entrusted with the task of safeguarding the independence of courts and judges ...", "43. A substantial change in the mechanism for electing the NCJ’s members was introduced by the [2017 Amending Act ] ... Pursuant to its section 1 (1), the Sejm shall elect fifteen members of the Council for a joint four-year term of office from among judges of the Supreme Court, ordinary courts, administrative courts and military courts. When making its choice, the Sejm shall – to the extent possible – recognise the need for judges of diverse types and levels of court to be represented on the Council. It should be underlined here that provisions of the Constitution have not been amended as regards the membership of the NCJ and the principles of appointing Council members. This means that a statute could only modify the manner of electing judicial members of the Council by judges, rather than introducing a procedure whereby Council judicial members are elected by the legislature. The aforementioned [2017 Amending Act] adopted jointly with the new Act on the Supreme Court introduced a solution whereby the legislative and the executive – regardless of the long statutory tradition of a part of the Council members being elected by judges themselves, thus reflecting provisions of the Constitution with regard to the Council’s status and competences and with regard to the separation of the judiciary from other powers – gained a nearly monopolistic position in determining the NCJ’s membership. At present, the legislature elects fifteen judicial members of the NCJ, and additionally six other members are parliamentarians (four elected by the Sejm and two elected by the Senate). The new election of fifteen judges to the NCJ has resulted in a situation where both houses of parliament decide about the appointment of twenty-one out of twenty-five members of the Council (i.e. 84% of its composition). Furthermore, the Minister of Justice and a representative of the President of the Republic are ex officio members of the NCJ. Thus, twenty-three out of twenty-five members are ultimately appointed by other powers than the judiciary. This is how the separation and balance between the legislative, executive and judicial powers – described in Article 10 of the Constitution and constituting a foundation of a democratic State governed by the rule of law (Article 2 of the Constitution) – have been distorted.", "44. The Council is a constitutional body; the very fact that it does not have a counterpart in all EU Member States does not translate into the possibility of forming or shaping it arbitrarily as the regulatory framework has been laid out in the Constitution and further restrictions arise from the right to a fair trial as stipulated by European Union standards. The Council does not exercise judicial power, neither is it (in view of its membership) a corporate self-governing body; it is a hybrid authority. Legal scholarship has expressed a position that a literal interpretation of the provision of the Constitution stipulating that the NCJ includes ‘fifteen members elected from among the judges’ (Article 187 § 2 (2) of the Constitution) would prove counter-constitutional, should it result in concluding that judicial members cannot be elected by judges. This would mean that the process of construing a constitutional norm ignores the Council’s tasks as specified in the Constitution, including the safeguarding of the independence of courts and judges ..., and ignores Article 173 [of the Constitution], pursuant to which courts are a power ‘independent and separate from other powers’...”", "106. With regard to the submission of candidatures, candidate endorsement lists and the non-disclosure of those lists, the Supreme Court held:", "“45. The Supreme Court’s assessment in acting on the binding legal interpretation expressed in the CJEU’s judgment of 19 November 2019 attaches importance to the process of selecting members of the current Council. With regard to this particular matter, the point at issue concerns the endorsement lists that were apparently offered to candidates by judges. To date, it has not been verified whether new Council members were lawfully nominated as candidates, and who endorsed them. Relevant documents have not been disclosed yet, despite the relevant judgment of the Supreme Administrative Court of 28 June 2019, OSK 4282/18... It is common knowledge that the enforcement of the judgment has faced an obstacle in a decision issued by the Chair of the Personal Data Protection Authority on 29 July 2019 on the initiative of one of the members of the new NCJ. Consequently, it has come to pass that a judicial body responsible for a review of administrative authorities has in effect itself fallen under the review of the latter. The failure to implement the Supreme Administrative Court’s judgment justifies an assumption that the content of the lists of endorsement for judicial candidates to the NCJ corroborates their dependence on the legislature or on the executive.", "46. The Supreme Court further concludes that it is common knowledge that the public has been informed of judicial candidates to the Council having been recommended by presidents of district courts appointed by the Minister of Justice; other judges were recommended by judges dependent on (reporting to) candidates in managerial positions in courts of higher instance; judicial candidates were also recommended by the plenipotentiary of the Institute of the Judiciary at the Ministry of Justice; last but not least, some candidatures were submitted by the next of kin; candidates recommended other candidates; some of the elected members of the future Council were Ministry of Justice employees. All these facts prove that the executive branch – acting through its direct or indirect subordinates – stood behind the majority of recommendations for NCJ judicial member candidatures. Such circumstances accompanying the process of electing current Council members may well raise doubts in the mind of the general public as to the Council’s independence from the executive.", "47. Furthermore, persons endorsing candidates withdrew their endorsement during the period for submission of candidatures, and at least one member of the new NCJ had endorsed his/her own application...", "48. Such circumstances contradict the notion of representativeness of the body referred to in Article 187 § 2 of the Constitution...”", "107. The Supreme Court concluded as follows:", "“60. On the basis of an overall assessment of all the above circumstances, the Supreme Court concludes that, as of this day, the current NCJ does not provide sufficient guarantees of independence from the legislature and executive authorities in the judicial appointment procedure.”", "(b) Resolution of 8 January 2020, no. I NOZP 3/19", "108. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, sitting as a bench of seven judges, issued a resolution following a legal question referred by a bench of three judges. The legal question arose in a case in which unsuccessful candidates for appointment to the post of judge of the Court of Appeal had lodged an appeal against the resolution of the new NCJ proposing another candidate to the same post, and were contesting the NCJ’s status. The Chamber of Extraordinary Review and Public Affairs of the Supreme Court held as follows:", "“1. The Supreme Court, when considering an appeal against a resolution of the NCJ proposing to the President of the Republic of Poland a candidate for the post of judge, shall examine, within the limits of the grounds of appeal, whether the NCJ is an independent body in the light of the criteria set out in the judgment of the CJEU of 19 November 2019 in Joined Cases C-585/18, C-624/18 and C-625/18, A.K. and Others v. Supreme Court, §§ 139 to 144.", "2. The Supreme Court quashes, within the limits of the appeal, a resolution of the NCJ proposing to the President of the Republic of Poland a candidate for appointment to the post of judge if the appellant demonstrates that the lack of independence of the NCJ influenced the content of that resolution or if – having regard to the constitutional prohibition on reviewing the effectiveness of the constitutional act of appointing a judge and the constitutional relationship arising therefrom – the appellant demonstrates the circumstance set out in § 125, or jointly the circumstances set out in §§ 147 to 151 of the judgment referred to in point 1., indicating that a bench including such a judge will not be independent and impartial.”", "(c) Decisions of 15 January 2020 (nos. III PO 8/18 and III PO 9/18)", "109. On 15 January 2020 the Supreme Court, sitting in the Labour and Social Security Chamber, gave two decisions in two remaining cases that had been referred for a preliminary ruling to the CJEU. In these cases, two judges of the Supreme Court contested the fact of being placed on retirement as a result of the entry into force of the new Act on the Supreme Court which provided for the lowering of the retirement age for sitting judges of the Supreme Court. The Supreme Court decided not to transfer the cases to the Disciplinary Chamber of the Supreme Court. It found that it had no jurisdiction to rule in these cases and remitted them to the District Court. In both decisions, the Supreme Court shared the findings expressed in the Supreme Court’s judgment of 5 December 2019 as to the status of the new NCJ and the Disciplinary Chamber of the Supreme Court (see paragraph 100 above).", "(d) Resolution of the formation of the joined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I-4110-1/20)", "110. Having regard to the Supreme Court’s judgment of 5 December 2019 and the resolution of 8 January 2020 by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, the First President of the Supreme Court requested the three joined Chambers of that court to issue a resolution with the view to resolving divergences in the case-law of the Supreme Court in connection with the CJEU judgment of 19 November 2019. The request concerned the legal question whether the participation in a composition of an ordinary court or the Supreme Court of a person appointed to the office of a judge by the President of the Republic on the proposal of the NCJ formed in accordance with the 2017 Amending Act would result in a violation of Article 45 § 1 of the Constitution, Article 6 § 1 of the Convention or Article 47 of the Charter of Fundamental Rights.", "111. On 23 January 2020 the Supreme Court, sitting in a formation of the joined Civil, Criminal and Labour and Social Security Chambers (fifty ‑ nine judges) issued its resolution [13]. It noted that in issuing the resolution, it was implementing the CJEU’s judgment of 19 November 2019. The Supreme Court made the following conclusions [14] :", "“1. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of the Supreme Court on the recommendation of the NCJ formed in accordance with the [2017 Amending Act].", "2. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of an ordinary or military court on the recommendation of the NCJ formed in accordance with the [2017 Amending Act], if the deficiency of the appointment process leads, in specific circumstances, to a violation of the guarantees of independence and impartiality within the meaning of Article 45 § 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention].", "3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 above shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date [of the present resolution] under the Code of Criminal Procedure before a given court formation.", "4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under the Act of 8 December 2017 on the Supreme Court ... irrespective of the date of such judgments.”.", "112. In the reasons for the resolution, the Supreme Court held, in so far as relevant:", "“31. In the light of Article 179 of the Constitution, the President of the Republic appoints to the office of judge not just anyone, at his sole discretion as to the candidate’s qualifications and ability to hold office, but exercises that power on a motion of the NCJ. Therefore, a motion of the NCJ is a condition sine qua non for effective appointment. Moreover, a motion concerning a judicial appointment cannot be lodged by anyone except a body acting as the National Council of the Judiciary, not only in name but based on the procedure of its appointment and the conditions under which it exercises its powers (decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08).", "The [2017 Amending Act] terminated the terms of office of the members of the NCJ referred to in Article 187 § 1 (2) of the Constitution, elected in accordance with the previous regulations. The shortening of the terms of office of judges sitting on the National Council of the Judiciary on the date of entry into force of the amending legislation was justified by the need to ensure a joint term of office for all NCJ members; however, the amended Act allows for the term of office of an NCJ member to expire before the end of the four-year term (cf. section 11e(1) and (3), section 14(1) of the Act of 12 May 2011 on the National Council of the Judiciary [as amended]), which is contrary to Article 187 § 3 of the Constitution. Therefore, the argument justifying the amendment was false, and the NCJ’s term of office was terminated for other reasons.", "New members of the NCJ were elected by the Sejm in accordance with [the 2017 Amending Act], which was contrary to Article 187 § 1 (2) of the Constitution. Having challenged on the basis of that provision the requirement that judicial members of the NCJ were to be elected by judges does not permit the designation of a State authority that could elect them. The Constitution does not provide for a presumption of competence in favour of Parliament. After [the 2017 Amending Act], fifteen members of the Council who were judges were elected by the Sejm for a joint four-year term of office (section 9a(1) of [the Act on the NCJ as amended by the 2017 Amending Act]). None of them is a judge of the Supreme Court, as is required under Article 187 § 1 (2) of the Constitution.", "In view of the procedure of election of judges to the NCJ under [the 2017 Amending Act], the judiciary no longer has any control over the membership of the NCJ and thus, indirectly – in connection with amendments of other systemic provisions – over which candidates are proposed to the President for appointment to the office of judge of an ordinary court, a military court, the Supreme Court, or an administrative court. The NCJ has been dominated by political appointees of the majority in the Sejm. Following the election of 15 judges to sit as members of the NCJ by the Sejm, as many as 21 out of the 25 members of the NCJ are political appointees of both Houses of Parliament. Following the election of judges to the NCJ [by the Sejm ], judges sitting as members of the NCJ no longer represent judges of the Supreme Court, judges of ordinary courts, administrative courts and military courts, as required under Article 187 § 1 (2) of the Constitution. Judges sitting as members of the NCJ by political appointment have no legitimacy as representatives of the judicial community, a task which should be entrusted to persons having authority and remaining independent of political influence. That has largely weakened the role of the NCJ as a guardian of the independence of courts and judges.", "The provisions of the [2017 Amending Act] governing the election of judges to the NCJ are incompatible with the principle of the separation and balance of powers (Article 10 § 1 of the Constitution), as well as with the principle of separation and independence of the courts (Article 173 of the Constitution) and independence of judges (Article 178 of the Constitution). The principle of separation of the judiciary is of crucial relevance in this context. According to that principle, based on the separation and balance of powers, the legislature and the executive may interfere with the functioning of the judiciary only to the extent allowed by the Constitution, that is, where expressly provided for in the Constitution. With respect to the NCJ, the principle of separation implies that the legislature and the executive may influence the membership and functioning of the NCJ only to the extent expressly provided for by the Constitution (Article 187 § 1 (1) in fine ), (3) and § 4). Consequently, in determining the organisational structure, the scope of activity and working procedures of the NCJ (Article 187 § 4 of the Constitution), the legislature cannot create its power – not provided for in the Constitution – to elect members of the NCJ from among judges, because the scope of its power to appoint members of the NCJ was defined in the Constitution (Article 187 § 1 (3)).", "In turn, the shortening of terms of office of previous members of the NCJ and the election of new members on the basis of the [2017 Amending Act] raises serious doubts as to compliance with Article 187 §§ 1 and 3 of the Constitution, and, consequently, doubts as to the legality of the NCJ and the procedure for nomination of candidates to the office of judge with the participation of the NCJ.”", "113. In respect of the endorsement lists for candidates for the NCJ, the Supreme Court noted:", "“32. ...Endorsement lists presented by judges running as candidates for the NCJ had to be signed not just by anyone, but by judges... A request for information concerning persons who signed the lists of endorsement of judges running as candidates to the NCJ, according to regulations governing access to public information, confirmed as legitimate by a legally binding judgment of the Supreme Administrative Court of 28 June 2019, no. I OSK 4282/18, dismissing a cassation appeal of the Head of the Chancellery of the Sejm against the judgment quashing the decision in part concerning the refusal to disclose such information, has been disregarded by the Head of the Chancellery of the Sejm and the Speaker of the Sejm, who have refused to comply with the legally binding judgment. That state of affairs has prevailed to date...", "According to a published statement of Judge M.N., appointed as a member of the NCJ, he signed his own endorsement list. According to a published statement of four judges, Judge M.N. used withdrawn endorsements to run as a candidate for the NCJ. The endorsements were withdrawn long before the list was verified and used in a vote; the Speaker of the Sejm was given an advance notice of the circumstance (on 25 January 2018)... If candidates for the NCJ signed each other’s endorsement lists, that is indicative of the scale of endorsement for the members of the NCJ in the judicial community.", "114. With regard to the exercise of the President’s prerogative to appoint judges, the Supreme Court noted, in so far as relevant:", "“36. According to Article 7 of the Constitution, bodies of public authority shall function on the basis of, and within the limits of, the law; that is, exclusively on the basis of the authority conferred by law, by which their actions are legitimised. That applies also to the President of the Republic because his official acts are not excluded from the scope of Article 7 of the Constitution...", "The President appoints judges but he does so not just at any time and at his own discretion but on a motion of the NCJ. No appointment may be granted to anyone who is not concerned by such motion (cf. the decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08).", "The minimum conditions for the exercise of the prerogative in question by the President of the Republic therefore require that his act be initiated by a duly constituted and appointed body having the status of the NCJ. Since the entry into force of the [2017 Amending Act] and the 2017 Act on the Supreme Court, the NCJ has not been duly appointed under the Constitution; consequently, the NCJ could not exercise its powers, which the President of the Republic should have determined before exercising his prerogative. Persons named in the lists of recommendations drawn up in a defective procedure of appointment for judicial positions cannot be considered to have been candidates for office duly presented to the President of the Republic whom the President of the Republic is competent to appoint to the office.", "Even assuming that the issuance of letters of appointment to such persons renders them formally appointed to the office of judge, it is necessary to determine whether, and to what extent, such persons may exercise judicial functions, so that the requirement of impartiality and independence of a court administering justice is not thereby infringed.”", "115. The Supreme Court further made the following observations regarding political influence on the election of the NCJ members:", "“38. The model of procedure for appointment of a specific person to the office of judge has a particular bearing on whether the court comprised of such appointee may be considered an impartial and independent tribunal in a given case...", "In this context, it should be noted that, according to the official statement of the Minister of Justice issued in the legislative procedure on 15 January 2020 at the Senate of the Republic of Poland, membership of the NCJ was determined in such a way as to ensure that it was comprised of persons loyal to the parliamentary majority (the political group represented by the Minister of Justice): ‘ each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’ – transcript of the third session of the Senate of the Republic of Poland of the 10th term, 15 January 2020).", "Consequently, choices made by the Council are systemically not independent of political interest, affecting the fulfilment of the objective criteria of impartiality and independence by persons appointed to the office of judge on the motion of the NCJ. In other words, because the NCJ has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution. In systemic terms, that undermines trust in the impartiality of persons so appointed. The lack of independence essentially consists in decisions of that body being subordinated to political authorities, in particular the executive...”", "116. As regards the lack of independence of the NCJ, the Supreme Court concluded as follows:", "“42. ... The formation of the Supreme Court passing the present resolution fully shares the position presented in the judgment of the Supreme Court of 5 December 2019, III PO 7/18 to the effect that the NCJ so formed is not an independent body, but a body subordinated directly to political authorities. Consequently, competitions for the office of judge carried out by the NCJ have been and will be defective, creating fundamental doubts as to the motivation behind motions for the appointment of specific individuals to the office of a judge...", "The foregoing [finding] is unrelated to doubts concerning the constitutionality of the election of some [judicial] members of the NCJ. The latter question has not been the subject of interpretation of the Supreme Court; however, it is reasonable to assert that the current functioning of the NCJ is a result of the departure from the constitutional requirements for the election of some members of the Council.”", "Case-law of the Supreme Administrative Court", "117. Following the CJEU’s judgment of 2 March 2021 (see paragraphs 155-156 below), on 6 May 2021 the Supreme Administrative Court gave judgments in five cases (nos. II GOK 2/18; II GOK 3/18; II GOK 5/18; II GOK 6/18 and II GOK 7/18) concerning appeals against resolutions of the NCJ by which the latter had decided not to propose to the President of the Republic the appointment of the appellants to positions as judges of the Civil and Criminal Chambers at the Supreme Court and to propose the appointment of other candidates to those positions. The Supreme Administrative Court quashed the impugned NCJ resolutions both in the part concerning the recommendation of other candidates for appointment to the Supreme Court and in the part concerning the refusal to propose the appointment of the appellants. All the judgments contain similar reasoning.", "118. In particular, in its judgment of 6 May 2021, no. II GOK 2/18 the Supreme Administrative Court considered that the current NCJ did not offer sufficient guarantees of independence from the legislative and executive powers in carrying out the functions entrusted to it. In making that assessment, the Supreme Administrative Court relied on the factors set out by the CJEU in its judgments of 2 March 2021 (paragraphs 131-132) and of 19 November 2019 (paragraphs 143-144), namely that: (1) the current NCJ was constituted as a result of the premature termination of the four-year terms of office of former members of the NCJ; (2) in contrast to the former legislation under which fifteen judicial members of the NCJ had been elected by their peers directly, they were currently elected by a branch of the legislature; (3) the potential for irregularities which could adversely affect the process of appointment of certain members of the new NCJ; (4) the manner in which the current NCJ exercised its constitutional responsibility to safeguard the independence of courts and judges. The Supreme Administrative Court accepted – as did the CJEU in the above-mentioned judgments – that while each element taken in isolation might not necessarily lead to that conclusion, their combination in conjunction with the circumstances in which the current NCJ had been constituted could raise doubts as to its independence.", "119. The relevant extracts from the Supreme Administrative Court’s judgment no. II GOK 2/18 read as follows:", "“7.6. ... Since the CJEU’s judgments of 2 March 2021 and 19 November 2019 were given in an identical legal framework ..., so the assessment of the significance of the criteria relevant for the independence of the NCJ had to take into account the commonly known circumstances and facts relating to the creation of the NCJ in its new composition and its activities, including the sources of knowledge of those circumstances and facts which formed the basis of the findings in case no. III PO 7/18 decided by the Supreme Court in its judgment of 5 December 2019. The Supreme Administrative Court accepts these findings in their entirety as its own (see paragraphs 40-60 of the Supreme Court’s judgment).", "The Supreme Administrative Court also fully and unreservedly shares the assessment of the significance of these circumstances and facts for the independence of the NCJ ... It [the assessment] warrants the assertion that the current NCJ does not provide sufficient guarantees of independence from the legislative and executive powers in the procedure for appointment of judges.", "In this regard, it is also important to emphasise the significance of the fact that the composition of the NCJ currently includes fourteen representatives of judges of ordinary courts and does not include judges of the Supreme Court and judges of administrative courts, as categorically required by Article 187 § 2 of the Constitution, which cannot be complied with only in so far as possible, as provided for in section 9a of the Act on the NCJ.", "Moreover, among the [judicial] members of the [current] NCJ, i.e. among judges of ordinary courts..., there are (and certainly there were on the date when the resolution subject to the review in the present case was adopted) presidents and vice-presidents of ordinary courts appointed by the executive in place of those dismissed earlier by that power. This leads to the conclusion that those members of the Council are strictly functionally subordinated to the executive, which is represented in the Council by the Minister of Justice, thus also making that subordination of an institutional nature. ...", "A part of the executive, but also of the legislative power – given the peculiar fusion of these powers resulting from the logic of the system of government adopted – and thus powers that are political by nature, therefore significantly gain in importance and influence in a body whose primary role is to safeguard the independence of the courts and judges.", "This can and should also be inferred from the fact that twenty-three of the twenty-five members of the NCJ are nominated to its composition by powers other than the judiciary. At the same time, the rules governing election of fifteen judges to the NCJ by the Sejm have to be regarded as far removed from respecting the principle of representativeness, since their election is not only made by the first chamber of Parliament (the Sejm ), but may also be made – quite apart from the fact that they are nominated from among candidates put forward by a group of 2,000 citizens ... – from among candidates put forward by a group of twenty-five judges, with the exception of retired judges. Such a quantitative criterion of successful candidature does not constitute a reliable criterion for assessing the representativeness of a candidate, especially when compared with the number of judges in service and, moreover, when compared with the practice of assessing its fulfilment. The latter allowed for support for one’s own candidature, mutual support between candidates or even, in an extreme case, the use, as support given, of support that was (effectively) withdrawn by the judges originally supporting ... the candidature.", "The rules and procedure for determining the personal composition of the NCJ were thus clearly motivated by an intention to subject it to a kind of supervision of the executive power, and hence of the parliamentary majority, which, in the context of the procedure for selecting members of the NCJ and the majority required to do so, as well as in relation to the functional and institutional subordination of the Council, also emphasises the significance of the factor of (political) loyalty of the candidates to the entity conducting the election. This is confirmed by the ... the content of the statement [of the Minister of Justice] recorded in the transcript of the 3rd session of the Senate of the 10th term of 15 January 2020. – ‘ each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’.", "The so determined composition of the NCJ thus nullifies the possibility of it effectively carrying out its basic function, namely safeguarding the independence of the courts and judges.", "... There is also no position ... of the NCJ which could indicate that it, a constitutional body appointed to uphold the independence of the courts and judges, respects the positions of national and European institutions and bodies stressing the importance of the principle of independence of the courts and judges in relation to situations directly indicating that they suffer a significant damage, or that it opposes such situations, including in particular actions disregarding the legal consequences of the order of the Court of Justice of 8 April 2020 in case C-791/19 R. Evidence of its abdication in this respect – for the Council’s attitude remains in clear opposition to the duties and functions conferred on it by the Constitution – is undoubtedly also the fact that the NCJ was suspended from membership of the ENCJ in September 2018. ...", "In the light of the foregoing arguments, it is therefore reasonable to conclude that the current NCJ does not provide sufficient guarantees of independence from the executive and the legislative powers in the procedure for appointing judges. The degree of its dependence on the legislative and executive powers in the performance of the tasks entrusted to it is, in turn, so high that it cannot be without significance for the assessment as to whether the judges selected by it meet the objective requirements ... of independence and impartiality under Article 47 of the Charter of Fundamental Rights.”", "INTERNATIONAL LAW AND PRACTICEVienna Convention on the Law of Treaties", "Vienna Convention on the Law of Treaties", "Vienna Convention on the Law of Treaties", "120. Article 27 of the Vienna Convention on the Law of Treaties of 1969 provides, in so far as relevant:", "Internal law and observance of treaties", "“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty...”", "The Permanent Court of International Justice", "121. The Permanent Court of International Justice in its advisory opinion of 4 February 1932 on Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (PCIJ, Series A/B, no. 44) held, in so far as relevant:", "“[62] It should however be observed that, while on the one hand, according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted, on the other hand and conversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force...”", "The United Nations", "122. The UN Special Rapporteur on the independence of judges and lawyers, Mr Diego García-Sayán undertook an official visit to Poland from 23 to 27 October 2017. The report of 5 April 2018 on his mission to Poland contains the following findings relating to the NCJ, in so far as relevant:", "“68. ... According to the new selection procedure, 21 members of the Council will now be appointed by the legislative branch, and 1 by the executive. The fact that judges will no longer have a decisive role in the appointment of the 15 judicial members of the Council puts the new election method at odds with relevant international and regional standards. In this regard, the Special Rapporteur notes that while the National Council of the Judiciary is not a judicial authority per se and does not exercise judicial functions, its role of safeguarding judicial independence in Poland requires that it be independent and impartial from the executive and legislative branches...", "70. The new Act also provides that the mandate of all judicial members of the National Council of the Judiciary will be terminated at the moment of the election of the new members. This early termination decided by the legislative branch constitutes an additional interference with the independence of the Council and a breach of the principles of separation of powers and security of tenure. Coupled with the early termination of all the judicial members of the Council, the implementation of the new Act will lead to the creation of a ‘new’ National Council of the Judiciary dominated by political appointees, in contravention of existing standards on the independence of the judiciary and the separation of powers.”", "123. The UN Special Rapporteur on the independence of judges and lawyers published a report on “Judicial Councils” on 2 May 2018. He made the following recommendations, in so far as relevant:", "“Establishment of judicial councils", "92. In order to guarantee their independence from the executive and legislative branches and ensure effective self-governance for the judiciary, judicial councils should be established under the Constitution in those countries having a written Constitution, or in the equivalent basic law or constitutional instrument in other countries. The Constitution or the equivalent basic law should include detailed provisions regarding the setting-up of such a body and its composition and functions, and guarantee the autonomy of the council vis-à-vis the executive and legislative branches of power.”", "The Council of EuropeThe Committee of Ministers", "The Committee of Ministers", "The Committee of Ministers", "(a) Recommendation CM/Rec (2010)12", "124. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide:", "“ Chapter I – General aspects", "...", "4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.", "Chapter IV − Councils for the judiciary", "26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.", "27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.", "...", "Chapter VI – Status of the judge", "Selection and career", "...", "46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.", "47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.”", "(b) Council of Europe Plan of Action on Strengthening Judicial Independence and Impartiality", "125. At the 1253rd meeting of the Ministers’ Deputies, on 13 April 2016, the Committee of Ministers adopted the Plan of Action on Strengthening Judicial Independence and Impartiality. The relevant extracts read as follows:", "“ Line of action 1", "Safeguard and strengthen the judiciary in its relations with the executive and legislature", "Action 1.1 Ensure the independent and effective working of judicial councils or other appropriate bodies of judicial governance", "Remedial action by member States", "Measures should be taken to de-politicise the process of electing or appointing persons to judicial councils, where they exist, or other appropriate bodies of judicial governance. Members should not represent political factions or be politically partisan in the performance of their functions. They should also not be subject to, or be susceptible to, political influence either from the executive or legislature.", "Such measures might include rules on the minimum number of judicial members and procedures for election by their peers (at least half, not taking into account any ex ‑ officio members), or on the maximum number of non-judicial members (and how they are elected or selected) whilst ensuring that a majority or at least half of them are judicial members representing all levels of the judiciary; rules on the minimum length of prior judicial experience; rules on ensuring gender equality and representation of society as a whole and rules on character and probity.", "Members not appointed or elected by the judiciary should not represent the executive or legislature but should be appointed on the basis of their personal standing and in their own right. It is desirable that the membership of a judicial council should not include persons who hold their position de facto by virtue of an executive office or position in the legislature.", "The rules governing the composition of judicial councils or other appropriate bodies of judicial governance and how they conduct their business should be transparent and allow foreseeability. The same applies to the process of selecting, appointing and promoting judges. Of particular importance in this respect are the rules aimed at avoiding improper interference by the executive or legislature.", "Changes to the legal framework for the operation of judicial councils should not lead to the early termination of the mandates of persons elected under the previous framework, except when the change of the legal framework aims to reinforce the independence of the council’s composition.”", "The Parliamentary Assembly of the Council of Europe", "126. The Parliamentary Assembly, in its resolution of 11 October 2017 on new threats to the rule of law in Council of Europe member States (Resolution 2188 (2017)), expressed concerns about developments in Poland which put respect for the rule of law at risk, and in particular the independence of the judiciary and the principle of the separation of powers. It called on the Polish authorities to, inter alia, refrain from amending the Act on the NCJ in a way that would modify the procedure for appointing judicial members of the Council and would establish political control over the appointment process of these members. It also called on the Polish authorities to refrain from implementing any legal provisions that would terminate the term of office of the judicial members of the Polish NCJ.", "127. On 28 January 2020 the Parliamentary Assembly decided to open its monitoring procedure in respect of Poland. In its resolution of the same date entitled “The functioning of democratic institutions in Poland” (2316 (2020)), the Assembly stated, in so far as relevant:", "“7. The Assembly lauds the assistance given by the Council of Europe to ensure that the reform of the justice system in Poland is developed and implemented in line with European norms and rule of law principles in order to meet their stated objectives. However, it notes that numerous recommendations of the European Commission for Democracy through Law and other bodies of the Council of Europe have not been implemented or addressed by the authorities. ... The Assembly therefore calls upon the authorities to revisit the total reform package for the judiciary and amend the relevant legislation and practice in line with Council of Europe recommendations, in particular with regard to: ...", "7.2. the reform of the National Council of the Judiciary, the Assembly expresses its concern about the fact that, counter to European rule of law standards, the 15 judges who are members of the National Council of the Judiciary are no longer elected by their peers but by the Polish Parliament. This runs counter to the principle of separation of powers and the independence of the judiciary. As a result, the National Council of the Judiciary can no longer be seen as an independent self-governing body of the judiciary. The Assembly therefore urges the authorities to reinstate the direct election, by their peers, of the judges who are members of the National Council of the Judiciary;”", "128. On 26 January 2021 the Parliamentary Assembly adopted a resolution entitled “Judges in Poland and in the Republic of Moldova must remain independent” (2359 (2021)). The Assembly, referring to the concerns expressed in Resolution 2316 (2020), noted that “given the current composition of the National Council of the Judiciary and the judgment handed down by the CJEU on 19 November 2019, the NCJ can no longer be regarded as an autonomous body independent of the legislature and the executive”. The Assembly further called on the Polish authorities to, inter alia, “revert to the previous system of electing judicial members of the NCJ or adopt a reform of the justice system which would effectively ensure its autonomy from the political power”.", "The European Commission for Democracy through Law (Venice Commission)", "129. The Venice Commission, in its report on the Independence of the Judicial System Part I: the Independence of Judges, adopted at its 82nd Plenary Session (Venice, 12-13 March 2010, CDL-AD(2010)004) observed, in so far as relevant:", "“ 32. To sum up, it is the Venice Commission’s view that it is an appropriate method for guaranteeing the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges. Owing to the richness of legal culture in Europe, which is precious and should be safeguarded, there is no single model which applies to all countries. While respecting this variety of legal systems, the Venice Commission recommends that states which have not yet done so consider the establishment of an independent judicial council or similar body. In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges. With the exception of ex-officio members these judges should be elected or appointed by their peers. ”", "130. The Venice Commission, in its Opinion on the Draft Amendments to the Organic Law on Courts of General Jurisdiction of Georgia, adopted at its 94th Plenary Session (Venice, 8-9 March 2013, CDL-AD(2013)007), addressed, inter alia, the proposed reform of the High Judicial Council. The relevant part of the Opinion read as follows:", "“ V. Transitional provisions – termination of functions of the current High Judicial Council of Georgia.", "67. Paragraph 2 of Article 3 of the amendments provides that upon enactment of the Law “authority of the members of the High Council of Justice, except the chairman of the Supreme Court, is terminated”.", "68. During the visit, it was explained to the delegation of the Venice Commission by the proponents of this measure, that they wish to do so because they regard the existing composition of the High Council of Justice as so flawed that any significant reform of the judiciary can only be achieved through a complete renewal of the Council.", "69. The Commission recalls that an important function of judicial councils is to shield judges from political influence. For this reason, it would be inconsistent to allow for a complete renewal of the composition of a judicial council following parliamentary elections.", "70. The Organic Law provides for a four-year term of office. This term does not appear to have a constitutional basis. Both the law in force and the draft amendments establish an exhaustive list of the grounds for pre-term termination of the mandate of the members of the High Council of Justice. Neither of them includes norms which expressly provide or can be interpreted in the way that the mandate of the members of the High Council of Justice can be terminated when the procedure for appointment is changed.", "71. The Venice Commission is of the opinion that when using its legislative power to design the future organisation and functioning of the judiciary, Parliament should refrain from adopting measures which would jeopardise the continuity in membership of the High Judicial Council.", "72. Removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council [footnote omitted]. In many circumstances such a change, especially on short notice, would raise a suspicion that the intention behind it was to influence cases pending before the Council. While the Commission was informed that there are no cases pending in Georgia, any such change must be regarded with concern.", "...", "74. The Commission is cognisant of the dilemma which the Georgian authorities face. Nevertheless, even though the composition of the current High Council of Justice seems unsatisfactory, the Venice Commission recommends that the members complete their mandate. However, it would seem possible to apply transitory measures which would bring the current Council closer to the future method of composition, ...”", "131. The relevant extracts from the Rule of Law Checklist, adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016, CDL ‑ AD(2016)007) [15], read as follows:", "“81. ’[I]t is an appropriate method for guaranteeing the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges’. Judicial councils ‘should have a pluralistic composition with a substantial part, if not the majority, of members being judges.’ [footnote omitted]. That is the most effective way to ensure that decisions concerning the selection and career of judges are independent from the government and administration. [footnote omitted]. There may however be other acceptable ways to appoint an independent judiciary.", "82. Conferring a role on the executive is only permissible in States where these powers are restrained by legal culture and traditions, which have grown over a long time, whereas the involvement of Parliament carries a risk of politicisation [footnote omitted]. Involving only judges carries the risk of raising a perception of self-protection, self-interest and cronyism. As concerns the composition of the judicial council, both politicisation and corporatism must be avoided [footnote omitted]. An appropriate balance should be found between judges and lay members [footnote omitted]. The involvement of other branches of government must not pose threats of undue pressure on the members of the Council and the whole judiciary. [footnote omitted].”", "132. The Venice Commission, in its Opinion on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts, which it adopted at its 113 th Plenary Session (Venice, 8-9 December 2017, CDL-AD(2017)031), observed, in so far as relevant:", "“17. In the past decades many new European democracies created judicial councils – compound bodies with functions regarding the appointment, training, promotion and discipline of judges. The main function of such a body is to ensure the accountability of the judiciary, while preserving its independence [footnote omitted]. The exact composition of the judicial councils varies, but it is widely accepted that at least half of the council members should be judges elected by their peers [footnote omitted]. The Venice Commission recalls its position expressed in the Rule of Law Checklist, in the Report of the Judicial Appointments and in the Report on the Independence of the Judicial System (Part I: The Independence of Judges) to the effect that ‘a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself’ [footnote omitted].", "18. The ‘democratic element’ of such councils is usually represented by lay members, elected by Parliament or appointed otherwise. Judicial members, by contrast, are elected by other judges and hence have no strong political affiliation [footnote omitted]. Thus, the current composition of the Polish NCJ is in this regard in harmony with this prevailing European standard.", "...", "24. In any event, the proposal by the President is still at odds with the European standards (as far as those countries which have a judicial council are concerned), since the 15 judicial members are not elected by their peers, but receive their mandates from Parliament. Given that six other members of the NCJ are parliamentarians, and four others are ex officio members or appointed by the President of the Republic..., the proposed reform will lead to a NCJ dominated by political nominees. Even if several ‘minority candidates’ are elected, their election by Parliament will inevitably lead to more political influence on the composition of the NCJ and this will also have immediate influence on the work of this body, which will become more political in its approach.", "...", "2. Early termination of the mandate of the current members of the NCJ", "28. Article 6 of the Draft Act provides for early termination of mandates of all judicial members of the NCJ at the moment of the election of new members. According to the [Polish authorities’] Memorandum, this measure is called for by the judgment of the Constitutional Court of 20 June 2017 [footnote omitted]. In that judgment the Tribunal held, in particular, that all judicial members of the NCJ should have the same term of office. The Draft Act, proposed by the President, in Article 1 (new Article 9a § 1) speaks of the ‘joint term of office’ of the judicial members of the NCJ. That implies that all mandates will start and end simultaneously, and that the composition of the NCJ should be fully renewed every 4 years.", "29. The very idea of a ‘joint term of office’ is open to criticism. Desynchronised terms of office are a common feature in collegiate bodies in Europe. They help to preserve institutional memory and continuity of such bodies. Moreover, they contribute the internal pluralism and hence to the independence of these bodies: where members elected by different terms of Parliament work alongside each other, there are better chances that they would be of different political orientation. By contrast, simultaneous replacement of all members may lead to a politically uniform NCJ [footnote omitted].", "30. But even assuming that a ‘joint term of office’ is politically legitimate, this aim may be achieved otherwise, in a way which does not interfere with the term of office of the current members. The judgment of the Constitutional Tribunal does not call for the simultaneous removal of all currently serving judicial members. The currently serving judicial members may remain in their positions until the original term of their mandate expires, while new members (i.e. those elected under the new rules) could be elected for a shorter period, ensuring that at some point in future the whole composition of the NCJ will be renewed simultaneously [footnote omitted]. This solution will not only respect the security of tenure but also better ensure the institutional continuity of the body [footnote omitted].", "31. In sum, the proposed change in the manner of appointment of the 15 judicial members of the NCJ, in conjunction with their immediate replacement, is going to weaken the independence of the Council with regard to the majority in Parliament. Against the background of other reforms in the field of the judiciary..., this measure contributes to a weakening of the independence of justice as a whole. Therefore, the Venice Commission urges the Polish authorities to abandon this proposal and keep the current system, which combines election of lay members by Parliament and election of the judicial members of the NCJ by the judges themselves.", "...", "IV. Conclusions", "128. The officially stated goal of the 2017 amendments (both adopted and those which are being discussed) is to enhance the democratic control over the Polish judiciary. The Venice Commission has always stated that the judiciary should not be an entirely self-governing corporation but accountable to the society. However, mechanisms of accountability should not interfere with the independence of the judges, and of the bodies of judicial governance. The judiciary should be insulated from quickly changing political winds. The courts have often to adjudicate on conflicts between individual rights and the State, and that relationship is imperilled when the State takes over the control of judicial functions.", "129. The Venice Commission has examined the Act on Ordinary Courts, the Draft Act on the National Council of the Judiciary, and the Draft Act on the Supreme Court, proposed by the President of the Republic. It has come to the conclusion that the Act and the Draft Acts, especially taken together and seen in the context of the 2016 Act on the Public Prosecutor’s Office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law.", "130. Several key aspects of the reform raise particular concern and call for the following recommendations:", "A. The Presidential Draft Act on the National Council of the Judiciary", "The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far-reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act.”", "133. On 18 June 2020 the Venice Commission endorsed by written procedure replacing the 123rd Plenary Session its and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe Joint Urgent Opinion (CDL-AD(2020)017) on Amendments to the Law on the Common Courts, the Law on the Supreme Courts and Some Other Laws. The relevant extracts of the Opinion read as follows:", "“ A. Judicial reform of 2017 – an outline", "8. The stated goal of the 2017 reform was to enhance the democratic accountability of the Polish judiciary. However, in the 2017 Opinion the Venice Commission concluded that, instead, this reform jeopardised the judicial independence and “enabled the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice” (§ 129 of the 2017 Opinion) [footnote omitted]. As a result of the 2017 reform:", "• The judicial community in Poland lost the power to delegate representatives to the NCJ, and hence its influence on recruitment and promotion of judges. Before the 2017 reform 15 (out of 25) members of the NCJ were judges elected by their peers. Since the 2017 reform those members are elected by Parliament. Taken in conjunction with the immediate replacement, in early 2018, of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the NCJ;", "...", "9. It should be stressed that the Venice Commission never advocated a self-governing judiciary as a general standard, and that it is very much conscious of the diversity of legal systems in Europe in this respect. There are democratic countries where the judiciary is independent even though judicial appointments are made by the executive. Nevertheless, the Venice Commission has always welcomed that practically all new democracies, where in the recent history the judiciary was subordinated to other branches of power, have established judicial councils [footnote omitted]. Such councils help in ensuring that the judicial community may make a meaningful input in decisions concerning judges [footnote omitted]. This was the choice made by the Polish constituent assembly, which is reflected in Article 186 of the Polish Constitution stating that “the NCJ shall safeguard the independence of courts and judges”, as well is in Article 187 which provides that 15 members of the Council should be chosen “from among the judges”.", "10. The simultaneous and drastic reduction of the involvement of judges in the work of the National Council for the Judiciary, filling the new chambers of the Supreme Court with newly appointed judges, mass replacement of court presidents, combined with the important increase of the powers of the President of the Republic and of the Minister of Justice/Prosecutor General – and this was the result of the 2017 reform – was alarming and led to the conclusion that the 2017 reform significantly reduced the independence of the Polish judiciary vis-à-vis the Government and the ruling majority in Parliament.", "...", "61. ... In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the [December] 2017 Opinion of the Venice Commission, namely:", "• to return to the election of the 15 judicial members of the NCJ not by Parliament but by their peers;", "...", "• to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; ...”", "The Council of Europe Commissioner for Human Rights", "134. The Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. The report from her visit, published on 28 June 2019, reads in so far as relevant:", "“ 1.2 Changes affecting the National Council for the Judiciary", "...", "16. On her part, the Commissioner regrets the retroactive shortening of the constitutional terms of duty of all serving members of the National Council for the Judiciary, a move which was found by the Consultative Council of European Judges of the Council of Europe (CCJE) to be “not in accordance with European standards for judicial independence”, and was criticised in the same vein by the above-mentioned UN Special Rapporteur. She considers that the former members of the Council should have been allowed to serve out their full mandates according to their constitutional duration. According to the 2016 joint report by the CCJE and the Consultative Council of European Prosecutors of the Council of Europe (CCPE), “the independence of judges and prosecutors can be infringed by weakening the competences of the Council for the Judiciary, ... or by changing its composition” (paragraph 12). ...", "1.2.1 Conclusions and Recommendations", "18. The Commissioner recalls that councils for the judiciary are independent bodies that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system (paragraph 26 of the aforementioned recommendation of the Committee of Ministers CM/Rec(2010)12). She considers that the collective and individual independence of the members of such bodies is directly linked, and complementary to, the independence of the judiciary as a whole, which is a key pillar of any democracy and essential to the protection of individual rights and freedoms.", "19. The Commissioner considers that serious concerns remain with regard to the composition and independence of the newly constituted National Council for the Judiciary. She observes that under the new rules, 21 out of the 25 members of the body have been elected by Poland’s legislative and executive powers; this number includes the body’s 15 judicial members, who have been elected by the Sejm.", "20. The Commissioner considers that entrusting the legislature with the task of electing the judicial members to the National Council for the Judiciary infringes the independence of this body, which should be the constitutional guarantor of judicial independence in Poland. She considers that the selection of members of the judiciary should be a decision process independent of the executive or the legislature, in order to preserve the principles of separation of powers and the independence of the judiciary, and to avoid the risk of undue political influence.", "21. For these reasons, the Commissioner encourages the Polish authorities to bring the legislation governing the composition and the process of selecting the judicial members of the National Council for the Judiciary in line with the above-mentioned Council of Europe standards and the Polish Constitution, in particular by ensuring that the fifteen judicial members of the body are duly elected by a wide representation of their peers and not by the legislative branch.”", "The Consultative Council of European Judges (“the CCJE”)", "(a) Opinion no. 10 (2007)", "135. Opinion no. 10 (2007) of the CCJE to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society adopted on 23 November 2007 reads, in so far as relevant:", "“II. General mission: to safeguard the independence of the judiciary and the rule of law", "8. The Council for the Judiciary is intended to safeguard both the independence of the judicial system and the independence of individual judges. The existence of independent and impartial courts is a structural requirement of a state governed by the rule of law.", "...", "III. Membership: to enable an optimum functioning of an independent and transparent council for the judiciary", "III. A. A Council for the Judiciary composed by a majority of judges", "15. The composition of the Council for the Judiciary shall be such as to guarantee its independence and to enable it to carry out its functions effectively.", "...", "17. When the Council for the Judiciary is composed solely of judges, the CCJE is of the opinion that these should be judges elected by their peers.", "18. When there is a mixed composition (judges and non-judges), the CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers.", "19. In the CCJE’s view, such a mixed composition would present the advantages both of avoiding the perception of self-interest, self-protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy. However, even when membership is mixed, the functioning of the Council for the Judiciary shall allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice.", "...", "III. C. Selection methods", "III. C. 1. Selection of judge members", "25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.”", "(b) Magna Carta of Judges", "136. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant section reads as follows:", "“Body in charge of guaranteeing independence", "13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.”", "(c) Opinion of the CCJE Bureau of 12 October 2017", "137. Following a request of the Polish NCJ, on 12 October 2017 the CCJE Bureau adopted its Opinion on the Draft Act on the NCJ submitted by the President of Poland (see paragraphs 46-48 above). The Opinion stated, in so far as relevant:", "“ E. The most significant changes introduced by the Draft Act presented by the President of Poland", "11. Thus, the most significant concerns caused by the adopted and later vetoed act on the Council related to:", "- the selection methods for judge members of the Council;", "- the pre-term removal of the judges currently sitting as members of the Council;", "- ...", "12. Out of these concerns, the only significant change in the present draft ... is the requirement for a majority of 3/5 in the Sejm for electing 15 judge members of the Council. However, this does not change in any way the fundamental concern of transferring the power to appoint members of the Council from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure [footnote omitted]. This risk may be said to be even greater with the new draft, since it provides that if a 3/5 majority cannot be reached, those judges having received the largest number of votes will be elected.", "13. Furthermore, since the President of Poland proposes, as in the previous draft, that the Sejm also elects 15 judge members of the Council, in addition to 4 ex officio members of the Council and 6 members presently elected by Parliament from among MPs, this effectively means that almost all members of the Council would be elected by the Parliament. Such a proposal contradicts the Council of Europe’s standards for judicial self-governing bodies such as councils for the judiciary.", "14. The CCJE Bureau reiterates that by its Recommendation CM/Rec(2010)12 on Judges: independence, efficiency and responsibilities, the Committee of Ministers of the Council of Europe took the position that not less than half the members of Councils for the Judiciary should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary [footnote omitted]. This is also reflected in the Opinions of the CCJE and other relevant bodies at the European level set up in order to safeguard the rule of law and the basic principles for judicial independence and impartiality. The Venice Commission has particularly advocated that judicial members of a Council for the Judiciary should be elected or appointed by their peers [footnote omitted]. Furthermore, the proposed new method for selecting judge members contradicts the principles set out in the Council of Europe Plan of Action on Strengthening Judicial Independence and Impartiality [footnote omitted]. ...", "16. As regards the term of office of members of the Council, the new draft foresees, similarly to the previous draft, the pre-term termination of the mandate of the 15 judges who are currently members of the Council. They will serve in the Council only until the election of the new 15 members by the Sejm.", "17. The CCJE has underlined in general that a member of any Council for the Judiciary, which is a constitutional body entrusted with a mission of fundamental importance for the independence of the judiciary, should only be removed from office following the application - as a minimum - of those safeguards and procedures that would apply when consideration is being given to a removal from office of an ordinary judge. The procedure in the case of pre-term removal should be transparent and any risk of political influence should be firmly excluded, which is not the case either in the previous or in the new draft.", "...", "F. Conclusions", "20. The Bureau of the CCJE, which represents the CCJE members who are serving judges from all Council of Europe member States, reiterates once again that the Draft Act would be a major step back as regards judicial independence in Poland. ...", "21. In order to fulfil European standards on judicial independence, the judge members of the National Council of the Judiciary of Poland should continue to be chosen by the judiciary. Moreover, the pre-term removal of the judges currently sitting as members of the Council is not in accordance with European standards and it endangers basic safeguards for judicial independence.", "22. The Bureau of the CCJE is deeply concerned by the implications of the Draft Act for the principle of the separation of powers, as well as that of the independence of the judiciary, as it effectively means transferring the power to appoint members of the Polish National Council of the Judiciary from the judiciary to the legislature. The CCJE Bureau recommends that the Draft Act be withdrawn and that the existing law remain in force. Alternatively, any new draft proposals should be fully in line with the standards of the Council of Europe regarding the independence of the judiciary.”", "138. On 10 November 2017 the CCJE confirmed the above-mentioned Opinion of the CCJE Bureau.", "(d) Opinion no. 24 (2021)", "139. Opinion no. 24 (2021) of the CCJE on the Evolution of the Councils for the Judiciary and Their Role in Independent and Impartial Judicial Systems, adopted on 5 November 2021 states, in so far as relevant:", "“ II. Tasks, organisation and composition of Councils for the Judiciary", "1. The tasks of a Council for the Judiciary", "19. The CCJE accepts that there is not one single model for a Council for the Judiciary. However, every Council should have adequate competences to defend the independence of the judiciary and individual judges [footnote omitted], so that individual judges are free to decide cases without undue influence from outside and inside the judiciary [footnote omitted]. Judicial independence requires special protection in decisions which have an effect on judicial decision making, such as the selection of judges, ... Where it has such responsibilities, a Council for the Judiciary should ensure that such decisions are made in a way that protects and enhances judicial independence.", "...", "2. Composition of a Council for the Judiciary", "...", "29. The CCJE recommends that Councils for the Judiciary should be composed of a majority of judges elected by their peers. Other members may be added depending on the functions of the Councils. The CCJE recommends that a Council also have non-judicial members possibly including lay persons who are not legal professionals [footnote omitted]. While judges should always be in the majority, non-judicial members preferably with voting rights ensure a diverse representation of society, decreasing the risk of corporatism [footnote omitted]. The participation of lay persons may increase legitimacy and fight the perception of the judiciary as a “lawyers-only affair”. The CCJE takes a more nuanced view in this respect than in Opinion No. 10 (2007).", "3. Selection of members and chair of a Council for the Judiciary", "30. The CCJE wishes to strongly reaffirm that the majority of members should be judges elected by their peers, guaranteeing the widest possible representation of courts and instances [footnote omitted], as well as diversity of gender [footnote omitted] and regions. Elected judges should be able to participate in the Council’s activities in a way compatible with their workload. Where the Council includes non-judges, they should be able to devote adequate time to participation in the Council’s activities.", "31. An election of judge members by parliament or selection by the executive must be avoided [footnote omitted]. An election by parliament of non-judicial members might, however, be acceptable. As an alternative an election or nomination by institutions such as Bar Associations or nomination by NGOs is a possibility.", "32. By whatever means members are selected and appointed [footnote omitted], this should not be done for political reasons. ... Members of the Council for the Judiciary should not be under the authority or influence of others.", "...", "4. Security of tenure of members of a Council for the Judiciary", "36. Members should be selected for a fixed time in office and must enjoy adequate protection for their impartiality and independence [footnote omitted]. Members must be protected from internal and external pressures. However, except, in cases of death, retirement or removal from office, for example as a result of disciplinary action, a member’s term should only end upon the lawful election of a successor to ensure that the Council is able to exercise its duties lawfully even if the appointment of new members has failed, because of a deadlock in parliament [footnote omitted]. CCJE draws attention to the possible impact of re-election on the independence of the members of a Council for the Judiciary. ... Continuity and efficiency can be improved if not all terms of office expire simultaneously.", "37. The CCJE wishes to reaffirm the importance of security of tenure of all Council members as such [footnote omitted] as a crucial precondition for the independence of the Council. Judges appointed to the Council for the Judiciary should be protected with the same guarantees as those granted to judges exercising jurisdictional functions, including the conditions of service and tenure and the right to a fair hearing in case of discipline, suspension, and removal [footnote omitted]. Non-judicial members should have equivalent protection. ...", "38. Members may only be removed from office based on proven serious misconduct in a procedure in which their rights to a fair trial are guaranteed. Members may cease to be members in the event of incapacity or loss of the status on the basis of which they were elected or appointed to the Council. If the Council itself or a special body within it are responsible for this decision, the rights of the dismissed member to an appeal must be ensured. The CCJE underlines the importance that procedures which may lead directly or indirectly to termination of office are not misused for political purposes but respect fair trial rights [footnote omitted]. In this respect, this Opinion amplifies Opinion No. 10 (2007).”", "Group of States against Corruption (“GRECO”)", "140. Following considerable amendments to legislation affecting the judiciary in Poland in 2016/2017, GRECO decided at its 78 th Plenary Meeting (4-8 December 2017) to apply an ad hoc procedure in respect of Poland. This procedure can be triggered in exceptional circumstances, such as when GRECO receives reliable information concerning institutional reforms, legislative initiatives or procedural changes that may result in serious violations of anti-corruption standards of the Council of Europe.", "141. The relevant extracts from the Addendum to the Fourth Round Evaluation Report on Poland, adopted by Greco at its 80th Plenary Meeting (Strasbourg, 18-22 June 2018, Greco-AdHocRep(2018)3), read as follows:", "“26. ... The Polish authorities indicate that these amendments [the 2017 Amending Act] were made to ensure a better representation of the whole judiciary in the NCJ (in light of the underrepresentation of district court judges in the past) and to make the NCJ more democratic in order to counter corporatism [footnote omitted]. ...", "27. ... The GET [Greco Evaluation Team] regrets the enforcement of the simultaneous dismissal of the judicial members of the NCJ and the fact that it was not possible for judicial members to challenge the dismissals. The GET takes the view that it would have been possible to achieve the aim of “the same term of office” for NCJ members, as required by a judgment of the Constitutional Tribunal, without the pre-term dismissal of all serving judicial members [footnote omitted]. New elections of the 15 judge members took place on 7 March 2018. Only 18 judges stood for election, 17 of which were proposed by groups of 25 judges and one by a group of more than 2000 citizens. The GET was informed that a large part of the judiciary had boycotted the elections, as had several opposition parties in the Sejm, and that most of the new judge members were at the time judges seconded to the Ministry of Justice or presidents of courts who had recently been appointed by the Minister (which reportedly was similar for judge members of the previous NCJ) [footnote omitted]. ...", "28. While the GET takes note of the stated aim of making the NCJ more representative of the judiciary, it considers that this could and should have been done through other means. It also notes that despite this aim the 15 judge members chosen by the Sejm do not include any judges from courts of appeal, military courts, the Supreme Court or Supreme Administrative Court (other than ex officio members). The current method for electing judge members to the NCJ limits considerably the influence of the judiciary on these elections in favour of the legislature. ...", "29. The GET takes note of these points, but at the same time cannot disregard the fact that effectively 21 of the 25 members of the NCJ are now elected by Parliament (a majority of which by the ruling party). The GET maintains that, following the 2017 [Amending Act], the election of representatives of the judiciary to the NCJ is no longer in compliance with Council of Europe standards, nor with GRECO’s well-established practice, which require that at least half of the members of a judicial council should consist of judges elected by their peers, as was the case in Poland before the amending law was adopted [footnote omitted]. This is particularly problematic in light of the NCJ’s central role in the process of appointing judges in Poland. In view of the above, GRECO recommends that the provisions on the election of judges to the National Council of the Judiciary be amended, to ensure that at least half of the members of the National Council of the Judiciary are judges elected by their peers.” (bold in the original)", "142. In December 2019 GRECO assessed whether Poland had implemented any of the recommendations it issued in the Addendum to the Fourth Round Evaluation Report of June 2018. In its report GrecoRC4(2019)23 adopted at its 84th Plenary Meeting (Strasbourg, 2 ‑ 6 December 2019), GRECO stated as follows:", "“ Rule 34 recommendation i.", "30. GRECO recommended that the provisions on the election of judges to the NCJ be amended, to ensure that at least half of the members of the NCJ are judges elected by their peers.", "31. The authorities did not provide any information on measures taken to implement this recommendation.", "32. GRECO regrets ─ in particular given the NCJ central role in the process of appointing judges in Poland ... ─ that no steps were taken to amend the Law on the NCJ, to ensure that at least half of the members of the NCJ are judges elected by their peers. GRECO maintains its position, as outlined in the Rule 34 Report, that the current composition of the NCJ (whereby effectively 21 out of 25 members of the NCJ are being elected by Parliament) is not in compliance with Council of Europe standards.", "33. GRECO concludes that Rule 34 recommendation i has not been implemented.”", "143. In its Interim Compliance Report GrecoRC4(2021)18 adopted at is 88th Plenary Meeting (Strasbourg, 20-22 September 2021), GRECO concluded that Rule 34 recommendation i remained not implemented (see paragraph 142 above).", "The Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR)", "144. The OSCE/ODIHR prepared its Final opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain Other Acts of Poland of 5 May 2017 upon a request received from the Chairperson of the NCJ [16]. The Final Opinion read, in so far as relevant:", "“ 3.1. The Modalities of Appointing Judge Members of the Judicial Council", "3.1.1. Appointing Authority", "34. Article 1 [paragraphs] 1-3 of the Draft Act proposes to replace the existing selection methods with a procedure whereby the fifteen judges sitting on the Judicial Council will be chosen by the Sejm. ...", "37. In principle, judicial councils or other similar bodies are crucial to support and guarantee the independence of the judiciary in a given country, and as such should themselves be independent and impartial, i.e., free from interference from the executive and legislative branches. Indeed, interfering with the independence of bodies, which are guarantors of judicial independence, could as a consequence impact and potentially jeopardize the independence of the judiciary in general. As is the case in Poland..., such councils are generally in charge of key issues pertaining to the independence of judges, particularly judicial appointments and promotion, and also represent the interests of the judiciary as a whole, in particular vis-à-vis the executive and legislative powers. ...", "40. The approach of the Draft Act, which places the procedure of appointing members of the Judicial Council primarily in the hands of the other two powers, namely the executive and/or the legislature (apart from the ex officio members, 21 members would now be appointed by the legislative branch and one by the executive), increases the influence of these powers over the appointment process of its members, thereby threatening the independence of the Judicial Council, and as a consequence, judicial independence overall as guaranteed by Article 173 of the Constitution. ...", "42. The principle of having judge members of judicial councils selected by their peers exists primarily to prevent any manipulation or undue pressure from the executive or legislative branches, and to ensure that judicial councils are free from any subordination to political party considerations, so as to be able to perform their roles of safeguarding the independence of the judiciary and of judges. ...", "47. Based on the foregoing, it is recommended that Articles 1(1) – 1(3) of the Draft Act be reconsidered and that judicial members of the Judicial Council continue to be chosen by the judiciary ...", "5. The Termination of the Mandate of Current Judge Members of the Judicial Council", "81. The early termination of the mandate of judges duly elected to a constitutional body, for no legitimate reason other than an amendment to relevant legislation, raises concerns with regard to respect of the independence of such a body, and as a consequence of the judiciary as a whole.", "82 In this context, it is noted that Article 14 of the 2011 Act lists a number of limited circumstances in which the early termination of members of the Judicial Council is possible. The list therein does not, however, include amendments to relevant legislation. ... In principle, the removal of a member before the expiration of his or her mandate should be possible only for the reasons specified in the respective law, and Parliament should refrain from adopting measures which would have a direct and immediate effect on the composition of the Judicial Council. Generally, and while noting that the judge members to the Council will not lose their status of judge, the early termination of the mandates of judge members of judicial councils should be guided by similar safeguards and principles. These principles advise for clearly established and transparent procedures and safeguards, based on clear and objective criteria, in order to exclude any risk of political influence on judges’ early removal from office. This means that judge members’ appointments should only be reconsidered if some breach of disciplinary rules or the criminal law by the individual judges sitting on the Council is clearly established, following proper disciplinary or judicial procedures. ...", "85. In light of the above, it is recommended to remove Article 5 par 1 from the Draft Act, so that members of the Judicial Council may serve their full term of office, all the more since there do not seem to be any legal or other compelling reasons justifying the early termination of their mandates.”", "EUROPEAN UNION LAWThe Treaty on European Union", "The Treaty on European Union", "The Treaty on European Union", "145. Article 2 of the Treaty on European Union (“the TEU”) reads as follows:", "“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”", "146. Article 19 § 1 of the TEU provides:", "“The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.", "Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”", "The Charter of Fundamental Rights", "147. Title VI of the Charter, under the heading ‘Justice’, includes Article 47 thereof, entitled ‘Right to an effective remedy and to a fair trial’, which states as follows:", "“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.", "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ...”", "Case-law of the CJEUJudgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117", "Judgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117", "Judgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117", "148. The request for a preliminary ruling was made in proceedings between the Associação Sindical dos Juízes Portugueses (ASJP) and the Tribunal de Contas (Court of Auditors, Portugal) concerning the temporary reduction in the remuneration paid to that court’s members, in the context of Portugal’s budgetary policy guidelines. In finding that the principle of judicial independence in Article 19(1) TEU does not preclude general salary ‑ reduction measures, such as those at issue in those proceedings, the CJEU reasoned as follows:", "“30. According to Article 2 TEU, the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails. In that regard, it should be noted that mutual trust between the Member States and, in particular, their courts and tribunals is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded, as stated in Article 2 TEU (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR), of 18 December 2014, EU:C:2014:2454, paragraph 168).", "...", "32. Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System), of 8 March 2011, EU:C:2011:123, paragraph 66; judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C ‑ 583/11 P, EU:C:2013:625, paragraph 90, and of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C ‑ 456/13 P, EU:C:2015:284, paragraph 45).", "...", "34. The Member States are therefore obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System), of 8 March 2011, EU:C:2011:123, paragraph 68). In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C ‑ 583/11 P, EU:C:2013:625, paragraphs 100 and 101 and the case-law cited).", "35. The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (see, to that effect, judgments of 13 March 2007, Unibet, C ‑ 432/05, EU:C:2007:163, paragraph 37, and of 22 December 2010, DEB, C ‑ 279/09, EU:C:2010:811, paragraphs 29 to 33).", "36. The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law (see, to that effect, judgment of 28 March 2017, Rosneft, C ‑ 72/15, EU:C:2017:236, paragraph 73 and the case-law cited).", "37. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.", "38. In that regard, the Court notes that the factors to be taken into account in assessing whether a body is a ‘court or tribunal’ include, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 16 February 2017, Margarit Panicello, C ‑ 503/15, EU:C:2017:126, paragraph 27 and the case-law cited).", "...", "42. The guarantee of independence, which is inherent in the task of adjudication (see, to that effect, judgments of 19 September 2006, Wilson, C ‑ 506/04, EU:C:2006:587, paragraph 49; of 14 June 2017, Online Games and Others, C ‑ 685/15, EU:C:2017:452, paragraph 60; and of 13 December 2017, El Hassani, C ‑ 403/16, EU:C:2017:960, paragraph 40), is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts.", "...", "44. The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (see, to that effect, judgments of 19 September 2006, Wilson, C ‑ 506/04, EU:C:2006:587, paragraph 51, and of 16 February 2017, Margarit Panicello, C ‑ 503/15, EU:C:2017:126, paragraph 37 and the case-law cited).”", "Judgment of 19 November 2019 in A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982", "149. Between August and October 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling in cases pending before that court which arose in connection with the lowering of the retirement age for judges of the Supreme Court in the new Act on the Supreme Court adopted in December 2017. This rule was also applicable to judges of the Supreme Administrative Court. The cases in question involved proceedings brought by a judge of the Supreme Administrative Court (A.K.) against the NCJ, and proceedings brought by two Supreme Court judges (C.P. and D.O.) against the President of the Republic. The requests concerned, inter alia, the issue whether the newly established Disciplinary Chamber of the Supreme Court that was to have jurisdiction in such cases could be regarded as an independent court under EU law in light of the fact that it was composed of judges selected by the new NCJ.", "150. On 19 November 2019 the CJEU delivered its preliminary ruling. It held, in so far as relevant:", "“Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Supreme Court.", "If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”", "151. On the interaction between EU law and the Convention, the CJEU found as follows:", "“115. In that regard, according to settled case-law, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, responsible for ensuring that, pursuant to Article 47 of the Charter, the right to effective judicial protection of those rights is effectively protected in every case (see, to that effect, judgments of 22 October 1998, IN. CO. GE.’90 and Others, C ‑ 10/97 to C ‑ 22/97, EU:C:1998:498, paragraph 14 and the case-law cited; of 15 April 2008, Impact, C ‑ 268/06, EU:C:2008:223, paragraphs 44 and 45; and of 19 March 2015, E.ON Földgáz Trade, C ‑ 510/13, EU:C:2015:189, paragraphs 49 and 50 and the case-law cited).", "116. Furthermore, it should be noted that Article 52(3) of the Charter states that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR.", "117. As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C ‑ 205/15, EU:C:2016:499, paragraph 40 and the case-law cited).", "118. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 29 July 2019, Gambino and Hyka, C ‑ 38/18, EU:C:2019:628, paragraph 39).", "119. As regards the substance of the second paragraph of Article 47 of the Charter, it is clear from the very wording of that provision that the fundamental right to an effective remedy enshrined therein means, inter alia, that everyone is entitled to a fair hearing by an independent and impartial tribunal.", "120. That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 58 and the case-law cited).", "121. According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 63 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 72).", "122. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 73).", "123. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 74).", "124. Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (see, to that effect, judgment of 10 November 2016, Poltorak, C ‑ 452/16 PPU, EU:C:2016:858, paragraph 35).", "125. In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 112 and the case-law cited).", "126. That interpretation of Article 47 of the Charter is borne out by the case-law of the European Court of Human Rights on Article 6(1) of the ECHR according to which that provision requires that the courts be independent of the parties and of the executive and legislature (ECtHR, 18 May 1999, Ninn-Hansen v. Denmark, ..., p. 19 and the case-law cited).", "127. According to settled case-law of that court, in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e S v. Portugal, ..., § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, ..., § 141).", "128. As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., §§ 145, 147 and 149 and the case-law cited).", "129. As the European Court of Human Rights has repeatedly held, the concepts of independence and objective impartiality are closely linked which generally means that they require joint examination (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 192 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., § 150 and the case-law cited). According to the case-law of the European Court of Human Rights, in deciding whether there is reason to fear that the requirements of independence and objective impartiality are not met in a given case, the perspective of a party to the proceedings is relevant but not decisive. What is decisive is whether such fear can be held to be objectively justified (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., §§ 193 and 194 and the case-law cited, and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., §§ 147 and 152 and the case-law cited).", "130. In that connection, the European Court of Human Rights has repeatedly stated that, although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction. The question is always whether, in a given case, the requirements of the ECHR have been met (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 193 and the case-law cited; 9 November 2006, Sacilor Lormines v. France, ..., § 59; and 18 October 2018, Thiam v. France, ..., § 62 and the case-law cited).”", "152. With regard to the status of the new NCJ, the CJEU found, in so far as relevant:", "“136. In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary.", "137. The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective ... In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the [Supreme Court] to the existence of a favourable opinion of the [NCJ] is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office.", "138. However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal ...", "139. The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.", "140. It is for the referring court to ascertain whether or not the [NCJ] offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role.", "141. The referring court has pointed to a series of elements which, in its view, call into question the independence of the [NCJ].", "142. In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable.", "143. Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the [NCJ] directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ].", "144. For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive.” [17]", "Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C ‑ 824/18, EU:C:2021:153", "153. By resolutions adopted in August 2018, the NCJ decided not to present to the President of the Republic proposals for the appointment of five persons (‘the appellants’) as judges at the Supreme Court and to put forward other candidates for those positions. The appellants lodged appeals against these resolutions with the Supreme Administrative Court, the referring court. Such appeals were governed at that time by the Act on the NCJ, as amended by a law of July 2018. Under those rules, it was provided that unless all the participants in a procedure for appointment as judge at the Supreme Court challenged the relevant resolution of the NCJ, that resolution became final with respect to the candidate presented for that position, so that the latter could be appointed by the President of the Republic. The referring court, taking the view that such rules precluded in practice any effectiveness of the appeal lodged by a participant who had not been put forward for appointment, initially requested a preliminary ruling on whether those rules were in compliance with EU law.", "154. After that initial referral, the Act on the NCJ was once again amended, in 2019. Pursuant to that amendment, it became impossible to lodge appeals against decisions of the NCJ concerning the proposal or non-proposal of candidates for appointment to judicial positions at the Supreme Court. Moreover, that amendment declared appeals which were still pending to be discontinued by operation of law. Considering that from now on it was deprived of its jurisdiction to obtain an answer to the questions that it had previously referred to the CJEU, the referring court, i.e. the Supreme Administrative Court, in its complementary request for a preliminary ruling, asked a question about the compatibility of those new rules with EU law.", "155. On 2 March 2021 the CJEU delivered a preliminary ruling, which found in the operative part in so far as relevant:", "“1. Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the [Supreme Court, Poland] against decisions of a body such as the [National Council of the Judiciary, Poland] not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling:", "...", "– the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.", "Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.”", "156. The relevant reasons for the judgment read as follows:", "“ 121. ... the guarantees of independence and impartiality required under EU law presuppose, inter alia, the existence of rules governing the appointment of judges.", "...", "124. Having noted that, under Article 179 of the Constitution, the judges of the [Supreme Court] are appointed by the President of the Republic on a proposal from the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary, the Court stated, in paragraph 137 of the judgment in A. K. and Others, that the participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective, by circumscribing the President of the Republic’s discretion in exercising the powers of his or her office.", "125. In paragraph 138 of that judgment, the Court stated, however, that that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal.", "126 In that regard, it should be noted that, as the referring court has pointed out, under Article 179 of the Constitution, the act by which the [NCJ] puts forward a candidate for appointment to a position of judge at the [Supreme Court] is an essential condition for such a candidate to be appointed to such a position by the President of the Republic. The role of the [NCJ] in that appointment process is therefore decisive.", "127. In such a context, the degree of independence enjoyed by the [NCJ] in respect of the Polish legislature and the executive in exercising the responsibilities attributed to it may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from EU law (see, to that effect, judgment in A. K. and Others, paragraph 139).", "...", "129. Thus, while the fact that it may not be possible to exercise a legal remedy in the context of a process of appointment to judicial positions of a national supreme court may, in certain cases, not prove to be problematic in the light of the requirements arising from EU law, in particular the second subparagraph of Article 19(1) TEU, the situation is different in circumstances in which all the relevant factors characterising such a process in a specific national legal and factual context, and in particular the circumstances in which possibilities for obtaining judicial remedies which previously existed are suddenly eliminated, are such as to give rise to systemic doubts in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that process.", "130. As is apparent from the judgment in A.K. and Others, that may particularly be the case where it appears, on the basis of criteria such as those mentioned by the referring court and which are referred to in paragraph 43 of this judgment, that the independence of a body such as the [NCJ] from the legislature and executive is open to doubt.", "131. In paragraphs 143 and 144 of the judgment A.K. and Others, the Court thus already identified, from among the relevant factors to be taken into account for the purposes of assessing the requirement of independence which must be satisfied by a body such as the [NCJ], first, the fact that the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time, second, the fact that, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the Polish legislature, third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ], and, fourth, the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers. In such a context, the possible existence of special relationships between the members of the [NCJ] thus established and the Polish executive, such as those referred to by the referring court and mentioned in paragraph 44 of this judgment, may similarly be taken into account for the purposes of that assessment.", "132. In addition, in the present case, account should also be taken of other relevant contextual factors which may also contribute to doubts being cast on the independence of the [NCJ] and its role in appointment processes such as those at issue in the main proceedings, and, consequently, on the independence of the judges appointed at the end of such a process.", "133. It should be observed, in that regard, that the legislative reform which led to the establishment of the [NCJ] in its new composition took place in conjunction with the adoption, which was highly contentious, of the provisions of Articles 37 and 111 of the New Law on the Supreme Court which the referring court has mentioned and which lowered the retirement age of the judges of the [Supreme Court] and applied that measure to judges currently serving in that court, while empowering the President of the Republic with discretion to extend the exercise of active judicial service of those judges beyond the new retirement age set by that law.", "134. It is therefore common ground that the establishment of the [NCJ] in its new composition took place in a context in which it was expected that many positions would soon be vacant in the [Supreme Court] following, in particular, the retirement of the judges of that court who had reached the newly set age limit of 65 years.” [18]", "Judgment of 20 April 2021, Repubblika v. Il-Prim Ministru, C-896/19, EU:C:2021:311", "157. The First Hall of the Civil Court, sitting as a Constitutional Court of Malta made a request for a preliminary ruling on the conformity with EU law of the provisions of the Constitution of Malta governing the procedure for the appointment of members of the judiciary.", "158. On 20 April 2021 the CJEU gave the following ruling, in so far as relevant:", "“2. The second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister.”", "159. The relevant reasons for the judgment read as follows:", "“63. It follows that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU ...", "64. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary ...", "65. In that context, the Court has already held, in essence, that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence (see, to that effect, judgments of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court ‑ Actions), C ‑ 824/18, EU:C:2021:153).", "66. By contrast, the involvement, in the context of a process for appointing members of the judiciary, of a body such as the Judicial Appointments Committee established, when the Constitution was reformed in 2016, by Article 96A of the Constitution may, in principle, be such as to contribute to rendering that process more objective, by circumscribing the leeway available to the Prime Minister in the exercise of the power conferred on him or her in that regard. It is also necessary that such a body should itself be sufficiently independent of the legislature, the executive and the authority to which it is required to submit an opinion on the assessment of candidates for a judicial post ...", "67. In the present case, a series of rules mentioned by the referring court appear to be such as to guarantee the independence of the Judicial Appointments Committee vis ‑ à ‑ vis the legislature and the executive. The same applies to the rules, contained in Article 96A(1) to (3) of the Constitution, relating to the composition of that committee and the prohibition on politicians sitting in that committee, the obligation imposed on members of that committee by Article 96A(4) of the Constitution to act on their individual judgment and not to be subject to direction or control by any person or authority, and the obligation for that committee to publish, with the consent of the Minister responsible for justice, the criteria which it has drawn up, and also its assessments, something which was, moreover, done, as the Advocate General observes in point 91 of his Opinion.", "68. Furthermore, the referring court has not, in the present case, expressed any doubts as to the conditions under which the members of the Judicial Appointments Committee established by Article 96A of the Constitution were appointed or as to how that body actually performs its role.", "69. It is thus apparent that the introduction of the Judicial Appointments Committee by Article 96A of the Constitution serves to reinforce the guarantee of judicial independence.”", "Judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges), C-791/19, EU:C:2021:596", "160. Following its interim decision of 8 April 2020 (see paragraph 23 above), on 15 July 2021 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland (Disciplinary regime for judges) holding that the new disciplinary regime for judges was not compatible with EU law. The CJEU found, inter alia, that in light of the global context of major reforms that had recently affected the Polish judiciary, in which context the Disciplinary Chamber of the Supreme Court had been created, and owing to a combination of factors that framed the process whereby that new chamber had been established, that chamber did not provide all the guarantees of impartiality and independence and, in particular, was not protected from the direct or indirect influence of the Polish legislature and executive; among those factors, the Court criticised, in particular, the fact that the process for appointing judges to the Supreme Court, including the members of the Disciplinary Chamber, was essentially determined by the NCJ, which had been significantly reorganised by the Polish executive and legislature and whose independence could give rise to reasonable doubts.", "161. The relevant reasons for the judgment read as follows:", "“96. In accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraph 54 and the case-law cited).", "97. Concerning, more specifically, the circumstances in which decisions to appoint judges of the Supreme Court and, in particular, of the Disciplinary Chamber, are made, it is true that the Court has already had occasion to state that the mere fact that the judges concerned are appointed by the President of a Member State does not give rise to a relationship of subordination of those judges to the latter or to doubts as to the judges’ impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraph 56 and the case-law cited).", "98. However, the Court has stated that it is still necessary to ensure that the substantive conditions and procedural rules governing the adoption of those appointment decisions are such that they cannot give rise to reasonable doubts in the minds of individuals as to the imperviousness of the judges concerned to external factors and their neutrality with respect to the interests before them, once they have been appointed as judges, and that it is important, inter alia, in that perspective, that those conditions and procedural rules should be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraphs 55 and 57 and the case-law cited).", "99. Having noted that, under Article 179 of the Constitution, the judges of the Supreme Court are to be appointed by the President of the Republic on a proposal from the [NCJ], namely the body entrusted under Article 186 of the Constitution with the task of safeguarding the independence of courts and judges, the Court stated, in paragraph 137 of the judgment in A. K. and Others and paragraph 124 of the judgment in A.B. and Others, that the participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective, by circumscribing the President of the Republic’s discretion in exercising the powers of his or her office.", "100. In paragraph 138 of the judgment in A. K. and Others and paragraph 125 of the judgment in A.B. and Others, the Court stated, however, that this is not the case unless, inter alia, that body is itself sufficiently independent of the legislature and the executive and of the authority to which it is required to deliver such an appointment proposal.", "101. In that regard, it should be noted that, under Article 179 of the Constitution, the act by which the [NCJ] puts forward a candidate for appointment to a judge’s post at the Supreme Court is an essential condition for that candidate to be appointed to such a post by the President of the Republic. The role of the [NCJ] in that appointment process is therefore decisive (see, to that effect, the judgment in A.B. and Others, paragraph 126).", "102. In such a context, the degree of independence enjoyed by the [NCJ] in respect of the Polish legislature and executive in performing the tasks thus entrusted to it may become relevant when ascertaining whether the judges which it selects will themselves be capable of meeting the requirements of independence and impartiality derived from EU law (see, to that effect, judgments in A. K. and Others, paragraph 139, and A.B. and Others, paragraph 127).", "103. It is true that ... the Court has previously held that the fact that a body, such as a national council of the judiciary, which is involved in the process for appointing judges is, for the most part, made up of members chosen by the legislature cannot, in itself, give rise to any doubt as to the independence of the judges appointed at the end of that process (see, to that effect, judgment of 9 July 2020, Land Hessen, C ‑ 272/19, EU:C:2020:535, paragraphs 55 and 56). However, it is also apparent from the case-law of the Court and, more specifically, from the judgments in A. K. and Others and A.B. and Others, that the situation may be different where that fact, combined with other relevant factors and the conditions under which those choices were made, leads to such doubts being raised.", "104. In that regard, it should be noted, first, that ... whereas the 15 members of the [NCJ] selected from among the judges were previously selected by their peers, the Law on the [NCJ] has recently been amended, so that, as is apparent from Article 9a of that law, those 15 members are now appointed by a branch of the Polish legislature, with the result that 23 of the 25 members of the [NCJ] in that new composition have been appointed by the Polish executive or legislature or are members thereof. Such changes are liable to create a risk, hitherto absent from the selection procedure previously in force, of the legislature and the executive having a greater influence over the [NCJ] and of the independence of that body being undermined.", "105. Secondly ... it is apparent from Article 6 of the Law of 8 December 2017 ... that the thus newly constituted [NCJ] was established through the shortening of the existing four-year term of office, provided for in Article 187 § 3 of the Constitution, of the members which had, until that point, made up that body.", "106. Thirdly, it is important to point out that the legislative reform which thus governed the process whereby the [NCJ] was established in that new composition took place at the same time as the adoption of the new Law on the Supreme Court which carried out a wide-ranging reform of the Supreme Court including, in particular, the creation, within that court, of two new chambers, one being the Disciplinary Chamber, and the introduction of the mechanism, since held to be contrary to the second subparagraph of Article 19(1) TEU ... providing for a lowering of the retirement age for judges of the Supreme Court and the application of that measure to serving judges of that court.", "107. It is, accordingly, common ground that the premature termination of the terms of office of certain then-serving members of the [NCJ] and the reorganisation of the [NCJ] in its new composition took place in a context in which it was expected that numerous posts would be soon be vacant within the Supreme Court, and in particular within the Disciplinary Chamber, as the Court of Justice has already emphasised, in essence, in paragraphs 22 to 27 of the order of 17 December 2018, Commission v Poland (C ‑ 619/18 R, EU:C:2018:1021), in paragraph 86 of the judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C ‑ 619/18, EU:C:2019:531), and in paragraph 134 of the judgment in A.B. and Others.", "108. It must be held that the factors highlighted in paragraphs 104 to 107 of the present judgment are such as to give rise to legitimate doubts as to the independence of the [NCJ] and its role in an appointment process such as that resulting in the appointment of the members of the Disciplinary Chamber.", "109. Furthermore, it is apparent from paragraphs 89 to 94 of the present judgment, first, that that appointment process applies to candidates for the post of member of a newly created judicial chamber created to give rulings, inter alia, in disciplinary proceedings concerning national judges and on issues relating to the reform of the provisions relating to the Supreme Court, certain aspects of which have already led to a finding of a failure to fulfil obligations under the second subparagraph of Article 19(1) TEU on the part of the Republic of Poland, and, second, that that body is required to be made up exclusively of new judges who are not already sitting within the Supreme Court and who will receive a significantly higher level of remuneration, and has a particularly high degree of organisational, functional and financial autonomy in comparison with the conditions prevailing in the other judicial chambers of the Supreme Court.", "110. Those factors, taken in the context of an overall analysis including the important role played by the [NCJ] – a body whose independence from the political authorities is questionable, as is apparent from paragraph 108 of the present judgment – in appointing members of the Disciplinary Chamber, are such as to give rise to reasonable doubts in the minds of individuals as to the independence and impartiality of that Disciplinary Chamber.”", "The European Commission", "162. On 20 December 2017 the Commission launched the procedure under Article 7(1) of the TEU. The Commission submitted a reasoned proposal to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach by the Republic of Poland of the rule of law, one of the values referred to in Article 2 of the TEU, and to address appropriate recommendations to Poland in this regard.", "163. The Commission noted that the situation in Poland had continuously deteriorated, despite the three recommendations issued under the rule of law framework. It considered that the situation in Poland represented a clear risk of a serious breach by the Republic of Poland of the rule of law, enshrined in Article 2 of the TEU. The Commission observed that over a period of two years more than thirteen consecutive laws had been adopted affecting the entire structure of the justice system in Poland: the Constitutional Court, the Supreme Court, the ordinary courts, the National Council for the Judiciary, the prosecution service and the National School of Judiciary. The common pattern in all these legislative changes was the executive or legislative powers being systematically enabled to interfere significantly with the composition, powers, administration and functioning of those authorities and bodies.", "164. As regards the law on the NCJ, the Commission noted that its role had a direct impact on the independence of judges. For this reason, in Member States where a Council for the Judiciary has been established, its independence was particularly important for avoiding undue influence from the Government or the Parliament on the independence of judges. The Commission considered that the law on the NCJ increased the concerns regarding the overall independence of the judiciary by providing for the premature termination of the mandate of all judicial members of the NCJ, and by establishing an entirely new regime for the appointment of its judicial members allowing a high degree of political influence.", "165. The relevant extracts from the European Commission reasoned proposal read as follows:", "“4.2. The law on the National Council for the Judiciary", "...", "138. For this reason, in Member States where a Council for the Judiciary has been established, its independence is particularly important for avoiding undue influence from the Government or the Parliament on the independence of judges (footnote omitted).", "139. The law on the National Council for the Judiciary increases the concerns regarding the overall independence of the judiciary by providing for the premature termination of the mandate of all judges-members of the National Council for the Judiciary, and by establishing an entirely new regime for the appointment of its judges ‑ members which allows a high degree of political influence.", "140. According to Article 6 of the law on the National Council for the Judiciary the mandates of all the current judges-members of the National Council for the Judiciary will be terminated prematurely. This termination decided by the legislative powers raises concerns for the independence of the Council and the separation of powers. The Parliament will gain a decisive influence on the composition of the Council to the detriment of the influence of judges themselves. This recomposition of the National Council for the Judiciary could already occur within one and a half month after the publication of the law [footnote omitted]. The premature termination also raises constitutionality concerns, as underlined in the opinion of the National Council for the Judiciary, of the Supreme Court and of the Ombudsman.", "141. Also, the new regime for appointing judges-members of the National Council for the Judiciary raises serious concerns. Well established European standards, in particular the 2010 Recommendation of the Committee of Ministers of the Council of Europe, stipulate that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary’ [footnote omitted]. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where such a Council has been established, as it is the case in Poland, its independence must be guaranteed in line with European standards.", "142. Until the adoption of the law on the National Council for the Judiciary, the Polish system was fully in line with these standards since the National Council for the Judiciary was composed of a majority of judges chosen by judges. Articles 1(1) and 7 of the law amending the law on the National Council for the Judiciary would radically change this regime by providing that the 15 judges-members of the National Council for the Judiciary will be appointed, and can be re-appointed, by the Sejm (footnote omitted). In addition, there is no guarantee that under the new law the Sejm will appoint judges-members of the Council endorsed by the judiciary, as candidates to these posts can be presented not only by groups of 25 judges, but also by groups of at least 2000 citizens (footnote omitted). Furthermore, the final list of candidates to which the Sejm will have to give its approval en bloc is pre-established by a committee of the Sejm (footnote omitted). The new rules on appointment of judges-members of the NCJ significantly increase the influence of the Parliament over the Council and adversely affect its independence in contradiction with the European standards. The fact that the judges-members will be appointed by the Sejm with a three fifths majority does not alleviate this concern, as judges-members will still not be chosen by their peers. In addition, in case such a three fifths majority is not reached, judges-members of the Council will be appointed by the Sejm with absolute majority of votes.", "...", "145. In their opinions concerning the draft law, the Supreme Court, the National Council for the Judiciary and the Ombudsman raised a number of concerns as regards the constitutionality of the new regime. In particular, the National Council for the Judiciary notes that under the Polish constitution, the Council serves as a counterweight to the parliament which has been constitutionally authorized to decide on the content of law. The political appointment of judges-members and the premature termination of mandates of the current judges-members of the Council therefore violates the principles of separation of powers and judicial independence. As explained in the previous Recommendations, an effective constitutional review of these provisions is currently not possible.”", "166. The procedure under Article 7(1) TEU is still under consideration by the Council of the European Union.", "The European Parliament", "167. In its resolution of 17 September 2020 on the proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM(2017)0835 – 2017/0360R(NLE)), the European Parliament stated, in so far as relevant:", "“ The composition and functioning of the new National Council of the Judiciary", "24. Recalls that it is up to the Member States to establish a council for the judiciary, but that, where such council is established, its independence must be guaranteed in line with European standards and the Member State’s constitution; recalls that, following the reform of the National Council of the Judiciary, which is the body responsible for safeguarding the independence of the courts and judges in accordance with Article 186 § 1 of the Polish Constitution, by means of the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts, the judicial community in Poland was deprived of the power to delegate representatives to the National Council of the Judiciary, and hence its influence on recruitment and promotion of judges; recalls that before the reform, 15 out of 25 members of the National Council of the Judiciary were judges elected by their peers, while since the 2017 reform, those judges are elected by the Polish parliament; strongly regrets that, taken in conjunction with the premature termination in early 2018 of the mandates of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the National Council of the Judiciary;”.", "COMPARATIVE LAW MATERIAL", "168. The Court has conducted a comparative survey of the domestic law and practice in 41 State Parties to the Convention on the issue of the premature termination ex lege of a judge’s term of office as a member of a Council for the Judiciary [19].", "169. It emerges from the contributions from the States surveyed, that most of them (36) have councils for the judiciary or equivalent bodies with the function of safeguarding the independence of the judiciary. Of these, the majority (26) make provision in their domestic law for premature termination of the term of office of a judge elected as a member of such council, although on grounds that vary considerably between the different States.", "170. In 17 countries the possibility to challenge premature termination of a council members’ term of office in judicial proceedings is either expressly provided for by law or implicitly follows from the general domestic legal framework. In 13 States the termination of office at the council for the judiciary is an automatic consequence of the end of the person’s term of office as a judge and is therefore not open to legal challenge as such, it being understood that the loss of judicial status is itself subject to judicial review. In respect of two States there is no clear answer to the question whether premature termination of the mandate may be challenged in judicial proceedings. Only in three countries are decisions on early termination of a council member’s mandate final and not subject to any form of challenge in judicial proceedings; in one of these, however, a relevant reform is pending.", "171. The majority of the States surveyed (24) do not have past experience of adopting laws resulting in the premature termination of office of a member of a council for the judiciary, and there is no indication if it is hypothetically possible in their systems. However, three countries have encountered relevant situations in the past; two of them introduced transitional provisions in relation to the terms of office existing at the time of the new law’s entry into force. Two further States accept a theoretical possibility of premature termination of term of office in this manner. By contrast, in four other countries, legislative intervention of this kind would, according to the contributions received from the respective States, run a risk of being found to be unconstitutional on the basis that it would encroach on judicial independence. In the same vein, in two States where a new law regulating the composition of the council for the judiciary may theoretically be adopted, it cannot have retroactive effect. It may be concluded that there is no clear consensus in favour or against the possibility of legislative reform leading to a premature termination of office of a member of judicial council. The justification of such reform in a concrete situation and the existence of safeguards preserving the independence of courts and the judiciary, including transitional provisions, are relevant factors. Ultimately, the balance between the benefit of the reform for the functioning of democratic institutions and the security of tenure plays an important role.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "172. The applicant complained that he had been denied access to a court in order to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the NCJ. He had been elected as a member of this body for a four-year term, as provided for in Article 187 § 3 of the Constitution, and had the right to remain in office for the duration of that term, thus until 11 January 2020. The applicant claimed that the premature termination of his term of office had violated the Constitution and breached the rule of law. He relied on Article 6 § 1 of the Convention, of which, the relevant part, reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "AdmissibilityApplicability of Article 6", "Applicability of Article 6", "Applicability of Article 6", "(a) The Government’s submissions", "173. The Government raised a preliminary objection as to the applicability of Article 6 § 1 of the Convention. They claimed that under Polish law there was no right to exercise public authority, including the right of a judge to be elected to the NCJ or to remain in that office. Moreover, in the present case there was no genuine and serious “dispute” concerning the existence of the alleged civil right of the applicant to remain a member of the NCJ.", "174. The Government argued that until 2002 there had been no doubt that the term of office had been of a joint nature for all of the groups of the NCJ’s elected members. However, in February 2002 the NCJ had adopted the view that the term of office of a judge elected to the NCJ should be considered individual (following the termination of the term of office of a judicial member who had been appointed to another judicial post). They submitted that, as a result, a discrepancy had arisen between the nature of the term of office of the judicial members and that of the other elected members (deputies and senators) of the NCJ. This differentiation had been reflected in the Act of NCJ of 2011. Consequently, on 11 April 2017 the Prosecutor General had lodged an application with the Constitutional Court on this issue. In its judgment of 20 June 2017 (no. K 5/17), the Constitutional Court had ruled that the term of office of all of the NCJ’s elected members should be a joint one (see paragraph 42 above).", "175. The Government maintained that in order to implement the Constitutional Court’s judgment of 20 June 2017, the authorities had prepared a bill amending the Act on the NCJ. They argued that the decision to terminate the applicant’s term of office had been legitimate. Its rationale was to implement the Constitutional Court’s judgment in so far as the nature of the term of office of the NCJ’s judicial members was concerned. It thus constituted a merely technical measure aimed at the establishment of a new term of office consonant with the relevant constitutional provisions.", "176. The Government noted that the NCJ was a constitutional body tasked with safeguarding judicial independence, but not a judicial authority. It was situated “between the three constitutional powers” and embodied the balance between them. They argued that the fact that the present case concerned a judicial member of the NCJ did not have any particular significance for the applicability of Article 6 § 1.", "177. They emphasised the distinction between the applicant’s status as a judge and his function as a member of the NCJ. The latter pertained to the exercise of public authority ( władztwo publiczno-prawne ). The NCJ included persons who were not entitled to independence, such as the deputies and senators, the Minister of Justice and a representative of the President of the Republic. The latter two members could be dismissed from their positions. Thus, it could not be said that a seat on the NCJ was protected in any particular way. Moreover, since the Constitution and the Act on the NCJ did not differentiate between the status of the NCJ’s members depending on who appointed or elected them, it was difficult to treat the NCJ’s judicial members differently from other members. Since the possibility of dismissing some members from the NCJ had never been a sign of a lack of independence of this body, it was thus not possible to derive from the rule of the NCJ’s independence an absolute prohibition on removal of its members. Furthermore, it was impossible to conclude from the Court’s case-law that only the existence of an independent judicial council could serve as a guarantee of the independence of the judiciary.", "178. The Government submitted that election to the NCJ did not constitute “employment” or any other comparable legal relationship. Moreover, the present case did not concern an “employment dispute” similar to the cases of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II) or Baka v. Hungary ([GC], no. 20261/12, 23 June 2016). NCJ members performed their functions pro bono. The only financial reward for NCJ members was the payment of per diem allowances for taking part in plenary sessions, or other work, and the reimbursement of relevant expenses. However, under the case-law of the domestic courts those allowances were not regarded as remuneration. Thus, the fact of being a member of the NCJ could not be regarded as a right either under domestic law or under the Convention.", "179. The Government maintained that a certain stability of the term of office of the NCJ’s elected members was established by law not to protect any “individual interest” of a judge, but to safeguard the public interest of ensuring the proper exercise of the NCJ’s functions. Consequently, a member of the NCJ did not have any “right” to hold his position. The early termination of a term of office pertaining to the exercise of public authority did not constitute an interference with the rights of an individual. There were no safeguards in the Convention guaranteeing the exercise of public authority. They further argued that Article 60 of the Constitution, providing for the right of access to public service, did not apply to the present case.", "180. As regards the first condition of the Eskelinen test, the Government maintained that under Polish law the applicant had been excluded from the right of access to a court in so far as his seat on the NCJ was concerned. This exclusion had been in place already on the date of his election to the NCJ and thus the 2017 Amending Act had not affected this.", "181. The Government referred to section 14 of the Act on the NCJ, as applicable at the material time, containing the list of reasons for termination of the term of office of an NCJ member before the expiry of that term, and also to section 6 of the 2017 Amending Act. They noted that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of the office for the members of this body. The same was true of the 2001 Act on the NCJ, which had envisaged in section 10(3) the possibility of removal of a member of the NCJ by the body that had elected him or her.", "182. The Act on the NCJ provided that a judicial member of the Council could be appointed as a “permanent member of the Council’s bureau”. In such a case they were considered to be an employee and were entitled to bring court proceedings pertaining to their employment in the Council’s bureau. Domestic law provided for the right of access to a court only in those limited circumstances.", "183. The Government maintained that “civil rights” did not concern NCJ members and that the public-law nature of their office had never been questioned. Matters pertaining to participation in the NCJ did not constitute a “case” ( sprawa ) within the meaning of Article 45 § 1 of the Constitution and as such were excluded from the right to a court ratione materiae. The Government thus concluded that national law “excluded access to a court” for an individual claim based on the alleged unlawfulness of the termination of the term of office. The first condition of the Eskelinen test had therefore been met.", "184. As regards the second condition of the Eskelinen test, the Government argued that the subject-matter of the applicant’s complaint related exclusively to the exercise of State power ( acta iure imperii ).", "185. The Government maintained that the amendments in the 2017 Amending Act had been proportionate since the aim had been to adjust the election rules to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). They referred to the reasons for this judgment, noting that the amendments fell within the ambit of the legislature’s margin of appreciation. Article 187 § 1(2) of the Constitution provided for election of the NCJ’s judicial members from among judges. However, the Constitution did not determine who had to elect those judges and how they had to be elected. These modalities were to be regulated by statute, in accordance with Article 187 § 4 of the Constitution.", "186. The Government maintained that under the previous legislation, fifteen judicial members of the NCJ were elected by judges in a complicated and non-transparent procedure which favoured senior judges and those holding administrative functions. Currently, the judicial members were elected by the Sejm only from among the judges who obtained adequate support from other judges or from citizens.", "187. The Government submitted that in the Constitutional Court’s case ‑ law the protection of the term of office of the NCJ’s judicial members was not regarded as absolute. While not negating the significance of the stability of the term of office, the Constitutional Court had also acknowledged an equally important aspect, namely the representativeness of the judiciary in the NCJ. Reducing the term of office was to be considered an exception, but a permissible one in a situation where there was no real possibility of introducing temporary solutions, when the rules on the representation of the judiciary in the NCJ changed following the modification of the manner of electing the judicial members to the Council. Owing to the individual terms of office of the NCJ’s judicial members, the introduction of the new system without shortening the terms of office of the sitting members would have both stretched that process over time and complicated it. In the Government’s view, the cohesion of the changes which made it possible for the NCJ to operate in compliance with the Constitution justified the termination of the terms of office of the NCJ’s judicial members who had been elected on the basis of the previous provisions. Furthermore, the “democratisation” of the NCJ election procedure constituted an important public interest which justified in turn the early termination of the term of office of the NCJ’s judicial members. In this context, the Government submitted that under the 2017 Amending Act judicial members of the NCJ were to be elected by the Sejm from among the judges who obtained an adequate support from other judges or from citizens.", "188. The Government concluded that the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The second condition of the Eskelinen test had therefore been met as well.", "189. In the present case, since both conditions of the Eskelinen test had been fulfilled, the applicant’s complaint under Article 6 § 1 should be considered incompatible ratione materiae.", "190. In the alternative, the Government submitted that the complaint under Article 6 § 1 was inadmissible as manifestly ill-founded.", "(b) The applicant’s submissions", "191. The applicant maintained that Article 6 § 1 under its civil head was applicable to his case.", "192. He asserted that the Polish Constitution guaranteed to a judge elected to the NCJ the right to serve a full four-year term of office. This conclusion stemmed from Article 60 read in conjunction with Article 187 § 3 of the Constitution. He noted that under the basic principles of the Constitution all rights guaranteed to individuals referred to the relationship between them and the State authorities. Therefore, the early termination of his term of office in the NCJ had to be seen as an interference with his individual right of access to public service, not as a deprivation of the exercise of public power. The latter was exercised by the NCJ as a collective body, not by its individual members.", "193. The applicant argued that the termination of his term of office had had clear pecuniary consequences for him. He had received substantial per diem allowances for taking part in the NCJ’s plenary sessions or other work as well as the reimbursement of relevant expenses. The allowances were subject to income tax deductions and therefore had a monetary component within the meaning of applicable tax regulations. In addition, each judicial member of the NCJ was entitled under the relevant regulation to a reduction in their workload of cases, while maintaining their remuneration as a judge. The applicant’s workload had been reduced from three to one judicial session per month.", "194. The applicant submitted that the stability of tenure of the NCJ’s members was fundamental to ensuring the proper functioning of that body. He submitted that the regulations on the NCJ that had been in force before the adoption of the 2011 Act had respected the tenure of the Council’s elected members. Section 50 of the 2011 Act on the NCJ provided that the terms of office of members of the NCJ elected on the basis of the previous Act on the NCJ would last until the end of the period for which they had been elected.", "195. Furthermore, the Constitutional Court had underlined in its judgment of 18 July 2007 (no. K 25/07) that only extraordinary circumstances could warrant a breach of the tenure of the NCJ’s members. The applicant submitted that the Government’s argument that there had been no alternative to the shortening of his term of office in connection with the introduction of the new system of electing the NCJ’s judicial members could not be accepted as proportionate or legitimate. He argued that ensuring him the right of access to a court should also be considered as a positive obligation of the State stemming from Article 6 in connection with the Preamble to the Convention.", "196. As regards the first condition of the Eskelinen test, the applicant argued that the domestic law had never explicitly excluded access to a court for judicial members of the NCJ whose term of office had been prematurely terminated. The premature termination in his case had been unprecedented. The Act on the NCJ in force at the time of his election to the Council did not provide for such termination, except in the situations provided for in section 14 of the Act. The termination at issue had resulted from the ad hoc application of statute law and lacked the characteristics of abstract legal norms. It could not be concluded that the national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the measure at issue.", "197. Even assuming that domestic law excluded access to a court in his case, the applicant argued that the exclusion was not based on objective grounds in the State’s interest. Firstly, the exclusion had a significant impact on his status as a judge since he had been elected to the NCJ in his capacity as a judge of an administrative court, not as an ordinary citizen. His election to the NCJ had been aimed at ensuring the proper operation of the NCJ, a body responsible for safeguarding judicial independence.", "198. Secondly, the applicant maintained that the intention behind the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) had been to find defective the method of electing the NCJ’s judicial members. This judgment had to be seen as a false pretext justifying the introduction of changes to the NCJ’s composition at the time when the legislative procedure, initiated by the Ministry of Justice, had been pending in Parliament. Moreover, the impugned judgment was invalid and contrary to the Constitution owing to the participation of Judges M.M. and L.M. in the adjudicating panel.", "199. Thirdly, the 2017 Amending Act was in violation of the constitutional principle of the separation of powers. Its objective was not to make the NCJ election procedure more democratic, but to subordinate that body to the legislative and executive powers.", "200. Fourthly, the exclusion of the right of access to a court was incompatible with the rule of law. The shortening of the applicant’s term of office could not be regarded as a merely technical measure. Rather, it constituted a serious violation of Article 187 § 3 of the Constitution and interference with the right of access to public service under Article 60 of the Constitution.", "201. The fact that the case concerned a member of the NCJ, a body tasked with safeguarding judicial independence, was of significance. The applicant asserted that, as a judicial member of the NCJ, he should have been protected from abuse on the part of the legislative and executive powers. This protection should have been through the oversight of an independent court able to examine the lawfulness of the termination of his term of office.", "202. The premature termination of his term of office and that of the other judicial members of the NCJ had initiated a series of events, such as the election of new members to the NCJ and its participation in the nomination procedure for the judges of the two new chambers of the Supreme Court, which had ultimately undermined the stability of the domestic legal and judicial system, and resulted in numerous applications being lodged with the Court and multiple proceedings before the CJEU. It had also to be seen as one of the root causes of the current rule of law crisis in Poland. The NCJ in its current composition was no longer an independent body fulfilling its constitutional mission. Lastly, the fact that the case concerned a judge and a member of the NCJ required stricter scrutiny of the justification for excluding access to a court.", "203. The applicant concluded that there had been a serious and genuine dispute over his “right” to serve a full, four-year term of office as the NCJ’s judicial member and that this right was “civil” in nature within the meaning of Article 6 § 1. Accordingly, this provision was applicable to his case.", "(c) Submissions of third-party interveners", "204. The submissions received pertain both to the admissibility and merits of the complaint under Article 6 § 1.", "(i) European Network of Councils for the Judiciary", "205. The intervener is an association of twenty-four judicial councils of member States of the EU. It submitted that councils for the judiciary had a pivotal role to play in ensuring judicial independence and they operated autonomously within the judicial systems of their respective jurisdictions to guarantee, inter alia, the maintenance of the rule of law and the protection of individual rights. In Europe, there were many countries which provided for the establishment of self-governing judicial bodies such as High Councils for the Judiciary and Councils of Justice to protect the independence of judges. There were other jurisdictions where such a body had not been established, but where other independent organs had competence for the administration and financial management of the courts, and in some cases, the appointment and career progression of judges.", "206. The ENCJ noted that the composition of a council for the judiciary varied greatly from country to country and depended, inter alia, on the origins of each council. There was, however, an emerging international consensus that the majority of the members of such a council should be judges. The most successful model appeared to be the councils with representation from a combination of members elected from the ranks of legal, academic and civil society, with sufficiently broad powers to promote both judicial independence and accountability. The mechanism for appointing judicial members of a Council should exclude any interference on the part of the executive or the legislature. The judges should be elected solely by their peers and on the basis of a wide representation of the relevant sectors of the judiciary.", "207. The ENCJ adopted no formal standard on the length or termination of the term of office of the members of a judicial council and there were no specific international standards on this point. The absence of such standards showed that it was self-evident that the term of office of individual members of constitutionally established bodies entrusted, inter alia, with safeguarding judicial independence could not be prematurely terminated by the executive or legislature.", "(ii) Amnesty International and International Commission of Jurists", "208. The interveners noted that in many European jurisdictions, members of judicial councils played a significant role in the self-governance of the judiciary. They typically held powers relating to judicial appointments, evaluations, promotions and disciplinary proceedings. The international standards cited by the interveners explicitly recognised all of these functions as potentially having an impact on the independence and impartiality of individual judges and of the judiciary as a whole. Removal, or the threat of removal, of a judge from membership of a judicial council during his or her term had the potential to affect his or her personal independence. International standards on the independence of the judiciary enshrined the principle that the political powers should not be responsible for, or otherwise interfere with, the appointment, functioning or removal of members of judicial councils. They referred, inter alia, to the CCJE’s Opinion no. 10 (2007) on the Council for the Judiciary at the service of society.", "209. The interveners maintained that appointment as a member of a judicial council differed from appointment as a judge in that it was for a short, fixed term of office to carry out a range of functions, many or all of which could be of a more administrative or quasi-judicial, rather than judicial, character. Nonetheless, the principle of independence of the judiciary necessarily implied a substantial degree of security of tenure for the members of a judicial council, for the duration of their terms of office. In order to ensure such security of tenure and to maintain the independence of individual members of judicial councils, and also the overall capacity of the Council to uphold the independence of individual judges and the independence of the judiciary, proceedings for the removal of a member of a judicial council during his or her term of office should provide guarantees of independence and fairness of the proceedings. Where the Council or its organs exercised a judicial or quasi-judicial role in the removal of judges from office, the grounds and procedure for removal from the Council should resemble those required for removal of a judge from judicial office.", "210. These general principles should also be reflected in the application of Article 6 § 1 both as regards its scope of application and in the substance of the protection afforded.", "211. The interveners submitted that, when assessing any justification advanced by the State for excluding judges’ access to court in regard to their career and security of tenure, or membership of judicial governance bodies, consideration must be given to the strong public interest in upholding the role, independence and integrity of the judiciary in a democratic society under the rule of law. It could never be in the legitimate interests of the State to deprive judges who were members of judicial councils, of access to court or of the protection of due process in disputes capable of affecting their institutional or individual independence, including in cases that concerned their security of tenure or conditions of service relative to the discharge of judicial governance functions.", "212. They further argued that in the assessment of the adequacy of procedural safeguards in accordance with Article 6 § 1, and in considering the justification of any restrictions on aspects of Article 6 § 1 rights in cases concerning the career of judges, consideration should be given to the particular significance of these proceedings for judicial independence and the rule of law, a founding principle of the Convention system.", "213. While assessing the application of Article 6 § 1 in the present case, it was important to take account of the broader context of attacks on judicial independence in Poland and to recognise the connection between the individual rights of the applicant and their structural consequences, in this case for the right to fair trial of others, and more fundamentally for the rule of law as a whole. The interveners submitted that various laws adopted and implemented in Poland between 2015 and 2018 have severely undermined the independence of the judiciary and rendered it vulnerable to political influence.", "214. They argued that the application of Article 6 § 1 to the present case was manifestly justified because the functioning of the NCJ – without pressure or influence from the executive and legislative branches or other outside forces – was crucial to the overall independence of the judiciary in Poland. The NCJ played an essential role in defending judicial independence, a cornerstone of the rule of law and the protection of human rights. One of the safeguards ensuring the independence of the NCJ was constitutionally protected tenure of its members. Forcible termination of the tenure of NCJ members in March 2018 had both breached individual rights and undermined the NCJ’s ability to safeguard the independence of the judiciary. If judges who were members of the NCJ were at risk of arbitrary removal from the NCJ, its overall functioning as the defender of judicial independence would be impaired to the detriment of individual judges, of the judiciary as an equal branch of government, and of the public, which had the right to an independent and impartial judicial system.", "(iii) The Helsinki Foundation for Human Rights", "215. The Helsinki Foundation for Human Rights submitted that the reform of the NCJ adopted in 2017 had given rise to a serious controversy and been criticised as inconsistent with judicial independence. As regards the stability of the tenure of the NCJ’s members, the intervener argued that judges elected to the NCJ had an entitlement under Polish law to protection against removal from that body. In the past, the law had provided for the possibility of dismissal of elected judicial members of the NCJ by the bodies which elected them. However, until 2017 there had never been a situation in which the judicial members of the NCJ were collectively removed from office by statute.", "216. The Constitution of 1997 protected the term of office of the individuals composing the constitutional organs that had been appointed or elected before the entry into force of the Constitution (Article 238 § 1). Similarly, the 2011 Act on the NCJ provided that the terms of office of those members who had been elected on the basis of previous regulations would be respected. In addition, when in 2007 the Parliament adopted a law introducing a new incompatibilitas criterion into the 2001 Act on the NCJ that was to be applicable not only to newly elected members, but also to those who had been elected before the entry into force of the new law, the Constitutional Court ruled that the law was incompatible with the Constitution (judgment of 18 July 2007, no. K 25/07; see paragraphs 82-85 above).", "217. The intervener further referred to the Constitutional Court’s judgment of 23 March 2006 declaring unconstitutional the Act providing for ex lege termination of terms of office of members of the National Broadcasting Council, in which that court had underlined the need to secure the stability of tenure (case no. K 4/06; see paragraphs 79-81 above). In another judgment of 9 December 2015 (case no. K 35/15), the Constitutional Court found that the law providing for ex lege removal of the President and Vice-President of the Constitutional Court had violated the Constitution and Article 6 § 1 of the Convention. In the intervener’s opinion, the standards developed by the Constitutional Court in the above rulings could be applied per analogiam to the elected judicial members of the NCJ, especially since their term of office was explicitly regulated in the Constitution.", "218. Next, the intervener argued that the ex lege termination of the terms of office of elected judicial members of the NCJ without providing them with access to a court was inconsistent with the principle of the rule of law. The declared purpose of the 2017 Amending Act was the implementation of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). In its view, however, the impugned judgment was controversial, firstly because it had been delivered with the participation of two unlawfully elected judges and, secondly, owing to a highly questionable interpretation of the Constitution. The same applied to a subsequent judgment (no. K 12/18) in which the Constitutional Court had upheld the constitutionality of the 2017 Amending Act. In both judgments, the Constitutional Court seemed to ignore the significance of the NCJ’s independence for the independence of the whole judiciary. It also departed from its earlier case-law holding that the Constitution required that the judicial members of the NCJ were elected by judges. Furthermore, the intervener submitted that the Constitutional Court had not specified that its judgment of 20 June 2017 (no. K 5/17) had required the termination of the terms of office of elected judicial members of the NCJ.", "219. While deciding whether to terminate the terms of office of the elected members of the NCJ, Parliament should have taken into account the international and constitutional standards of the rule of law. From that perspective, the termination at issue could negatively affect the independence of the NCJ, which in turn could threaten the independence of the judiciary.", "220. The intervener noted that the CJEU’s judgment of 19 November 2019 in joined cases A.K. and Others, no. C-585/18, C-624/18 and C ‑ 625/18 concerning the independence of the NCJ and the Disciplinary Chamber of the Supreme Court could be relevant for the interpretation of the Convention in the present case.", "221. The intervener did not exclude that in some extraordinary circumstances the termination of terms of office of elected judicial members of the NCJ could be justified. Such a situation might arise if termination would be objectively necessary in order to restore the independence of the NCJ. In order to avoid any abuse in this regard, such a necessity should be a consequence of a judgment of an independent and impartial domestic or international court.", "(iv) Polish Judges’ Association Iustitia", "222. Iustitia is the largest professional association of judges in Poland representing over one-third of all judges. The intervener submitted that the present case did not only concern the individual status of the applicant, but also problems of the utmost importance relating to judicial independence.", "223. The intervener noted that the NCJ had a direct impact on the independence of judges, in particular as regards promotion, transfer, disciplinary proceedings, dismissal and early retirement. The NCJ was established by the Act of 20 December 1989 as a result of a bill prepared by lawyers associated with the Solidarity trade union. It was agreed that the majority of its members would be judges elected by judges, and up to the adoption of the 2017 Amending Act the law had maintained that principle. Owing to that Act, Parliament had gained a decisive influence over the Council’s composition and, in effect, made the judicial system an extension of Parliament. This change in the relationship between the judiciary and Parliament had effectively destroyed the independence of the judiciary and, moreover, it had been done without constitutional amendment.", "224. The 2017 Amending Act significantly reduced the formal requirements for candidates to the NCJ. Currently, a candidate was required to demonstrate the support of twenty-five judges, equivalent to 0.25% of all judges. Moreover, a candidate had to obtain the support of a political party in the Sejm. The intervener submitted that the judiciary was effectively boycotting the unconstitutional changes. Out of 10,000 judges in Poland only 18 had decided to stand for election to the new NCJ. Some candidates had supported each other and most of them had some links with the Ministry of Justice, i.e. they had been seconded to the Ministry. Once appointed, they had been seconded by the Minister of Justice to higher courts or appointed as Presidents or Vice-Presidents of courts. The relations between the Ministry of Justice and the current members of the NCJ were difficult to ascertain since the endorsement lists for candidates standing for election to the Council had remained confidential, despite a final court judgment ordering their disclosure.", "225. The intervener noted that the former NCJ, judges’ associations and numerous assemblies of judges had expressed their disapproval of the new method of electing judicial members of the NCJ. Those actions showed that the new NCJ, which had been elected almost entirely by politicians (23 out of 25 members) did not enjoy the legitimacy in the eyes of judges. From the beginning of its operations in March 2018, the new Council’s work had given rise to controversy, in particular as regards its role in the process of selecting judges. It had become clear that the role of guardian of judicial independence could not be ensured by judges elected by the Sejm. For example, this body did not react to politically motivated disciplinary proceedings against judges.", "226. The intervener argued that the termination of the applicant’s term of office formed part of a broader, political context. It was a part of a mechanism aimed at the dismantling of the previous NCJ and, as a result, at dismantling the rule of law and, at the same time, ensuring that candidates for judicial office were elected by a body dependent on the political power. The intervener underlined that the status of the NCJ impacted the status of all judges in Poland appointed to their offices on the proposal of the current Council. For this reason, the independence of the NCJ was crucial for avoiding undue influence from the executive and legislative powers over the judiciary.", "(v) Judges for Judges Foundation and Professor Laurent Pech", "227. The interveners, who focused on the EU dimension of the rule of law crisis in Poland, referred to the key findings made by the European Commission in relation to the new NCJ. In its fourth recommendation of December 2017, the European Commission had suggested to the Polish authorities that the Act on the NCJ should be amended so that the terms of office of its judicial members were not terminated and the new election regime was abandoned. The authorities had ignored the Commission’s concerns and openly gone against its fourth recommendation. The Commission’s assessment had been shared by the European Parliament in its resolution of September 2020.", "228. The interveners outlined the findings of the European Commission and the European Parliament as regards the legislative changes made to the judicial system including, inter alia, (i) the lack of effective constitutional review, (ii) changes made to the retirement regime of the Supreme Court judges, (iii) changes made to the structure of the Supreme Court and (iv) changes made to the disciplinary regime for judges. They further provided an overview of the CJEU’s key judgments regarding legislative changes targeting the Polish judiciary and judges.", "229. Their conclusion was that in the time since the European Commission had activated its pre-Article 7 TEU procedure in January 2016, the rule of law situation in Poland had gone from bad to worse. Currently, the authorities were actively organising a process of systemic non-compliance with the CJEU’s rulings, but also with the Court’s judgments relating to judicial independence via, inter alia, the active collusion of unlawfully appointed judges, in a broader context where the violation of the fundamental principles underlying the EU legal order had been “legalised” by Poland’s “muzzle law”, i.e. the 2019 Amending Act (see paragraph 25 above). In their opinion, judicial independence had to be understood as having been structurally disabled by the Polish authorities.", "(vi) The Commissioner for Human Rights of the Republic of Poland", "230. The Commissioner noted that during his term of office he had been alarmed by the dismantling of domestic institutions designed to uphold the law and administer justice: the Constitutional Court, the NCJ, the Supreme Court and ordinary courts. Judicial independence was under systemic threat in Poland as the authorities intentionally exerted unlawful pressure on the entirety of judicial structures and subjected some judges to repression. The analysis of changes in the Polish judicial system indicated that the government’s intended strategy was to take control of the process of appointing judges and, in consequence, to influence the content of judicial decisions. In addition to the individual dimension of the present case, it also concerned an issue of a systemic nature, namely that the changes affecting the applicant and other judicial members of the NCJ, involved an illegitimate reconstitution of the NCJ, the body responsible for judicial nominations and upholding judicial independence.", "231. In 2018 the authorities re-constituted the NCJ in an unconstitutional manner. This was a deliberate action made shortly before the initiation of the process of selecting more than forty new judges for the Supreme Court. In fact, it was expected that even more positions would soon become vacant in that court following the retirement of its judges as they reached the newly imposed lower retirement age. The intention was to appoint to the Supreme Court persons affiliated with the political authorities.", "232. The Commissioner considered that the termination of the term of office of the NCJ’s judicial members had been arbitrary and unconstitutional. Likewise, the election of new judicial members to the NCJ had violated constitutional rules. In line with the Constitution, judicial members of the NCJ were entitled to a full term of office that was applicable at the time of their election.", "233. The Commissioner submitted that the Polish Constitution specified two essential functions of the NCJ, each requiring independence of that body. First, the NCJ organised competitions for judicial posts and recommended candidates for appointment to the President of the Republic. Second, the Council was designated as the guardian of judicial independence. There was no entrenched rule of international law obliging States to create a judicial council, although a demand to this effect was firmly embedded in the Council of Europe’s legal area. While Parties to the Convention were not legally bound to establish such council, if they did create one, they should ensure that it could perform the role entrusted to such a body. Since the primary task of a council was to ensure judicial independence, it had to remain independent of other branches of government.", "234. The Commissioner noted that since the NCJ’s establishment, a legitimate method of staffing that body was seen as particularly important to enable it to perform its role. Indeed, most of the constitutional rules on the NCJ were dedicated to its composition. All three branches of government were represented in the NCJ. Its composition thus reflected the principle of separation of powers, yet with a clear majority of judges (seventeen out of twenty-five members). Until 2018, fifteen judicial members of the Council were elected by judges. This mechanism was meant to guarantee the independence of the Council from the other powers and constituted a basic premise of its capacity to carry out its constitutional role. The mode of electing judicial members of the NCJ had been introduced at the time of its establishment in 1989, and had been maintained by the 1997 Constitution as well as by the subsequent Acts on the NCJ of 2001 and 2011. It was also supported in the Constitutional Court’s case-law and legal scholarship.", "235. The intervener noted that the 2017 Amending Act had forced a premature termination of the term of office of the NCJ’s judicial members, in manifest breach of the relevant constitutional rule. The authorities failed to identify any objective State interest in adopting such a measure and thus the measure should be considered arbitrary.", "236. The 2017 Amending Act transferred the competence to elect judicial members of the Council from judicial assemblies to the Sejm, in breach of the Constitution. By prematurely terminating the term of office of the NCJ’s judicial members, the legislative and executive branches granted themselves a decisive influence, or indeed a monopoly over the Council’s composition. Currently, twenty-three out of twenty-five NCJ members were either elected or appointed by those two branches. In most cases, the Sejm elected judges who had some links to the Minister of Justice.", "237. The Commissioner maintained that the principle of election of judicial members to the NCJ by their peers had been confirmed by the Constitutional Court in its judgment of 18 July 2007 (no. K 25/07). A different position had been taken by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). The constitutional interpretation adopted by the Constitutional Court in the latter judgment was questionable, but even if such a ruling had been delivered by a properly established constitutional court, the Commissioner pointed, inter alia, to the following. Polish constitutional law generally accepted that judgments finding unconstitutionality had a prospective effect. For this reason, the NCJ’s judicial members elected under the previous regulation could have completed their terms of office and the new rules would have been applicable as of the next election. In addition, there was no reasonable argument to question the independence of the previous NCJ for the sole reason that judicial members had been elected for an individual rather than a joint tenure. Most importantly, the Constitutional Court’s judgment should be disregarded because it had been given by a five-judge panel including two unauthorised persons, i.e. persons appointed to posts that had been already properly filled. Hence, the ruling had been delivered by a body that did not meet the requirements of a tribunal “established by law”. Furthermore, the composition of the panel had been manipulated by the President of the Constitutional Court while the case was pending. For example, Judge L.K. had been removed from the panel and replaced by Judge J.P., the Constitutional Court’s President. This decision was arbitrary as it had not been reasoned and had no proper legal basis. The same arguments about manipulating the composition of the bench applied to the Constitutional Court’s judgment of 25 March 2019 (no. K 12/18) which confirmed the earlier Constitutional Court’s judgment. The application in that case had been brought by the new NCJ and had aimed at its own legitimisation. The above indicated that there existed an established pattern of one flawed authority legitimising another flawed authority.", "238. The Commissioner proposed that the NCJ’s judicial members should enjoy protection analogous to that offered to judges against removal. This approach was based on the NCJ’s constitutional responsibility as a guardian of judicial independence. In support of his proposal, the Commissioner made the following arguments: (1) the NCJ’s status and the status of its members had to be such as to ensure that it was able to carry out its mission; (2) the NCJ’s decisions directly influenced the status of judges; the independence of judges was (3) absolute and (4) indivisible; and (5) persons with the attribute of independence should have a decisive say in the council. The requirement that judges should form the majority of a council was based on the assumption that they brought their integrity and independence into the council. The concept of indivisibility of judicial independence was at the heart of the CJEU landmark judgment in the case of Portuguese Judges (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C ‑ 64/16). This should be applied, mutatis mutandis, to the present context.", "239. The Commissioner submitted that, as an alternative, the NCJ’s judicial members should be afforded protection in the form of the right of access to a court recognised in the Eskelinen case-law.", "(vii) The UN Special Rapporteur on the Independence of Judges and Lawyers", "240. Following his official mission to Poland in October 2017, the UN Special Rapporteur presented a comprehensive report to the Human Rights Council in June 2018. He noted with concern the threat to the independence of the Polish judiciary.", "241. The intervener presented the essence of the official findings and recommendations made at the United Nations regarding the rule of law crisis in Poland. He acknowledged that the power of the Government to undertake reforms of the judiciary could not be questioned. Nonetheless, any reform of the judicial system should aim at improving its effectiveness, not at undermining the independence of the judiciary and its governing bodies.", "242. After the general election in October 2015, the parliamentary majority and the President of the Republic took a coordinated set of actions and adopted a vast array of legal amendments to the legislation regulating the functioning of the judiciary, including the ordinary courts, the Supreme Court and the NCJ. The Special Rapporteur raised concerns about the compliance of these reforms with international legal standards relating to the independence of the judiciary. He underlined that the various legislative acts and measures adopted by the authorities had severely undermined the independence of the judiciary and eroded the possibilities of checks and balances.", "243. The intervener referred to judicial governance as the set of institutions, rules and practices that organise, facilitate and regulate the exercise by the judicial branch of its function. In Europe, traditionally the governance of the judiciary was the responsibility of the executive. However, at least since the end of World War II, concerns about judicial independence and judicial accountability had led, in many countries, to the executive gradually losing its monopoly on judicial governance in favour of separate institutions with powers over the career of judges or the management of the judiciary. Some countries had established self-governing judicial bodies, such as judicial councils, in order to protect the independence of the judiciary. The underlying rationale was the need to insulate the judiciary and judicial career processes from external political pressure. Judicial councils often functioned as intermediaries between Governments and the judiciary and operated autonomously within the judicial system of their respective jurisdictions to guarantee, inter alia, the maintenance of the rule of law and the protection of human rights. Several Special Rapporteurs had recommended that States establish an independent body in charge of the selection and discipline of judges and to adopt appropriate measures to guarantee a pluralist and balanced composition of that body.", "244. The intervener noted that with high indifference to the United Nations’ standards the Polish authorities had passed the 2017 Amending Act, targeting the operation and composition of the NCJ. The main objective of this Act was to amend the procedure for the selection of the judicial members of the NCJ. The 2017 Amending Act had allowed the legislature to influence the selection of judges which had resulted in undue political interference in the overall administration of justice. The intervener was concerned about section 5 of the 2017 Amending Act which terminated the terms of office of fifteen judicial members of the NCJ. Such termination was arbitrary, clearly unconstitutional and in breach of international human rights standards recognising, inter alia, the right of access to an impartial and independent tribunal. It further interfered with the guarantees of independence enjoyed by the NCJ.", "245. The intervener opined that judicial councils played a crucial role in guaranteeing the independence of the judiciary and should themselves be independent. They should be free from any form of interference from the executive and legislative branches. To ensure that such a body can discharge its functions objectively and independently, the judiciary must have a substantial say with respect to selecting its members. The dismissal of its members must comply with international human rights standards, including due process guarantees. Under United Nations standards, judges appointed to judicial councils, should be afforded the same guarantees as those granted to judges exercising judicial functions, including the right to a fair hearing in case of discipline, suspension or removal.", "246. The Special Rapporteur emphasised that the judicial reform implemented by the Polish Government had had an adverse effect on the independence of the judiciary. In his assessment, “the series of reforms undertaken by the Government, presented as a cure, appeared to have been worse than the disease”. He noted that the independence of the judiciary and the separation of powers must constitute the guiding principles of any judicial reform. The intervener was in favour of extending the application of the principle of irremovability of judges to judicial members of the NCJ and affording them the appropriate judicial safeguards provided for in various international human rights instruments.", "(viii) The Government of Denmark", "247. The Danish Government maintained that an efficient, impartial and independent judiciary was the cornerstone of the rule of law and of any functioning system of democratic checks and balances. The question of the independence of the NCJ and its judicial members following the 2017 Amending Act was the subject of legal proceedings before the CJEU. The Court should take into account those proceedings as it had never considered the provisions of the Convention as the sole framework of refence for the interpretation of the rights and freedoms enshrined therein. The Danish Government referred to the CJEU’s judgment of 19 November 2019 in A.K. and Others (C-585/18, C-624/18 and C-625/18) which identified in §§ 143 ‑ 144 a number of factors for the purposes of assessing the independence of a body such as the NCJ. Subsequent to this CJEU judgment, the Polish Supreme Court held in the rulings of 5 December 2019 and 15 January 2020 that the NCJ in its current composition was not a body independent of the legislature and the executive branch.", "248. On this basis, the Danish Government submitted that the Court should determine that the 2017 Amending Act had undermined the independence of the NCJ and its judicial members and, consequently, considering the key role of the NCJ in appointing judges in Poland, had called into question the independence of the Polish judiciary as a whole. Accordingly, the application of Article 6 §1 to the present case, having regard also to the systemic nature of the case and possible widespread effects of these proceedings, was manifestly justified as it could contribute to maintaining the independence of the NCJ and, thus, to restoring its constitutional role of ensuring the independence of the courts and the rule of law in Poland.", "249. The Danish Government asserted that, similarly to the case of Baka v. Hungary, the terms of office of the applicant and the other previous judicial members of the NCJ had been prematurely terminated ex lege, interrupting a constitutionally guaranteed four-year term, without providing them with access to a court. In this connection, they referred to the CJEU’s judgment of 2 March 2021 in A.B. and Others (C-824/18). In that judgment the CJEU stated that the possible absence of any legal remedy in the context of a process of appointment to judicial positions may prove to be problematic where all the relevant contextual factors, such as those laid down in §§ 143 ‑ 144 of the A.K. and Others judgment, charactering such an appointment process may give rise to systemic doubts as to the independence and impartiality of judges appointed at the end of that process.", "250. Those considerations, having regard to the contextual factors relating to the 2017 Amending Act and the new NCJ, must analogously hold true as regards the ex lege termination of the terms of office of the applicant and other previous judicial members of the NCJ. Taking note of the special role in society of the judiciary and the public confidence it must enjoy, the Danish Government found that the lack of access to a court in connection to the premature termination of the terms of office of the previous judicial members of the NCJ was not in accordance with Article 6 § 1 or the standards of the rule of law.", "251. In view of the Court’s assessment of any grounds advanced by the respondent State on the basis of the Eskelinen test as to the legitimacy of excluding the previous judicial members from the protection of Article 6 § 1, the Danish Government requested the Court to consider such grounds in light of the contextual factors mentioned, having regard to the prominent place of the independent judiciary and the right to a fair trial in a democratic society as well as the particular attention which must be paid to the protection of members of the judiciary against measures affecting their status or career that could threaten their judicial independence.", "(ix) The Government of the Kingdom of the Netherlands", "252. The Dutch Government submitted that the context of the present case concerned the large-scale judicial reforms in Poland. Those reforms had caused widespread concern since they raised questions as to the independence of the judiciary. They also had resulted in several cases before the CJEU in which the Dutch Government had intervened.", "253. The present case was of importance as regards the normative impact of the rule of law on interpreting Convention rights. The rule of law was one of the three pillars of the Council of Europe that sought to achieve a greater unity between its members, as articulated in Article 1 of the Statute of the Council of Europe. In the preamble to the Statute, the rule of law was mentioned as one of the principles which formed the basis of all genuine democracies. Furthermore, Article 3 of the Statute required every member to accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. This formed the basis for the reference by the Court to the rule of law as being one of the “fundamental components of the European public order”.", "254. The principle of the rule of law was not provided for in the provisions of the Convention or its Protocols. However, it was expressly articulated in the Preamble to the Convention which made reference to this principle as part of the common heritage of European countries. The rule of law did not embody one single element but consisted of several components. In its 2011 report on the Rule of Law the Venice Commission had concluded that it included the following elements: (1) legality, including a transparent, accountable and democratic process for enacting law, (2) legal certainty, (3) prohibition of arbitrariness, (4) access to justice before independent and impartial courts, including judicial review of administrative acts, (5) respect for human rights, and (6) non-discrimination and equality before the law.", "255. In its case-law the Court had taken into account the elements of the rule of law when interpreting the Convention rights. In doing so, the Court had contributed to rendering concrete the notion of rule of law as a fundamental component of European public order for the protection of human rights and fundamental freedoms. The Court had made it clear that the rule of law was a principle underlying the Convention. In Golder v. the United Kingdom, the Court had stated that the rule of law was “one of the features of the common spiritual heritage of the member States of the Council of Europe”. In Engel and Others v. the Netherlands, it had said that from the rule of law “the whole Convention draws its inspiration”. In many subsequent cases, the Court had consistently viewed the rule of law as “inherent in all the Articles of the Convention”. This was particularly true for Article 6 of the Convention which provided for the right to a fair hearing before an independent and impartial tribunal.", "256. It followed from the above that the independence of the judiciary was an underpinning element of the rule of law and thus of the protection of human rights. The CJEU had also confirmed this in its judgment of 24 June 2019, Commission v. Poland ( Independence of the Supreme Court ), C ‑ 619/18, finding that the independence of the judiciary gave concrete expression to the value of the rule of law. Ensuring the independence of a judicial body did not necessarily imply that the executive or legislative powers could not have any role in the selection of members of that body. However, their role must be embedded in the law and there must be safeguards to ensure the independence of the members of the judicial body, thereby ensuring the independence of the judiciary as such.", "(d) The Court’s assessment", "(i) General principles", "257. For Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, 23 June 2016; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 71, 29 November 2016; Károly Nagy v. Hungary [GC], no. 56665/09, § 60, 14 September 2017; and Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017). Lastly, the right must be a “civil” right (see Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 ‑ X).", "258. Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X; Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012; and Károly Nagy, cited above, § 61).", "259. In order to decide whether the “right” in question has a basis in domestic law, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see, for example, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, 21 June 2016). The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018; S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018; and Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018). Thus, where the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction of access to a court, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law and by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Károly Nagy, § 62; see also Roche, § 120, both cited above).", "260. With regard to the “civil” nature of the right, the Court has noted that an employment relationship between a public-law entity, including the State, and an employee may be based, according to the domestic provisions in force, on the labour-law provisions governing relations between private individuals or on a body of specific rules governing the civil service. There are also mixed systems, combining the rules of labour law applicable in the private sector with certain specific rules applicable to the civil service (see Regner, cited above, § 106).", "261. As regards public servants employed in the civil service, according to the criteria established in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II) the respondent State cannot rely before the Court on the applicant’s status as a civil servant to exclude the protection embodied in Article 6 unless two conditions are fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists a special bond of trust and loyalty between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent State to demonstrate, first, that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (see Vilho Eskelinen and Others, § 62; Baka, § 103; and Regner, § 107, all cited above).", "262. Whilst the Court stated in Vilho Eskelinen and Others (cited above, § 61) that its reasoning in that case was limited to the situation of civil servants, it has extended the application of the criteria established in that judgment to various disputes regarding judges. It has noted that although the judiciary is not part of the ordinary civil service, it is considered part of typical public service (see Baka, cited above, § 104).", "263. The Court has applied the criteria set out in Vilho Eskelinen and Others (cited above) to all types of disputes concerning judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012, and Tsanova-Gecheva v. Bulgaria, no. 43800/12, 15 September 2015, §§ 85-87), transfer (see Tosti v. Italy (dec.). no. 27791/06, 12 May 2009 and Bilgen v. Turkey, no. 1571/07, § 79, 9 March 2021), suspension (see Paluda v. Slovakia, no. 33392/12, §§ 33-34, 23 May 2017, and Camelia Bogdan v. Romania, no. 36889/18, § 70, 20 October 2020), disciplinary proceedings (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 120, 6 November 2018; Di Giovanni v. Italy, no. 51160/06, §§ 36 ‑ 37, 9 July 2013; and Eminağaoğlu v. Turkey, no. 76521/12, § 80, 9 March 2021), as well as dismissal (see Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 91 and 96, ECHR 2013; Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, §§ 118 and 132, 19 January 2017; Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017; Kamenos v. Cyprus, no. 147/07, §§ 82 ‑ 88, 31 October 2017; and Olujić v. Croatia, no. 22330/05, §§ 31-43, 5 February 2009), reduction in salary following conviction for a serious disciplinary offence (see Harabin v. Slovakia, no. 58688/11, §§ 118-123, 20 November 2012), removal from post (for example, President of the Supreme Court, President of the Court of Appeal or Vice-president of the Regional Court) while remaining a judge (see Baka, cited above, §§ 34 and 107-111; Denisov v. Ukraine [GC], no. 76639/11, § 54, 25 September 2018; and Broda and Bojara, cited above, §§ 121-123) or judges being prevented from exercising their judicial functions after legislative reform (see Gumenyuk and Others v. Ukraine, no. 11423/19, §§ 61 and 65-67, 22 July 2021). It has also applied the Eskelinen criteria to a dispute regarding the premature termination of the term of office of a chief prosecutor (see Kövesi v. Romania, no. 3594/19, §§ 124 ‑ 125, 5 May 2020).", "264. Furthermore, the employment relationship of judges with the State must be understood in the light of the specific guarantees essential for judicial independence. Thus, when referring to the “special trust and loyalty” that they must observe, it is loyalty to the rule of law and democracy and not to holders of State power. This complex aspect of the employment relationship between a judge and the State makes it necessary for members of the judiciary to be sufficiently distanced from other branches of the State in the performance of their duties, so that they can render decisions a fortiori based on the requirements of law and justice, without fear or favour. It would be a fallacy to assume that judges can uphold the rule of law and give effect to the Convention if domestic law deprives them of the guarantees of the Articles of the Convention on matters directly touching upon their individual independence and impartiality (see Bilgen, § 79, and Broda and Bojara, § 120, both cited above).", "(ii) Application of the general principles to the present case", "265. The Court notes that the present case raises a novel issue, namely the question whether Article 6 § 1 under its civil head is applicable to a dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ, while he still remains a serving judge.", "(α) Existence of a right", "266. The Court notes that the applicant is a Supreme Administrative Court judge. On 11 January 2016 he was elected to the NCJ for a period of four years by the General Assembly of Judges of the Supreme Administrative Court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts, in accordance with the relevant provisions of the Constitution and the applicable legislation.", "267. The Constitution expressly provides in Article 187 § 3 that members of the NCJ are elected for a four-year term of office. Section 14(1) of the 2011 Act on the NCJ, as applicable at the time of the applicant’s election to the Council, contained an exhaustive list of reasons for terminating the term of office of elected members of the NCJ before the expiry of their term (death, resignation, appointment to another judicial post, termination of the member’s judicial office and retirement; see paragraph 68 above). Under this provision, the only permissible grounds for early termination of the term of office are either of an objective nature (death, termination of judicial office or retirement) or stem from the member’s own decision or initiative (resignation or appointment to another judicial post).", "268. In determining whether there was a legal basis for the right asserted by the applicant, the Court needs to ascertain only whether the applicant’s arguments were sufficiently tenable, not whether he would necessarily have been successful had he been given access to a court (see Neves e Silva v. Portugal, 27 April 1989, § 37, Series A no. 153 ‑ A, and Bilgen, cited above, § 53). In the light of the domestic legal framework in force at the time of his election and during his term of office, the Court considers that the applicant could arguably claim an entitlement under Polish law to protection against removal from his position as a judicial member of the NCJ during that period (see, mutatis mutandis, Baka, cited above, § 109).", "269. The Court considers, moreover, that the applicant’s claim to be entitled to serve his full term as a judicial member of the NCJ finds support in the fact that the NCJ is a body mandated by the Constitution to safeguard the independence of courts and judges (see Article 186 of the Constitution). The Court will revert to this issue subsequently in its analysis.", "270. The Court reiterates that although there is, in principle, no right under the Convention to hold a public post related to the administration of justice (see Dzhidzheva-Trendafilova, § 38, and Denisov, § 46, both cited above), such a right may exist at the domestic level. The Court is satisfied that this is the situation in the present case, since Article 187 § 3 of the Constitution provides for, and therefore protects, the four-year term of the elected members of the NCJ. In this connection, the Government’s argument that under Polish law there is no right to exercise public authority does not carry much weight, as the applicant is not claiming such a right. Rather, he claims the right to serve the term of office for which he was lawfully elected. Similarly, another argument of the Government, that election as member of the NCJ did not constitute “employment”, cannot be dispositive of the issue, having regard to the constitutional basis for the four-year tenure under Article 187 § 3 of the Constitution. The applicant further relied on Article 60 of the Constitution, guaranteeing the right of access to public service, as a supplementary argument for the proposition that he had had the right to serve a full term, while the Government rejected this. The Court considers that there is no need for it to take a stance on this argument since Article 187 § 3 of the Constitution arguably provides in itself a sufficient basis for a “right” for the purposes of Article 6.", "271. The Court notes that the constitutional protection of the security of tenure of elected judicial members of the NCJ was not called into question until the current parliamentary majority introduced a bill amending the 2011 Act on the NCJ on 14 March 2017, ultimately culminating in the enactment of the 2017 Amending Act (see paragraphs 35 and 46-50 above).", "272. The Court observes that the Constitutional Court, in its key judgment of 18 July 2007 (no. K 25/07) regarding the status of the NCJ, considered that the Constitution did not provide for the removal of judicial members of the NCJ from that body before the expiry of their term of office and that the NCJ was a constitutional body based on the tenure of elected members (see paragraphs 84-85 above). The only permissible exceptions were exhaustively specified in the then applicable 2001 Act on the NCJ, all of which related to objective inability to hold such office. These exceptions are similar to those laid down in section 14 of the 2011 Act on the NCJ, which were applicable at the time relevant to the present application.", "273. In the same judgment of 18 July 2007, the Constitutional Court examined a new statutory provision which was to be applied to the sitting judicial members of the NCJ and could have resulted in the early termination of their term of office. It held that to introduce a new obligation on a person holding such office would, in principle, be permissible only if, first, it was justified by extraordinary, constitutionally valid reasons, and second, an adjustment period was provided. The Constitutional Court considered it appropriate to examine the impugned regulation on termination of office of judicial members of the NCJ in the light of the principle of proportionality. It found that the impugned regulation constituted a disproportionate interference with the constitutionally determined system of appointment and functioning of the NCJ. It held that changes of such a nature, if they were to be compatible with the principle of tenure, would have to be implemented with effect from the beginning of the next term of office of the Council members (see paragraph 85 above).", "274. The Court observes that in enacting the new Act on the NCJ in 2011 the legislature also respected the terms of office of members elected on the basis of the previous regulation (see paragraph 69 above). It can further be noted that Article 238 § 1 of the 1997 Constitution, one of its transitional provisions, protected the term of office of the constitutional bodies or individuals composing them who had been appointed or elected under the provisions that had been applicable before the Constitution’s entry into force (see paragraph 66 above). These constitutional and statutory provisions are further indicators of the importance attached by domestic law to the security of tenure of constitutional bodies and their members, including the NCJ.", "275. The Government argued that the 2017 Amending Act was adopted with a view to implementing the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17), in which that court held that the term of office of all elected members of the NCJ should have been of a joint nature, i.e. starting and ending on the same date (see paragraph 42 above). In the Government’s view, the termination of the applicant’s term of office resulting from the 2017 Amending Act was thus legitimate and proportionate since it was aimed at establishing a new term of office consonant with the Constitutional Court’s interpretation of the relevant constitutional provisions in the judgment of 20 June 2017.", "276. The applicant contested the validity of the Constitutional Court’s judgment of 20 June 2017, inter alia, on the grounds that it had been given by a bench including Judges M.M. and L.M., who, in his submission, had not been duly elected to that court.", "277. In this connection, the Court would note the following. In its judgment in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, 7 May 2021, §§ 289-291) the Court held that there had been a violation of Article 6 § 1 as regards the applicant company’s right to a “tribunal established by law” on account of the presence on the bench of the Constitutional Court of Judge M.M., whose election it found to have been vitiated by grave irregularities. The same considerations cannot but apply to Judge L.M., who was elected in the same procedure as Judge M.M. (ibid., §§ 19 and 289). In the light of the Xero Flor judgment, the presence of the two judges mentioned above on the five-judge bench of the Constitutional Court which gave the judgment of 20 June 2017 (no. K 5/17) necessarily calls into question the validity and legitimacy of that judgment. The Court refers in this respect to the judgment of 5 December 2019 (no. III PO 7/18) of the Supreme Court which, following the preliminary ruling of the CJEU in A.K. and Others, also concluded that the impugned judgment of the Constitutional Court had been given with the participation of judges elected in breach of the Constitution, as had been established in several judgments of the Constitutional Court (see paragraphs 102 and 105 above).", "278. In any event, the Court notes that that Constitutional Court judgment did not specifically require the termination of the terms of office of the sitting judicial members of the NCJ. This point was made at the time by the Venice Commission in its opinion of 8-9 December 2017 (see paragraph 132 above) and has been repeated by the Helsinki Foundation for Human Rights in its third-party submissions (see paragraph 218 above). Furthermore, the impugned judgment did not and could not put an end to the four-year term of office for elected members of the NCJ as guaranteed by Article 187 § 3 of the Constitution. It did not identify any extraordinary, constitutionally valid reasons that could exceptionally justify the early termination of the tenure of the Council’s elected judicial members. Nor did the Constitutional Court give proper consideration in judgment no. K 5/17 or in judgment no. K 12/18 to its case-law requiring that changes to the status of members of constitutional bodies either be accompanied by an appropriate adjustment period or apply from the beginning of a new term of office (see paragraphs 77-85 above).", "279. The Court is not persuaded by the Government’s assertion that the implementation of the judgment of 20 June 2017 could not have been accomplished without the shortening of the terms of office of the sitting judicial members of the NCJ. Nor is it convinced that the introduction of a new system without such shortening would have both unduly extended that process over time and complicated it. The Court considers that there were clearly certain alternative measures that could have been taken which would have respected the general rule of the four-year term of office in Article 187 § 3 of the Constitution, while giving effect to the said judgment. For example, and despite the Government’s argument to the contrary, the then-sitting judicial members could have remained in their positions until their original term of office expired, while new members could have been elected for a shorter period. In its opinion adopted on 8-9 December 2017, the Venice Commission proposed precisely that alternative (see paragraph 132 above). A similar view was expressed by GRECO (see paragraph 141 above). In the Court’s view, having regard to the Constitutional Court’s judgment of 18 July 2007 (no. K 25/07), the premature termination of the terms of the elected judicial members of the NCJ clearly raised an issue of proportionality. As stated by the Constitutional Court in that judgment, such changes should have been accompanied by an appropriate adaptation period or, alternatively, should have applied from the beginning of a new term of office (see paragraph 85 above). However, neither of these alternatives was chosen in the 2017 Amending Act.", "280. Additionally, even though the Government maintained that the termination of the applicant’s term of office, as provided for in the 2017 Amending Act, was prompted by the need to implement the Constitutional Court’s judgment of 20 June 2017, the Court notes that the same measure had already been included in the first bill introduced by the government in the Sejm on 14 March 2017.", "281. Furthermore, the Court observes that the Supreme Court, in its judgment of 5 December 2019 (no. III PO 7/18), analysed in detail the Constitutional Court’s finding in the judgment of 20 June 2017 (no. K 5/17) that the relevant provisions of the 2011 Act on the NCJ were unconstitutional to the extent that they provided for an individual term of office of the NCJ’s judicial members. The Supreme Court found that the systemic ( systemowa ) interpretation of the Constitution on which the Constitutional Court had attempted to rely in that judgment contradicted its findings (see paragraph 105 above). The Supreme Court’s position in the judgment of 5 December 2019 (no. III PO 7/18) was confirmed by the same court in its subsequent resolution of the three joined Chambers of 23 January 2020 (see paragraph 112 above).", "282. The Court is satisfied that, having regard to the terms of Article 187 § 3 of the Constitution, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions in section 14(1) of the 2011 Act on the NCJ (see, mutatis mutandis, Baka, cited above, § 107; and Loquifer v. Belgium, nos. 79089/13 and 2 others, § 33, 20 July 2021, which concerned a non ‑ judicial member of the High Council of Justice).", "283. The Court notes that section 10(1)3 of the 2001 Act on the NCJ provided that the four-year term of office of elected members of the Council could be prematurely terminated in the event of revocation by the electing authority, i.e. a judicial member of the Council could have been revoked by the relevant assembly of judges that had elected him or her. However, that possibility was not provided for in the 2011 Act on the NCJ, which was applicable to the applicant’s election to the Council, and so it is not relevant for the analysis of the applicant’s case. Accordingly, the Court is not called upon to consider the conditions in which such a revocation may or may not be Convention-compliant.", "284. The Court also takes note of the fact that numerous Council of Europe and other international bodies have consistently supported the view that the judicial members of the NCJ were entitled to serve a full term of office: the Parliamentary Assembly of the Council of Europe; the Council of Europe Commissioner for Human Rights; the Venice Commission; the CCJE; GRECO; the OSCE/ODIHR; the UN Special Rapporteur on the Independence of Judges and Lawyers; the European Parliament and the European Commission (see respectively paragraphs 126, 134, 132, 137 and 139, 141, 144, 122, 167 and 164-165 above).", "285. The Court considers that the fact that the applicant’s term of office was terminated ex lege on the date of election of new members of the NCJ (see paragraph 54 above) cannot be regarded as removing, retrospectively, the arguability of the right that he could claim under the rules in force at the time of his election. As noted above, these rules clearly established a term of four years and enumerated exhaustively the specific grounds on which it could be terminated. Since it was this new legislation (the 2017 Amending Act) which set aside the former rules, it constituted the object of that very “dispute” in regard to which the Article 6 § 1 fair-hearing guarantees were arguably to apply. In the circumstances of the present case, the question whether a right existed under domestic law cannot therefore be answered on the basis of the new legislation (see Baka, cited above, § 110).", "286. In the light of the foregoing, the Court finds that in the present case there was a genuine and serious dispute over a “right”, namely to serve a full term of four years as a judicial member of the NCJ, which the applicant could claim on arguable grounds under domestic law (see, mutatis mutandis, Baka, cited above, § 111; Denisov, cited above, §§ 47-49; and Kövesi v. Romania, no. 3594/19, § 116, 5 May 2020).", "(β) Civil nature of the right: the Eskelinen test", "287. The next issue to be determined is whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1. The Court reiterates that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the respondent State’s domestic law; it is an “autonomous” concept deriving from the Convention (see, among many other authorities, Naït-Liman v. Switzerland [GC], no. 51357/07, § 106, 15 March 2018).", "288. In their written and oral submissions, the parties addressed this issue in the light of the criteria developed in Vilho Eskelinen and Others (cited above), having been invited to do so by the Court. This case-law was developed in the context of ordinary labour disputes between civil servants and the public authority that employs them (ibid., § 61). As recalled above, it has since been applied to many types of disputes involving judges and concerning their service or their careers, as although not part of the ordinary civil service the judiciary forms part of typical public service (see paragraphs 262-263 above). As already noted, the novel aspect of this case is that it concerns not the principal professional activity of the applicant, as a judge, but the serving of his full term of office as an elected judicial member of the NCJ. Taking account of this, and also of the more prominent public law features of the case, the Court considers that some development of the Vilho Eskelinen test is appropriate as regards the first condition.", "‒ The first condition of the Eskelinen test", "289. In the present case the parties offered different interpretations of domestic law and consequently their views diverged starkly on the question of compliance with the first condition of the Eskelinen test. The Government argued that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of the office of members of this body. In addition, that office was considered to be of a public-law nature. In their view, Polish law excluded access to a court for claims relating to termination of office of judicial members of the NCJ. The applicant maintained that there had been no provision of national law “expressly” excluding access to a court for a claim based on the alleged unlawfulness of the termination of his term of office.", "290. The Court recalls that in the Baka judgment it examined a situation where the applicant’s access to a court had been impeded, inter alia, by the fact that the impugned measure, namely the premature termination of his term of office as President of the Supreme Court, had been included in the Transitional Provisions of the Fundamental Law. This had precluded Mr Baka from contesting that measure before the relevant judicial body, which he would have been able to do in the event of dismissal on the basis of the previous legal framework (see Baka, cited above, § 115). In that context, the Court considered that it had to determine whether access to a court had been excluded under domestic law prior to the time, rather than at the time, when the impugned measure concerning the applicant was adopted. To hold otherwise would have meant that the impugned measure itself, which constituted the alleged interference with the applicant’s “right”, could at the same time be the legal basis for the exclusion of the applicant’s claim from access to a court, thereby opening the way to abuse (ibid., § 116). However, the present case concerns a different situation where, according to the Government, Polish law has at all times excluded access to a court for the claim asserted by the applicant.", "291. The Court will now take the opportunity offered by the present case to further develop the first condition of the Eskelinen test. It observes that this condition is deliberately strict, given that it is part of a test that, if fully satisfied, will rebut the presumption of the applicability of Article 6 to ordinary labour disputes involving civil servants (see Vilho Eskelinen and Others, cited above, § 62), excluding them from one of the most fundamental entitlements provided for in the Convention, the right to a court. The strict nature of this condition is borne out by the fact that it has been seldom satisfied (see Bilgen, cited above, § 70). Only very rarely has a respondent State been able to show that access to a court was expressly excluded for an applicant (see Baka, cited above, § 113 and the cases referred to therein). As the two conditions stipulated in the Eskelinen judgment are cumulative, where the first one is not met, that suffices already to find that Article 6 is applicable, without there being any need to consider the second limb of the test (see Baka, cited above, § 118).", "292. The Court considers that a straightforward application of the first condition would not be entirely apt in all situations. It is therefore prepared to accept that the first condition can be regarded as fulfilled where, even without an express provision to this effect, it has been clearly shown that domestic law excludes access to a court for the type of dispute concerned. Thus, first of all, this condition is satisfied where domestic law contains an explicit exclusion of access to a court. Secondly, the same condition may also be satisfied where the exclusion in question is of an implicit nature, in particular where it stems from a systemic interpretation of the applicable legal framework or the whole body of legal regulation.", "293. In this connection, the Government argued that Polish law excluded access to a court for a claim based on the alleged unlawfulness of the termination of the applicant’s term of office as a judicial member of the NCJ (see paragraphs 180-181 above). However, in responding to the complaint under Article 13 of the Convention, they asserted that the applicant could have obtained a ruling on his claim by lodging a constitutional complaint with the Constitutional Court, thus suggesting the existence of a judicial channel to deal with the applicant’s claim. The applicant referred to the limitations of a constitutional complaint and argued that this remedy would not have been available to him in the absence of any prior decision given in connection with the termination of his term of office; thus his complaint would have been rejected as inadmissible (on the effectiveness of a constitutional complaint in Poland, see Xero Flor w Polsce sp. z o.o., cited above, §§ 197-200, and the case-law cited therein). The applicant also asserted that domestic law did not and never had explicitly excluded access to a court for claims relating to the premature termination of the term of office of judicial members of the NCJ (see paragraph 196 above).", "294. The Court notes the opposing views of the parties as to whether the first condition of the Eskelinen test has been satisfied here (see paragraphs 180-181 and 196 above). It considers that this question can be left open, since in any event, for the reasons set out below, the second condition has not been met.", "‒ The second condition of the Eskelinen test", "295. The Court will now analyse whether, in the present case, the exclusion of access to a court is justified on objective grounds in the State’s interest.", "296. As regards the second condition, the Government submitted that the applicant’s complaint related to the exercise of State power. The Court reiterates that according to the approach adopted in Vilho Eskelinen, the mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. The Government did not explain why the exercise of public authority by judicial members of the NCJ did not merit protection, bearing in mind that this body is tasked with protecting judicial independence (see, mutatis mutandis, Baka, cited above, § 103).", "297. The applicant argued, inter alia, that the exclusion of the right of access to a court in his case was incompatible with the rule of law. He submitted that as a member of the NCJ, a body charged with safeguarding judicial independence, he had to be protected from abuse on the part of the other powers.", "298. The right of access to a court under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Golder v. the United Kingdom, 21 February 1975, § 34, Series A no. 18; McElhinney v. Ireland [GC], no. 31253/96, § 33, ECHR 2001 ‑ XI (extracts); and Markovic and Others v. Italy [GC], no. 1398/03, § 92, ECHR 2006 ‑ XIV). The Court has stated that judicial independence is a prerequisite to the rule of law (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 239, 1 December 2020). The Committee of Ministers has also taken the view that judicial independence constitutes a fundamental aspect of the rule of law (see point 4 of the Appendix to Recommendation CM/Rec (2010)12 of the Council of Europe’s Committee of Ministers to member States on judges: independence, efficiency and responsibilities; see paragraph 124 above).", "299. The Court reiterates that, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is not only expressly mentioned in the Preamble but is also inherent in all the Articles of the Convention, requires, inter alia, that any interference must in principle be based on an instrument of general application (see, Baka, cited above, § 117). Section 6 of the 2017 Amending Act cannot be regarded as such an instrument since it was directed at a specific group of fifteen clearly identifiable persons – judicial members of the NCJ elected under the previous regulation, including the applicant – and its primary purpose was to remove them from their seats on that body. It was a one-off statutory amendment that terminated ex lege the constitutionally prescribed tenure of the NCJ’s judicial members. The Court has already held that laws which are directed against specific persons are contrary to the rule of law (ibid., § 117; and see, mutatis mutandis, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 269, 22 December 2020).", "300. The Court considers that its examination of the second condition of the Eskelinen test must take due account of the fact that the present case is closely related to judicial independence, since the dispute at issue concerns a judicial member of the NCJ, which is the constitutional body with responsibility for safeguarding the independence of courts and judges. The Court is mindful of the fact that, in the Constitutional Court’s view, the NCJ is not a body of judicial self-governance (see paragraph 40 above). Be that as it may, its very raison d’être and its task of safeguarding judicial independence require that the NCJ enjoy autonomy vis-à-vis the political branches of State power. The Court accepts the view of the third-party interveners that the removal, or threat of removal, of a judicial member of the Council during his or her term of office has the potential to affect the personal independence of that member in the exercise of his or her NCJ duties (see paragraph 208 above). By extension, the Council’s mission to safeguard judicial independence may also be adversely affected, and this would raise a number of rule-of-law issues, including those pertaining to the safeguarding of rights enshrined in and protected by the Convention.", "301. In this context, the Court will have regard to the following considerations. First, all Contracting Parties to the Convention have explicit, formal guarantees of judicial independence in their laws, whether of constitutional or of statutory rank. Second, judicial independence is a condition sine qua non for the right to a fair hearing under Article 6 of the Convention. Third, judicial independence is operationalised in the persons who are vested with judicial power.", "302. In this regard the Court has on many occasions emphasised the special role in society of the judiciary which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if judges are to be successful in carrying out their duties (see, among other authorities, Baka, § 164; and Guðmundur Andri Ástráðsson, § 234, both cited above). This consideration, set out in particular in cases concerning the right of judges to freedom of expression (see, as a recent example, Guz v. Poland, no. 965/12, § 86, 15 October 2020), has been found to be equally relevant in relation to the adoption of measures affecting the right to liberty of members of the judiciary (see Alparslan Altan v. Turkey, no. 12778/17, § 102, 16 April 2019, and Baş v. Turkey, no. 66448/17, § 144, 3 March 2020) and also to the right of access to a court for judges in matters concerning their status or career (see Bilgen, § 58, and Gumenyuk and Others, § 52, both cited above). Given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018, with further references), the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Bilgen, cited above, § 58). The Court reiterates that judges can uphold the rule of law and give effect to the Convention only if domestic law does not deprive them of the guarantees required under the Convention with respect to matters directly touching upon their individual independence and impartiality (see paragraph 264 above).", "303. Given the role played by judicial councils, the same considerations should apply as regards the tenure of judges, such as the applicant in the present case, who are elected to serve on them because of their status and in view of the need to safeguard judicial independence, which is a prerequisite to the rule of law. In this connection the Court considers that judicial independence should be understood in an inclusive manner and apply not only to a judge in his or her adjudicating role, but also to other official functions that a judge may be called upon to perform that are closely connected with the judicial system (see point 17 of the Opinion of the CCJE Bureau of 12 October 2017 and points 37-38 of the Opinion no. 24 (2021) of the CCJE of 5 November 2021 cited respectively in paragraphs 137 and 139 above).", "304. As regards the regulation of the NCJ under domestic law, the Court notes that this body is constitutionally mandated to safeguard the independence of the courts and judges (Article 186 § 1 of the Constitution). In the Court’s view, the effective exercise of this essential role is only possible when the council is sufficiently independent from the executive and legislative powers.", "305. The requirement to ensure the independence of judicial councils is confirmed in recommendations of the Committee of Ministers as well as by other organs of the Council of Europe (see Committee of Ministers Recommendation (2010)12; the Venice Commission report on the Independence of the Judicial System Part I: the Independence of Judges and the Rule of Law Checklist; and Opinion no. 10(2007) of the CCJE; see respectively paragraphs 124, 129, 131 and 135 above). Under the relevant Council of Europe standards, a judicial council’s autonomy in matters concerning judicial appointments must be protected from encroachment by the legislative and executive powers and its independence must be guaranteed. Furthermore, it is recommended that no less than half of the members of judicial councils should be judges chosen by their peers (see paragraphs 124-125, 132, 135 ‑ 136 and 139 above).", "306. One of the key manifestations of the NCJ’s role of safeguarding judicial independence is its exclusive competence to propose candidates for appointment at every level of the judiciary and to every type of court. To make it perfectly clear, this covers both initial appointments to judicial office as well as every promotion to a higher level of the judiciary. Formally, the President of the Republic appoints judges, but he may only do so on the basis of proposals submitted by the NCJ (Article 179 of the Constitution).", "307. While there exists a widespread practice, endorsed by the Council of Europe, to put in place a judicial council as a body responsible for selection of judges, the Convention does not contain any explicit requirement to this effect. In the Court’s view, whatever system is chosen by member States, they must abide by their obligation to secure judicial independence. Consequently, where a judicial council is established, the Court considers that the State’s authorities should be under an obligation to ensure its independence from the executive and legislative powers in order to, inter alia, safeguard the integrity of the judicial appointment process. The CJEU underlined the importance of this obligation in respect of the NCJ (see §§ 138 and 142-144 of the judgment of 19 November 2019 in A.K. and Others, C ‑ 585/18, C-624/18 and C-625/18; and §§ 125-131 of the judgment of 2 March 2021, A.B. and Others, C-824/18; see respectively paragraphs 152 and 156 above), a conclusion fully endorsed by the Supreme Court and Supreme Administrative Court in their subsequent judgments relating to the NCJ (discussed further in paragraphs 316 and 319 ‑ 321). The Court observes that States are free to adopt such a model as a means of ensuring judicial independence. What they cannot do is instrumentalise it so as to undermine that independence.", "308. The Court has held that “independence” refers to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234). The Court has also discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (ibid., § 233).", "309. In this connection, the Court notes that there exists a clear link between the integrity of the judicial appointment process and the requirement of judicial independence in Article 6 § 1 (see Thiam v. France, no. 80018/12, §§ 81-82, 18 October 2018). The Venice Commission has noted that “it is generally assumed that the main purpose of the very existence of a Supreme Council of the Judiciary is the protection of the independence of judges by insulating them from undue pressures from other powers of the State in matters such as the selection and appointment of judges and the exercise of disciplinary functions.” [20]", "310. Having regard to the above, the Court will now examine the fundamental change in the manner of electing the NCJ’s judicial members introduced by the 2017 Amending Act, namely that they were to be elected by the Sejm instead of by the assemblies of judges.", "311. To begin with, the Court notes that the rule that the NCJ’s judicial members were to be elected by judges was introduced in the first Act on the NCJ of 20 December 1989. It was retained in the 2001 Act on the NCJ and also in the 2011 Act on the NCJ until the entry into force of the 2017 Amending Act. The same mechanism was in place on the date of entry into force of the Constitution of 1997. The Constitution laid down for the first time the constitutional rules concerning the composition of the NCJ, specifying the term of office of its members and the manner of their appointment or election.", "312. In its judgment of 18 July 2007 (no. K 25/07), the Constitutional Court found that the rules concerning the election of judges to the NCJ were of particular constitutional significance, since their status determined de facto the independence of that body (see paragraph 84 above). In the same judgment, the Constitutional Court held that Article 187 § 1 (2) of the Constitution expressly provided that judicial members of the NCJ were to be elected by judges (see paragraph 84 above). This finding of the Constitutional Court was an important element of its reasoning on the issues submitted to it for examination. The Court therefore notes that, in accordance with the Constitutional Court’s judgment of 18 July 2007, under the Constitution the independence of the Council is protected by the rule that the majority of its members are judges who are elected by other judges. This arrangement is intended to ensure that the Council can effectively exercise its constitutional role as the guardian of judicial independence.", "313. It was only in the judgment of 20 June 2017 (no. K 5/17) that the then composition of the Constitutional Court contested this rule and stated its disagreement with the position adopted in the earlier judgment of 18 July 2007 (no. K 25/07). In the judgment of 20 June 2017 (no. K 5/17), the Constitutional Court held that the Constitution did not determine who could elect judges to the NCJ and that, accordingly, this matter was delegated to statutory regulation. The Constitutional Court stated that Article 187 § 1 (3) of the Constitution indicated that deputies and senators were elected to the NCJ by the Sejm and the Senate respectively, whereas there were no constitutional rules as to who elected judicial members of the Council (see paragraph 43 above).", "314. In its judgment of 25 March 2019 (no. K 12/18) the Constitutional Court confirmed the constitutionality of the provision of the 2017 Amending Act granting the Sejm the competence to elect judicial members of the NCJ (see paragraph 62 above). The Court notes that this judgment essentially relied on the reasons of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). It also observes that Judge J.Pi., who participated in the five ‑ judge bench of the Constitutional Court which gave the judgment of 25 March 2019 (no. K 12/18), was elected to that court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had been already filled.", "315. Without engaging in an interpretation of the Polish Constitution, the Court reiterates the doubts it has already expressed regarding the validity and legitimacy of the Constitutional Court’s judgment of 20 June 2017 relating to the composition of the bench in that case (see paragraph 277 above). Secondly, it considers that the departure, in that judgment, from the earlier position of the Constitutional Court in its judgment of 18 July 2007, namely that judicial members of the NCJ were to be elected by judges, was not accompanied by any cogent explanation. Rather, the reasons given were, in effect, limited to the “disagreement” of that particular bench with the previous case-law of the Constitutional Court and, therefore, such reasons should be regarded as insufficient (see, in the same vein, Reczkowicz v. Poland, no. 43447/19, § 238, 22 July 2021). The Court is also of the view that the Constitutional Court’s findings in the judgment of 20 June 2017 did not give consideration to the constitutional mandate of the NCJ to safeguard judicial independence.", "316. In this regard, the Court further refers to the findings made in the Supreme Court’s judgment of 5 December 2019 (no. III PO 7/18) on the same point. The Supreme Court observed that in the absence of any constitutional amendment, the Constitutional Court, in its judgment of 20 June 2017, had not so much changed its position as regards the election of judges to the NCJ as created a divergence in its case-law on a systemic issue of fundamental importance for the right to a fair hearing (see paragraph 102 above). It went on to note that since its creation in 1989 the judicial members of the NCJ had been elected by the relevant assemblies of judges and that this mechanism was in force at the time of the adoption of the Constitution in 1997. As noted by the Supreme Court, the drafters of the Constitution had confirmed their intention of entrusting the election of judicial members of the NCJ to the judicial community (see paragraph 105 above). The Supreme Court emphasised that in the absence of any constitutional amendment regarding the principles of electing judicial members of the Council, a statute could not introduce a procedure for election of those members by Parliament (see paragraph 105 above).", "317. The Court further refers to the findings made in the resolution of the joined chambers of the Supreme Court of 23 January 2020. As regards the change of manner of electing judicial members of the NCJ, the Supreme Court found that the legislature could not create a power for itself – not provided for in the Constitution – to elect members of the Council from among judges, since the scope of its power to appoint members of the Council, i.e. four deputies of the Sejm and two members of the Senate, was defined in Article 187 § 1 (3) of the Constitution (see paragraph 112 above). The Supreme Court added that the Constitution did not provide for a presumption of competence in favour of Parliament.", "318. The Court will now examine the consequences of the 2017 Amending Act for the independence of the new NCJ, in particular regarding the early termination of office of the previous members of the NCJ and the change in method of election of the judicial members. It notes that the CJEU in its preliminary ruling of 19 November 2019 in the case of A.K. and Others (C ‑ 585/18, C-624/18 and C-625/18) referred to a series of factors relevant to ascertaining whether the new NCJ offered sufficient guarantees of independence from the legislative and executive powers (see §§ 142-144 of the preliminary ruling; paragraph 152 above). The first factor was that the new NCJ was constituted as a result of the premature termination of the terms of office of former members. The second factor was the transfer of competence to elect judicial members of the NCJ from assemblies of judges to the Sejm. The third factor was the irregularity of the appointment of certain members of the new NCJ and the fourth was the manner in which that body exercised its constitutional responsibility.", "319. In its judgment of 5 December 2019 (no. III PO 7/18), the Supreme Court, having assessed the above-mentioned factors, concluded that the new NCJ did not provide sufficient guarantees of independence from the legislative and executive powers in the judicial appointment procedure (see paragraph 107 above). It found, inter alia, that as a result of the 2017 Amending Act the legislative and the executive had gained an almost monopolistic position in determining the NCJ’s composition in that they ultimately appointed twenty-three out of twenty-five members of the Council (see paragraph 105 above). In the Supreme Court’s view, this situation had resulted in the distortion of the separation of powers.", "320. In its leading resolution of three joined chambers of 23 January 2020, the Supreme Court fully endorsed the view that the new NCJ was not an independent body, but a body subordinated to the political authorities. It found, inter alia, that judges elected to the NCJ by the Sejm had no legitimacy as representatives of the judicial community and that this fact significantly weakened the role of the NCJ as the guardian of judicial independence (see paragraph 112 above).", "321. Furthermore, in its judgment of 6 May 2021 (no. II GOK 2/18), the Supreme Administrative Court, having regard to the CJEU’s preliminary rulings of 19 November 2019 and 2 March 2021 (see paragraphs 150-152 and 155-156 above) came to the same conclusion as to the lack of independence of the NCJ (see paragraph 118 above). It held that the rules and procedure for determining the personal composition of the NCJ were motivated by an intention to subject it to a form of supervision by the executive, hence by the parliamentary majority. It further noted that the composition of the NCJ as determined by the 2017 Amending Act nullified the possibility of its effectively discharging its function of safeguarding judicial independence (see paragraph 119 above).", "322. Having regard to the two rulings of the Supreme Court and the judgment of the Supreme Administrative Court mentioned above, the Court finds that the fundamental change in the manner of electing the NCJ’s judicial members, considered jointly with the early termination of the terms of office of the previous judicial members (analysed in paragraphs 266-286 above), meant that its independence is no longer guaranteed (see, in the same vein, Reczkowicz, cited above, §§ 265 and 269; see also, for an analogous finding, the CJEU’s judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges), see paragraphs 160-161 above). As noted by the Constitutional Court in its judgment of 18 July 2007 (no. K 25/07), the NCJ’s independence was determined precisely by the rule that its judicial members were elected by judges for a constitutionally prescribed term of office.", "323. The Court considers it appropriate at this juncture to address the general issue of judicial reform. It wishes to make it clear that the Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary (see Gumenyuk and Others, cited above, § 43) and agrees with the view expressed, inter alios, by the UN Special Rapporteur on the Independence of Judges and Lawyers that the power of a government to undertake reforms of the judiciary cannot be called into question. However, any reform of the judicial system should not result in undermining the independence of the judiciary and its governing bodies. The CJEU adopted a similar position in its preliminary ruling of 20 April 2021 in the case of Repubblika v. Il-Prim Ministru (C ‑ 896/19) with regard to member States of the EU. It held at §§ 63-65 of its ruling that EU law precludes the adoption of national laws relating to the organisation of justice which would constitute a reduction in the protection of the value of the rule of law, in particular the guarantees of judicial independence (see paragraph 159 above).", "324. The Court considers it appropriate to emphasise in this regard the importance of the principles of subsidiarity and shared responsibility. It reiterates its fundamentally subsidiary role in the supervisory mechanism established by the Convention, whereby the Contracting Parties have the primary responsibility of securing the rights and freedoms defined in the Convention and the Protocols thereto (see, for instance, Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017; and Guðmundur Andri Ástráðsson, cited above, § 250). Protocol No. 15 to the Convention has recently inserted the principle of subsidiarity into the Preamble to the Convention. The Court further notes that the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply domestic law in a manner that gives full effect to the Convention (see, in particular, the references to the Izmir and Brighton Conferences and Declarations in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., §§ 120-22, 12 October 2017). In this connection, the Court would emphasise that the Convention system cannot function properly without independent judges. The Contracting Parties’ task of ensuring judicial independence is thus of crucial importance.", "325. Having regard to all the foregoing considerations, the Court concludes that the second condition of the Eskelinen test, namely that the applicant’s exclusion from access to a court be justified on objective grounds in the State’s interest, has not been met.", "326. The applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, was prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence cannot be regarded as being in the interest of a State governed by the rule of law.", "327. Members of the judiciary should enjoy – as do other citizens – protection from arbitrariness on the part of the legislative and executive powers, and only oversight by an independent judicial body of the legality of a measure such as removal from office is able to render such protection effective (see, mutatis mutandis, Kövesi, § 124, and Bilgen, § 79, both cited above).", "Conclusion as to the applicability of Article 6 § 1", "328. Having regard to the foregoing, the Court finds that Article 6 § 1 under its civil head is applicable, since the second condition of the Eskelinen test has not been met.", "329. It follows that the Government’s objection to the applicability of Article 6 § 1 of the Convention must be dismissed.", "Objection based on the lack of significant disadvantage", "(a) The Government’s submissions", "330. The Government further submitted that the application was inadmissible on account of the lack of a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In their view, the applicant did not suffer any disadvantage of a pecuniary or non-pecuniary nature in connection with the termination of his term of office as a member of the NCJ. In support of this contention, they referred to their earlier arguments on the applicability of Article 6 § 1.", "(b) The applicant’s submissions", "331. The applicant argued that his case could not be rejected under Article 35 § 3 (b) as he had suffered a significant disadvantage in the form of non-pecuniary damage related to the distress caused by the violation of his Convention rights. Furthermore, respect for human rights as defined in the Convention required the examination of his case on the merits since it pertained to the relationship between the principles of the separation of powers and the effective protection of human rights. Lastly, his case had not been duly examined by a domestic court. In fact, he had been deprived of the possibility of challenging the premature termination of his term of office before a court.", "(c) The Court’s assessment", "332. The Court considers that the objection based on Article 35 § 3 (b) cannot be accepted. The present application is now before the Court’s Grand Chamber because it was indeed considered to raise serious questions affecting the interpretation of the Convention or the Protocols thereto and was therefore relinquished by the Chamber under Article 30 of the Convention. The Court is thus of the view that the conditions set forth in Article 35 § 3 (b) are not met, since respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination of the application on the merits (see Vavřička and Others v. the Czech Republic, 8 April 2021, no. 47621/13, § 163).", "333. The Government’s objection under Article 35 § 3 (b) of the Convention must accordingly be dismissed.", "Overall conclusion on admissibility", "334. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant’s submissions", "The applicant’s submissions", "The applicant’s submissions", "335. As regards the assessment of a legitimate aim for the limitation of the right of access to a court, the applicant submitted that account had to be taken of the detrimental impact of weakening the guarantees of the independence of the judiciary on the protection of individual rights and freedoms. It was imperative for there to be procedural safeguards in order to ensure that the autonomy of judges was not jeopardised by undue external or internal influences.", "336. The NCJ’s importance in the mechanism of checks and balances and its role in safeguarding judicial independence were of paramount importance for respecting the rule of law. The applicant argued that any limitation on the right of access to a court in the case of removal of the NCJ’s judicial members had to pursue a genuine legitimate aim, but that such an aim had been absent in the present case.", "The Government’s submissions", "337. The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They reiterated their arguments as to the inapplicability of this provision to the present case.", "Submissions of third-party interveners", "338. The submissions of the third-party interveners on the merits of the case have already been summarised above (see paragraphs 205-256 above).", "The Court’s assessment", "(a) Preliminary considerations", "339. At the outset, the Court reiterates that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see, among many other authorities, Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996 ‑ III; Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II; and Baka, cited above, § 117). The right to a fair hearing under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Guðmundur Andri Ástráðsson, cited above, § 237). Arbitrariness entails a negation of the rule of law (see Al-Dulimi and Montana Management Inc., cited above, § 145) and could not be tolerated in respect of procedural rights any more than in respect of substantive rights (see Muhammad and Muhammad v. Romania [GC], no. 80982/12, § 118, 15 October 2020). In that sense, the Convention is essentially a rule of law instrument.", "340. All Contracting Parties should abide by the rule of law standards and respect their obligations under international law, including those voluntarily undertaken when they ratified the Convention. The principle that States must abide by their international obligations has long been entrenched in international law; in particular, “a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force” (see the Advisory Opinion of the Permanent Court of International Justice on Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, at paragraph 121 above). The Court observes that, under the Vienna Convention on the Law of Treaties, a State cannot invoke its domestic law, including the constitution, as justification for its failure to respect its international law commitments (see Article 27 of the Vienna Convention, at paragraph 120 above).", "341. The Court notes that the present case involves a number of domestic constitutional issues. Being mindful of its subsidiary role, it does not engage in matters of constitutional interpretation and limits its task to the interpretation and application of the Convention as provided for in Article 32 of the Convention, in the light of the rule of law as the principle underlying the Convention and all its provisions.", "(b) General principles", "342. The right of access to a court was established as an aspect of the right to a fair hearing guaranteed by Article 6 § 1 of the Convention in Golder v. the United Kingdom (cited above, §§ 28-36). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of the arbitrary exercise of power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Zubac v. Croatia [GC], no. 40160/12, § 76, 5 April 2018, with further references).", "343. In respect of matters that fall within the ambit of the Convention, the Court’s case-law has tended to show that where there is no access to an independent and impartial court, the question of compliance with the rule of law will always arise (see Golder, cited above, § 34). However, the Court has itself acknowledged that the right of access to the courts is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Baka, § 120, and Zubac, § 78, both cited above).", "(c) Application of the general principles to the present case", "344. The Court recalls that it has left open the question whether the first condition of the Eskelinen test has been fulfilled, taking account of the opposing views of the parties on that issue and since, in any event, it has concluded that the second condition has not been met (see paragraph 294 above). However, the Court reiterates that the Government have consistently argued that for the purposes of Article 6 of the Convention the applicant’s access to a court was excluded at all times under national law, both before his term of office as a judicial member of the NCJ was terminated by the 2017 Amending Act, as well as after that occurred (see paragraph 180 above). Therefore, the Court is now called upon to assess whether the applicant’s lack of access to the domestic courts, to have examined the genuine and serious dispute over his arguable right to serve a full term of four years as a judicial member of the NCJ (see paragraph 286 above), was justified in conformity with the general principles in the Court’s case-law (see paragraph 343 above).", "345. Referring to its analysis with regard to the issue of the applicability of Article 6 § 1, in particular the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence (see paragraphs 300-303 above), the Court considers that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ has been removed from his position.", "346. The Court further emphasises the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, the Court considers it necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. It also has regard to the overall context of the various reforms undertaken by the Polish Government – of which the present case reflects one problematic aspect – which have resulted in the weakening of judicial independence and adherence to rule-of-law standards.", "347. In the instant case the Government have not provided any reasons justifying the absence of judicial review, but have simply reiterated their arguments as to the inapplicability of Article 6 to the case.", "348. The Court notes that the whole sequence of events in Poland (see paragraphs 14-28 above) vividly demonstrates that successive judicial reforms were aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, remodelling the NCJ and setting up new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline. At this juncture, the Court finds it important to refer to its judgments related to the reorganisation of the Polish judicial system (see, Xero Flor w Polsce sp. z o.o.; Broda and Bojara; and Reczkowicz; all cited above), as well as the cases decided by the CJEU (see paragraphs 150-156 and 160-161 above) and the respective rulings of the Supreme Court and Supreme Administrative Court (see paragraphs 100-108 and 109-119). As a result of the successive reforms, the judiciary – an autonomous branch of State power – has been exposed to interference by the executive and legislative powers and thus substantially weakened. The applicant’s case is one exemplification of this general trend.", "349. Having regard to the foregoing, the Court finds that on account of the lack of judicial review in this case the respondent State impaired the very essence of the applicant’s right of access to a court (see Baka, cited above, § 121).", "350. Accordingly, the Court finds that there has been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "351. The applicant complained under Article 13 of the Convention that he had been deprived of an effective domestic remedy in relation to the premature termination of his term of office as judicial member of the NCJ. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "352. The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1. It reiterates that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI, and Baka, cited above, § 181).", "353. Consequently, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "354. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "355. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage for suffering and distress caused by the violation of his rights under Article 6 § 1 and Article 13 of the Convention, referring to the early termination of his office and the lack of any possibility of having that measure judicially reviewed. He emphasised that his election to the NCJ had served the purpose of the proper operation of the NCJ and constituted the fulfilment of his oath as a judge. The applicant regarded the early termination of his term of office as a form of political repression and as preventing him from fulfilling his obligations related to the protection of judicial independence arising from his seat on the NCJ. The interference with his rights had been an instrument to achieve the political goals of the current majority in Parliament.", "356. The Government considered that the applicant’s claim was unfounded and invited the Court to reject it. Should the Court establish otherwise, the Government observed that the applicant had not substantiated his claim by providing any proof of having suffered distress, emotional harm, hardship or loss of quality of life. Were the Court to find a violation of the Convention in the case, the Government submitted that the finding of a violation should be regarded as constituting sufficient just satisfaction. Alternatively, they invited the Court to assess the issue of just satisfaction on the basis of its practice in similar cases and national economic circumstances.", "357. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see O’Keeffe v. Ireland [GC], no. 35810/09, § 199, ECHR 2014).", "358. The Court considers that in the particular circumstances of the present case the finding of a violation can be regarded in itself as sufficient just satisfaction for any non-pecuniary damage sustained by the applicant, and thus rejects his claim under this head.", "Costs and expenses", "359. While the case was still pending before the Chamber, the applicant sought EUR 24,029.23, inclusive of VAT, for the costs of his legal representation before the Court.", "360. Following the relinquishment of jurisdiction, the applicant additionally claimed EUR 18,450, inclusive of VAT, in costs and expenses regarding his legal representation before the Grand Chamber which were due to be paid after the proceedings before the Court had been finally concluded. The total sum claimed amounted to EUR 42,479.23, inclusive of VAT. In support of his claim, the applicant submitted (1) the legal services agreement between him and the Pietrzak Sidor and Partners Law Firm of 31 July 2018 together with a relevant invoice; (2) the annex to the legal services agreement of 21 January 2020 with a pro-forma invoice for the sum of EUR 24,029.23 gross; and (3) the annex to the above-mentioned agreement of 16 March 2021 with a pro-forma invoice for the sum of EUR 18,450 gross. The legal services agreement concerned the preparation and lodging of the applicant’s application and his representation before the Court. It specified that the applicant was due to pay the law firm all necessary costs and expenses relating to his representation.", "361. The applicant further requested the reimbursement of the expenses relating to the attendance of his lawyers at the hearing before the Grand Chamber. The applicant and his lawyers intended to take part in the hearing scheduled for 19 May 2021 and to this effect incurred expenses for their plane tickets in the amount of EUR 895.80 and certain additional expenses for car rental and accommodation, for which he submitted supporting documents. Following the President’s decision to hold the hearing by videoconference, the applicant managed to cancel the reservations for car rental and accommodation and, accordingly, withdrew his claim in this part. However, he was unable to cancel the reservation of the plane tickets purchased at a non-refundable tariff and thus maintained his claim in this part. In addition, the applicant claimed EUR 938.04 for costs of IT support and rental of IT equipment required for the hearing by videoconference, and submitted supporting documents to this effect. The total amount claimed under the head of costs and expenses was EUR 44,313.07.", "362. As regards the claim for costs and expenses incurred in the Chamber proceedings, the Government considered it unfounded and invited the Court to reject it. They did not comment on the applicant’s claim for costs and expenses in the Grand Chamber proceedings.", "363. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 189, 17 May 2016).", "364. The Court finds that the total amount of legal costs requested in connection with the proceedings before the Court appears excessive. In the light of the above considerations, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 30,000 covering costs and expenses for the proceedings before it.", "Default interest", "365. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1970 and lives in Rzeplin. He was represented by Mr M. Pietrzak and Ms M. Mączka-Pacholak, lawyers practising in Warsaw.", "3. The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.", "4. The facts of the case may be summarised as follows.", "Background and context of the case", "5. The broader domestic background to the present case was set out in the Grand Chamber judgment in the case of Grzęda v. Poland ([GC], no. 43572/18, §§ 14-28, 15 March 2022).", "Termination of the applicant’s term of office as a judicial member of the NCJ", "6. In 1997 the applicant passed a judicial exam and was subsequently appointed as judge of the Cracow-Śródmieście District Court. On 19 January 2005 he was appointed as judge of the Cracow Regional Court. The applicant was also selected to be the spokesperson of the Regional Court.", "7. In 2001 the applicant joined the Polish Judges’ Association Iustitia. For some time, he served on its board and acted as its spokesperson. Since 2010 the applicant has been a member of the Judges’ Association Themis.", "8. On 15 March 2010 the applicant was elected by the Representatives of the General Assemblies of the Regional Court judges as a member of the National Council of the Judiciary ( Krajowa Rada Sądownictwa – “the NCJ”) for a four-year term. On 21 March 2010 he took up his duties in the NCJ.", "9. The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The candidates proposed by the NCJ are submitted to the President of the Republic for appointment. The NCJ’s composition is prescribed in Article 187 § 1 of the Constitution.", "10. On 2 March 2014 the applicant was again elected as a member of the NCJ for another four-year term. This term began on 21 March 2014 and was due to come to an end on 21 March 2018.", "11. On 6 March 2014 the applicant was appointed by the NCJ as its spokesperson. In this capacity, he frequently commented in the media on topical issues concerning the judiciary and participated in numerous debates on legal matters in various media. The applicant took an active part in legislative work and participated in meetings of parliamentary committees, mainly the Justice and Human Rights Committee of the Sejm (the lower house of the Polish Parliament).", "12. Starting in the autumn of 2015, after the parliamentary elections won by the Law and Justice party, public debate on matters concerning the functioning of the administration of justice intensified.", "13. In November 2015 the government took a number of factual and legal measures in respect of the Constitutional Court. In December 2015 the Sejm elected three judges of the Constitutional Court (M.M., L.M. and H.C.) to seats that had been already filled (for a detailed account of the relevant facts, see Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 4-63, 7 May 2021). These measures were criticised by various legal bodies and institutions. The NCJ adopted opinions critically assessing successive bills on the Constitutional Court. The applicant, in his capacity as the NCJ’s spokesperson, actively participated in the public debate regarding the Constitutional Court.", "14. In January 2017 the Government announced plans for a large-scale judicial reform of the NCJ, the Supreme Court and the ordinary courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia, increase the efficiency of the administration of justice and make the election of NCJ members more democratic.", "15. In the first half of 2017 a billboard campaign “Just courts” ( Sprawiedliwe sądy ), presenting examples of alleged unethical or illegal activities of several judges, was launched across the country. It turned out later that it was organised by a foundation controlled by the Government and financed from public funds. According to the applicant, this campaign was aimed at undermining trust in judges and preparing the public for the forthcoming changes in the functioning of the courts.", "16. On 14 March 2017 the Government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o Krajowej Radzie Sądownictwa; “the 2011 Act on the NCJ”). The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills concerning the Supreme Court and the Organisation of Ordinary Courts were introduced by deputies from the majority.", "17. The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE), in their respective opinions of 30 and 31 January, 5 and 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ.", "18. On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28 January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the 2011 Act on the NCJ. The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that to treat their terms of office as individual in nature was contrary to the Constitution.", "19. The Constitutional Court gave judgment on 20 June 2017 (no. K 5/17), its bench being composed of Judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P.", "20. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured a balance and cooperation between the different powers of government.", "21. The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [1] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same was true for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court.", "22. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. However, the Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had a concurrent or joint term of office and this applied equally to judges, deputies and senators. To individualise the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, all being categories of elected member of the Council. The Constitutional Court found that the correct interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character.", "23. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant:", "“The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.”", "24. The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18 July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the principle of tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure.", "25. In July 2017 the enactment by Parliament of the three bills referred to above (see paragraph 16 above) sparked widespread public protests. On 31 July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force. This law conferred on the Minister of Justice competence to dismiss and appoint at his discretion presidents and vice-presidents of ordinary courts during the period of six months following the law’s entry into force.", "26. On 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ.", "27. In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The bill referred to the finding made in the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If election by qualified majority proved impossible, a supplementary election by means of a roll-call vote was to be carried out.", "28. One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving.", "29. The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017.", "30. The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted by the Sejm and the Senate (the upper house of Parliament) on 8 and 15 December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17 January 2018.", "31. The 2017 Amending Act transferred to the Sejm the competence to elect judicial members of the NCJ (section 9a(1)). It provided in section 9a(3) that the joint term of office of new members of the NCJ was to begin on the day following that of their election. Section 6 of the 2017 Amending Act provided that the terms of office of the judicial members of the NCJ elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of the new members of the NCJ.", "32. Eighteen judges, out of about ten thousand, decided to stand for election to the new NCJ. None of the sitting members decided to stand. A candidate for election to the new NCJ had to be supported either by a group of 2,000 citizens or by 25 fellow judges.", "33. On 6 March 2018 the Sejm elected, in a single vote, fifteen judges as new members of the NCJ by a three-fifths majority. On the same date, the applicant’s term of office as member of the NCJ was terminated ex lege pursuant to section 6 of the 2017 Amending Act. As a result of that measure the applicant ceased to act as the NCJ’s spokesperson.", "34. Thirteen of the new judicial members of the NCJ were district court judges (first level of the ordinary courts), one was a regional court judge (second level of the ordinary courts) and one was a regional administrative court judge. There were no representatives of the courts of appeal, the Supreme Court or the military courts.", "35. The applicant remains in office as a judge of the Cracow Regional Court.", "36. On 17 September 2018 the General Assembly of the European Network of Councils for the Judiciary (“the ENCJ”) suspended the NCJ’s membership of the Network. The decision was motivated by the General Assembly’s view that the new NCJ was no longer independent from the legislative and executive powers. On 28 October 2021 the General Assembly of the ENCJ expelled the NCJ from the Network.", "37. On 2 November 2018 the NCJ, in its new composition, lodged an application with the Constitutional Court challenging several provisions of the 2011 Act on the NCJ (as amended in December 2017), inter alia, section 9a governing the new manner of electing the judicial members of the Council and the nature of their term of office. On 14 February 2019 a group of senators lodged an identical application. The Constitutional Court decided to examine the two applications jointly as case no. K 12/18. The Commissioner for Human Rights requested that the Constitutional Court discontinue the proceedings as inadmissible since the new NCJ was seeking to confirm the constitutionality of the law.", "38. On 25 March 2019 the Constitutional Court gave judgment in the case. The bench was composed of Judges J.P. (the president), G.J., Z.J., J.Pi. (the rapporteur) and A.Z. Judge J.Pi. had been elected as judge of the Constitutional Court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had already been filled. The judgment was given after hearings held in camera on 14 and 25 March 2019.", "39. The Constitutional Court held that section 9a of the 2011 Act on the NCJ (as amended), granting to the Sejm the competence to elect judicial members of the NCJ and providing that the joint term of office of new members of the NCJ would begin on the day following the date of their election, was compatible with Articles 187 § 1 (2) and § 4 in conjunction with Articles 2, 10 § 1 and 173 as well as with Article 186 § 1 of the Constitution. It essentially relied on the reasoning of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17).", "Selected public statements of the applicant in his capacity as NCJ spokesperson", "40. The applicant publicly commented in various fora on the government’s legislative proposals regarding the Constitutional Court, the NCJ, the Supreme Court and the ordinary courts. In his capacity as the NCJ’s spokesperson, he pointed to threats to the rule of law and judicial independence stemming from the Government’s proposals. The relevant period began in December 2015, marked by grave irregularities in the election of judges to the Constitutional Court and ended on 6 March 2018, when the applicant’s term of office as a judicial member of the NCJ was terminated. In the public debate, the applicant was, together with the First President of the Supreme Court, Ms Małgorzata Gersdorf and presidents of the two associations of judges (Themis and Iustitia), one of the main critics of the changes concerning the judiciary initiated by the government.", "41. On 6 May 2016, in relation to the proposed amendment to the Act on the NCJ, the applicant stated in an interview with the Rzeczpospolita newspaper:", "“The judges are to be appointed to the NCJ and not elected [by their peers] as at present. We will contest this project. The Constitution clearly speaks of full four years. However, the Minister argues that the terms of office end and begin unevenly, and he wants them to end and begin at the same time. If the Constitutional Court decides that the termination of positions [at the NCJ] is constitutional, I will recognise it. The NCJ must tackle the legislative and executive branches. ...", "The role of the NCJ is to give us [judges] guarantees that we will not be influenced by politicians. ... A strong Council which respects the Constitution is a thorn in every politician’s side.”", "42. On 3 June 2016 the applicant published an article on the Internet portal dziennik.pl entitled “Is this about taking over the Supreme Court?” in reply to an article “Second shock therapy. For courts” published earlier on the same portal. He stated, inter alia, as follows:", "“Unfortunately, in my opinion, it is no coincidence that a text which strongly criticises the NCJ, a constitutional body upholding the independence of courts and judges, appeared at the same time as the Government’s draft amendment to the Act on the NCJ was released. Unfortunately, this draft contains several solutions which are incompatible with the Constitution. Shortening the constitutional term of office of judicial members of the Council, the obligation to submit two candidates for judges to the President ... – these provisions are intended to weaken the Council. And as soon as possible. ...", "Justice reforms must be introduced in an evolutionary and well thought-out way. The author apparently finds fault with the NCJ. Because there is a need for it. ... Maybe it’s preparation for ‘taking over’ the Supreme Court? It would be enough to adapt the Hungarian model and already half of [judges of] the Supreme Court will retire. Then, in order to fill it with your people, you need to have a docile NCJ full of people willing to be promoted. Perhaps this is what the present battle is really about? ...", "You cannot prepare a huge reform without discussing it with the judges of the higher courts, with a global view of the complexity of the system and the procedures. It is necessary to calculate and foresee the consequences. The ministerial team is doing all this without any consultations with the NCJ, forgetting that the judicial members on the current council were elected by an overwhelming majority of delegates from all courts, including district ones. And they have the legitimacy to be consulted on such important bills. And the Minister of Justice – a member of the NCJ – has not appeared at the Council’s meetings for a long time. When he was asked what the plans were, he replied: very fundamental. That is all. But that’s why he’s a member of the NCJ, which is a platform for debate ... That is what the legislature intended. ...”", "43. On 13 September 2016 the applicant was interviewed by the portal natemat.pl. The text was entitled “The judges will not be defeated by power”. He stated, inter alia :", "“The authorities are using the problems of the judiciary as a pretext to dismantle the justice system – says Waldemar Żurek, spokesman for the NCJ.", "Q: First Law and Justice party, despite protests from Europe and the opposition, started to dismantle the Constitutional Court, now J. Kaczyński says it is necessary to deal with the Supreme Court. How do you assess these events?", "A: This is a campaign of the authorities against the judiciary. Recently, judges met at the Extraordinary Congress of Polish Judges. We hoped for the presence of representatives of the legislative and executive powers, but they did not accept the invitation. After the congress, the attacks on the judiciary by the authorities intensified. ...", "Q: The ruling party says judges are privileged.", "A: Judicial independence is not a privilege. It protects judges from [political] party pressures. It gives them independence, so they are not like weathercocks. It allows them to be guided solely by the law and not by the interests of one [political] party or another. Judicial immunity is a safeguard for the State when the legislative and executive branches break the law. And as far as judges are concerned, we are one of the few professions where disciplinary proceedings are public.", "Q: Law and Justice is dismantling the Constitutional Court, now it’s taking on the Supreme Court. When will it be the turn of the NCJ?", "A: There is a bill pending in the Sejm which dismantles the NCJ. It is supposed to terminate only the terms of office of judicial members of the NCJ. Surprisingly, this termination does not apply to the terms of office of politicians, who are also members of the Council. This is reminiscent of the Hungarian scenario in which Orbán changed the retirement age for judges so that they would leave office earlier.”", "44. The applicant presented the opinions of the NCJ on its official YouTube channel. On 31 January 2017 he commented on the NCJ’s opinion of 30 January 2017 on the Government’s bill amending the 2011 Act on the NCJ. He stated, inter alia, as follows:", "“Today I would like to tell you about the bills concerning the judiciary. The bills have been widely discussed, presented by the Minister of Justice in the media and submitted to the NCJ for its opinion. These are fundamental bills, which may lead to a change in the system, to a change in the system of the separation of powers. I would like to tell you about several fundamental flaws of these bills, which in the opinion of the NCJ are contrary to the Constitution. First of all, the fact that the judges – this judicial part in the NCJ, because, as we know, the Council consists of politicians: senators, deputies to the Sejm, the Minister of Justice, the President’s representative, [and] a dozen or so judges elected by the judges. Here, in this bill, there is a fundamental change to this solution. Today it is politicians who will be able to elect all the judges – members of the National Council – and they have a fundamental influence on who becomes a judge in Poland, who is promoted to a higher level [of the judiciary]. The Council is also the guardian of judicial independence, the guardian of the independence of a given court. So if politicians take over the Council, because there will always be people in this group of judges who will listen to their orders, then the courts will become politicised. A judge who will have to reckon with pressure from a politician, if a special chamber is also set up at the Supreme Court that can remove him or her disciplinarily - well, unfortunately he or she will be subjected to serious pressure...", "The Minister also wants to extinguish the term of office of the judicial members of the NCJ. Despite the fact that the Constitution speaks of a four-year term, the Minister wants to do this by an ordinary law, so clearly [there will be] a direct violation of the Constitution. ...”", "45. On 2 March 2017 the Internet portal dziennik.pl published the article “Judge Waldemar Żurek: we are not afraid, we will not be intimidated or bought” which reported on the applicant’s statements in the television programme “Dot over the i”.", "“The application is purely PR-like. It is an artillery preparation to destroy the Supreme Court. ‘We have all seen it in the case of the Constitutional Court, and we can see it in the case of the NCJ’, the NCJ spokesman said in ‘Dot over the i’, commenting on the application of fifty Law and Justice deputies to the Constitutional Court to examine the resolution on appointing Małgorzata Gersdorf, the First President of the Supreme Court. In his view, the media favourable to the authorities would slander her personally and try to destroy her authority. Ms Gersdorf was on the side of the separation of powers, so she needs to be slandered. ...", "Waldemar Żurek in turn assured that despite this pressure the judicial community will not give up. You become a judge for difficult times, because it is easy to give even the most difficult judgments when there is no political pressure, when there is no violation of the Constitution. ‘We are just at the threshold of destroying the rule of law and the separation of powers’, he said. ‘I may be dismissed from my job, but I will not break my oath as a judge’, he concluded.”", "46. On 7 March 2017 the applicant was interviewed by the editor-in-chief of Newsweek Polska.", "“Q: You are no longer a spokesperson for the NCJ, but a spokesperson for saving the independence of Polish courts.", "A: I did not expect that every statement in defence of the law would be perceived as political. The NCJ spokesman reminds us that the role of a judge is to warn when something bad is happening, which is how he perceives the current situation around the judiciary. ...", "Q: Do you collect text messages?", "A: I started because I see how the Internet works. I get messages and it hurts me the most when they say: ‘you Stalinist bastard, secret police bastard or bandit in a robe’. My phone number is public. The institution’s spokesman must reach out to the media and the public. ...”", "47. On 21 June 2017 the applicant commented, on the TVN24 television news channel, about the judgment of the Constitutional Court of 20 June 2017 (see paragraphs 19-24 above):", "“The Constitutional Court has given a judgment on the provisions of the 2011 Act on the NCJ regarding the rules for the election of judges to the NCJ, declaring them unconstitutional. The ruling of the Constitutional Court will allow the politicians of the Law and Justice Party to introduce changes in the judiciary leading, among others, to the termination of the terms of office of judges – current members of the NCJ.", "– First, we have to ask whether it was really a judgment – said Waldemar Żurek when asked to comment on the judgment. The doctrine of law says that if a constitutional body includes a person who is not entitled to adjudicate, then we are dealing with a non-existent judgment – he stressed.", "Waldemar Żurek was also asked about changes in the judiciary introduced by the Law and Justice party.", "– I do not want to use the word ‘reform’, because in my opinion it is a deconstruction of the legal system. It will lead to the politicisation of the courts, to a complete take-over of the courts by politics. We have not yet had such a situation since we regained independence – he said.”", "Audit by the CBA of the applicant’s financial declarations", "48. The applicant submitted that the authorities had become interested in him since his increased involvement, in his capacity as the NCJ’s spokesperson, in the debate concerning judicial reforms and related threats to the independence of the judiciary.", "49. The Government stated that in 2016 the unit of the Central Anti ‑ corruption Bureau ( Centralne Biuro Antykorupcyjne – “the CBA”) responsible for auditing financial declarations submitted by judges had carried out a systematic examination of those declarations. As a result of that examination, a number of judges, including the applicant, had been subjected to advanced scrutiny due to irregularities in their declarations. The CBA initiated an inspection of the applicant’s assets and financial declarations ( oświadczenia majątkowe ).", "50. It appears that on an unspecified date in November 2016 the CBA’s Department of Oversight Procedures requested the President of the Cracow Court of Appeal to provide copies of the applicant’s financial declarations for the period 2010-2015 as well as information about the length of his service and posts occupied by him. The requested information was provided to the CBA on 1 December 2016.", "51. In a letter of 15 December 2016 the President of the Cracow Court of Appeal informed the applicant about the CBA’s request.", "52. In connection with the above-mentioned letter, on 23 December 2016 the applicant requested the CBA to inform him whether the audit procedure carried out by the Bureau was of a routine nature or related to any proceedings concerning him. He wished to know the legal and factual basis for the CBA’s actions, noting that he was a sitting judge and member of the NCJ, a constitutional body.", "53. In a letter of an unspecified date in January or February 2017, the Deputy Director of the CBA’s Department of Oversight Procedures requested the President of the Cracow Regional Court to promptly transmit the applicant’s financial declaration for the year 2016. He referred in that letter to “the routine activities of the CBA’s Department of Oversight Procedures and analytical actions” in respect of the applicant.", "54. On 16 February 2017 the applicant asked that Department for information as to when the CBA had begun its above-mentioned activities. He further requested information on who had ordered the CBA’s activities in his case, whether there were any internal procedures setting time-limits for termination of such activities and when the activities concerning him were expected to end.", "55. The applicant has submitted copies of media reports from 12 April 2017 in which the CBA’s spokesperson stated that since the end of November of 2016 it had been analysing his financial declarations and that as a result of this the CBA’s officers had commenced an audit of his declarations.", "56. On 18 April 2017 the applicant’s lawyer, in connection with earlier telephone communications, informed the Warsaw Branch of the CBA by letter and facsimile that the applicant was ready to appear before it when summoned. However, due to his professional obligations he would not be available before 27 April 2017. Should the CBA consider his appearance necessary, the applicant’s lawyer requested that a formal summons indicating the legal basis and the procedure to be followed be addressed to him.", "57. On 19 April 2017 the CBA officers entered the NCJ’s premises in order to serve on the applicant a decision authorising the audit of his financial declarations. The decision dated 13 April 2017 stated that three CBA officers were authorised by the Head of the CBA to carry out the audit of the applicant’s financial declarations on the basis of section 13(1)(2) of the Act on the CBA. The audit concerned the accuracy and veracity of his financial declarations made in the years 2012-2017. The audit was to commence on 19 April 2017 and end three months later. It appears that it was subsequently prolonged until January 2018.", "58. At the same time the tax authorities began a fiscal audit in respect of the applicant, the CBA extended its audit to his wife and the prosecution service questioned the applicant’s parents. The applicant submitted that the audit of his wife’s financial situation had been carried out at the time when she was in advanced pregnancy, thus having a negative effect on her health and causing her serious stress. The applicant’s elderly parents had been distressed in connection with their questioning.", "59. On 11 May 2017 the President of the NCJ addressed letters to the Prime Minister and the Chairman of the Sejm Committee on Secret Services requesting an explanation as to the appropriateness of the actions taken by the CBA officers on 19 April 2017 at the NCJ’s seat. Those letters remained unanswered.", "60. In connection with the media reports concerning the auditing of the applicant’s financial declaration, on 2 May 2017 the Panoptykon Foundation asked the CBA to disclose, inter alia, how many such audits were carried out in 2017 and the practice as to the place of service of authorisations to carry out such audits, pursuant to the Act on Access to Public Information. On 16 May 2017 the CBA replied that in 2017 it had carried out 37 audits of the accuracy of financial declarations. As regards the question about the practice, the CBA stated that they had not kept statistics regarding the place of service of the authorisation; however, it indicated that audits often commenced at the place of work or service of the person concerned.", "61. On 9 August 2017 the applicant’s lawyer notified the CBA’s Department of Oversight Procedures that the applicant had still not received a reply to his letter of 16 February 2017. Furthermore, on a few occasions the applicant was summoned to the CBA in order to provide explanations despite the fact that he had informed it about his holidays and his professional obligations as a judge and member of the NCJ. Lastly, the applicant expressed serious doubts as to whether the CBA’s officers had appropriately exercised their statutory competences in view of the failure to provide him with the requested information, the performance of procedural acts without taking account of his availability and numerous statements to the media on the subject-matter of the pending proceedings.", "62. On 29 December 2017 the applicant and his wife were notified by the CBA, pursuant to section 23(9) of the CBA Act, that the Warsaw Regional Court had authorised the CBA to obtain information and data concerning them from nearly 300 banks and financial institutions in Poland.", "63. It appears that at the end of 2017 the CBA officers visited the applicant’s accountant in her office, asking for information about the applicant’s tax returns. The applicant submitted that according to his accountant, such a visit was very surprising and unusual. The officers questioned the accountant in an informal manner and did not draw up a record of this questioning.", "64. The applicant further submitted that during the audit proceedings carried out by the CBA in his case, it had taken numerous other extraordinary measures. For example, its officers had personally questioned a man residing in south-east Poland who had bought a tractor from the applicant many years earlier. They had also investigated a purchase of land in a rural town in south ‑ east Poland where the applicant owned his holiday home. That purchase had taken place twenty-two years prior to the CBA audit.", "65. The applicant submitted that in 2017 and 2018 he had been questioned on several occasions by CBA officers and had provided written statements. On 12 January 2018 the applicant’s lawyer was served with an audit report ( protokół kontroli ) prepared by the CBA. He made certain objections to it, which were not upheld by the CBA. The applicant refused to sign the report. In a press interview he stated that he had refused to do so because he contested the grounds for the audit and its length.", "66. The Government submitted that the results of the audit, based on official documents received from Government bodies as well as from financial institutions, constituted the basis for a report concerning the established irregularities that had been submitted to the Cracow Regional Prosecutor’s Office for the purpose of criminal law assessment.", "67. The applicant maintained that he had not been informed about any further actions taken by the CBA after the audit report had been prepared in his case. According to the media reports and statements of the CBA press unit, in April 2018 the audit report was transmitted to the Cracow Regional Prosecutor’s Office. The applicant maintained that the report was not a criminal complaint, but had been submitted in order to be forwarded to the competent tax authority. In his view, the report should have been directly transmitted to the tax authority. The applicant had never been informed about any investigation by a prosecutor into his financial or tax affairs.", "68. The Government submitted that audit activities consisting in the collection of statements had also been carried out in relation to other persons from the applicant’s social and professional circle; however, they had not taken the form of interrogations but voluntary statements of knowledge about the applicant’s property matters. The officers had verified the data that the applicant and his wife had included in their financial declarations and therefore the competent authorities and national financial institutions had been contacted during the audit. It was a standard procedure resulting from the purpose of the audit.", "69. The applicant was also summoned to appear a few times before the prosecution service, which is answerable to the Minister of Justice – Prosecutor General; however, he was not informed of his status in that connection.", "Inspection of the applicant’s work ordered by the Ministry of Justice", "70. The applicant submitted a copy of an anonymous letter addressed to the Minister of Justice and received on 28 April 2017. The letter stated, inter alia :", "“Dear Minister,", "I am keeping my fingers crossed for the reform you are implementing! I am wholeheartedly behind you and those who work with you. We need to put in order in Poland all those ... anti-development interest groups. ...", "... I am outraged by the attitude and the aggressive statements of this judge [the applicant], all the more so because he is the face of the ‘extraordinary caste’. I am very curious to know how Judge Żurek’s involvement in the fight against you affects his primary duty, which is to judge. I am curious whether he really spends as much time in the courtroom as his fellow judges. How can he reasonably pass fair judgments on behalf of the Republic of Poland if he spends more time at the TVN [private TV channel] than reading files. As a taxpayer I would like to know how much time Judge Żurek spends in court on substantive work and adjudication, and how much time he spends doing politics. ...", "... I think you need to know, Minister, that there are rumours in Cracow that it is practically impossible to meet Judge Żurek in the courtroom, and that the reasons [for his judgments] are written for him by his assistants, of which he apparently has two! Please check it.”", "71. On 29 April 2017, one day after it had received the letter, the Ministry of Justice sent a request for information to the Vice-President of the Cracow Court of Appeal “in connection with the information received on 28 April 2017 about irregularities in performing judicial duties by Judge Waldemar Żurek in the Cracow Regional Court”. The Ministry wished to be informed whether the applicant had decided cases in accordance with the established schedule and whether there were complaints about the efficiency of proceedings in his cases. It also asked for statistical information on the number of sessions conducted by the applicant (hearings and in camera sessions), and the number of cases assigned to and terminated by him against the average in his division in the years 2015-2017.", "72. The Ministry further inquired whether the applicant had used the support of legal assistants and what had been the rules for assigning assistants to him and to other judges of the Cracow Regional Court. It transmitted a copy of the letter of 28 April 2017.", "73. On 11 May 2017 the President of the Cracow Court of Appeal informed the Ministry of Justice that he had verified the performance of judicial duties by the applicant in the light of elements indicated by the Ministry. He also established that there had been no complaints regarding the efficiency of proceedings in the applicant’s cases. On that basis, he determined that “there were no alleged irregularities in the performance of judicial duties by Judge Waldemar Żurek in the Cracow Regional Court”.", "74. The President of the Cracow Court of Appeal further stated that the work of the Cracow Regional Court was subject to on-going supervision of the President of that court. Such supervision was also carried out by the Head of the Division in which the applicant worked. That supervision had not provided any grounds for initiating supervisory measures with regard to the applicant.", "75. The President of the Cracow Court of Appeal also expressed doubts about the basis for taking actions to verify the alleged irregularities in the performance of judicial duties by the applicant. He noted that, leaving aside the fact that the basis for such actions had been an anonymous letter whose content was offensive to the judges, the impugned letter had not given rise to doubts as to the existence of alleged irregularities.", "76. On 13 May 2017 the Ministry asked the President of the Cracow Court of Appeal to provide supplementary information about the applicant’s assistants and the statistical data as requested before.", "77. On 19 May 2017 the President of the Cracow Court of Appeal informed the Ministry about the support of a legal assistant allocated to the applicant and the rules applicable in this respect at the Cracow Regional Court. He further replied that it was not possible to provide the statistical data on the applicant’s workload in comparison to the average workload of other judges of that court as there was no comparative group of judges performing their judicial duties to the same extent as the applicant.", "Applicant’s dismissal from his position as spokesperson of the Cracow Regional Court", "78. In November 2017 the Minister of Justice dismissed Judge B.M. from her post as President of the Cracow Regional Court. This decision was taken on the basis of the Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts, which conferred on the Minister competence to dismiss and appoint at his discretion presidents of ordinary courts during the period of six months following the law’s entry into force (see paragraph 25 above; for more details, see also Broda and Bojara v. Poland, nos. 26691/18 and 27367/18, § 33, 29 June 2021; in this judgment the Court found that the applicants, two court vice-presidents, had been deprived of the right of access to a court, in violation of Article 6 § 1, in relation to the Minister’s decisions removing them from their posts before the expiry of their respective terms of office pursuant to the above-mentioned Act of 12 July 2017). On 9 January 2018 the Minister of Justice appointed Ms D.P.-W. as new President of the Cracow Regional Court on the basis of the same transitional provisions. On 6 March 2018 the Sejm elected Ms D.P.-W. as one of the judicial members of the new NCJ.", "79. By a letter dated 15 January 2018 the President of the Cracow Regional Court informed the applicant that she had dismissed him from the position of spokesperson of that court, after obtaining a favourable opinion of the Board ( Kolegium ) of the Cracow Regional Court.", "80. The applicant submitted that during the meeting of the Board on 15 January 2018 its members had not given an opinion on his dismissal from the position of spokesperson of that court. At the end of the meeting, the President of the Cracow Regional Court had informally notified the members of the Board that she was considering dismissing the applicant from that position, and only one member of the Board, Judge J.K. objected to the dismissal; none of the other members of the Board expressed their view on that matter. Although the request for an opinion on the applicant’s dismissal had not been included in the Board’s agenda or put to a vote on that day, the information that the Board had given a favourable opinion was included in the minutes of the Board’s meeting. Those events, among others, were later the basis of a lawsuit brought by the applicant against the Cracow Regional Court for breach of the principle of equal treatment in employment. The case is pending before the Katowice Regional Court (case no. IX P 63/19).", "81. On 18 January 2018, the new spokesperson of the Cracow Regional Court published a press release on the court’s website stating that the President of the Cracow Regional Court had dismissed the applicant from the position of spokesperson after obtaining a favourable opinion of the Board. In the applicant’s view, this press release was published in order to inform the public that his work had allegedly been negatively assessed by a larger group of judges.", "82. On 22 January 2018 the members of the Board requested the President of the Cracow Regional Court to call a meeting of the Board on 29 January 2018. The President of the Cracow Regional Court did not react to this request.", "83. On 29 January 2018, six out of eight members of the Board of the Cracow Regional Court resigned from their seats on the Board. On 30 January 2018 they published a statement explaining that their decision had been motivated by the lack of possibility of further cooperation with the President of the Cracow Regional Court, acting by law as Chairperson of the Board. They noted that it had not been appropriate to state in the minutes of the Board’s meeting of 15 January 2018 that the Board had given a favourable opinion as regards the applicant’s dismissal from the position of spokesperson of the court. Further, it had not been appropriate to state in the minutes that the Board had given its consent to the applicant’s dismissal, since the Board could only have given an opinion on this matter. In addition, this matter had not been put to a vote.", "84. On 26 February 2018 the Assembly of Judges of the Cracow Regional Court adopted a resolution which read, in so far as relevant:", "“1. The Assembly ... expresses its thanks to Judge Waldemar Żurek of the Cracow Regional Court for his many years of service as spokesperson of the Cracow Regional Court, as well as member and at the same time spokesperson of the NCJ. Judge Waldemar Żurek consistently and at the same time professionally defended the independence of the courts and judges, which – at a time when the executive and legislative authorities, violating the principles arising from the Constitution, took a number of actions with a view to subordinating the judiciary to the political considerations – was an extremely difficult and courageous act. Quoting the Chapter of the Golden Paragraphs Award granted to Judge Waldemar Żurek in 2016, he was ‘always there, where it was necessary to defend the foundations of the democratic rule-of-law State’. The fully dedicated and committed attitude of Judge Waldemar Żurek has made him ‘the face of the Polish judiciary’, deserving the highest respect and recognition.", "2. The Assembly ... draws attention to the fact that in relation to Judge Waldemar Żurek the law enforcement agencies subordinated to the political actors for about two years, and recently also the newly appointed President of the [Regional] Court, have taken repressive actions manifesting themselves in, among other things:", "– five interrogations by the prosecutor’s office and the CBA in the course of unfounded proceedings concerning the auditing of [the applicant’s] financial declaration[s], which have in fact already lasted almost one and a half years, while, contrary to the law, the proceedings have been conducted for six months without formal initiation and without informing him about this fact;", "– unlawful intrusion of the CBA officers into the restricted area of the seat of a constitutional organ of the Republic of Poland, i.e. the NCJ, in order to serve a summons [on the applicant], which could also have been served by post;", "– questioning, having features of harassment, of the seventy-plus-year-old parents of Judge Waldemar Żurek;", "– the officers of the CBA pestering without justification some neighbours of Judge Waldemar Żurek or the person who administers his taxes;", "– the smear campaign in the public media against Judge Waldemar Żurek, which has resulted in a wave of hate speech directed at him in the form of numerous telephone calls and texts, including threats;", "– unjustified auditing of the financial situation of Judge Waldemar Żurek’s wife, who is currently six months pregnant;", "– the inspection of cases examined by Judge Waldemar Żurek ordered by the Minister of Justice on the basis of an anonymous letter;", "– the dismissal, having features of harassment, of Judge Waldemar Żurek from the position of court spokesperson, despite the absence of the requisite opinion of the court’s Board, and then the harassment of one of the persons who opposed this type of operation – Judge E. Ł., who was dismissed from the position of President of the Wieliczka District Court;", "– attempts to persuade persons cooperating with Judge Waldemar Żurek to make negative statements about his work.", "Taking into account the timing and context of the actions against [the applicant] described above, it is fully justified to conclude that they are aimed at pressuring and intimidating him in connection with his activities defending the independence of the courts and judges. These actions, which we all consider groundless and unlawful, recall the persecution of political opponents by the authorities during the Polish People’s Republic. The above-described actions are reminiscent of the systems of control of citizens and individual repression used by the secret services in authoritarian systems, which led to many violations of human rights in the past. The Assembly strongly condemns this type of action taken against a judge, who is at the same time a member and spokesperson of a constitutional organ of the Republic of Poland, namely the NCJ.”", "Declassification of the applicant’s financial declaration", "85. On 17 May 2018 the applicant requested the President of the Cracow Court of Appeal to grant his financial declaration, which was otherwise to be made public on the Internet, confidential status. He invoked concerns for his and his family’s safety owing to threats received by email and telephone. On 24 May 2018 the President of the Court of Appeal granted the applicant’s request. On 16 June 2018 the Minister of Justice, without providing any reasons, reversed the decision of the President of the Court of Appeal and decided to declassify the financial declaration of the applicant. The Minister’s decision was not amenable to any review.", "Pending disciplinary proceedings against the applicant", "86. In order to present comprehensive information about his current situation, the applicant submitted that at least five sets of disciplinary proceedings had been initiated against him. Two of those sets of proceedings are pending before the Disciplinary Court at the Katowice Court of Appeal and the remaining ones are pending before the Disciplinary Chamber of the Supreme Court.", "87. In the first case pending before the Disciplinary Court at the Katowice Court of Appeal (no. ASD 1/19) the applicant was charged on 2 March 2019 with the disciplinary offence of undermining the dignity of the office of judge in that he had refused to perform judicial duties in the period from 1 September to 15 October 2018 in the I Civil Division (first-instance division) of the Cracow Regional Court. The applicant had been transferred to that Division against his will by the President of the Cracow Regional Court, Ms D.P.-W. on 27 August 2018. In his submission, this transfer from the appeals division hearing civil cases at second instance to the first-instance division constituted an additional repressive measure against him. On 10 September 2018 the applicant lodged an appeal against that decision. In the proceedings initiated by his appeal, the Supreme Court made a reference for preliminary ruling to the CJEU. The latter delivered its judgment on 6 October 2021 (C ‑ 487/19, EU:C:2021:798; see Advance Pharma sp. z o.o. v. Poland, no. 1469/20, §§ 144-149 and 216, 3 February 2022).", "88. In the second case pending before the Disciplinary Court at the Katowice Court of Appeal (no. ASD 4/19) the applicant was charged on 21 October 2019 with the same disciplinary offence in that he had delivered a political manifesto in a press interview where he had stated his views on the functioning of the constitutional organs of the State, namely the Constitutional Court and the new NCJ and also questioned the legality of K.Z.’s appointment to the post of judge of the Supreme Court.", "89. On 22 November 2018 Judge M.L., the Deputy Disciplinary Officer for Ordinary Court Judges ( Zastępca Rzecznika Dyscyplinarnego Sędziów Sądów Powszechnych ) charged the applicant with two disciplinary offences. The first charge concerned the applicant’s failure to file a sales tax return on the sale of a John Deere 440 Skider tractor and the second one related to the failure to pay tax on civil-law transactions concerning the sale of the tractor. These proceedings appear to be the consequence of the auditing by the CBA of the applicant’s financial declarations.", "90. On 28 May 2020 Judge P.W.R., the Deputy Disciplinary Officer for Ordinary Court Judges charged the applicant with the disciplinary offence of undermining the dignity of the office of judge by, inter alia, challenging the effectiveness of K.Z.’s appointment to the post of judge of the Supreme Court and questioning his status as the acting First President of the Supreme Court. This set of disciplinary proceedings constituted a reaction to the lawsuit brought by the applicant before the Supreme Court’s Chamber of Labour and Social Security in which he had been seeking to establish the non-existence of the official status of K.Z., who had been appointed as a Supreme Court judge with the participation of the new NCJ. In those proceedings the Supreme Court decided to submit a request for a preliminary ruling to the CJEU. A more detailed description of the appointment procedure concerning Judge K.Z. can be found in the Court’s judgment in Advance Pharma sp. z o.o v. Poland, no. 1469/20, of 3 February 2022, in which the Court held that the judicial formation of the Civil Chamber of the Supreme Court including Judge K.Z. was not a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention and that it lacked the independence and impartiality required by this provision (see §§ 26-27, 34-35, 44-52, 93 and 349-353).", "Other material", "91. In 2019 Amnesty International published a report entitled “Poland: Free Courts, Free People. Judges Standing for Their Independence”. The report contained the following passage:", "“3. Impact on judges", "...", "In the early stages of the ‘reform’ of the judiciary, the authorities and pro-government media targeted a small number of individual judges who publicly spoke out against it. Waldemar Żurek, a judge of the Regional Court in Cracow who was an NCJ spokesperson until March 2018, had suffered several years of intimidation and harassment.", "Serving as the spokesperson of the NCJ, Judge Żurek has voiced public criticism via the media since 2016 when the government first attempted to interfere with the independence of the judiciary by targeting the Constitutional Tribunal. In response, various authorities subjected Judge Żurek and his family members to investigations and disciplinary proceedings. Judge Żurek was also targeted by a negative campaign by pro-government media, including national television [footnote omitted], during which he received hate mail and abusive and threatening text messages [footnote omitted]. For several months in 2016 and 2017, the Central Anticorruption Bureau (CBA) carried out an investigation of Judge Żurek’s finances. The Assembly of Judges of the Regional Court in Cracow raised concerns over procedural irregularities in the investigation as it ‘has been pursued without a formal decision and without a proper announcement for a period of [the first] 6 months [footnote omitted]’. Judge Żurek reported intrusions by CBA officials into his home and office [footnote omitted]. The CBA investigation eventually concluded in January 2018 that Judge Żurek was not involved in any major breaches of the law beyond inconsistent reporting on per diem received.", "Judge Żurek also faced several disciplinary proceedings, including an investigation for his participation in July 2017 protests in defence of the independence of the judiciary. In 2017, the pro-government newspaper Gazeta Polska called for such proceedings after Judge Żurek spoke at a protest on 16 July 2017 in Warsaw. However, the disciplinary prosecutor at the Appeal Court in Cracow concluded in August 2017 that there were no grounds for such a move [footnote omitted].”", "92. In 2020 judges from the Polish Judges’ Association Iustitia and a prosecutor from the Lex Super Omnia Association of Prosecutors published a report entitled “Justice Under Pressure”. The report stated, in so far as relevant:", "“29. Waldemar ŻUREK – Judge of the Regional Court in Cracow", "Judge Waldemar Żurek was a member of the NCJ for two terms of office, and until March 2018 he was a spokesman for the Council. The Judge is a member of the board of the ‘Themis’ Association of Judges and has repeatedly spoken in public debate on the state of the rule of law in Poland, and in his statements he has always boldly defended the independence of the courts, the independence of judges and the principles of a democratic State under the rule of law, openly criticising the unconstitutional changes introduced in the area of justice by those currently in power. In January 2018, Judge Waldemar Żurek was dismissed from the position of [spokesperson] of the Regional Court in Kraków. In July 2018, Judge Waldemar Żurek was transferred from the 2nd Civil Appeal Division to the 1st Civil Division (1st instance), which was criticised by the Association of Judges ‘Themis’ and the Association of Polish Judges ‘Iustitia’, which described this decision as politically motivated harassment of this judge and as an attempt to intimidate judges who openly act against actions aimed at political subordination to justice. Judge Waldemar Żurek took part in meetings with citizens, where current changes concerning the justice system, including the independence of courts and the independence of judges, were discussed. Judge Waldemar Zurek’s civic activity was met with the reaction of the disciplinary prosecutor, who, among other things, began to scrutinise the professional work of the judge in order to find a reason to initiate disciplinary proceedings.”" ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Material RELEVANT TO the Article 6 § 1 complaint", "93. The domestic, international and EU law relevant to the applicant’s complaint concerning the premature termination of his term of office as a judicial member of the NCJ was set out in Grzęda v. Poland ([GC], no. 43572/18, §§ 64-169, 15 March 2022).", "Material RELEVANT TO the Article 10 complaintDomestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”)", "94. The Central Anti ‑ corruption Bureau was established as a special service to combat corruption, in particular in the State and local government institutions, as well as to combat activities detrimental to the economic interests of the State (section 1 of the CBA Act).", "95. In accordance with section 2(1)(5) of the CBA Act, its competences include the verification of the accuracy and veracity of financial declarations submitted by persons holding public office. Under section 23(1) and (4) of the CBA Act, it can obtain, subject to a court’s approval, information from banks and other financial institutions concerning a person whose financial declaration is under examination.", "96. Section 33(1) of the CBA Act provides that an audit can be carried out in accordance with the audit programme authorised by the Head of the CBA or its deputy. Under section 33(3) of the Act an audit is carried out by the CBA officers on the basis of their service card and a personal authorisation issued by the Head of the CBA.", "Financial declarations of judges", "97. In accordance with section 87(1) of the Act on the Organisation of Ordinary Courts ( Ustawa o ustroju sądów powszechnych ), in its version applicable at the relevant time, judges are required to submit a financial declaration which concerns their personal property and property covered by a joint matrimonial regime to a competent President of the Court of Appeal. The declaration should include, inter alia, information about cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge.", "98. Under section 87(6) of the Act on the Organisation of Ordinary Courts the information contained in the financial declaration is public with the exception of the address of the person concerned and the location of the real estate. The same provision stipulates that at the request of the judge, the person authorised to collect the declaration may decide to classify the information contained in the declaration, if the disclosure of this information could pose a threat to the person submitting the declaration or to his or her relatives. However, the Minister of Justice is entitled to declassify such declarations of judges.", "99. The financial declarations are published in the Public Information Bulletin no later than 30 June each year (section 87(6a)).", "Court spokesperson", "100. In accordance with Article 33 § 1 of the Regulation of the Minister of Justice on the Rules of operation of the ordinary courts, 23 December 2015, tasks related to cooperation between a court and the media are carried out by the president or vice-president of the court. In the Court of Appeal and the Regional Court the president of the relevant court may appoint a spokesperson to carry out those tasks (Article 33 § 2). The spokesperson reports directly to the president of that court (Article 33 § 3).", "101. Under section 31(1)(1) of the Act on the Organisation of Ordinary Courts, the Board of the Regional Court expresses an opinion on the appointment of a spokesperson and on any dismissal from that position.", "International materialThe United Nations", "The United Nations", "The United Nations", "(a) The Basic Principles on the Independence of the Judiciary", "102. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant point reads as follows:", "“8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”", "(b) The UN Special Rapporteur on the independence of judges and lawyers", "103. On 24 June 2019 the UN Special Rapporteur on the independence of judges and lawyers, Mr Diego García-Sayán submitted his Report on freedom of expression, association and peaceful assembly of judges and prosecutors to the Human Rights Council. He made the following recommendations, in so far as relevant:", "“101. In exercising their freedom of expression, judges and prosecutors should bear in mind their responsibilities and duties as civil servants, and exercise restraint in expressing their views and opinions in any circumstance when, in the eyes of a reasonable observer, their statement could objectively compromise their office or their independence or impartiality.", "102. As a general principle, judges and prosecutors should not be involved in public controversies. However, in limited circumstances they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service. In situations where democracy and the rule of law are under threat, judges have a duty to speak out in defence of the constitutional order and the restoration of democracy.”", "The Council of Europe", "(a) The Committee of Ministers", "104. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide:", "“ Chapter II – External independence", "...", "19. Judicial proceedings and matters concerning the administration of justice are of public interest. The right to information about judicial matters should, however, be exercised having regard to the limits imposed by judicial independence. The establishment of courts’ spokespersons or press and communication services under the responsibility of the courts or under councils for the judiciary or other independent authorities is encouraged. Judges should exercise restraint in their relations with the media.", "...", "21. Judges may engage in activities outside their official functions. To avoid actual or perceived conflicts of interest, their participation should be restricted to activities compatible with their impartiality and independence.”", "(b) The Parliamentary Assembly of the Council of Europe", "105. The report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe of 6 January 2020 entitled “The functioning of democratic institutions in Poland” (doc. 15025) stated, in so far as relevant:", "“ 4. Disciplinary proceedings against judges", "95. As we outlined in the previous sections, a main objective of the reform started after the 2015 legislative elections has been to bring the judiciary firmly under the control of the ruling majority. In that context, the reports of disciplinary proceedings against, and harassment of, judges and prosecutors who are seen as acting against the interests of the ruling majority, or who have been openly critical of the reforms, is extremely concerning. This is all the more the case since recent disclosures that a campaign of harassment of judges was orchestrated with the involvement of leading personalities in the Ministry of Justice and High Council of Justice closely connected to the current ruling majority. ...", "...", "98. According to the Polish Constitution, judges cannot be members of political parties or engage in activities that would be incompatible with the principle of the independence of the courts and judiciary. While judges should refrain from political activities, the law does not clearly define what amounts to political activity and what is protected under the right to freedom of speech [footnote omitted]. While we concur with the prohibition of party-political activities for judges, this cannot have the effect of forbidding judges from being able to express an opinion on the legal system and changes to it that would affect them directly.”", "106. The report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe of 5 January 2021 entitled “Judges in Poland and in the Republic of Moldova must remain independent” (doc. 15204) stated, in so far as relevant:", "“ 4. Changes in the functioning of the judiciary in Poland", "...", "36. According to the authors of the motion for a resolution, ‘in Poland, courts remain the last resort for numerous prosecuted civil rights activists’ and ‘disobedient judges, such as Igor Tuleya, Wojciech Łączewski, Dominik Czeszkiewicz and Waldemar Żurek face disciplinary consequences from court newly appointed presidents’. ...", "4.5. The ordinary courts", "...", "66. Several judges have even been threatened. Judge Waldemar Żurek, for example, has been receiving hate messages since 2016 and has been the subject of at least five sets of disciplinary or ‘explanatory’ proceedings. ...", "4.7. Latest developments", "...", "79. Judge Waldemar Żurek, a member of the former NCJ, who was known to have criticised its reform, is the subject of disciplinary proceedings brought under the law of 20 December 2019, for having questioned the validity of the appointment of a judge to the S[upreme] C[ourt] (Mr K.Z.).”", "(c) The Council of Europe Commissioner for Human Rights", "107. The Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. The report from her visit, published on 28 June 2019, reads in so far as relevant:", "“ 1.5 Mass dismissals and disciplinary proceedings affecting judges and prosecutors", "...", "49. The Commissioner recalls that judges and prosecutors have the right to express their views on matters of public interest, including on reforms of the judiciary and the prosecution service, in a proportionate way, and their freedom to do so must be safeguarded. ...", "50. The Commissioner considers that, beyond the persons directly affected, disciplinary proceedings are likely to have a chilling effect on other judges and prosecutors who wish to participate in the public debate on issues related to the administration of justice and the judiciary, which according to the European Court of Human Rights works to the detriment of society as a whole [footnote omitted]. She observes that members of the judiciary and the prosecution service in Poland who publicly express their views on the reform relating to their professions incur a very real risk to their careers. The manner in which some disciplinary proceedings are being conducted, as relayed to the Commissioner by various interlocutors in Poland – including from the judicial and prosecutorial professions – and as described in media reports, has understandably been perceived as intimidating and/or as an attempt to silence outspoken or critical judges and prosecutors. The Commissioner urges the authorities to ensure that disciplinary proceedings are not instrumentalised and to secure the right to a fair trial of any person subjected to them.”", "(d) The European Commission for Democracy through Law (Venice Commission)", "108. The Venice Commission, in its report on the Freedom of Expression of Judges, adopted at its 103rd Plenary Session (Venice, 19-20 June 2015, CDL-AD(2015)018) observed, in so far as relevant:", "“80. European legislative and constitutional provisions and relevant case-law show that the guarantees of the freedom of expression extend also to civil servants, including judges. But, the specificity of the duties and responsibilities which are incumbent to judges and the need to ensure impartiality and independence of the judiciary are considered as legitimate aims in order to impose specific restrictions on the freedom of expression, association and assembly of judges including their political activities.”", "(e) The Consultative Council of European Judges (“the CCJE”)", "109. Opinion no. 3 of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality adopted on 19 November 2002 reads, in so far as relevant:", "“ b. Impartiality and extra-judicial conduct of judges", "27. Judges should not be isolated from the society in which they live, since the judicial system can only function properly if judges are in touch with reality. Moreover, as citizens, judges enjoy the fundamental rights and freedoms protected, in particular, by the European Convention on Human Rights (freedom of opinion, religious freedom, etc). They should therefore remain generally free to engage in the extra-professional activities of their choice.", "28. However, such activities may jeopardise their impartiality or sometimes even their independence. A reasonable balance therefore needs to be struck between the degree to which judges may be involved in society and the need for them to be and to be seen as independent and impartial in the discharge of their duties. In the last analysis, the question must always be asked whether, in the particular social context and in the eyes of a reasonable, informed observer, the judge has engaged in an activity which could objectively compromise his or her independence or impartiality.", "...", "33. The discussions within the CCJE have shown the need to strike a balance between the judges’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality.", "34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system. This subject also raises the question of whether judges should be allowed to join trade unions. Under their freedom of expression and opinion, judges may exercise the right to join trade unions (freedom of association), although restrictions may be placed on the right to strike.”", "110. The Magna Carta of Judges (Fundamental Principles) was adopted in November 2010. The relevant part reads as follows:", "“ Judicial independence", "...", "3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence.", "...", "Guarantees of independence", "...", "9. The judiciary shall be involved in all decisions which affect the practice of judicial functions (organisation of courts, procedures, other legislation).”", "111. Opinion no. 18 of the CCJE on the position of the judiciary and its relation with the other powers of state in a modern democracy adopted on 16 October 2015 reads, in so far as relevant:", "“ VII. The need for restraint in the relations between the three powers", "...", "A. “Judicial restraint”", "...", "41. In its dealings with the other two powers of state, the judiciary must seek to avoid being seen as guarding only its own interests and so overstating its particular concerns. Rather, the judiciary must take responsibility for the society it serves. The judiciary must show understanding and responsibility towards the needs of the public and the exigencies of the public purse. The judiciary can provide their insights on the possible effect of proposed legislation or executive decisions on the ability of the judiciary to fulfil its constitutional role. Judiciaries must also take care not to oppose all proposed changes in the judicial system by labelling it an attack on judicial independence. But, if judicial independence or the ability of the judicial power to exercise its constitutional role are threatened, or attacked, the judiciary must defend its position fearlessly. Examples of decisions which might come into those categories are massive reductions in legal aid or the closure of courts for economic or political reasons.", "42. If it is necessary to criticise another power of the state or a particular member of it in the course of a judgment in a dispute or when it is necessary in the interests of the public, that must be done. For example, therefore, courts may criticise legislation or the failure of the legislative to introduce what the court would regard as adequate legislation. However, just as with the other powers of the state in relation to the judiciary, criticism by the judiciary must be undertaken in a climate of mutual respect. Judges, like all other citizens, are entitled to take part in public debate, provided that it is consistent with maintaining their independence or impartiality. The judiciary must never encourage disobedience and disrespect towards the executive and the legislature. In their professional and private relations with the representatives of the other powers, judges must avoid any conflict of interest and avoid any behaviour that might create a perception that judicial independence and impartiality and the dignity of the judiciary in general is impugned. As long as criticism is undertaken in a climate of mutual respect, it can be beneficial to society as a whole. However, it cannot be too often emphasised that it is not acceptable that reasonable critical comments from the judiciary towards the other powers of the state should be answered by removals from judicial office or other reprisals [footnote omitted]. The CCJE also emphasizes that inadmissible behaviour by representatives of the legislative and executive powers and by politicians may occur in the form of connivance and, in certain cases, support for aggression or even radical, violent and unlawful actions against the judiciary [footnote omitted]. Direct or indirect support for such actions against the judiciary is totally unacceptable. Not only are such actions a direct attack on judicial independence, they also stifle legitimate public debate by judges.”", "Other material", "112. The Sofia Declaration adopted by the General Assembly of the ENCJ on 7 June 2013 reads in so far as relevant:", "“(vii) The prudent convention that judges should remain silent on matters of political controversy should not apply when the integrity and independence of the judiciary is threatened. There is now a collective duty on the European judiciary to state clearly and cogently its opposition to proposals from government which tend to undermine the independence of individual judges or Councils for the Judiciary.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "113. The applicant complained that he had been denied access to a court in order to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the NCJ. He had been elected as a member of this body for a four-year term, as provided for in Article 187 § 3 of the Constitution, and had the right to remain in office for the duration of that term, thus until 21 March 2018. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "AdmissibilityApplicability of Article 6", "Applicability of Article 6", "Applicability of Article 6", "(a) The Government’s submissions", "114. The Government contested the applicability of Article 6 § 1 of the Convention to the present case. They claimed that under Polish law there was no right to exercise public authority, including the right of a judge to be elected to the NCJ or to remain in that office. Moreover, in the present case there was no genuine and serious “dispute” concerning the existence of the alleged civil right of the applicant to remain a member of the NCJ.", "115. The Government referred to the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17), in which certain provisions of the 2011 Act on the NCJ had been found unconstitutional. In order to implement the above ‑ mentioned Constitutional Court judgment, the authorities had prepared a bill amending the Act on the NCJ. The bill, subsequently enacted into law as the 2017 Amending Act, departed from the principle of the individual character of the term of office for judicial members of the NCJ and changed the manner of their election. The Government maintained that the decision to terminate the applicant’s term of office as a judicial member of the NCJ had been legitimate. That decision had concerned solely his position as a member of the NCJ and did not touch upon his status as a judge. Its rationale was to implement the Constitutional Court’s judgment in so far as the nature of the term of office of the NCJ’s judicial members was concerned. It thus constituted a merely technical measure aimed at the establishment of a new term of office consonant with the relevant constitutional provisions.", "116. They submitted that the applicant’s membership of the NCJ did not constitute “employment” or any other comparable legal relationship. The fact of being a member of the NCJ could not be regarded as a right either under domestic law or under the Convention, but pertained to the exercise of public authority.", "117. As regards the first condition of the Eskelinen test, the Government maintained that under Polish law the applicant had been excluded from the right of access to a court in so far as his seat on the NCJ was concerned. This exclusion had been in place already on the date of his election to the NCJ and thus the 2017 Amending Act had not affected this. They noted that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of office for the members of this body. Matters pertaining to participation in the NCJ did not constitute a “case” ( sprawa ) within the meaning of Article 45 § 1 of the Constitution and as such were excluded from the right to a court ratione materiae. The Government concluded that national law “excluded access to a court” for an individual claim based on the alleged unlawfulness of the termination of the term of office. The first condition of the Eskelinen test had therefore been met.", "118. As regards the second condition of the Eskelinen test, the Government submitted that the subject-matter of the applicant’s complaint related exclusively to the exercise of State power. In their view, the amendments in the 2017 Amending Act had been proportionate since the aim had been to adjust the election rules to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). The Government maintained that in the Constitutional Court’s case ‑ law the protection of the term of office of the NCJ’s judicial members was not regarded as absolute. In their view, the cohesion of the changes which made it possible for the NCJ to operate in compliance with the Constitution justified the termination of the terms of office of the NCJ’s judicial members who had been elected on the basis of the previous provisions. Furthermore, the “democratisation” of the NCJ election procedure constituted an important public interest which justified in turn the early termination of the term of office of the NCJ’s judicial members. In this context, the Government submitted that under the 2017 Amending Act judicial members of the NCJ were to be elected by the Sejm from among the judges who obtained adequate support from other judges or from citizens. The Government concluded that the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The second condition of the Eskelinen test had therefore been met as well.", "119. In the present case, since both conditions of the Eskelinen test had been fulfilled, the applicant’s complaint under Article 6 § 1 should be considered incompatible ratione materiae.", "(b) The applicant’s submissions", "120. The applicant maintained that Article 6 § 1 under its civil head was applicable to his case. He asserted that the Polish Constitution guaranteed to a judge elected to the NCJ the right to serve a full four-year term of office. This conclusion stemmed from Article 60 read in conjunction with Article 187 § 3 of the Constitution. Therefore, the early termination of his term of office in the NCJ had to be seen as an interference with his individual right of access to public service, not as a deprivation of the exercise of public power. The latter was exercised by the NCJ as a collective body, not by its individual members.", "121. The applicant submitted that the stability of tenure of the NCJ’s members was fundamental to ensuring the proper functioning of that body. The Constitutional Court had underlined in its judgment of 18 July 2007 (no. K 25/07) that only extraordinary circumstances could warrant a breach of the tenure of the NCJ’s members. The applicant submitted that the Government’s argument that there had been no alternative to the shortening of his term of office in connection with the introduction of the new system of electing the NCJ’s judicial members could not be accepted as proportionate or legitimate.", "122. As regards the first condition of the Eskelinen test, the applicant argued that the domestic law had never explicitly excluded access to a court for judicial members of the NCJ whose term of office had been prematurely terminated. The premature termination in his case had been unprecedented. The Act on the NCJ in force at the time of his election to the Council did not provide for such termination, except in the situations provided for in section 14 of the Act. The termination at issue had resulted from the ad hoc application of statute law and lacked the characteristics of abstract legal norms. It could not be concluded that the national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the measure at issue.", "123. As regards the second condition of the Eskelinen test, even assuming that domestic law excluded access to a court in his case, the applicant argued that the exclusion was not based on objective grounds in the State’s interest. Firstly, the exclusion had a significant impact on his status as judge since he had been elected to the NCJ in his capacity as a judge of an ordinary court, not as an ordinary citizen. His election to the NCJ had been aimed at ensuring the proper operation of the NCJ, a body responsible for safeguarding judicial independence.", "124. Secondly, the applicant maintained that the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) had to be seen as a false pretext justifying the introduction of changes to the NCJ’s composition at the time when the legislative procedure, initiated by the Ministry of Justice, had been pending in Parliament. Moreover, the impugned judgment was invalid and contrary to the Constitution owing to the participation of Judges M.M. and L.M. in the adjudicating panel.", "125. Thirdly, the exclusion of the right of access to a court was incompatible with the rule of law. The shortening of the applicant’s term of office could not be regarded as a merely technical measure. Rather, it constituted a serious violation of Article 187 § 3 of the Constitution and interference with the right of access to public service under Article 60 of the Constitution.", "(c) Submissions of third-party interveners", "126. The European Network of Councils for the Judiciary, Amnesty International jointly with the International Commission of Jurists, the Helsinki Foundation for Human Rights, the Polish Judges’ Association Iustitia, the Judges for Judges Foundation jointly with Professor L. Pech and the Commissioner for Human Rights of the Republic of Poland submitted their written comments on the case, similar to those made earlier in the case of Grzęda v. Poland. Their submissions were summarised in the Grzęda judgment (cited above, §§ 205-239). The submissions received pertain both to the admissibility and merits of the complaint under Article 6 § 1.", "127. The Judges’ Association Themis, which did not intervene in Grzęda, submitted comments in the present case. With regard to the stability of tenure of judicial members of the NCJ, the intervener supported the view of the Commissioner that the judicial members were entitled to protection as regards their irremovability, analogous to that afforded to judges performing judicial functions. It considered that in this context the Court should have regard to the relevant jurisprudence of the CJEU. The intervener noted that the change of procedure for electing judicial members of the NCJ rendered that procedure politicised. It also resulted in a situation where the NCJ ceased to fulfil its constitutional role as guardian of judicial independence.", "(d) The Court’s assessment", "(i) General principles", "128. The general principles regarding the applicability of Article 6 § 1 in its “civil” limb were recently summarised in Grzęda v. Poland ([GC], no. 43572/18, §§ 257-264, 15 March 2022).", "(ii) Application of the general principles to the present case", "129. The Court notes that the applicant is a judge of the Cracow Regional Court. On 2 March 2014 he was re-elected to the NCJ for a period of four years by the Representatives of the General Assemblies of Regional Court judges, in accordance with the relevant provisions of the Constitution and the applicable legislation. His second term of office on the NCJ began on 21 March 2014 and was due to come to an end on 21 March 2018.", "130. In Grzęda v. Poland the Grand Chamber of the Court examined the question of applicability of Article 6 § 1 to a dispute arising out of the premature termination of that applicant’s term of office as a judicial member of the NCJ, while he still remained a serving judge (ibid., § 265). The same question arises in the present case.", "131. As regards the existence of a right, the Court found in Grzęda that, having regard to the terms of Article 187 § 3 of the Constitution, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions in section 14(1) of the 2011 Act on the NCJ (ibid., § 282). The Court further held in Grzęda that there was a genuine and serious dispute over the “right” to serve a full term of four years as a judicial member of the NCJ (ibid., § 286).", "132. Next the Court examined in that case whether the “right” claimed by the applicant was a “civil” one within the autonomous meaning of Article 6 § 1 in the light of the criteria developed in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II). As regards the first condition of the Eskelinen test, namely whether the domestic law expressly excluded access to a court, the Court held that the first condition could be regarded as fulfilled where, even without an express provision to such effect, it had been clearly shown that domestic law excluded access to a court for the type of dispute concerned ( Grzęda, cited above, § 292). However, it left open the question of compliance with the first condition of the Eskelinen test, noting the opposing views of the parties in this respect and having regard to its conclusion as to the second condition of the test (ibid., § 294).", "133. As regards the second condition of the Eskelinen test, namely whether the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest, the Court held that it had not been met (ibid., § 325). It found in this context that the applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, had been prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence could not be regarded as being in the interest of a State governed by the rule of law (ibid., § 326). Accordingly, the Court found in Grzęda that Article 6 § 1 in its civil limb was applicable in the applicant’s case.", "134. In the present case, for the same reasons as those set out in Grzęda (ibid., 266-329), the Court finds that Article 6 § 1 is applicable. It thus rejects the Government’s objection in this regard.", "Victim status", "135. The Government argued that membership of the NCJ pertained to the sphere of exercise of public authority and that as such was not an individual right protected by the Convention. The mere fact that an individual was removed from an office entailing the exercise of public power should not be regarded as an interference with human rights. Therefore, the applicant could not claim to be a victim of a violation of human rights protected by the Convention and his application was inadmissible owing to a lack of victim status.", "136. The applicant contested the Government’s assertion.", "137. The Court notes that the Government’s objection on the grounds of a lack of victim status is based on the same arguments as those raised in respect of the applicability of Article 6 to the present case, which it has dismissed above (see paragraphs 114-117 above). As the Court has already decided that the dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ pertained to a “civil right” within the meaning of Article 6 § 1 of the Convention, it finds that the Government’s objection alleging a lack of victim status must be dismissed.", "Objection based on a lack of significant disadvantage", "(a) The parties’ submissions", "138. The Government further submitted that the application was inadmissible on account of a lack of significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In their view, the applicant had not sustained any disadvantage of a pecuniary or non-pecuniary nature in connection with the termination of his term of office as a member of the NCJ. In support of this contention, they referred to their earlier arguments on the applicability of Article 6 § 1.", "139. The applicant argued that his case could not be rejected under Article 35 § 3 (b) as he had suffered a significant disadvantage in the form of non-pecuniary damage related to the distress caused by the violation of his Convention rights. Furthermore, respect for human rights as defined in the Convention required the examination of his case on the merits since it pertained to the relationship between the principles of the separation of powers and the effective protection of human rights. Lastly, his case had not been duly examined by a domestic court. In fact, he had been deprived of the possibility of challenging the premature termination of his term of office before a court.", "(b) The Court’s assessment", "140. The Court considers that the objection based on Article 35 § 3 (b) cannot be accepted. The present application concerns similar issues to those which arose in Grzęda, where it was considered that they raised serious questions affecting the interpretation of the Convention or the Protocols thereto and the case had therefore been relinquished to the Grand Chamber under Article 30 of the Convention. The Court is thus of the view that the conditions set forth in Article 35 § 3 (b) are not met, since respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination of the application on the merits (see Grzęda, cited above, § 332).", "141. The Government’s objection under Article 35 § 3 (b) of the Convention must accordingly be dismissed.", "Overall conclusion on admissibility", "142. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant’s submissions", "The applicant’s submissions", "The applicant’s submissions", "143. The applicant argued that he had not had access to a court for the determination of his civil rights in accordance with Article 6 § 1 of the Convention.", "The Government’s submissions", "144. The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They reiterated their arguments as to the inapplicability of this provision to the present case.", "The Court’s assessment", "(a) General principles", "145. The applicable general principles concerning the right of access to a court were recently summarised in Grzęda (cited above, §§ 342-343).", "(b) Application of the general principles to the present case", "146. The Court would point out that it has left open the question whether the first condition of the Eskelinen test has been fulfilled, taking account of the opposing views of the parties on that issue and since, in any event, it has concluded that the second condition has not been met (see paragraph 132 above). However, the Court reiterates that the Government have consistently argued that for the purposes of Article 6 of the Convention the applicant’s access to a court was excluded at all times under national law, both before his term of office as a judicial member of the NCJ was terminated by the 2017 Amending Act, as well as after that termination (see paragraph 117 above). Therefore, the Court is now called upon to assess whether the applicant’s lack of access to the domestic courts, in order to have examined the genuine and serious dispute over his arguable right to serve a full term of four years as a judicial member of the NCJ (see paragraph 131 above), was justified in conformity with the general principles emanating from the Court’s case-law.", "147. Referring to its analysis with regard to the issue of the applicability of Article 6 § 1, in particular the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence (see Grzęda, cited above, §§ 300-303), the Court considers that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ has been removed from his or her position (ibid., § 345).", "148. The Court further emphasises the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, the Court considers it necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. It also has regard to the overall context of the various reforms undertaken by the Polish Government which have resulted in the weakening of judicial independence and adherence to rule-of-law standards (ibid., § 346).", "149. In the instant case the Government have not provided any reasons justifying the absence of judicial review, but have simply reiterated their arguments as to the inapplicability of Article 6 to the case.", "150. Having regard to the foregoing, the Court finds that on account of the lack of judicial review in this case the respondent State impaired the very essence of the applicant’s right of access to a court (ibid., § 349).", "151. Accordingly, the Court finds that there has been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention.", "Alleged violation of Article 13 of the Convention", "152. The applicant complained under Article 13 of the Convention that he had been deprived of an effective domestic remedy in respect of the premature termination of his term of office as judicial member of the NCJ. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "153. The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1. It reiterates that the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI, and Baka, cited above, § 181).", "154. Consequently, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention (see Grzęda, cited above, § 353).", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "155. The applicant complained about the termination of his position as the NCJ’s spokesperson, resulting from the termination of his term of office as a judicial member of the NCJ, and the earlier dismissal from his position as the Cracow Regional Court’s spokesperson. He further complained about the actions taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members and about the declassification of his financial declaration by the Minister of Justice. The applicant alleged that those measures had been taken in response to his critical public statements on legislative changes affecting the judiciary and entailed a violation of his right to freedom of expression. He relied on Article 10 of the Convention, of which the relevant part provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "156. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant’s submissions", "The applicant’s submissions", "The applicant’s submissions", "157. The applicant averred that both the decision to remove him from his position as Cracow Regional Court’s spokesperson and the measures taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members, in themselves and by the manner in which they had been carried out, had constituted an interference with his freedom of expression. In this connection, the applicant also referred to the premature termination of his term of office as a judicial member of the NCJ which had brought to an end his duties as the NCJ’s spokesperson. He had taken an active part in the public debate concerning the reorganisation of the judiciary primarily in his capacity as the NCJ’s spokesperson.", "158. The applicant submitted that in order to answer the question whether there had been an interference with his freedom of expression, the scope of the measure had to be determined by putting it in the context of the facts of the case and of the relevant legislation. He disagreed that only formal disciplinary proceedings or typical sanctions could constitute an interference within the meaning of Article 10. In any event, several sets of disciplinary proceedings had been instituted against him, including for his statements in the public debate, but since they were pending they were not subject to the Court’s assessment in the present case (see paragraphs 86-90 above).", "159. The applicant maintained that he was a symbolic figure of the Polish judicial community and one of the judges most engaged in the public debate concerning the independence of the judiciary in recent years. At the same time, he was one of the most “targeted” judges and had been subjected to, more or less formal, repressive measures by the authorities over the past few years. His case had been mentioned, inter alia, in a report by the Polish Judges’ Association Iustitia and by the Lex Super Omnia Association of Prosecutors, “Justice Under Pressure”, published in 2020.", "160. For many years and in a consistent manner the applicant had defended the rule of law and the independence of the courts and openly criticised the unconstitutional changes in the judiciary brought about by the current majority. He argued that all the measures taken by the authorities in response to the multiple statements he had made in the public debate had amounted to an interference with his freedom of expression. Those measures clearly constituted a “restriction” within the meaning of Wille v. Liechtenstein ([GC], no. 28396/95, ECHR 1999 ‑ VII).", "161. As regards the CBA officers’ entry into the NCJ’s premises on 19 April 2017, the applicant maintained that they had interrupted his confidential meeting with the President, Vice-President and the other spokesperson of the NCJ. The officers had introduced themselves and stated that they were going to serve the audit authorisation on the applicant. The applicant did not acknowledge receipt of the authorisation and the officers left the NCJ’s building. The authorisation was only a two-page formal document and contained no substantive content. The applicant observed that it could have been sent to him by post or served during his appearance before the CBA. He submitted that such action had been aimed at drawing the attention of public opinion and other judges to his supposed legal problems.", "162. The applicant pointed out that the Government, while admitting that the CBA had selected the financial declarations of six judges for auditing, had not provided any information on the frequency or time-scale of those audits. He argued that the manner of auditing his financial declarations had gone far beyond the CBA’s routine activities and had shown that the real intention of the authorities was to draw public attention to possible inaccuracies in his financial declarations.", "163. Both the timing and accumulation of the measures taken in relation to the applicant and his family showed that even if there were formal grounds for taking those measures, they had all been used instrumentally or even ultra vires in order to intimidate him. No measures targeting the applicant had been taken before the current majority came to power in the 2015 general election despite the fact that the applicant had been acting as the NCJ’s spokesperson and the Cracow Regional Court’s spokesperson for several years already. Although the CBA’s audit of his financial declarations covered the years 2012-2017, the audit had been initiated in late 2016, at a time when the applicant was frequently criticising the reforms of the judiciary implemented by the governing majority. In addition, the manner in which the public officials had informed the media about the measures taken with regard to the applicant and his family clearly demonstrated that they had intended to raise suspicions as to his credibility in public opinion and therefore to have a “chilling effect” on him.", "164. The applicant maintained that when putting all the impugned measures in the context of the facts of the case, including the broader context of the rule of law crisis in Poland, it was obvious that those measures had been taken in direct response to the views and criticisms that he had expressed in his professional capacity.", "165. The applicant submitted that the interference at issue had not been “prescribed by law”. He referred to the controversy concerning his removal from the position of spokesperson of the Cracow Regional Court. As regards the measures taken by the CBA and other authorities, he underlined that although those measures had at first glance been taken on formal grounds, they were intended to intimidate him and discourage him from criticising the government’s reforms of the judiciary. The use of those measures should be regarded as an abuse of power or as ultra vires.", "166. In the applicant’s view, the interference at issue did not pursue a legitimate aim. In fact, it was impossible to see any such aim in the punitive restrictions imposed on him for fulfilling his legal duty to provide opinions on the reforms of the judiciary in Poland in his capacity as the NCJ’s spokesperson. The applicant had not formulated his statements in a courtroom while adjudicating upon cases, but in the course of the intensive public debate in the media in his capacity as spokesperson. He had warned public opinion about the threats to the independence of the judiciary resulting from the reforms.", "167. Lastly, the interference at issue was not necessary in a democratic society in the light of the Court’s case-law. The Government and its agencies had not recognised the need for special protection of the applicant’s freedom of expression when he had expressed views in his official capacity on matters of public interest concerning the independence of the judiciary. The measures taken by the authorities had been intended to cause a “chilling effect” not only on the applicant, but also on other judges, so they would refrain from participating in public debate on those issues. In this context, it was noteworthy that the audits carried out by the CBA had been extended to six judges, including the applicant, out of a total of some ten thousand judges in Poland. The Government had not provided any details about the other judges subjected to audits. The purpose of actions targeting the applicant was undoubtedly to break his steadfastness with a view to facilitating the hostile takeover of the judiciary. Referring to the number of cases decided or pending before the Court in relation to the reforms of the Polish judiciary, the applicant argued that the impugned measures taken by the authorities could not be regarded as necessary in a democratic society.", "The Government’s submissions", "168. The Government disagreed that the measures taken with regard to the applicant and his family had been the consequence of the criticism he had expressed in his professional capacity. They maintained that there had been no interference with the applicant’s freedom of expression within the meaning of Article 10.", "169. As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Government argued that the impugned measure could not have had any impact on his freedom of expression. The tasks related to the cooperation of the court with the media were carried out by the president or vice-president of the court. However, in the court of appeal or the regional court the president of that court could appoint a spokesperson to carry out those tasks. The spokesperson reported directly to the president of the court. For these reasons, dismissal from the position of spokesperson of a court could not be equated with a restriction on freedom of expression because an individual’s opinion could not be fully expressed in performing the function of spokesperson. Therefore, the Government maintained that the applicant’s dismissal from the position of spokesperson of the court would, at the most, limit his ability to represent that institution publicly, which was not a right guaranteed in Article 10.", "170. They stressed that the applicant was able to continue to express his views in the public debate on judicial reform in Poland at the meetings of judicial associations of which he was an active member and by participating in the Judges’ Cooperation Forum. The applicant had participated in numerous debates in various fora concerning the judiciary. The Government maintained that the applicant had been actively exercising his rights guaranteed by Article 10, as exemplified by his interviews, statements and other activities in the public debate after he had been removed from the position of spokesperson of the Cracow Regional Court. Moreover, the assessment of sanctions allegedly affecting the applicant for his criticism of the reforms of the judiciary was problematic. The Government stressed in this respect that the applicant had not referred to any disciplinary proceedings against him or any penalty imposed on him.", "171. The Government submitted that contrary to the case of Kudeshkina v. Russia (no. 29492/05, 26 February 2009) the applicant had not been dismissed from his judicial office as a result of disciplinary proceedings, but only removed from the position of spokesperson of the court. That latter decision was legitimate and did not touch upon his judicial functions. They also noted that the present case was not comparable to the case of Baka v. Hungary (cited above).", "172. As regards the measures taken by the CBA, the Government admitted that in 2016 the CBA’s unit responsible for the auditing of financial declarations had carried out a systematic examination of such declarations by judges. The unit had selected a group of six judges, which included the applicant, whose financial declarations had been subjected to advanced scrutiny due to existing irregularities. The selection of six judges had been based on a two-stage analysis of the declarations and prompted by uncertainties relating to their correctness. The CBA had initiated an audit of the applicant’s assets and his financial declarations. The Government stressed that the audit carried out in the applicant’s case had been one of a routine nature and had not differed from those carried out in relation to members of parliament, other judges and prosecutors.", "173. The Government maintained that the applicant had had the right to participate in the audit procedure, which had been transparent and based on the provisions of the CBA Act. Section 33 of this Act concerning the relevant procedure of the CBA required that, in order to conduct the audit, the officer should present to the person concerned an official ID card and an authorisation issued by the Head of the CBA. For this reason, it had been impossible to initiate an audit without a meeting of the CBA officer and the applicant.", "174. The Government argued that the CBA officers had made numerous attempts to arrange a meeting with the applicant, both at his place of residence and at the court where he served as a judge. However, owing to the applicant’s persistent avoidance of the meeting, thus obstructing the initiation of the audit procedure, the CBA had taken the decision to serve the authorisation at the seat of the NCJ. On 19 April 2017 the CBA officers had entered the NCJ’s premises. In the Government’s submission, the applicant had been asked to leave a room so the officers could serve on him a decision authorising the auditing of his financial declarations, but he had refused, thus preventing the officers from carrying out their statutory tasks. Therefore, the officers had walked into the room and interrupted the applicant’s meeting with other members of the NCJ in order to serve the authorisation on him.", "175. The Government maintained that the basic element of the audit procedure was the verification of the accuracy of the individual’s financial declaration against the relevant records of the State, bank account history and participation in investment funds. The competent authorities and the national financial institutions had been contacted during the audit. The only auditing activities that had been applied to the applicant’s family members consisted in obtaining the court’s permission for access to data covered by banking secrecy relating to the applicant’s and his family’s bank accounts. These actions were necessary since the applicant had remained under the regime of joint matrimonial property with his wife during the period covered by the audit. The applicant’s wife had been informed of these actions, which had been carried out in accordance with section 23(9) of the CBA Act.", "176. The Government submitted that the results of the audit, based on official documents received from government bodies and financial institutions, had constituted the basis for a report concerning the established irregularities which had been submitted to the Cracow Regional Prosecutor’s Office for the purpose of criminal law assessment. In the Government’s view, the actions conducted by the CBA officers against the applicant had exclusively been aimed at assessing the accuracy and veracity of his financial declarations. All activities undertaken by the officers had been based on the provisions of the CBA Act regulating the audit procedure. The audit procedures concerning the financial declarations of judges and prosecutors complied with the guidelines of the Group of States against Corruption of the Council of Europe (GRECO).", "177. As regards the declassification of the applicant’s financial declaration, the Government submitted that judges were required to submit such declarations pursuant to section 87(1) of the Act on the Organisation of Ordinary Courts. The declaration concerned personal property and property covered by a joint matrimonial regime. It had to contain, inter alia, information on cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge. The information contained in the financial declaration was public with the exception of the address of the person concerned and the location of the real estate. The financial declarations were published in the Public Information Bulletin no later than 30 June each year (section 87(6a)). The Government stressed that the rules on disclosing the financial status of judges were analogous to those applicable to prosecutors and persons holding elected office.", "178. The Government maintained that the main objective of the amendment to section 87 of the Act on the Organisation of Ordinary Courts, which made the judges’ financial declarations public, had been to implement the recommendation included in the report on the fourth evaluation round of GRECO. The legislature’s intention was to ensure the transparency of those financial declarations in order to strengthen public trust in the courts and judges. The audit procedures carried out by the authorities with regard to financial declarations of judges were conducted in accordance with the GRECO guidelines concerning the fight against corruption. For those reasons, it could not be assumed that the declassification of the applicant’s financial declaration constituted a “sanction” specifically directed at the applicant (as the transparency of declarations concerned all judges).", "179. In the light of the above, the Government averred that the measures taken by the CBA and the tax authorities with regard to the applicant and his family members, together with the declassification of his financial declaration, had been in accordance with the domestic law aimed at implementation of the Council of Europe standards.", "180. In sum, the Government submitted that in the applicant’s case there had been no interference with his freedom of expression within the meaning of Article 10 § 1 of the Convention. In any event, the Government argued that there had been no violation of Article 10 in the present case.", "Submissions of third-party interveners", "(a) The Commissioner for Human Rights of the Republic of Poland", "181. The Commissioner submitted that freedom of expression, constituting an essential foundation of a democratic society, applied to members of the judiciary. However, the Polish authorities, in an attempt to silence criticism, frequently claimed that judges expressing critical opinions on changes in the judiciary were politically involved. In the Commissioner’s view, this argument had to be rejected.", "182. To be sure, judges should not participate in political life. The Polish Constitution prohibited them from joining a political party or carrying out public activities that would compromise the independence of the judiciary (Article 178 § 3). However, Polish judges who criticised the changes in the judiciary were pointing above all to the threats to judicial independence as well as to the dismantling of the separation of powers and the rule of law which those changes entailed. Judges were not only entitled, but in fact obliged to defend their independence. That obligation especially concerned the judge who was acting as the court’s spokesperson and the spokesperson of the NCJ – the constitutional guardian of independence.", "183. The intervener noted that the issues of judicial independence and the functioning of the judiciary were naturally matters of constitutional law and inevitably had political implications. However, this element alone should not prevent judges from making statements on such matters. Since comments made by judges on changes in the judiciary impacting on the right to a fair trial were not only acceptable, but also desirable, the authorities should neither prevent nor discourage judges from expressing their opinions.", "184. Having regard to the Court’s case-law, the intervener submitted that the concurrence of actions taken by several State bodies against a judge, at a time when he was critically commenting on issues relating to judicial independence and changes in the functioning of the judiciary, substantiated the claim that these actions were coordinated and aimed at limiting the judge’s activity. Taking account of the entirety of the situation, rather than separate incidents, there could be prima facie evidence of a causal link between the judge’s exercise of the freedom of expression and the measures undertaken by various State bodies. Once there was such evidence in favour of the applicant’s version of the events and the existence of a causal link, the burden of proof should shift to the Government.", "(b) The Judges’ Association Themis", "185. The intervener submitted that in the years 2016-2018, when the Polish Government was engaging in numerous measures aimed at the subordination of the Constitutional Court, the NCJ and the Supreme Court, the applicant had become the voice of the independent Polish judiciary. His numerous appearances in the media in defence of the rule of law had resulted in a wave of persecution against him. Currently, the applicant was one of the most persecuted Polish judges; there were five sets of disciplinary proceedings pending against him and two sets of preliminary disciplinary proceedings. He had also experienced a prolonged audit by the CBA, administrative means of harassment applied by the newly appointed President of the Cracow Regional Court, Ms D.P.-W. and attacks from State-owned media outlets.", "186. The intervener maintained that the actions taken against the applicant were part of the general approach of the ruling majority aimed at depriving the representatives of the judicial community of the right to speak in public. This was evidenced by the adoption of changes to the Act on the Organisation of the Ordinary Courts on the basis of the so-called “Muzzle Act”, which prohibited bodies of judicial self-government from adopting resolutions criticising the reform of the judiciary. The same Act had introduced the prohibition of critical statements and actions in this regard by individual judges under the threat of disciplinary liability. One of the sets of disciplinary proceedings against the applicant was the very first to be initiated on the basis of the “Muzzle Act”.", "(c) The Helsinki Foundation for Human Rights", "187. The Helsinki Foundation for Human Rights submitted that the Convention standards regarding the protection of the freedom of expression of judges were similar to those provided for in various international documents and recommendations. It referred to the UN Basic Principles on the Independence of the Judiciary, the Universal Charter of the Judge, the Bangalore Principles of Judicial Conduct as well as the report of the UN Special Rapporteur on the Independence of Judges and Lawyers and the Venice Commission’s report on the freedom of expression of judges. In its view, there was a consensus that judges, as all other individuals, had the right to freedom of expression. Due to the specificity of their profession and the necessity of maintaining public trust in the judiciary, the freedom of expression of judges could be subject to various restrictions. However, such restrictions should not prevent judges from taking part in debates of public importance, in particular on topics related to the independence of the judiciary.", "188. The intervener underlined, echoing the report of the UN Special Rapporteur, that in times of a rule-of-law crisis judges had to be able to speak freely about threats to the independence of the judiciary. In this context, first, the judges’ criticism of controversial reforms of the judicial system could discourage politicians from pursuing them or at least oblige them to explain their motivation to the public and, second, the opinion of judges could be of great informative value to citizens. Moreover, every instance of the alleged violation of the rules concerning the limits of the judges’ freedom of expression should be reviewed by an independent disciplinary body in fair proceedings. It would be completely unacceptable to harass judges through imposition of sanctions, dismissals, transfers or initiation of various criminal or disciplinary proceedings against them under the false pretext of de facto punishment for the exercise of their freedom of expression.", "189. The Helsinki Foundation maintained that persecution of judges who exercised their freedom of expression to protest against reforms inconsistent with the rule-of-law standards ultimately threatened not only the rights of judges but also the right to a fair hearing of every individual. Such persecution could produce a “chilling effect” which could discourage judges not only from expressing their views on matters of public importance, but also from issuing rulings which would be unfavourable to the politicians.", "190. The intervener stated that since the parliamentary elections in the autumn of 2015, the Government had taken a series of measures aimed at undermining judicial independence. Those legislative and other measures raised serious controversies and led to numerous proceedings before the CJEU and the Court. In addition to the legislative changes, the independence of the judiciary had been undermined by different actions of the Minister of Justice and disciplinary officers appointed by him following the changes to the rules of disciplinary liability of judges. The intervener referred to important changes in this context introduced by the so-called “Muzzle Act” of December 2019.", "191. There were different forms of harassment of judges via disciplinary proceedings which could be divided into two categories. First, some judges were questioned by the disciplinary officers or even charged before the Disciplinary Chamber of the Supreme Court for alleged transgression of freedom of expression, usually in connection with their critical statements about the actions of the government. Many examples of such proceedings were described in the report “Justice under pressure” published in 2019 by the Iustitia Polish Judges’ Association. The report had focused on instances of misuse of disciplinary proceedings to harass judges who opposed unconstitutional reforms implemented by the government. The second category of cases concerned judges who were subjected to disciplinary proceedings in connection with their rulings. This type of disciplinary proceedings had been initiated in particular against judges who had questioned the status of judges appointed by the President of the Republic upon the recommendation of the new NCJ. In addition, in some cases the authorities had applied to the Disciplinary Chamber to waive the immunity of judges in contexts which could suggest political motivation.", "192. While analysing various forms of harassment of judges in Poland, the role of the public media, which carried out regular “smear campaigns” against judges, could not be ignored. According to the private media some officials of the Ministry of Justice and some newly-elected judicial members of the NCJ had allegedly coordinated online smear campaign against judges. The intervener submitted that all these actions could be perceived as a form of pressure on the judges. Although so far disciplinary sanctions had been imposed on judges in a relatively small number of cases, the potential “chilling effect” produced by the mere fact of initiating disciplinary, or even more so, criminal proceedings against a judge, could not be ignored.", "(d) Amnesty International and the International Commission of Jurists", "193. The interveners submitted that judges had the right and duty to speak out in defence of the rule of law. Any assessment of the necessity and proportionality of restrictions on the right to freedom of expression of judges had to be seen in light of the role of the judiciary under the principle of separation of powers and the judiciary’s “mission to guarantee the very existence of the rule of law”. They noted that international standards recognised that each judge was “responsible for promoting and protecting judicial independence”. As the maintenance of judicial independence could on occasion require a judge to exercise his or her right to freedom of expression, the possibility of effectively exercising this right in the light of a correlated duty had to be guaranteed. If judges feared that they would face sanctions for speaking in defence of judicial independence, the threat of sanction would inevitably have a “chilling effect” that would stand in direct contradiction to the duties and responsibilities of judges to uphold judicial independence. In any assessment of whether an interference with a judge’s freedom of expression was necessary in a democratic society and proportionate to a legitimate aim, the responsibility of the judge to uphold judicial independence should be a significant consideration.", "194. The possible scope for limitations on the right to freedom of expression had to, when applied to judges, be interpreted in the light of the specific role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law. Any restriction on the right to freedom of expression must not impair the right and duty of the judges to protect and enforce, without fear or favour, their independence. This right became an imperative when judges spoke from a position where they had a duty to voice certain concerns, such as where they were designated as a representative or spokesperson for a judicial institution. Provided that the dignity of judicial office was upheld and the appearance of independence and impartiality of the judiciary was not undermined, the executive had to respect and protect the right and duty of judges to express their opinions, particularly on matters concerning the administration of justice and the protection of judicial independence and the rule of law.", "(e) Judges for Judges Foundation and Professor L. Pech", "195. The interveners submitted that under EU law freedom of expression was a fundamental but not absolute right; limitations on its exercise had to be provided for by law, while respecting the essence of that right and the principle of proportionality.", "196. In their view, it was well-established that judges were under a professional duty to speak up in defence of the rule of law, with reference to the 2013 Sofia Declaration of the ENCJ. They further referred to the recently revised Compendium of the Judiciary’s Ethical Obligations of the French High Council for the Judiciary, which made it clear that judges were under a duty to “defend the independence of the judicial authority”. They submitted that limitations on judges’ freedom of expression should be subjected to the strictest scrutiny when these limitations sought to formally prevent or informally intimidate judges from speaking up in a situation where the independence and/or quality of their national judicial systems was undermined by legislative changes.", "197. The interveners maintained that account should be taken of the judgment of 5 October 2015 of the Inter-American Court of Human Rights in López Lone et al. v. Honduras, where that court had stated that “at times of grave democratic crises ... the norms that ordinarily restrict the right of judges to participate in politics [were] not applicable to their actions in defence of the democratic order. Thus, it would be contrary to the independence inherent in the branches of State ... that judges could not speak out against a coup d’état”.", "198. In a context where legislative changes had led to the activation of exceptional monitoring mechanisms such as the EU’s Article 7 TEU procedure and the Council of Europe’s full monitoring procedure due to concerns about the existence of a systemic threat to the rule of law in Poland, any limitation on judges’ freedom of expression had to be presumed to violate this fundamental right where judges spoke out on matters that affected the judiciary. At the same time, judges had to be considered to be under a professional duty to state clearly their opposition to any measure undermining judicial independence or targeting judges for their defence of the rule of law.", "199. The interveners referred to the European Parliament’s resolution of 17 September 2020, in which that body had denounced “the smear campaign against Polish judges and the involvement of public officials therein”. One particularly disturbing aspect of the smear campaign, which had been ongoing for many years, was the secret establishment of a “troll farm” hosted within the Ministry of Justice. The large-scale propaganda against the judiciary in Poland had also been criticised by the UN Special Rapporteur on the independence of judges and lawyers.", "(f) Polish Judges’ Association Iustitia", "200. The intervener maintained that the measures taken by the authorities with regard to the applicant had been aimed at creating a chilling effect on him and other judges who expressed criticism of the Government’s legislative reforms and had been prompted by the applicant’s public activity.", "The Court’s assessment", "(a) Whether there has been an interference", "(i) General principles", "201. The Court has recognised in its case-law the applicability of Article 10 to civil servants in general (see Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and Guja v. Moldova [GC], no. 14277/04, § 52, ECHR 2008), and members of the judiciary (see, among many others, Wille, cited above, §§ 41-42; Harabin v. Slovakia (dec.), no. 62584/00, ECHR 2004 ‑ VI (“ Harabin (dec.), 2004”); and Baka, cited above, § 140). In cases concerning disciplinary proceedings against judges or their removal or appointment, the Court has had to ascertain first whether the measure complained of amounted to an interference with the exercise of the applicant’s freedom of expression – in the form of a “formality, condition, restriction or penalty” – or whether the impugned measure merely affected the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Wille, cited above, §§ 42 ‑ 43; Harabin (dec.), 2004, cited above; Kayasu v. Turkey, nos. 64119/00 and 76292/01, §§ 77-79, 13 November 2008; Kudeshkina, cited above, § 79; Poyraz v. Turkey, no. 15966/06, §§ 55-57, 7 December 2010; Harabin v. Slovakia, no. 58688/11, 20 November 2012; Baka, cited above, § 140; and Miroslava Todorova v. Bulgaria, no. 40072/13, § 153, 19 October 2021).", "202. Where the Court has found that the measures complained of were exclusively or principally the result of the exercise by an applicant of his or her freedom of expression, it has taken the view that there was an interference with the right under Article 10 of the Convention (see Baka, cited above, § 151; Kayasu, cited above, § 80; Kudeshkina, cited above, §§ 79-80; and Cimperšek v. Slovenia, no. 58512/16, § 58, 30 June 2020). In cases where it has, by contrast, considered that the measures were mainly related to the applicant’s capacity to perform his or her duties, it found that there had been no interference under Article 10 (see Harabin, judgment cited above, § 151; Köseoğlu v. Turkey (dec.), no. 24067/05, §§ 25-26, 10 April 2018; Simić v. Bosnia ‑ Herzegovina (dec.), no. 75255/10, § 35, 15 November 2016; Harabin (dec.) 2004, cited above; and Miroslava Todorova, cited above, § 154).", "203. To that end the Court takes account of the reasons relied upon by the authorities to justify the measures in question (see, for example, Harabin (dec.), 2004, cited above; Kövesi v. Romania, no. 3594/19, §§ 184-187, 5 May 2020; and Goryaynova v. Ukraine, no. 41752/09, § 54, 8 October 2020) together with, if appropriate, any arguments submitted in the context of subsequent appeal proceedings (see Kudeshkina, cited above, § 79; Köseoğlu, cited above, § 25; and, mutatis mutandis, Nenkova-Lalova v. Bulgaria, no. 35745/05, § 51, 11 December 2012). It must nevertheless carry out an independent assessment of all the evidence, including any inferences to be drawn from the facts as a whole and from the parties’ submissions (see Baka, cited above, § 143). It must in particular take account of the sequence of relevant events in their entirety, rather than as separate and distinct incidents (ibid., § 148; see also Kövesi, § 188 and Miroslava Todorova, § 155, both cited above).", "204. Moreover, in so far as there is any prima facie evidence supporting the version of events submitted by the applicant and indicating the existence of a causal link between the measures complained of and freedom of expression, it will be for the Government to prove that the measures at issue were taken for other reasons (see Baka, §§ 149-151; Kövesi, § 189; and Miroslava Todorova, § 156, all cited above).", "(ii) Application of the general principles to the present case", "205. As stated above, in order to ascertain whether the measures complained of amounted to an interference with the applicant’s exercise of freedom of expression, the scope of those measures must be determined by placing them in the context of the facts of the case and of the relevant legislation (see Wille, cited above, § 43, and Baka, cited above, § 143).", "206. The Court notes that the applicant, in his professional capacity as the NCJ’s spokesperson, in the period between December 2015 and March 2018, publicly expressed his views or commented in the media on various legislative reforms affecting the Constitutional Court, the NCJ, the Supreme Court and ordinary courts. He criticised those various proposals for their incompatibility with the Constitution and pointed to threats to the rule of law and judicial independence stemming from them (see paragraphs 41-47 above).", "207. The applicant alleged that a set of measures taken against him by the authorities in response to his critical statements on the Government’s reorganisation of the judiciary amounted to an interference with his freedom of expression (see paragraph 155 above; compare and contrast earlier cases where a single measure constituted such interference, for example, Baka (the premature termination of the applicant’s term of office as President of the Supreme Court), Kövesi (the applicant’s removal from her position as chief prosecutor) and Miroslava Todorova (disciplinary proceedings and sanctions against the President of the judges’ association)).", "208. Among the measures constitutive of interference in his case, the applicant referred to the audit of his financial declarations carried out by the CBA between November 2016 and April 2018 (see paragraphs 48-69 above), the inspection of his work at the Cracow Regional Court ordered by the Ministry of Justice in April 2017 (see paragraphs 70-77 above), his dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 (see paragraphs 78-83 above) and the declassification of his financial declaration ordered by the Minister of Justice on June 2018 (see paragraph 85 above). The Court notes at this juncture that the fact of being dismissed from the position of court spokesperson does not in itself entail an interference with freedom of expression as there is no right to hold such a position. However, this fact is part of the sequence of events and needs to be seen in the context of the accumulation of all the above-mentioned measures taken in respect of the applicant (see paragraph 211 below).", "209. The applicant further referred to the premature termination of his term of office as a judicial member of the NCJ on the basis of the 2017 Amending Act, as a result of which he had ceased to act as the NCJ’s spokesperson. With regard to this measure, the Court observes that the 2017 Amending Act terminated the terms of office of all fifteen elected judicial members of the NCJ and did not concern solely the applicant. It has already found that the main objective of the 2017 Amending Act was for the legislative and the executive powers to achieve a decisive influence on the composition of the NCJ which, in turn, enabled those powers to interfere directly or indirectly in the judicial appointment procedure (see Advance Pharma sp. z o.o., § 344, and Grzęda, § 322, both cited above). In the light of the objective pursued by the authorities in the 2017 Amending Act, the Court considers that the termination of the applicant’s term of office as a judicial member of the NCJ entailing the loss of his position as the spokesperson of that body was to some extent connected with the exercise of his freedom of expression, but it was not primarily motivated by that factor. For those reasons, when analysing whether the authorities’ actions amounted to an interference with the exercise of the applicant’s freedom of expression, the Court will focus on the measures referred to in paragraph 208 above.", "210. The impugned measures have to be seen in the context of the facts of the case. In Grzęda, the Court noted that the whole sequence of events in Poland vividly demonstrated that successive judicial reforms had been aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, the remodelling of the NCJ and the setting-up of new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline (see Grzęda, cited above, § 348). The Grand Chamber went on to observe that as a result of the successive reforms, the judiciary – an autonomous branch of State power – was exposed to interference by the executive and legislative powers and thus substantially weakened (ibid.).", "211. Taking account of the above-mentioned context and having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, the Court considers that there is prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the impugned measures taken by the authorities in his case (see paragraph 208 above). To begin with, all those measures followed the applicant’s successive statements. The audit began in November 2016, following a series of interviews given by the applicant and an article published in May-September 2016 in which he consistently and in strong terms referred to various perceived defects in the proposed reform of the NCJ and the judiciary (see paragraphs 41-43 above). The inspection of the applicant’s work as a judge was initiated in April 2017, shortly after his further critical comments on the reform published on the NCJ’s YouTube channel and in other media in January-March 2017 (see paragraphs 44-46 above). The two remaining measures, i.e. the dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 and the declassification of his financial declaration in June 2018 were also taken subsequently to his publicly expressed criticism of the Government’s contemplated policies in respect of the judiciary.", "Secondly, the impugned measures were taken by the CBA, a governmental agency, the Minister of Justice or the president of the court appointed by the latter on the basis of transitional powers (see paragraph 78 above), i.e. authorities controlled or appointed by the executive.", "Thirdly, those measures, in particular the audit of the applicant’s financial declarations by the CBA and the immediate inspection of his work ordered by the Ministry of Justice on the basis of an anonymous letter (see paragraphs 70-72 above), do not appear to have been triggered by any substantiated specific irregularity on the applicant’s part. In contrast, the anonymous letter – which prompted the inspection of the applicant’s work in the Cracow Regional Court, merely one day after its receipt at the Ministry, was clearly and directly related to the applicant’s public statements concerning the reform of the judiciary and his activity in the media, implying that this in itself was sufficient to compromise his performance as a judge (see also paragraph 226 below).", "The above conclusion is further corroborated by the numerous documents submitted by the applicant which refer to the widespread perception that such a causal link existed. These include not only articles published in the Polish press, but also the reports adopted by the Monitoring Committee and the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (see paragraphs 105-106 above), as well as the report of the Council of Europe Commissioner for Human Rights following her visit to Poland (see paragraph 107 above). The Court would also refer to the report of Amnesty International (see paragraph 91 above) and the report of the Polish Judges’ Association Iustitia (see paragraph 92 above). In this connection, it further attaches importance to the resolution adopted on 26 February 2018 by the Assembly of Judges of the Cracow Regional Court (see paragraph 84 above).", "212. The Government argued that the impugned measures were unconnected with the applicant’s exercise of freedom of expression or constituted neutral measures that were applied to all judges (see paragraphs 172 and 176-177 above). However, having regard to the entire context of the case, the Court does not find those reasons convincing or supported by specific evidence. Accordingly, it agrees with the applicant that the impugned measures referred to in paragraph 208 above were prompted by the views and criticisms that he had publicly expressed in his professional capacity.", "213. In view of the above, the Court concludes that the impugned measures constituted an interference with the exercise of the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention (see, mutatis mutandis, Wille, § 51; Kudeshkina, § 80; and Baka, § 152, all cited above). It remains therefore to be examined whether the interference was justified under Article 10 § 2.", "(b) Whether the interference was justified", "(i) “Prescribed by law”", "214. The applicant pointed to the controversy surrounding his removal from the position of spokesperson of the Cracow Regional Court. With regard to the measures taken by the CBA and other authorities, he argued that they should be regarded as abusive, even though they had had some formal basis (see paragraph 165 above). The Government maintained that the impugned measures had been in accordance with the domestic law (see paragraphs 176 and 179 above).", "215. The Court notes that the CBA’s audit of the applicant’s financial declarations, the inspection of his work and the declassification of his financial declaration seem to have been provided for by the domestic law. On the other hand, it appears that the relevant rules were not duly respected as regards the decision of the President of the Cracow Regional Court to dismiss the applicant from the position of spokesperson of that court. However, the Court will proceed on the assumption that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10, as the impugned interference breaches Article 10 for other reasons (see paragraph 228 below).", "(ii) Legitimate aim", "216. The applicant maintained that the interference at issue had not pursued any legitimate aim within the meaning of Article 10 § 2 of the Convention (see paragraph 166 above). The Government did not put forward any arguments on this point.", "217. Having regard to the overall context of the present case, the Court has serious doubts as to whether the interference complained of pursued any of the legitimate aims provided for in Article 10 § 2. However, it is not required to reach a final conclusion on this question since, in view of the reasons stated below (see paragraphs 220-228 below), the impugned interference cannot in any event be considered to have been “necessary in a democratic society” for the purposes of this provision (see Döner and Others v. Turkey, no. 29994/02, § 95, 7 March 2017).", "(iii) “Necessary in a democratic society”", "(α) General principles on freedom of expression", "218. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court, were restated, inter alia, in Baka (ibid., § 158-61).", "(β) General principles on freedom of expression of judges", "219. The general principles concerning the freedom of expression of judges were summarised by the Court in its judgment in Baka (ibid., §§ 163 ‑ 167) as follows:", "“163. Given the prominent place among State organs that the judiciary occupies in a democratic society, the Court reiterates that this approach also applies in the event of restrictions on the freedom of expression of a judge in connection with the performance of his or her functions, albeit [that] the judiciary is not part of the ordinary civil service ...", "164. The Court has recognised that it can be expected of public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question ...The dissemination of even accurate information must be carried out with moderation and propriety ... The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties ... It is for this reason that judicial authorities, in so far as concerns the exercise of their adjudicatory function, are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges ...", "165. At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court ... Furthermore, questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10 ... Even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter ... Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate ...", "166. In the context of Article 10 of the Convention, the Court must take account of the circumstances and overall background against which the statements in question were made ... It must look at the impugned interference in the light of the case as a whole ..., attaching particular importance to the office held by the applicant, his statements and the context in which they were made.", "167. Finally, [one must not overlook the] ‘chilling effect’ that the fear of sanction has on the exercise of freedom of expression, in particular on other judges wishing to participate in the public debate on issues related to the administration of justice and the judiciary ... This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of the sanction or punitive measure imposed ...”", "(γ) Application of those principles to the present case", "220. The Court reiterates its finding (see paragraph 213 above) that the impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in exercising his right to freedom of expression. It observes in this regard that the applicant expressed his views on the legislative reforms in issue in his professional capacity as a judicial member of the NCJ and the spokesperson of this body. It notes that the NCJ is constitutionally mandated to safeguard the independence of the courts and judges (Article 186 § 1 of the Constitution; see Grzęda, cited above, § 304), so it is evident that the applicant, acting as its spokesperson, had the right and duty to express his opinions on legislative reform affecting the judiciary.", "221. The Court attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were to have an impact on the judiciary and its independence. It notes also the extensive scope of the reforms which affected practically every segment of the judiciary (see paragraph 210 above). It refers in this connection to the Council of Europe instruments which recognise that each judge is responsible for promoting and protecting judicial independence (see paragraph 3 of the Magna Carta of Judges) and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their status and, more generally, the functioning of the judicial system (see paragraph 34 of Opinion no. 3 (2002) of the CCJE and paragraph 9 of the Magna Carta of Judges, cited above, paragraphs 109-110 above).", "222. In the present case, the Court is assessing the situation of an applicant who was not only a judge, but also a member of a judicial council and its spokesperson. However, the Court would note that a similar approach would be applicable to any judge who exercises his freedom of expression – in conformity with the principles referred to in paragraph 219 above – with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest. When a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened.", "Furthermore, the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat. This duty has been recognised, inter alia, by the CCJE (see paragraph 41 of its Opinion no. 18 (2015) on the position of the judiciary and its relation with the other powers of state in a modern democracy, cited in paragraph 111 above), the UN Special Rapporteur on the independence of judges and lawyers (see paragraph 102 of his 2019 Report on freedom of expression, association and peaceful assembly of judges, cited in paragraph 103 above) and the General Assembly of the ENCJ (see paragraph (vii) of its 2013 Sofia Declaration, cited in paragraph 112 above).", "223. The present case should also be distinguished from other cases in which the issue at stake was public confidence in the judiciary and the need to protect such confidence against destructive attacks (see Di Giovanni, § 81, and Kudeshkina, § 86, both cited above). The views and statements publicly expressed by the applicant did not contain any attacks against other members of the judiciary (compare Di Giovanni, cited above); nor did they concern criticisms with regard to the conduct of the judiciary dealing with pending proceedings (see Kudeshkina, cited above, § 94).", "224. On the contrary, the applicant expressed his views and criticisms on legislative reforms related to the functioning of the judicial system, the status of the NCJ, the independence and irremovability of judges, and the lowering of the retirement age for judges, all of which are questions of public interest (see, Baka, cited above, § 171). His statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the Court considers that the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State (ibid.).", "It reiterates in this regard that given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018, with further references), the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Bilgen v. Turkey, no. 1571/07, § 58, 9 March 2021, and Grzęda, cited above, § 302).", "225. In this connection, the Court must scrutinise the measures taken by the authorities in the applicant’s case. As regards the auditing of his financial declarations carried out by the CBA between November 2016 and April 2018, the Government submitted that it had been prompted by uncertainty as to their accuracy and had been of a routine nature. However, the Court notes that the impugned audit, which was triggered by some unspecified irregularity and lasted for a considerable period of time, i.e. seventeen months, appears not to have yielded any concrete results. According to the Government, the CBA submitted to the prosecuting authorities a report on irregularities that had been established in the applicant’s declarations. Nonetheless, they did not inform the Court about the nature of those irregularities, which in any event led to no further action on the part of the authorities. Furthermore, the Court has certain doubts about the legality of the CBA officers’ action in entering the premises of the NCJ in order to serve on the applicant a decision authorising an audit of his declarations, as the Government have not indicated a specific legal provision which required that the initiation of an audit required the relevant decision to be served on the person concerned by CBA officers.", "226. With regard to the inspection of the applicant’s work at the Cracow Regional Court ordered by the Ministry of Justice, the Court observes that, as noted above, this inspection was initiated merely one day after receipt of the anonymous letter, which mostly concerned the applicant’s critical comments on the reform of the judiciary and his presence in the media, rather than any alleged misconduct on his part or his ability to exercise judicial functions (see paragraphs 70-72 and 211 above). The Court thus finds it striking that the Ministry should resort, in those circumstances, to initiating an inquiry into the discharge of the applicant’s judicial duties.", "As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Court notes that, while it was in a court president’s power, at any time, to appoint or dismiss a spokesperson, the decision of the President of the Cracow Regional Court was taken without obtaining an opinion of the Board of that court, as required under section 31(1)(1) of the Act on the Organisation of Ordinary Courts (see paragraphs 80, 83-84 and 101 above). It further observes that the President of the Cracow Regional Court, Ms D.P.-W. took this decision merely six days after her appointment to this position by the Minister of Justice.", "Lastly, with regard to the applicant’s financial declaration, the Court observes that the Minister of Justice reversed, without providing any reasons, the earlier decision of the President of the Court of Appeal to grant confidential status to that declaration (see paragraph 85 above).", "227. Against this background and having regard to the accumulation of measures taken by the authorities, it appears that they could be characterised as a strategy aimed at intimidating (or even silencing) the applicant in connection with the views that he had expressed in defence of the rule of law and judicial independence. On the material before it, the Court finds that no other plausible motive for the impugned measures has been advanced or can be discerned. It notes that the applicant is one of the most emblematic representatives of the judicial community in Poland who has steadily defended the rule of law and independence of the judiciary. The Court considers that the impugned measures undoubtedly had a “chilling effect” in that they must have discouraged not only him but also other judges from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary (see Baka, § 173, and Kövesi, § 209, both cited above).", "228. On the basis of the above arguments, and keeping in mind the paramount importance of freedom of expression on matters of general interest, the Court is of the opinion that the impugned measures taken against the applicant were not “necessary in a democratic society” within the meaning of that provision.", "229. Accordingly, the Court concludes that there has been a violation of Article 10 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "230. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "231. The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage for suffering and distress caused by the violation of his rights. He referred to the early termination of his office and the lack of any possibility of having that measure judicially reviewed. The applicant regarded the early termination of his term of office as a form of political repression and as preventing him from fulfilling his obligations related to the protection of judicial independence arising from his seat on the NCJ.", "232. The applicant further claimed to have suffered significant distress owing to, and in the course of, the actions taken against him by the State authorities, including the CBA, tax authorities and the prosecution service. Those actions of the authorities had been widely commented upon by public officials and the applicant regarded this as a deliberate encroachment into his private life. He argued that the measures complained of had completely disrupted his family and professional life. The number of controls, investigations, inquiries, press comments, disciplinary proceedings and attacks on his good name had forced him to devote a great amount of his time and resources to defending himself. The applicant was apprehensive of another possible “attack” by the authorities under any trivial pretext.", "233. The authorities’ actions targeting the applicant had taken their toll on his wife who had been forced to undergo therapy as well as on the applicant, who suffered from mental and physical ailments. In addition, it was painful for the applicant to encounter supporters of the ruling majority, who repeated allegations against him which were relayed as part of the smear campaign against him carried out by the public media. As a result, he had received numerous threats and insults of which he submitted a sample.", "234. The Government asked the Court to reject the applicant’s claims, since in their opinion the application was inadmissible and, in any event, no violation of the Convention had occurred. Furthermore, the sum claimed was extremely exorbitant and unjustified in the light of the Court’s case-law. Were the Court to award any compensation to the applicant, the Government submitted that it should be reasonable and in line with the case-law in similar cases against Poland or other countries enjoying a similar economic level.", "235. Making an assessment on an equitable basis and having regard to its finding of a violation of Article 10 of the Convention, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage.", "Costs and expenses", "236. The applicant also claimed EUR 20,000, inclusive of VAT, for the costs and expenses incurred before the Court. He submitted a copy of the legal services agreement between him and the Pietrzak Sidor and Partners Law Firm of 31 July 2018 together with a pro-forma invoice of 29 January 2021.", "237. The Government argued that the amount claimed did not meet the requirements of adequacy and necessity.", "238. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.", "Default interest", "239. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "9. Mr Zielinski, Mr Pradal, Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta are French nationals who were born in 1954, 1955, 1956, 1953, 1955, 1948, 1949, 1957, 1950, 1954 and 1957 respectively. They live in the départements of Meurthe-et-Moselle (Mr Zielinski), Moselle (Mr Pradal), Bas-Rhin (Ms Mary) and Haut-Rhin (all the other applicants) and work for social-security bodies in Alsace-Moselle.", "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "1. The preliminaries", "10. On 28 March 1953 the representatives of the social-security offices of the Strasbourg region signed an agreement with the regional representatives of the trade unions. Under the agreement, a “special difficulties allowance” ( indemnité de difficultés particulières – “ IDP ”) was introduced for the staff of social-security bodies on the ground that applying the local law of the départements of Haut-Rhin, Bas-Rhin and Moselle was a particularly complicated task. The agreement specified that the allowance was equal to twelve times the value of one salary “point” as laid down in the national agreement covering social-security staff.", "The Minister of Employment and Social Security approved the agreement in a letter of 2 June 1953. The agreement was accordingly implemented as expected.", "11. Following two amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs, changes which affected the value of the point, the boards of the social ‑ security bodies reduced the IDP, which was set at the equivalent of six points in 1963 and 3.95 points in 1974, instead of twelve points as provided in the 1953 agreement. Further, the IDP was not taken into account for the purpose of calculating the annual Christmas bonus ( treizième mois ) payable under the national collective agreement.", "12. In 1988, however, several social-security bodies decided to incorporate the IDP into their basis for calculating annual allowances, with five years’ retrospective effect. The Regional Health and Social Affairs Department, the supervising authority for these public bodies, quashed the decisions authorising the transfer of the funds needed to make these payments to staff.", "2. Actions brought by certain staff members – other than the applicants – of the social-security bodies concerned", "(a) The judgments of the Forbach, Sarrebourg and Sarreguemines industrial tribunals", "13. Applications were made to five industrial tribunals by 136 staff members of the social-security offices concerned, seeking to have the 1953 agreement implemented strictly and to be paid the corresponding salaries backdated to 1 December 1983 (claims in respect of pay being statute ‑ barred after five years).", "14. In judgments of 22 December 1989 and 26 April 1990 (Sarrebourg industrial tribunal, miscellaneous activities division), 20 December 1989 (Sarrebourg industrial tribunal, executive staff division) and 10 April and 12 June 1990 (Forbach industrial tribunal, executive staff division) the officials’ claim for back payment of the IDP on the basis of twelve times the value of the point was dismissed.", "15. In judgments of 23 April and 14 May 1990 (Forbach industrial tribunal, miscellaneous activities division) and 19 March 1990 (Sarreguemines industrial tribunal, executive staff division) the Sarreguemines Health Insurance Office ( Caisse primaire d’assurance maladie – “ CPAM ”) was ordered to pay the officials the amounts sought in back payment of the IDP as calculated on the basis of twelve points.", "(b) The Metz Court of Appeal’s judgments of 26 February 1991", "16. In twenty-five judgments of 26 February 1991 concerning 136 officials, the Metz Court of Appeal gave judgment in their favour. The representatives of the State – the prefect of the region and, on the latter’s authority, the Regional Director of Health and Social Affairs – appealed on points of law.", "(c) The ministerial decisions of 30 July 1991 and 8 July 1992 concerning the ministerial approval", "17. On 30 July 1991 the Minister of Social Affairs withdrew the ministerial approval given on 2 June 1953. On 8 July 1992 the Minister of Social Affairs revoked that withdrawal of approval.", "(d) The Court of Cassation’s judgments of 22 April 1992", "18. In three judgments of 22 April 1992 the Court of Cassation quashed in part the twenty-five judgments given by the Metz Court of Appeal on 26 February 1991 in the actions brought by the 136 officials. The court considered that the change of classification in 1963 had resulted in the disappearance of the reference index in the 1953 agreement. It consequently remitted the cases to the court below to determine whether a practice had been established or, if none had been, to determine the value that the reference index would have reached had it been retained.", "19. The Court of Cassation directed that the case should be reheard by the Besançon Court of Appeal.", "(e) The judgments of the Colmar Court of Appeal of 23 September 1993", "20. The Colmar Court of Appeal, with which appeals concerning the IDP had also been lodged, delivered judgments on 23 September 1993 in which it held, having regard to the terms of the Court of Cassation’s judgments of 22 April 1992, that the reference index had disappeared and that a practice had been established of paying the IDP at 3.95 times the value of the point since the amendment of 17 April 1974.", "(f) The judgment given on 13 October 1993 by the Besançon Court of Appeal after rehearing pursuant to the Court of Cassation’s decision", "21. In a judgment of 13 October 1993 the Besançon Court of Appeal, after rehearing the case pursuant to the Court of Cassation’s decision, held that the agreement of 28 March 1953 was lawful, that it had not lapsed and that no other practice had been established. It consequently ordered that the IDP should be calculated on the basis of 6.1055% of the minimum wage, which percentage corresponded to the amount of the IDP as calculated on the basis of twelve points at 1 January 1953. The Besançon Court of Appeal said, in particular:", "“As the 1953 agreement has not been denounced and the IDP must continue to be paid, the only issue to be resolved, after the partial quashing of the judgments delivered by the Metz Court of Appeal, is the new method of calculating the allowance in 1963, which may be based either on a practice or, failing that, on the determination of the value which the reference index would have reached on each due date of the allowance if that index had been retained.", "… The unilateral change made in 1963 to the method of calculating the IDP cannot have given rise to a practice which, moreover, would itself have been unilaterally changed in 1974 in breach of the relevant rules. …", "If the reference index disappears, it is necessary to create a linking index in accordance with the contracting parties’ intention.", "The method adopted by the social-security offices in 1963 and 1974, whereby the amount of the IDP was regarded as being fixed and was divided by the new value of the point to obtain the number of points necessary for calculating the IDP, disregards the general growth of salaries and has resulted in a progressive erosion of the IDP, as is shown by studies of the progression of the IDP compared with basic pay which the plaintiffs adduced in evidence.", "In order for the common intention of the parties to be carried out, the allowance must be the same for officials in the three départements, irrespective of their category, and the benefits acquired by employees must be retained.", "A comparison of the IDP with the minimum wage is revealing. … In January 1990, for instance, the IDP as calculated on the basis of 3.95 points, the point having a value of FRF 38.652, amounted to FRF 152.67, whereas if it had been calculated on the basis of 6.1055% of the statutory minimum wage ( SMPG ), which was then set at FRF 5,596, the IDP would have been FRF 341.66.", "…”", "22. The Court of Appeal accordingly ordered a fresh hearing to enable the plaintiffs to calculate the amounts of back pay to which they were individually entitled.", "(g) Law no. 94-43 of 18 January 1994", "23. During the passage through Parliament of a bill on public health and social welfare, which began on 26 October 1993, the government took the initiative of tabling an amendment. The debates on that amendment, which became section 85 of the eventual Act, took place mainly on 30 November 1993 in the National Assembly and 13 December 1993 in the Senate. Clause 85 of the bill was adopted.", "24. Section 85 of the Act provided that, subject to any court judgment to the contrary that had become final on the merits, the amount of the IDP introduced by the agreement of 28 March 1953 for staff of the social ‑ security bodies administering the general social-security scheme and their dependent institutions in the départements of Bas-Rhin, Haut-Rhin and Moselle would, with effect from 1 December 1983, be set at 3.95 times the value of the point as determined under the pay agreements and paid twelve times a year, notwithstanding any provisions to the contrary in collective or individual agreements that were in force on the date of commencement of section 85.", "25. An application was made to the Constitutional Council by a number of members of parliament who considered, in particular, that section 85 of the Act contravened the principle of the separation of powers in that it represented an interference by the legislature with pending court proceedings and that, further, the section in issue, which related to employment law, was unconnected with the purpose of the Act.", "26. In a decision of 13 January 1994 the Constitutional Council held that the legislative provisions complained of were not unconstitutional, on the following grounds:", "“In setting the amount of the ‘special difficulties’ allowance at 3.95 times the value of the point as determined by applying pay agreements of 8 February 1957, with retrospective effect from 1 December 1983, the legislature intended to stop further conflicting decisions being given by the courts and thereby prevent fresh disputes arising whose outcome might adversely affect the financial stability of the social-security schemes in issue.", "The legislature expressly preserved the position of persons who had obtained a court decision that had become final on the merits. There is nothing in the Act to warrant the inference that the legislature departed from the principle that criminal provisions must not have retrospective effect. The legislature was entitled, subject to compliance with the aforementioned principles, to make use, as it alone could do in the circumstances, of its power to make retrospective provisions in order to resolve, in the general interest, situations that had arisen from the conflicting court decisions mentioned above. That being so, the impugned provisions are not contrary to any rule, nor do they offend any constitutional principle. …”", "27. Section 85 of the Act (Law no. 94-43) was consequently held to be constitutional. The Act was promulgated on 18 January 1994.", "(h) The Court of Cassation’s judgments of 15 February and 2 March 1995", "28. On 15 February 1995 the Court of Cassation, ruling on the appeal brought by the Sarreguemines CPAM, the prefect of the Lorraine region and the Alsace Regional Director of Health and Social Affairs against the Besançon Court of Appeal’s judgment of 13 October 1993, quashed that judgment in part, without ordering a rehearing by another court of appeal, in the following terms:", "“... However, section 85 of the Act of 18 January 1994 sets the amount of the IDP, for each payment period, at 3.95 times the value of the point resulting from the application of the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In that the judgment under appeal adopts a different method of calculation from the one laid down in the aforementioned provision, it must be quashed.", "In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law.", "For these reasons …:", "Quashes the judgment delivered on 13 October 1993 by the Besançon Court of Appeal but only in so far as that court held that the IDP should be calculated on the basis of 6.1055% of the statutory minimum wage;", "Holds that it is unnecessary to order a rehearing of the case;", "Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies;", "…”", "29. In a judgment of 2 March 1995 the Court of Cassation likewise dismissed, in similar terms, the appeals on points of law brought against the Colmar Court of Appeal’s judgments of 23 September 1993.", "B. Proceedings relating to Mr Zielinski and Mr Pradal", "1. The Metz industrial tribunal’s judgments of 4 December 1991 and 21 October 1992", "30. On 15 and 17 April 1991 Mr Zielinski and forty-seven other officials, represented by an officer from the French Democratic Labour Confederation ( Confédération française démocratique du travail – “ CFDT ”) likewise applied to the industrial tribunal seeking payment of arrears of the IDP (assessed at FRF 31,131.11 for the applicant) and an order that this allowance should in future be calculated on the basis of twelve points as provided in the 1953 agreement.", "31. Before the Metz industrial tribunal the prefect of the region and the Director of Health and Social Affairs challenged the officials’ arguments and sought to have the proceedings stayed pending the Court of Cassation’s ruling on the appeals in the identical cases that had given rise to the Metz Court of Appeal’s twenty-five judgments of 26 February 1991.", "32. On 28 June and 12 July 1991 the second applicant and forty-eight other officials, represented by the CFDT officer, lodged identical claims with the Metz industrial tribunal.", "33. In judgments of 4 December 1991 (Mr Zielinski) and 21 October 1992 (Mr Pradal) the Metz industrial tribunal awarded the plaintiffs back payment of the allowance and found that the IDP should be calculated on the basis of twelve monthly points, in accordance with the 1953 agreement. It held, inter alia :", "“The agreement lays down that this allowance is equal to twelve times the value of the point, set by the national agreement covering the staff of social-security bodies.", "In the wake of changes made to the latter agreement in amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs and the effects of those changes on the value of the point, the boards of the bodies that signed the 1953 agreement decided to keep the IDP at a constant value by means of adjustments.", "It is established that those adjustments had the effect of reducing the IDP to the equivalent of six and then 3.95 points.", "The terms of the 1953 agreement are precise and the basis of twelve points could not be changed unilaterally.", "The social-security bodies should have denounced the agreement if they considered that the adjustments made in 1963 and 1974 resulted in an excessive burden.", "Such a change must be disregarded unless the parties agreed it in advance, and the silence of the other signatories to the agreement cannot be regarded as signifying their approval (Article L. 143-4 of the Labour Code) ...” (wording of the judgment of 4 December 1991)", "34. Acting on the authority of the prefect of the region, the Director of Health and Social Affairs appealed against those judgments.", "2. The Metz Court of Appeal’s judgments of 19 and 20 April 1993", "35. In judgments of 19 April (Mr Pradal) and 20 April (Mr Zielinski) 1993 the Metz Court of Appeal upheld the industrial tribunal’s judgments, holding that the allowance had been changed unilaterally in breach of the Collective Agreements Act of 1950, on the following grounds in particular:", "“In the final analysis, the calculation of this allowance must be based on the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 and those in force on each occasion when the allowance becomes payable.", "By Article 1134 of the Civil Code, lawfully concluded agreements are legally binding on those who have made them. They can only be revoked by common consent or on grounds permitted by law. Similarly, by Article 135-1 of the Labour Code, collective employment agreements are binding on all those who have signed them.", "…", "There is no escaping the fact that the agreement of 28 March 1953 has not been denounced by any of the parties. It must consequently continue to be implemented and the two reductions in the multiplier were imposed in breach of both Article 1134 of the Civil Code and the provisions governing collective employment agreements.", "The allowance must consequently be paid on the basis of twelve points, as provided in the aforesaid agreement.", "…”", "3. The Court of Cassation’s judgment of 2 March 1995", "36. On 2 March 1995 the Court of Cassation gave judgment as follows on the appeal brought by the prefect and the Director of Health and Social Affairs against the Metz Court of Appeal’s judgments of 19 and 20 April 1993 (in respect of Mr Zielinski and Mr Pradal) and also against two other judgments, of 21 April and 6 September 1993, 150 officials being concerned in all.", "“As to the application of section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare:", "…", "Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, which is applicable to pending proceedings, including those pending before the Court of Cassation, is intended, in the absence of agreement between the parties, to remedy the disappearance of a reference index and thus enable the amount of an allowance to be calculated. This legislative provision, on whose application the parties were able to present argument, does not amount to an intervention by the State in proceedings between it and private individuals. It does not call in question final court decisions and has been declared to be constitutional by the Constitutional Council. It follows that the provision is not contrary to Article 6 § 1 or Article 13 of the European Convention on Human Rights and Fundamental Freedoms.", "As to the ground, raised of the Court’s own motion, notice having been given to the parties:", "Having regard to section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare,", "In reaching its decision that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points as provided in the agreement of 28 March 1953 and that the value of the point must be that adopted for the calculation of pay in the collective agreements in force, the Court of Appeal held that there was no contractual provision which made the retention of the chosen index conditional upon retention of the classification in force at the time of the agreement and that to decide the contrary would be to add to the terms of the agreement, which were perfectly clear and precise, and to alter its nature. It added that the agreement in dispute did not exclude taking into account changes in the value of the point that resulted from the grading reorganisation and that accordingly the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 had to be adopted for calculating the IDP. It noted, further, that the new methods of calculating the IDP that had been adopted following the classification changes in 1963 and 1974 had not been agreed on by all the signatories to the agreement of 28 March 1953 and that as the agreed index remained applicable, it was unnecessary to determine whether an alternative practice existed. Lastly, it noted that the agreement of 28 March 1953 was a collective agreement which could be called in question only if it were revised or denounced, which it had not been.", "Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, lays down the amount of the so-called special difficulties allowance, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In so far as they adopt a method of calculating the amount of this allowance that differs from the one laid down in the aforementioned enactment, the judgments under appeal must be quashed.", "In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law.", "For these reasons:", "Quashes the judgments delivered in these cases on 19, 20 and 21 April and 6 September 1993 by the Metz Court of Appeal but only in so far as that court held that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points, the value of the point being that adopted for the calculation of pay in the collective agreements currently in force;", "Holds that it is unnecessary to order a rehearing of the cases;", "Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies;", "...”", "C. Proceedings relating to Ms Gonzalez and others", "1. The Colmar industrial tribunal’s judgments of 2 July 1991", "37. On 17 August 1990 (Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber and Mr Cossuta) and 28 August 1990 (Ms Memeteau) the applicants applied to the industrial tribunal on the basis of the 1953 agreement seeking payment of arrears of the IDP and calculation of that allowance on the basis of twelve points in future. No compromise having been reached at the conciliation hearing on 18 December 1990, the case was referred to the adjudication panel on 9 April 1991.", "38. In nine judgments of 2 July 1991 the Colmar industrial tribunal allowed the applications on the following grounds:", "“... The agreement signed on 28 March 1953 ... introducing the special difficulties allowance ( IDP ) of twelve points is still in force and has acquired the force of law.", "On 2 June 1953 the Ministry gave its approval to the agreement.", "Following changes to the classification of the staff of social-security bodies in 1963 and 1974, this allowance was reduced by decision of the Common Interests and Coordination Department of the Social Security Offices.", "This department, an advisory body which was not a signatory to the 1953 agreement, took that unilateral decision and had it approved by the social-security regional head office and the boards of the local offices.", "Those changes are consequently not binding [on the plaintiffs], especially as in the letter of 11 February 1989 the Ministry of Solidarity, Health and Social Welfare stated that the agreement must be fully implemented.", "Apart from the changes in the value of the point that were made unilaterally, no subsequent changes were made to the 1953 agreement by the signatory parties.", "Clause 63 of the national collective agreement – schedule 7 – provides: ‘This agreement cannot in any circumstances constitute a ground for reducing benefits acquired by staff at the date of signature.’", "The 1953 agreement consequently remains applicable in its entirety.", "...”", "2. The Colmar Court of Appeal’s judgments of 18 May 1995", "39. The Colmar CPAM and the prefect of the Alsace region, who was represented by the Alsace Regional Director of Health and Social Affairs, appealed against those judgments on 10 September 1991.", "40. On 12 July 1994 the Colmar Court of Appeal set the case down for hearing on 18 October 1994. On 30 September 1994, after the appellants had filed submissions in which they relied on the Act of 18 January 1994, the applicants lodged their pleadings in reply.", "41. In nine decisions of 18 May 1995 the Colmar Court of Appeal gave judgment against the applicants on the ground that:", "“... pursuant to [section 85 of the Act of 18 January 1994 (Law no. 94-43)], the judgment appealed against must be set aside, as the claim covers a period after 1 December 1983. ...”", "3. The Court of Cassation’s judgment of 18 June 1996", "42. On 13 and 17 July 1995 the applicants appealed on points of law to the Court of Cassation. They filed their full pleadings on 13 October 1995 and a supplementary pleading on 10 February 1996. Pleadings in reply were filed on 22 December 1995. The reporting judge, who was appointed on 1 February 1996, submitted his report on 16 February 1996.", "43. In a judgment of 18 June 1996, after a hearing on 6 May 1996, the Court of Cassation declared the applicants’ appeals inadmissible as follows:", "“... in matters in respect of which the parties are not required to be represented by a member of the Conseil d’Etat and Court of Cassation Bar the appeal on points of law and subsequent procedural steps must be made, taken, handed over or sent by the party himself or by any representative with special authority to act.", "The notices of appeal submitted by the parties do not contain even a summary statement of the grounds of appeal, and the pleadings that do contain such a statement, which were dispatched within the three-month period laid down in Article 983 of the New Code of Civil Procedure, were all drawn up by a representative who produced no special authority to act.", "The appeals are accordingly inadmissible. ...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. General principles governing social-security bodies", "44. The national, regional and local health-insurance offices have a public-service mission (Constitutional Council decision no. 82-148 DC of 14 December 1982), and this explains both why they are vested with special governmental powers and why they come under the supervision of the minister responsible for social security. They manage the compulsory social-security scheme, with a budget of their own distinct from that of the State.", "The minister in charge of social security is responsible for overseeing them, a task in which he is assisted by departments of his ministry, namely a central department and regional departments of health and social affairs, together with a national inspectorate of social affairs. The minister is also represented by the prefects of the départements or regions in their capacity as persons exercising State authority and as delegates of the government, the direct representatives of the Prime Minister and each of the other ministers.", "The power of supervision is exercised firstly over persons, it being possible, on certain grounds, to dissolve or suspend the entire board of a social-security office, dismiss or require the resignation of certain members of such a board, and give or withhold consent to the appointment of managerial staff, as well as draw up lists of suitable candidates. The power of supervision also extends to decisions, the regional ministerial departments having the power to quash or suspend, on certain grounds, decisions of boards or directors of local social-security bodies and also to oppose decisions of national bodies. Certain special decisions of social ‑ security offices are also subject to an approval procedure, namely constitutional and procedural rules and collective agreements laying down staff regulations and the rules governing retirement.", "Lastly, social-security bodies are under the supervision of the Minister for Economic Affairs and Finances, being subject to monitoring by regional Treasury officials and the Court of Audit and also to audits by the national Inspectorate of Public Finances.", "B. Law no. 94-43 of 18 January 1994", "45. The relevant section of the Act reads as follows:", "Section 85", "“Subject to any court decisions to the contrary that have become final on the merits, the amount of the so-called special difficulties allowance introduced by the agreement of 28 March 1953 for staff of the social-security bodies administering the general social-security scheme and their dependent institutions in the départements of Bas ‑ Rhin, Haut-Rhin and Moselle shall, with effect from 1 December 1983 and for each payment period, be set at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies, notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of this Act. It shall be paid twelve times a year. With effect from the same period, the annual Christmas bonus shall be increased so as to reflect the amount of the so-called special difficulties allowance awarded in respect of the month of December.”", "PROCEEDINGS BEFORE THE COMMISSION", "46. Mr Zielinski and Mr Pradal applied to the Commission on 5 July 1994; Ms Gonzalez did so on 19 August 1996; and Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta did so on 9 September 1996. The applicants complained of violations of Article 6 § 1 and Article 13 of the Convention.", "47. On 26 November 1996 the Commission declared Mr Zielinski’s and Mr Pradal’s application (no. 24846/94) admissible. On 22 October 1997 it declared the applications of Ms Gonzalez and others (nos. 34165/96 to 34173/96) admissible as to the complaints concerning the fairness and the length of the proceedings and inadmissible as to the remainder. In its reports of 9 September 1997 and 21 October 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings and that it was unnecessary to consider the case under Article 13, and further, in respect of Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta, that there had been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings. The full texts of the Commission’s opinions are reproduced as annexes to this judgment [5].", "FINAL SUBMISSIONS TO THE COURT", "48. In their memorials the Government requested the Court to hold that the application of the provisions of the new Act in the judicial proceedings concerning the applicants that were then pending had not contravened Articles 6 § 1 and 13 of the Convention.", "49. The applicants asked the Court to find that there had been a violation of Article 6 § 1 of the Convention and to award them just satisfaction under Article 41.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the convention AS TO THE FAIRNESS OF THE PROCEEDINGS", "50. The applicants submitted that the adoption of section 85 of the Act of 18 January 1994 (Law no. 94-43) had entailed a violation of Article 6 § 1 of the Convention, whose relevant part is worded as follows:", "“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …”", "51. The applicants pointed out that the Besançon Court of Appeal, when rehearing similar earlier cases after judgments in them had been quashed by the Court of Cassation, had determined the matters referred to in the Court of Cassation’s direction and subsequently set the reference value by holding that the IDP had to be calculated on the basis of 6.1055% of the minimum wage and ordered a fresh hearing so that the calculations might be made (see paragraphs 21-22 above). Before the delivery of that judgment Mr Zielinski and Mr Pradal had obtained an even more favourable decision as the Metz Court of Appeal had held that the IDP was to be calculated on the basis of twelve points (see paragraph 33 above). Decisions favourable to the applicants had thus already been given before the passing of the Act in issue, in proceedings to which the State had been a party. The applicants considered that the Act, resulting as it did from a belated amendment, had had, if not the purpose, at least the effect of influencing the outcome of the case to the State’s advantage.", "The applicants disputed the assertion that the Act had been intended to forestall conflicting court decisions. They pointed out, firstly, that in French law the factual circumstances of a case were for the trial and appeal courts to determine and that the Court of Cassation reviewed only issues of law. It was thus inherent in the judicial system that the “facts” might be assessed differently when one and the same case was heard by different courts. Such differences did not in themselves warrant intervention by the legislature. Secondly, there had been no such risk in the instant case. Since what was at issue was an allowance exclusive to staff in post in given départements, only the Colmar and Metz courts of appeal had had normal jurisdiction to hear the cases, and the Court of Cassation had taken care, after the judgments of 22 April 1992, in which it had quashed the judgments of the court below, to order a rehearing of the cases by one and the same second court of appeal, namely the Besançon Court of Appeal (see paragraph 19 above).", "As to the need for legislative intervention to preserve the stability of the social-security schemes, the applicants said that the case concerned only the staff in three départements and that the sum involved was very small by comparison with the total social-security budget.", "The applicants considered that it was unhelpful to refer to the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom case (judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII). In their submission, there was no question in the instant case of taking advantage of a mistake that frustrated the intention of the legislature but rather of seeking the intention of the employers and the employees when they concluded the collective agreement that had given rise to the rights in issue. It was therefore the Act’s clear effect and purpose to prevent the parties’ intention from being carried out, to the sole advantage of the State. On this point the applicants referred to the Papageorgiou v. Greece case (judgment of 22 October 1997, Reports 1997-VI). The only risk run by the State – one that had proved to be real – was that the courts might not uphold its view. The passing of legislation with retrospective effect had therefore had no other object than to ensure that the State’s claims prevailed notwithstanding that the courts had ruled against it. The Court of Cassation – and also the Colmar Court of Appeal when determining the appeals brought by Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta – had subsequently had no option but to endorse the terms of the Act.", "52. The Government pointed out, firstly, that as regards retrospective legislative provisions, two levels of scrutiny made it possible to ensure adherence to the principle of legal certainty which had to govern court proceedings. The first scrutiny was carried out by the Constitutional Council when such provisions were submitted to it for review. While it declined to assess whether an Act was compatible with the European Convention on Human Rights, a comparison of Convention law with its decisions on fundamental rights showed that, on many points, the development of its case-law duly reflected that of the European Court’s case-law. The Constitutional Council was particularly vigilant to circumscribe very narrowly the use of laws designed to legalise existing practices ( lois de validation ). It laid down three conditions to be satisfied if such laws were to be constitutional: the legalisation could only be preventive; the legalisation measure must not offend the principle that a criminal statute must not have retrospective effect; and the legislature could only intervene on grounds of the general interest. The second scrutiny was carried out by the ordinary courts when applying new legislation to pending cases. Laws to legalise existing practices were passed mainly in the sphere of administrative law, and that explained why there were so few decisions by the Court of Cassation on the subject. But there were very many court decisions concerning retrospective and interpretative legislation. The courts put a limit on the application of such legislation to pending proceedings, holding that they could not be applied for the first time in the Court of Cassation and could not be a ground for quashing a decision against which it was no longer possible to bring an ordinary appeal.", "53. The Government considered that the applicants could not criticise the legislature’s adoption of the disputed provision. For one thing, Article 34 of the Convention did not empower the applicants to bring an actio popularis and, for another, the adoption of section 85 of the Act of 18 January 1994 was, as such, irrelevant to the issue of equality of arms. The problem therefore lay solely in its application to the facts of the case.", "In the Government’s submission, the provisions in issue had been adopted on grounds of the general interest and pursued a “legitimate aim”. In the first place, the concern had been to prevent further conflicting decisions being given by the courts. In its three judgments of 22 April 1992 the Court of Cassation had drawn the logical conclusion from the finding that the index which served as a basis for the allowance had disappeared; those judgments had the potential to give rise to conflicting decisions by the courts below, since three different courts of appeal had to deal with the issue. Divergences had appeared between the Besançon, Colmar and Metz courts of appeal, none of which had resolved the matter in the same way (see paragraphs 16, 20, 21, 35 and 41 above). Further such divergences could be expected. In the second place, the Government submitted that it had been necessary to avoid jeopardising the financial stability of the social ‑ security schemes in issue, as had been expressly noted by the Constitutional Council. Furthermore, the court actions could have threatened the continuity of the social-security public service. An exponential increase in staff costs would have led to a corresponding reduction in the funds earmarked for paying benefits to those who were insured with the social-security system, especially as roughly 5,000 of the 9,000 or so officials receiving the IDP had instituted legal proceedings by the time the Act had been passed. If these actions had generally been successful, the budget of the bodies concerned would have been cut by approximately 350,000,000 francs. The 1994 Act had therefore been dictated by compelling grounds of the general interest (see the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society judgment cited above).", "54. The authorities’ good faith was not in issue, in the Government’s opinion. The Act was not designed to reduce the IDP in an authoritarian way but to guarantee its fixed percentage in staff remuneration, thereby adopting the solution found by the Colmar Court of Appeal in its judgments of 23 September 1993 (see paragraph 20 above). The intention of the legislature had been quite simply to revert to the method of calculation decided on at the time of the original pay agreement. Furthermore, contrary to what applied in the Papageorgiou case (see the judgment cited above), the existence of a link between the provisions of section 85 of the Act of 18 January 1994 and the remainder of that Act was clearly established and confirmed in the Constitutional Council’s decision. The Government also considered that the instant case could be distinguished from the Stran Greek Refineries and Stratis Andreadis v. Greece case (judgment of 9 December 1994, Series A no. 301-B).", "There had been a “reasonable relationship of proportionality”, the Government continued, between the aim pursued and the means employed by the legislature. Firstly, the Court of Cassation had not been able to impose a uniform solution on the various courts of appeal, as it had jurisdiction to deal with matters only of “law”, not of “fact”. Since, in earlier cases, the Court of Cassation had held, in particular, that the determination of the parties’ intention at the time of concluding a contract or agreeing a practice was a question of “fact”, intervention by the legislature had been necessary in order to establish a uniform method of calculating the IDP. Secondly, the instant case had links with the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society case (see the judgment cited above): certain trade unions had belatedly taken advantage of a “technical flaw” after several years of lawful application of the collective agreement without any dispute. The applicants therefore could not be unaware that the authorities would not let that “technical flaw” endanger the budget of the social-security schemes. The Government also considered that the State, which occupied a special place in relation to the dispute, had not had recourse to legalisation in consideration of the party concerned ( intuitu personae ) as the Greek State had been accused of doing in the Stran Greek Refineries and Stratis Andreadis case (see the judgment cited above). The applicants were not employees of the State but were employees, subject to private law, of the local social-security offices, which were private-law entities that enjoyed financial autonomy. That explained why the ordinary courts and not the administrative courts had jurisdiction. The State had been a party to the proceedings only very indirectly, in its capacity as “guardian” of the social ‑ security offices and in the general interest of the social-security schemes. Thirdly and lastly, the Government considered that the scope of the legalisation had been as limited as possible. Contrary to what had been the position in the Stran Greek Refineries and Stratis Andreadis case (see the judgment cited above), the purpose of the Act had not been to ensure that pending proceedings failed, as the legislature had excluded from its scope court decisions that had become final on the merits.", "55. As to the effect of applying a new statute in order to resolve a dispute, the Government considered that the circumstances of the instant cases were distinguishable from those noted in the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society, Stran Greek Refineries and Stratis Andreadis, and Papageorgiou judgments (cited above).", "The Metz Court of Appeal had given judgment in favour of Mr Zielinski and Mr Pradal but on the basis of reasoning that conflicted with that of the Court of Cassation, which had found that the reference index had disappeared (see paragraphs 18 and 35 above). The outcome of the litigation was therefore much more uncertain than in the earlier cases considered by the European Court of Human Rights. The Government pointed out that the retrospective application of a new statute to pending proceedings was compatible with the Convention, provided that there had still not been a decision against which it was no longer possible to bring an ordinary appeal. In the instant case Mr Zielinski and Mr Pradal had indeed obtained such a judgment from the Metz Court of Appeal by the time that the new statute was applied to the case. The Court of Cassation had nevertheless held that that was no obstacle to applying the new statute, given the purely “supplementary” ( supplétif ) nature of the Act following the disappearance of the reference index.", "As regards Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta, the Government submitted that the Colmar industrial tribunal’s judgments of 2 July 1991 could not be regarded as unappealable, since an appeal with suspensive effect had been lodged against them (see paragraphs 38-39 above). The court decision obtained by those applicants was therefore neither enforceable nor final on the merits. It would not have been possible to pass legalising legislation excluding all pending proceedings regardless of the stage that they had reached; that would have removed the Act’s raison d’être and would have led to discrimination between those who had applied to the courts and those who had not, who would have found that the legalising Act was raised against them. The Government noted that the legalisation had had no disproportionate effect on the position of those applicants, because while the Colmar Court of Appeal was bound by the provisions of the Act, it was not to be forgotten that the same court had already ruled on the dispute in terms identical with those of the legalising Act in judgments of 23 September 1993 (see paragraph 20 above).", "56. The Commission was of the opinion that section 85 of the Act of 18 January 1994 had quite simply endorsed the State’s position in the proceedings that had been brought against it and that were still pending in the ordinary courts. It noted that the State’s arguments had been rejected by the courts hearing the cases, which had preferred those advanced by the applicants. It also considered that the legislature had once and for all overturned the decisions of the courts and upheld the State by expressly providing that the Act should have retrospective effect. Once the Constitutional Council had confirmed that the Act accorded with the Constitution, the Court of Cassation’s decision had become inevitable. With regard more particularly to the “precedent” created by the Colmar Court of Appeal’s judgments of 23 September 1993, which were expressed in terms identical with those of the Act in question, the Commission considered that the State could not thereby be dispensed from its obligation not to intervene in pending judicial proceedings with the aim of influencing their outcome.", "The Commission consequently concluded that the State had intervened decisively to influence in its own favour the imminent outcome of the proceedings to which it was a party and whose merits had already been decided against it.", "57. The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute (see the following judgments, cited above: Stran Greek Refineries and Stratis Andreadis, p. 82, § 49; Papageorgiou, p. 2288, § 37; and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society, p. 2363, § 112).", "58. In the instant case, as in the above-mentioned cases, the Court cannot overlook the effect of the content of section 85 of the Act of 18 January 1994 (Law no. 94-43), taken together with the method and timing of its adoption.", "To begin with, while section 85 expressly excluded from its scope court decisions that had become final on the merits, it settled once and for all the terms of the dispute before the ordinary courts and did so retrospectively and “notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of this Act” (see paragraph 45 above).", "Secondly, section 85 was part of an Act on “public health and social welfare” (see paragraph 23 above). It was only in the course of the parliamentary debates and shortly after the delivery on 13 October 1993 of the Besançon Court of Appeal’s judgment that an amendment on the IDP was tabled.", "Lastly, section 85 quite simply endorsed the position taken up by the State in pending proceedings. The Court notes that a majority of earlier decisions by the tribunals of fact had been favourable to the applicants. Admittedly, whereas the Metz Court of Appeal had found wholly in favour of the employees of the social-security offices concerned (see paragraphs 16 and 35 above), the Colmar Court of Appeal, unlike the Colmar industrial tribunal, had dismissed the claims (see paragraphs 20, 38 and 41 above). However, the special role of the Besançon Court of Appeal, the court which had to rehear the cases after the Court of Cassation’s judgments of 22 April 1992 (see paragraphs 19 and 21 above), must be emphasised. The Besançon Court of Appeal had been designated to resolve the dispute, notably the issues of “fact”, within the legal framework previously laid down by the Court of Cassation itself (see paragraphs 18 and 19 above). Keeping strictly within the compass of the issues as laid down in the Court of Cassation’s judgments of 22 April 1992, it found that no practice had arisen and rejected the method contended for by the State. It set a new reference index and, allowing a claim in the alternative by certain employees of the social ‑ security offices concerned, held that the IDP had to be calculated on the basis of 6.1055% of the minimum wage, this being the percentage corresponding to the amount of the IDP as calculated on the basis of twelve points at 1 January 1953. Such a decision, which clarified the issues while remaining within the limits laid down by the Court of Cassation on 22 April 1992, was favourable to the applicants, since it had the effect of more than doubling the amount of the allowance actually paid by the social-security offices and conferred a right to back payment of the difference on allowances paid over several years (see paragraphs 21-22 above).", "59. The Court cannot discern in the facts of the case why the conflicting court decisions required legislative intervention while proceedings were pending. It considers that such divergences are an inherent consequence of any judicial system which, like the French one, is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. As the role of the Court of Cassation is precisely to resolve conflicts between decisions of the courts below, it is impossible to conjecture what its decision in the face of these conflicting decisions would have been but for the intervention of the Act in issue.", "In the Court’s opinion, the circumstances of the case do not make it possible to assert that the intervention of the legislature was foreseeable, any more than they can support the argument that an original intention had been frustrated (see the National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society judgment cited above, pp. 2362-63, §§ 110-12), seeing that the dispute was over the application of an agreement that had been discussed and adopted under a prescribed procedure by the employers and trade unions concerned.", "The Court considers that the financial risk adverted to by the Government (see paragraph 53 above) and expressly noted by the Constitutional Council in the reasons it gave for its decision (see paragraph 26 above) cannot in itself warrant the legislature’s substituting itself both for the parties to the collective agreement and for the courts in order to settle the dispute. On that point the Court notes that the Government put forward the sum of 350,000,000 francs’ loss for the social ‑ security bodies concerned if the court actions were generally successful (see paragraph 53 above), without providing any other comparative data, notably as to the total cost of the nine thousand employees and the details of the health expenditure of the bodies in Alsace ‑ Moselle.", "The adoption of section 85 in reality determined the substance of the dispute. The application of it by the domestic courts, in particular the Court of Cassation in its judgments of 2 March 1995 (see paragraphs 29 and 36 above), made it pointless to continue the proceedings.", "Like the Commission, the Court considers that the Constitutional Council’s decision does not suffice to establish that section 85 of the Act of 18 January 1994 is in conformity with the Convention (see paragraph 26 above).", "In view of the foregoing, the Court also considers that no distinction can validly be made between the applicants according as they had or had not obtained a final decision on the merits.", "60. As to the Government’s argument that this was not a dispute between the applicants and the State (see paragraph 54 above) as the local health-insurance offices were entities subject to private law, not public law, the Court notes that the social-security bodies perform a public-service mission and come under the supervision both of the minister responsible for social security and the Minister for Economic Affairs and Finances. Apart from the potential variety and importance of the forms of oversight, including those affecting collective agreements laying down rules and regulations governing different categories of staff (see paragraph 44 above), the Court notes that the prefect – the State’s representative in the département or region – or the Regional Department of Health and Social Affairs, an external department of the supervising ministry, systematically intervened as parties to the trial in the proceedings between the applicants and the bodies that employed them. At all events, the French system, with its bodies that manage a public service and have special governmental powers and are subject to ministerial supervisory authorities, is an illustration of the special role and the duties of the member States of the Council of Europe – as may result from the European Social Charter – in relation to the social welfare of their peoples. The finding is therefore inescapable that the intervention of the legislature in the instant case took place at a time when legal proceedings to which the State was a party were pending.", "61. There has consequently been a violation of Article 6 § 1 in respect of the right to a fair trial.", "ii. alleged violation of article 6 § 1 of the convention as to the length of the proceedings", "62. Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta maintained that the proceedings did not take place within a reasonable time as required by Article 6 § 1 of the Convention.", "63. The Commission accepted the applicants’ argument, while the Government submitted that the facts of the case disclosed no violation of the Article in question.", "A. Period to be taken into consideration", "64. The Court notes that the periods to be taken into consideration in order to assess the length of the proceedings in the light of the “reasonable time” requirement of Article 6 § 1 began on 17 and 28 August 1990, the dates of the applications to the Colmar industrial tribunal (see paragraph 37 above) and ended with the Court of Cassation’s judgment of 18 June 1996 (see paragraph 43 above). The proceedings consequently lasted for almost five years and ten months.", "B. Reasonableness of the length of the proceedings", "65. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 12-13, § 30).", "1. Arguments before the Court", "66. The applicants considered that a duration of four years in the Colmar Court of Appeal, to which had to be added almost a year at first instance as well as the proceedings in the Court of Cassation, was plainly excessive. In their submission, the case was not complex and no argument could be based on the time at which they had filed their submissions, since that had no effect on the date set for hearing cases on appeal from industrial tribunals. The cases were set down for hearing by the Court of Appeal and it was in the light of the date on which that decision was taken that the parties subsequently determined how they would proceed. Setting down took place without its being necessary for submissions to have been filed beforehand, as the court was validly seised by means of the notice of appeal and the proceedings were oral. The applicants noted that in the instant case the appeal was lodged on 10 September 1991 but that it was only on 12 July 1994 that the case was set down for hearing on 18 October 1994 (see paragraph 40 above). It was therefore only on 12 July 1994 that pleadings could usefully be filed, once the appellants had filed their submissions, in which they relied on the Act of 18 January 1994.", "The applicants maintained that if the Court of Appeal had given judgment without waiting until the Act was passed, like the Metz Court of Appeal, they would have been in possession of an enforceable decision when the Act was passed. They therefore argued that the excessive length of the proceedings had also had the effect of making it possible to raise the Act of 18 January 1994 against them.", "67. The Government contested that analysis. They submitted that the facts of the case and, in particular, the numerous conflicting court decisions made it possible to appreciate the special complexity of the case. The Court of Cassation had not given judgment by the time the Colmar industrial tribunal rendered its decisions on 2 July 1991 (see paragraph 38 above). All the points of law raised by the parties had therefore been in abeyance.", "As to the conduct of the applicants, the Government said that in civil cases the parties’ conduct was vital since the initiative in conducting the proceedings lay with them. The applicants’ representative had not filed pleadings until 30 September 1994, three years after the beginning of the proceedings in the Court of Appeal (see paragraph 40 above). The length of the proceedings at first instance was perfectly reasonable and the Court of Cassation had acted with especial diligence. Responsibility for the length of the proceedings in the Court of Appeal had lain with the applicants.", "68. The Commission considered that the proceedings were somewhat complex and, as to the conduct of the parties, that the length of time was not reasonable, regard being had to a number of delays or periods of inactivity for which it regarded the domestic authorities as having been responsible.", "2. The Court’s assessment", "(a) Complexity of the case", "69. The Court considers that the subject matter of the case before the domestic courts was undoubtedly complex, as was confirmed by the finding in the Court of Cassation’s judgments of 22 April 1992 that the reference index had ceased to exist (see paragraph 18 above).", "(b) Conduct of the applicants", "70. The Court can find nothing to suggest that the applicants were responsible for prolonging the proceedings. In particular, the date on which the applicants’ grounds of appeal were filed had no effect on the Colmar Court of Appeal’s setting down of the case for hearing (see paragraph 40 above).", "(c) Conduct of the judicial authorities", "71. The Court finds that the proceedings lasted three years, eight months and eight days in the Colmar Court of Appeal. Although the appeals had been lodged on 10 September 1991 (see paragraph 39 above), the Court of Appeal did not set a date for the hearing until 12 July 1994, almost three years later (see paragraph 40 above). The Court considers that no persuasive explanation of that delay has been put forward. In particular, it notes that the Colmar Court of Appeal had already ruled on the issue of the IDP in its judgments of 23 September 1993 (see paragraph 20 above), more than two years after the appeals lodged in the instant case. Furthermore, the Colmar Court of Appeal’s judgment was delivered on 18 May 1995 (see paragraph 41 above), almost a year and a half after the passing of the Act of 18 January 1994.", "(d) Conclusion", "72. Having regard to all the evidence, the Court considers that the “reasonable time” within which Article 6 § 1 requires a case to be heard was exceeded.", "There has accordingly been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings.", "III. alleged violation of article 13 of the convention", "73. The applicants considered that the adoption of section 85 of the Act of 18 January 1994 (Law no. 94-43) had entailed a breach of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "74. Having regard to the finding in paragraph 61 above, the Court holds that it is unnecessary to rule on the complaint in question.", "Iv. application of article 41 of the convention", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "76. The applicants alleged that they had sustained pecuniary damage corresponding to the sums they would have received had the legislation remained as it was before the passing of the Act of 18 January 1994. Mr Zielinski and Mr Pradal assessed their pecuniary damage at 47,000 French francs (FRF) each and did not make any claim in respect of non-pecuniary damage. Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta each sought FRF 21,434 in respect of back payment of the IDP for the five-year period before 17 August 1990, FRF 22,257 in respect of back payment of the IDP for the period from 18 August 1990 to 30 November 1995, plus FRF 15,000 for interest at the statutory rate and increased with effect from 17 August 1990. They assessed compensation for the non-pecuniary damage sustained by each of them on account of the length of the proceedings at FRF 20,000 and compensation for the non ‑ pecuniary damage stemming from the unfairness of the trial at FRF 50,000.", "77. The Government did not express a view.", "78. The Delegate of the Commission wished to leave the matter to the Court’s discretion.", "79. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6, including the one regarding the length of the proceedings in respect of Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta. As to the fairness of the proceedings, whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicants as having suffered a loss of real opportunities (see the Colozza and Rubinat v. Italy judgment of 12 February 1985, Series A no. 89, p. 17, § 38). To that must be added non-pecuniary damage, which the findings of violations in this judgment do not suffice to remedy, except in the case of Mr Zielinski and Mr Pradal, who made no claim under this head. Making its assessment on an equitable basis as required by Article 41, the Court awards FRF 47,000 each to Mr Zielinski and Mr Pradal and FRF 80,000 to each of the other nine applicants, in respect of all heads of damage taken together.", "B. Costs and expenses", "80. The applicants each sought FRF 30,000 in respect of the costs and expenses relating to their representation.", "81. The Government did not express a view.", "82. The Delegate of the Commission wished to leave the matter to the Court’s discretion.", "83. The Court notes that Mr Zielinski and Mr Pradal were represented by the same lawyer throughout the proceedings before the Commission and the Court, the other nine applicants having used the services of the same lawyer only after the Grand Chamber had ordered the joinder of the applications. Consequently, and on the basis of the information in its possession, the Court, making its assessment on an equitable basis, awards Mr Zielinski and Mr Pradal FRF 30,000 each in respect of the proceedings before the Commission and the Court and each of the other applicants FRF 4,000.", "C. Default interest", "84. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum." ]

[ "I. THE PARTICULAR FACTS OF THE CASE", "7. The applicant, a Belgian national born in 1948, is a gunsmith. He is in the process of serving in Mons prison a sentence of eighteen years ’ hard labour imposed on him on 10 November 1978 by the Brabant Assize Court for murder.", "8. During the night of 22-23 April 1976, two Frenchmen, Mr. Gilles Gros and Mr. Michel Dulon, were killed by revolver shots in Brussels whilst they were in a motor-car with Mr. Piersack, Mr. Constantinos Kavadias (against whom proceedings were subsequently discontinued) and a Portuguese national, Mr. Joao Tadeo Santos de Sousa Gravo.", "A. From the opening of proceedings until reference of the case to the Court of Cassation", "9. On 9 July 1976, Mr. Preuveneers, an investigating judge at the Brussels Court of First Instance, issued a warrant for the arrest of the applicant, who was suspected of having caused both deaths. He was in France at the time, but was arrested by the French authorities who, after agreeing to grant his extradition, handed him over to the Belgian police (gendarmerie) on 13 January 1977. The Courtrai procureur du Roi (public prosecutor) so informed his colleague in Brussels by a letter of the same date. Mr. Pierre Van de Walle, a senior deputy procureur, initialled the letter and forwarded it to the official in the public prosecutor ’ s department (parquet) who was dealing with the case, one Mrs. del Carril. She transmitted it to Mr. Preuveneers with a covering note ( apostille ) dated 17 January.", "10. On 4 February 1977, the investigating judge wrote to the Brussels procureur du Roi to enquire whether, as regards the co-accused Santos de Sousa, the public prosecutor ’ s department intended to report the facts to the Portuguese authorities, those authorities apparently being no longer willing to grant his extradition. On his covering note, the judge added in manuscript, between brackets, the words \"for the attention of Mr. P. Van de Walle \". Mrs. del Carril replied to Mr. Preuveneers on 9 February 1977.", "11. On 20 June, the procureur général (State prosecutor) attached to the Brussels Court of Appeal sent to the procureur du Roi the results of letters rogatory executed in Portugal concerning Mr. Santos de Sousa. After initialling the covering note, Mr. Van de Walle forwarded it to Mr. De Nauw, the deputy who had taken over from Mrs. del Carril in dealing with the case; Mr. De Nauw transmitted the note to the investigating judge on 22 June.", "12. On 13 December 1977, Mr. Van de Walle took his oath as a judge on the Brussels Court of Appeal, to which office he had been appointed on 18 November. Most of the investigations had been completed by that time, although some further formal steps were taken at a later date.", "13. On 12 May 1978, the deputy, Mr. De Nauw, signed an application for an arrest warrant ( réquisitoire de prise de corps); prior to that, in a report of forty-five pages, he had referred the matter to the procureur général attached to the Court of Appeal, who had replied on 11 May. By judgment of 16 June, the Indictments Chamber ( Chambre des mises en accusation) of the Brussels Court of Appeal remitted the applicant for trial before the Brabant Assize Court on charges of voluntary and premeditated manslaughter of Mr. Gros and Mr. Dulon. The procureur général drew up the formal indictment on 27 June.", "14. The trial took place from 6 to 10 November 1978 before the Assize Court which was presided over by Mr. Van de Walle. After the court had heard, amongst others, numerous prosecution and defence witnesses, the twelve members of the jury withdrew to consider their verdict. Mr. Piersack had maintained throughout that he was innocent. On the third question put to them, concerning the \"principal count\", they arrived at a verdict of guilty, but only by seven votes to five. After deliberating on that question in private, the President and the two other judges ( assesseurs ) declared that they agreed with the majority.", "In the final event, the Assize Court convicted the applicant of the murder of Mr. Dulon and acquitted him as regards the other charges; it accepted that there were mitigating circumstances and sentenced him on 10 November 1978 to eighteen years ’ hard labour. It also recorded that on account of his nationality it had not been possible to obtain the extradition to Belgium of Mr. Santos de Sousa, who had been arrested in Portugal.", "15. The applicant then appealed on points of law to the Court of Cassation. His sixth ground of appeal, the only ground that is relevant in the present case, was that there had been a violation of Article 127 of the Judicial Code, which provides that \"proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as public prosecutor ( ministère public) ...\". He contended that the words \"for the attention of Mr. P. Van de Walle\" appearing in manuscript on the covering note of 4 February 1977 (see paragraph 10 above) showed that Mr. Van de Walle, and not some other judicial officer in the public prosecutor ’ s department, had been dealing with the matter at the relevant time and had, accordingly, taken some part or other in the investigation of the case. Mr. Piersack made no mention of the letter of 13 January and the note of 20 June 1977 (see paragraphs 9 and 11 above), since at that stage neither he nor his lawyer had identified the author of the initials marked thereon; the Government on their own initiative supplied this information to the Commission in their written observations of March 1980 on the admissibility of the application.", "B. Submissions of the public prosecutor ’ s department attached to the Court of Cassation", "16. In his submissions, Mr. Velu, an avocat général, retraced developments in the relevant Belgian legislation and judicial decisions, distinguishing between three periods:", "(a) Before 1955, although there were no written rules on the subject, the Court of Cassation had delivered eight judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and, in particular, on the assize court bench. The Court of Cassation founded this prohibition on a general and absolute principle that was said to derive from the very nature of the functions. The avocat général summarised the judgments as follows:", "\"It is of little moment - that the judicial officer in the public prosecutor ’ s department intervened in the case only occasionally or by chance...;", "- that his intervention did not implicate one or more of the accused by name;", "- that his intervention did not involve a formal step in the process of investigation.", "It suffices that the judicial officer in the public prosecutor ’ s department personally played some part in the conduct of the prosecution in the case in question.", "There is incompatibility as soon as the judicial officer, during the course of the prosecution, has personally intervened in the case in the capacity of member of the public prosecutor ’ s department.\"", "(b) The second period (1955-1968), during which the Court of Cassation apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge, was marked by two new factors: the incorporation of the Convention into the Belgian domestic legal system and the developments in domestic case-law with regard to the general principle of law whereby cases must be impartially examined by the court.", "The litigant ’ s right to \"an impartial tribunal\", within the meaning of Article 6 § 1 (art. 6-1) of the Convention, could imply either that a judge was simply obliged to withdraw if he were at all biased as regards the case or, alternatively, that he was under the more extensive duty of withdrawing whenever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartiality. The avocat général rejected the first interpretation, which he described as \"restrictive\", in favour of the second, the \"extensive\", interpretation; he relied notably on Article 31 of the Vienna Convention on the Law of Treaties ( account to be taken of the object and purpose) and on the Delcourt judgment of 17 January 1970 (Series A no. 11, pp. 14-15, § 25 in fine). As regards the general principle of law whereby cases must be impartially examined by the court, he also referred to judgments of the Belgian Court of Cassation and the Belgian Conseil d ’ État. In addition, he cited the following passage from an inaugural address of 1 September 1970 to the Court of Cassation: \"any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision\".", "(c) The third period saw the entry into force of Articles 127 and 292 of the Judicial Code (see paragraph 22 below) and the application by the Court of Cassation of the second of these Articles to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor ’ s department. According to the avocat général, the five judgments that he listed followed the same approach as those delivered in the first period and established that:", "( i ) notwithstanding Article 292 of the Judicial Code, the general principle of law whereby cases must be impartially examined by the court had retained its full force;", "(ii) for the purposes of that Article, the expression \"dealing with a case in the exercise of the functions of public prosecutor\" signified intervening therein in the capacity of prosecuting party;", "(iii) there could not be said to have been such an intervention if, in the case concerned, a judicial officer in the public prosecutor ’ s department had simply", "- appeared at a hearing at which the court did no more than adopt a purely procedural measure; or", "- taken some step which was manifestly without effect on the conduct of the prosecution.", "In the light of the foregoing, the avocat général concluded that the Court of Cassation should \"set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground, to be taken into consideration by the Court of its own motion, of violation either of Article 6 § 1 (art. 6-1) of the Convention ... or of the general principle of law whereby cases must be impartially examined by the court\".", "The avocat général stressed that the covering note of 4 February 1977 emanated from the investigating judge, the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor ’ s department who were dealing with the prosecution. And Mr. Preuveneers had added to the covering note, in manuscript, the words \"for the attention of Mr. P. Van de Walle \", thereby indicating the specific addressee for whom the note was personally intended:", "\"If the investigating judge marked this covering note as being for Mr. P. Van de Walle ’ s attention, it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution.", "What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the two officers had been in contact regarding the investigation of the case?", "It is of little moment that other judicial officers in the public prosecutor ’ s department intervened in the case, for example to follow up the investigating judge ’ s covering note, or that Mr. Van de Walle intervened only by chance or occasionally, or that such intervention has not been shown to have implicated the appellant or a co-accused by name or ... to have involved a formal step in the process of investigation.", "Finally, there would be no reasonable explanation for the handwritten words ... if Mr. Van de Walle ’ s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution.\"", "Even if the Court of Cassation were not to allow the appeal on the sixth ground, which was based on Article 127 of the Judicial Code, the circumstances described above were, in the opinion of the avocat général, Mr. Velu, sufficient to give rise to legitimate doubts as to whether the President of the Assize Court had offered the guarantees of impartiality required both by Article 6 § 1 (art. 6-1) of the Convention and by the general principle whereby cases must be impartially examined by the court.", "C. Judgment of the Court of Cassation", "17. The Court of Cassation dismissed the appeal on 21 February 1979.", "As regards the sixth ground of appeal, the Court of Cassation observed firstly that the mere despatch of the covering note of 4 February 1977 did not necessarily show that Mr. Van de Walle had \"acted in the case as public prosecutor\", within the meaning of Article 127 of the Judicial Code.", "The Court of Cassation also took into consideration of its own motion Article 6 § 1 (art. 6-1) of the Convention and the general principle of law establishing the right to the impartiality of the court. It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled. However, the Court held that the documents which it could take into account did not reveal that after the public prosecutor ’ s department had received the covering note mentioned in the ground of appeal, Mr. Van de Walle, who was then a senior deputy to the Brussels procureur du Roi, had taken any decision or intervened in any manner whatsoever in the conduct of the prosecution relating to the facts in question. Admittedly, for a judge ’ s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor ’ s department, it was not essential that such intervention should have consisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation. Nevertheless, it could not be assumed that a judicial officer in the public prosecutor ’ s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case. In this connection, the Court of Cassation noted finally that it was not the senior deputy Van de Walle who had replied to the covering note." ]

[ "II. THE RELEVANT LEGISLATION AND PRACTICE", "A. The public prosecutor ’ s department ( ministère public)", "18. In criminal matters, the public prosecutor ’ s department \"conducts prosecutions in the manner specified by law\" (Article 138, first paragraph, of the Judicial Code). In that capacity, it investigates, and institutes proceedings in respect of, offences and then, if appropriate, appears at the trial in order to argue the case for the prosecution.", "All the judicial officers in the public prosecutor ’ s department form a hierarchical body which is generally recognised as being characterised by unity, indivisibility and independence.", "In addition to the departments of the procureur général at the Court of Cassation and of the procureurs généraux at the Courts of Appeal, there is a procureur du Roi for each district; subject to the supervision and directions of the procureur général attached to the Court of Appeal, a procureur du Roi acts as public prosecutor before the District Courts, the Courts of First Instance, the Commercial Courts and the District Police Courts (Article 150 of the Judicial Code). He is aided by one or more deputies who are subject to his personal supervision and directions, including one or more senior deputies appointed by Royal Decree who assist him in the management of the public prosecutor ’ s department (Article 151 of the Judicial Code).", "19. In the Brussels public prosecutor ’ s department, there are several dozen judicial officers all of whom are answerable to the procureur du Roi. The department is divided into sections, with a senior deputy at the head of each section. As a strict matter of law, the individual deputies come under the sole authority of the procureur du Roi who himself comes under the authority of the procureur général attached to the Court of Appeal, but in practice a senior deputy exercises certain administrative powers over the deputies. In particular, he revises their written submissions to the courts, discusses with them the approach to be adopted in a specific case and, if the occasion arises, gives them advice on points of law.", "One of the above-mentioned sections - section B - deals with indictable and non-indictable offences (crimes et délits ) against the person. Mr. P. Van de Walle was the head of this section during the period in question, until his appointment to the Brussels Court of Appeal (see paragraph 12 above). According to the Government, the procureur du Roi regarded himself at that time as personally responsible for cases - like Mr. Piersack ’ s - involving an indictable offence, the number whereof was actually fairly small; he worked on those cases directly with the deputy in charge of the file - on this occasion, Mrs. del Carril and then Mr. De Nauw -, rather than through the intermediary of the senior deputy whose principal role was to countersign documents, if not to act as a \"letter-box\". The applicant contested this version of the facts, maintaining that the Government were giving an exaggerated view of the \"autonomy\" enjoyed by the deputies vis-à-vis the senior deputies.", "B. Assize courts", "20. Under Article 98 of the Belgian Constitution, a jury has to be constituted in all cases involving an indictable offence. Assizes are held, as a rule at the chief town in each province, in order to try accused persons remitted for trial there by the Court of Appeal (Articles 114 to 116 of the Judicial Code and Article 231 of the Code of Criminal Procedure).", "Each assize court is composed of a President and two other judges ( assesseurs ); for criminal matters, it sits with a jury of twelve members (Articles 119 to 124 of the Judicial Code).", "The President ’ s duties include directing the jurors in the exercise of their functions, summing-up the case on which they have to deliberate, presiding over the whole of the procedure and determining the order in which those wishing to do so shall address the court; he also keeps order in court (Article 267 of the Code of Criminal Procedure). He is entitled by law to take, at his discretion and on his own initiative, any steps which he may consider expedient for the purpose of establishing the truth, and he is bound in honour and conscience to make every effort to that end, for example by ordering of his own motion the attendance of witnesses or the production of documents (Articles 268 and 269).", "21. After closing the hearings (Article 335, last paragraph, of the Code of Criminal Procedure), the President puts to the jury the questions arising from the indictment and hands the text of those questions to the foreman of the jury (Articles 337 to 342). The jurors then retire to their room to deliberate together, in the absence of the President and the other judges; they may return only when they have arrived at their verdict (Articles 342 and 343).", "To be valid, the jury ’ s verdict must be adopted by a majority for or against the accused; if the voting is equal, he is acquitted (Article 347). However, if he is found guilty on the principal count by no more than the simple majority of seven votes to five - as was the case for Mr. Piersack (see paragraph 14 above) -, the President and the two other judges deliberate together on the same question; if a majority of them does not agree with the majority of the jury, the accused is acquitted (Article 351). If there is a finding of guilt, the judges retire with the jurors to the jury-room and they deliberate as a single body, under the chairmanship of the President of the Court, on the sentence to be imposed in accordance with the criminal law; the decision is taken by an absolute majority (Article 364).", "C. Incompatibilities", "22. Article 292 of the 1967 Judicial Code prohibits the concurrent exercise of different judicial functions, except where otherwise provided by law; it lays down that \"any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function\" shall be null and void. Article 127 specifies that \"proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as ... public prosecutor ( ministère public) or has delivered rulings on the conduct of the investigations\".", "PROCEEDINGS BEFORE THE COMMISSION", "23. In his application of 15 March 1979 to the Commission (no. 8692/79), Mr. Piersack claimed to have been the victim of a violation of Article 6 § 1 (art. 6-1) of the Convention; he contended that he had not received a hearing by \"an independent and impartial tribunal established by law\", since Mr. Van de Walle, the President of the Assize Court which convicted him, had allegedly dealt with the case at an earlier stage in the capacity of a senior deputy to the procureur du Roi.", "24. The Commission declared the application admissible on 15 July 198O. In its report of 13 May 1981 (Article 31 of the Convention) (art. 31), the Commission expressed the unanimous opinion that there had been a breach of one of the requirements of Article 6 § 1 (art. 6-1), namely that the tribunal be impartial.", "The report contains one separate, concurring opinion.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "25. At the hearings, the Government requested the Court \"to hold that there has been no violation of Article 6 § 1 (art. 6-1) of the Convention in the present case\".", "AS TO THE LAW", "I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)", "26. Under Article 6 § 1 (art. 6-1) of the Convention,", "\"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law. ...\"", "1. \"Independent tribunal\"", "27. According to the applicant, the court by which he was convicted on 10 November 1978 was not an \"independent tribunal\". This assertion, for which he adduced no supporting evidence, does not stand up to examination. Under the Constitution (Articles 99-100) and by statute, the three judges of whom Belgian assize courts are composed enjoy extensive guarantees designed to shield them from outside pressures, and the same purpose underlies certain of the strict rules governing the nomination of members of juries (Articles 217-253 of the Judicial Code).", "2. \"Impartial tribunal\"", "28. Mr. Van de Walle, the judge who presided over the Brabant Assize Court in the instant case, had previously served as a senior deputy to the Brussels procureur du Roi; until his appointment to the Court of Appeal, he was the head of section B of the Brussels public prosecutor ’ s department, this being the section dealing with indictable and non-indictable offences against the person and, therefore, the very section to which Mr. Piersack ’ s case was referred (see paragraphs 9-12, 14 and 19 above).", "29. On the strength of this fact the applicant argued that his case had not been heard by an \"impartial tribunal\": in his view, \"if one has dealt with a matter as public prosecutor for a year and a half, one cannot but be prejudiced\".", "According to the Government, at the relevant time it was the procureur du Roi himself, and not the senior deputy, Mr. Van de Walle, who handled cases involving an indictable offence; they maintained that each of the deputies - on this occasion, Mrs. del Carril and then Mr. De Nauw - reported to the procureur on such cases directly and not through Mr. Van de Walle, the latter ’ s role being principally an administrative one that was unconnected with the conduct of the prosecution and consisted, inter alia, of initialling numerous documents, such as the covering notes of 13 January and 20 June 1977 (see paragraphs 9, 11 and 19 above). As regards the covering note of 4 February 1977 (see paragraph 10 above), the investigating judge, Mr. Preuveneers, was said to have written thereon the words \"for the attention of Mr. P. Van de Walle\" solely because he knew that Mrs. del Carril was frequently on sick-leave. In addition, so the Government stated, there was no evidence to show that Mr. Van de Walle had received that note and, in any event, it was not he but Mrs. del Carril who had replied to Mr. Preuveneers.", "30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.", "(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Van de Walle ’ s personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58).", "However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.", "(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor ’ s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor ’ s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor ’ s department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point.", "(c) The Belgian Court of Cassation, which took Article 6 § 1 (art. 6-1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened \"in the case in or on the occasion of the exercise of ... functions as a judicial officer in the public prosecutor ’ s department\". It dismissed Mr. Piersack ’ s appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr. Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above).", "(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1 (art. 6-1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor ’ s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.", "31. This was what occurred in the present case. In November 1978, Mr. Van de Walle presided over the Brabant Assize Court before which the Indictments Chamber of the Brussels Court of Appeal had remitted the applicant for trial. In that capacity, he enjoyed during the hearings and the deliberations extensive powers to which, moreover, he was led to have recourse, for example the discretionary power conferred by Article 268 of the Judicial Code and the power of deciding, with the other judges, on the guilt of the accused should the jury arrive at a verdict of guilty by no more than a simple majority (see paragraphs 13-14 and 20-21 above).", "Yet previously and until November 1977, Mr. Van de Walle had been the head of section B of the Brussels public prosecutor ’ s department, which was responsible for the prosecution instituted against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. del Carril and then Mr. De Nauw, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Van de Walle did in fact play a certain part in the proceedings.", "Whether or not Mr. Piersack was, as the Government believe, unaware of all these facts at the relevant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Van de Walle, by undertaking further enquiries in order to ascertain, for example, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. del Carril and Mr. De Nauw. It is sufficient to find that the impartiality of the \"tribunal\" which had to determine the merits (in the French text:\" bien-fondé\" ) of the charge was capable of appearing open to doubt.", "32. In this respect, the Court therefore concludes that there was a violation of Article 6 § 1 (art. 6-1).", "3. \"Tribunal established by law\"", "33. Initially, the applicant also claimed that the Brabant Assize Court was not a \"tribunal established by law\", arguing that Mr. Van de Walle ’ s presence on the bench contravened, inter alia, Article 127 of the Judicial Code.", "In order to resolve this issue, it would have to be determined whether the phrase \"established by law\" covers not only the legal basis for the very existence of the \"tribunal\" - as to which there can be no dispute on this occasion (Article 98 of the Belgian Constitution) - but also the composition of the bench in each case; if so, whether the European Court can review the manner in which national courts - such as the Belgian Court of Cassation in its judgment of 21 February 1979 (see paragraph 17 above) - interpret and apply on this point their domestic law; and, finally, whether that law should not itself be in conformity with the Convention and notably the requirement of impartiality that appears in Article 6 § 1 (art. 6-1) (cf., in the context of Article 5 (art. 5), the Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 19-20, §§ 45-46, and the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 18-19, § 41).", "In the particular circumstances, it does not prove to be necessary to examine this issue, for in the present case the complaint, although made in a different legal context, coincides in substance with the complaint which has been held in the preceding paragraph to be well-founded; besides, the applicant did not revert to the former complaint either in his written observations of April 1980 on admissibility or during the hearings of 10 December 1980 before the Commission and of 25 March 1982 before the Court.", "II. THE APPLICATION OF ARTICLE 50 (art. 50)", "34. At the hearings, Mr. Piersack ’ s lawyer stated that his client was seeking under Article 50 (art. 50) of the Convention his immediate release, in accordance with \"arrangements to be discussed\", and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cassation (50,000 BF) and in Strasbourg (150,0000BF), subject to deduction of the amount paid by the Council of Europe by way of legal aid (3,500 FF).", "Counsel for the Government replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. She added that she was unaware of the authorities ’ present view on early release of the applicant.", "35. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court must therefore reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "A. Introduction", "7. Mr Rolf Langborger is a Swedish national born in 1922. He is a consultant engineer and resides at Solna, a town in the immediate vicinity of Stockholm.", "On 1 October 1982 he rented an apartment. The lease contained a \"negotiation clause\" ( förhandlingsklausul, see paragraph 16 below) which was worded as follows:", "\"During the running of the lease the parties undertake to accept, without prior termination of the lease, the rent and other conditions agreed upon on the basis of the negotiation agreement ( förhandlingsordning ) in force between, on the one hand, a landlords ’ union affiliated to the Swedish Federation of Property Owners ( Sveriges Fastighetsägareförbund ) and a landlord, who with his property is affiliated to such a union, and, on the other hand, a tenants ’ union affiliated to the National Tenants ’ Union ( Hyresgästernas riksförbund ).\"", "An agreement between the two unions laid down the negotiating procedure. For conducting the negotiations the tenants ’ union in question received a commission of 0.3% of the rent (see paragraph 16 below).", "8. The applicant was dissatisfied with the rent and with the fact that he was represented by the Tenants ’ Union of the Greater Stockholm Area ( hyresgästföreningen i Stor -Stockholm, \"the Tenants ’ Union \"). He therefore gave notice of his intention to terminate the lease in accordance with Chapter 12, section 54 of the Land Act ( jordabalken ), with a view to having its terms altered. He proposed to the landlord the conclusion of a new agreement with a fixed rent and no negotiation clause. Following the rejection of his offer, he brought the dispute before the Rent Review Board ( hyresnämnden ) for Stockholm County on 23 June 1983.", "B. Proceedings before the Rent Review Board", "9. In accordance with the legislation in force (see paragraph 19 below), the section of the Rent Review Board which examined the case was composed of a chairman and two lay assessors ( intresseledamöter ). At the time of his appointment, the chairman, Mr Göran Hogebrandt, held a non-permanent judicial appointment as an associate judge in the Court of Appeal. The two assessors, who were nominated respectively by the Swedish Federation of Property Owners and the National Tenants ’ Union, were experts on the administration of apartment buildings and on the problems of tenants. One, Mr Jan Åke Hedin, the managing director of his own electricity business, was also the president of one of the district associations affiliated to the Stockholm Landlords ’ Union ( Stockholms Fastighetsägareförening, \"the Landlords ’ Union \"). The other, Mr Gösta Gröndahl, a retired customs official, was a member of the Tenants ’ Union and had previously been the president of one of the district associations for nine years.", "10. The applicant first challenged the two lay assessors because they had been nominated by a landlords ’ association and a tenants ’ organisation (see paragraph 19 below). He considered that they could not decide his case objectively and impartially because the Tenants ’ Union depended for its existence on the sums paid to it for conducting the rent negotiations (see paragraph 16, last sub-paragraph, below) and the Landlords ’ Union also derived a major part of its raison d ’ être from its participation in these negotiations. In addition he claimed that there was a risk of discrimination on political grounds because the Tenants ’ Union was socialist in outlook, whereas he was a local elected representative belonging to a moderate right wing grouping. As regards the merits, he sought the deletion of the negotiation clause from the lease and contested the amount of the rent.", "11. On 17 November 1983 the Rent Review Board held a hearing at which the applicant and his representative and the landlord ’ s representative were present.", "The chairman dismissed the applicant ’ s challenge because the rules governing the appointment of the lay assessors did not in themselves provide a ground for such a challenge and because there were no other grounds on which it could be based.", "After having heard the views of the parties as to the merits of the case, the Rent Review Board went on to state that its decision would be available at its secretariat on 1 December 1983.", "On that date it dismissed Mr Langborger ’ s claims. Its decision, which was communicated to him through the post, referred, inter alia, to the declarations of the competent minister during the examination of the Rent Negotiation Bill (see paragraph 16 below) regarding the discretion conferred on rent review boards in deciding whether negotiation clauses should be retained.", "C. The proceedings in the Housing and Tenancy Court", "12. Mr Langborger appealed from this decision to the Housing and Tenancy Court ( bostadsdomstolen ). He relied on Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention and sought a thorough examination of the challenge which he had submitted at first instance; he also challenged the lay assessors of this court. As to the merits, he repeated his claim that he should not be represented by the Tenants ’ Union and that he should be permitted to fix his rent in direct negotiations with the landlord.", "13. The court which examined the applicant ’ s appeal was composed of four members (see paragraph 23 below).", "The President, Mr Hans Svahn, had, until his appointment to the Housing and Tenancy Court, presided over a Chamber of the Svea Court of Appeal and still retained this post, on a formal basis, while exercising his new function.", "The other lawyer, who acted as rapporteur, Mr Hans Anderberg, remained a Rent Judge (see paragraph 19 below).", "The two lay assessors had (like the assessors sitting on the Rent Review Board) been nominated by, respectively, the Swedish Federation of Property Owners and the National Tenants ’ Union (see paragraph 22 below). One was an expert on the administration of apartment buildings and the other on tenants ’ problems. The first, Mr Bertil Tullberg, was a titular lay assessor; before retiring he had worked for the Stockholm Landlords ’ Union as legal adviser from 1943 and then as its managing director. The second, Mrs Märta Kåremo, was a salaried official of the National Tenants ’ Union, where she was responsible for staff legal training. She sat on the Housing and Tenancy Court as a substitute lay assessor.", "14. The landlord of the flat was represented by the same official of the Landlords ’ Union who had assisted him before the Rent Review Board (see paragraph 11 above).", "15. On 28 December 1983 the Housing and Tenancy Court informed Mr Langborger by letter that it considered that it might \"determine the case as it was constituted at present and without a hearing\".", "On 23 February 1984 the rapporteur rejected the application challenging the two lay assessors. The rules governing their appointment could not in themselves constitute valid grounds for their disqualification.", "On 2 April 1984 the Housing and Tenancy Court dismissed the remainder of Mr Langborger ’ s appeal and upheld the Rent Review Board ’ s decision. It gave its ruling in private, in the absence of the parties and without having held a hearing. Its decision was final.", "The applicant received a photocopy of this decision through the post. On 17 April 1984 he obtained a copy of the decision of 23 February which, by error, had not yet been sent to him.", "II. DOMESTIC LEGISLATION AND CASE-LAW", "A. The negotiation clause", "16. Section 2 of the 1978 Rent Negotiation Act ( hyresförhandlingslagen, \"the 1978 Act\") defines the negotiation clause as a provision in a lease whereby the tenant agrees to be bound by the terms of the lease, in particular regarding the rent, as accepted by the association conducting the negotiations. It provides that this clause is introduced or retained if this is not unreasonable, having regard to the tenant ’ s standard of living and his opinion and to the opinion of other tenants affected by the clause.", "A dispute regarding the insertion or retention of a negotiation clause may be submitted to a rent review board. According to the preparatory documents, this possibility was introduced to provide legal protection for private individuals, in particular those who were not members of the organisations which participated in the negotiations. The board may exempt the party concerned from the obligation to accept a negotiation clause; in deciding whether to do so, it must, inter alia, weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual (Government Bill No. 1977/78:175, p. 130 et seq.).", "Section 1 provides that these conditions are to be negotiated between, on the one hand, the landlord or the landlord and a landlords ’ organisation and, on the other hand, a tenants ’ organisation. The tenant - who therefore has no right to negotiate - need not be a member of the organisation. Under section 3, the system applies in principle to all the flats in a building. These negotiations, which must be conducted in the manner laid down in the Act, are not compulsory but depend on the desiderata of the parties. If one of them refuses to conclude an agreement, the dispute may be referred to the Rent Review Board.", "Under section 20, the rent may incorporate the amount - a percentage of the rent agreed in the negotiations - payable to the tenants ’ organisation for its role in these negotiations.", "17. The principal advantage which the landlords ’ associations derive from the system is that they only have to negotiate rents with the tenants ’ organisations and not with the individual tenants. For their part the tenants ’ organisations can exert, through their right to represent the tenants, a continuous and durable influence on the conditions of the market in rental accommodation.", "At present this system applies to all accommodation owned by public organisations and to 80% of privately owned buildings comprising more than two flats.", "B. The Rent Review Boards", "18. Rent review boards were set up by the 1973 Lease Review Boards and Rent Review Boards Act (lag 1973:188 om arrendenämnder och hyresnämnder, the \"1973 Act\"). They hear, inter alia, disputes on rents arising in connection with the provisions of Chapter 12 of the Land Act.", "19. Under section 5, each rent review board is composed of a chairman - referred to as a Rent Judge - and two lay assessors, one of whom must be familiar with the problems of the administration of property and the other with those of tenants.", "The chairman is appointed by the Government or by an authority delegated by them, on the recommendation - which is always requested, except in three specific cases - of the Judicial Appointments Recommendation Board ( tjänsteförslagsnämnd ). He must have legal training and his post is full-time.", "The lay assessors are appointed by the National Board of the Judiciary ( Domstolsverket ) for a term of office of three years, which is generally renewed. Under section 6 para. 2 of the 1973 Act, the representative organisations of the housing sector (essentially the Swedish Federation of Property Owners and the National Tenants ’ Union ) must be able to put forward candidates when the appointment to be made concerns their interest group. The persons selected sit in a personal capacity and not as the representatives of their organisations.", "The lay assessors are not designated in advance for each case, but carry out their functions in accordance with a prepared schedule; their duties are not full-time. In addition, if a board has several sections, cases are, in practice, allocated on a geographical basis.", "20. In principle, proceedings before a rent review board are oral. They are governed by the general provisions of the Administrative Act ( förvaltningslagen ), although the Code of Judicial Procedure applies for certain formalities.", "The board ’ s decisions must contain a statement of reasons and be given in public. They are pronounced on the day of the hearing or within two weeks thereof at the latest. A copy is sent to the parties.", "C. The Housing and Tenancy Court", "21. The Housing and Tenancy Court was set up by an Act of 1974 (lag 1974:1081 om bostadsdomstol, \"the 1974 Act\") and has jurisdiction for the whole of Sweden. It hears appeals lodged against the decisions of the rent review boards. Its judgments are final.", "22. The court is composed of at least three lawyers (\"Housing Judges\"), a technical assessor - who in certain cases replaces one of the lawyers - and a maximum of twelve lay assessors. All the members are appointed by the Government for a term of office of three years which is renewable. The lawyer members are, in general, judges, while the lay assessors are experts on the housing market. An identical nomination procedure to that operating for the appointment of lay assessors to rent review boards (see paragraph 19 above) applies.", "23. The court is always presided over by a lawyer. It can sit with seven members or, as in this instance, with four. In the latter case, there must be two housing judges and two lay assessors. If they are unable to reach a majority decision, the president has a casting vote.", "The proceedings are written, but a hearing may be held if that appears to be necessary for the purposes of the investigation. In some cases argument is taken on a specific point, while in others it concerns the case as a whole.", "The Housing and Tenancy Court applies the general provisions of the Code of Judicial Procedure. Except in certain cases - which are not relevant here - its judgments are given in public. If the court cannot give a decision at a hearing, it makes the text thereof available to the parties at the registry and communicates to them a copy by post.", "24. The Supreme Court ( Högsta domstolen ) has had occasion to rule on the independence and impartiality of a lay assessor who had to sit in a case involving the association which had nominated him (judgment of 21 September 1982, case no. Ö 600/81, Hyresgästföreningen Kroken, in Nytt Juridiskt Arkiv (NJA), 1982, p. 564). It held that there was no ground for allowing the challenge.", "The Supreme Court first considered the lay assessors ’ position in general. It pointed out that their presence was \"designed to ensure that there were persons on the court who are well acquainted with the questions with which the court has to deal and who can, in an authoritative way, express the ideas of the interest groups concerned.\"", "It held that:", "\"... the fact that a member, generally speaking, represents a certain interest group does not mean that he is biased when dealing with a case where one of the parties belongs to this interest group. As was stressed in the preparatory documents (NJA II 1974, p. 546), it is not intended that the lay assessors in their capacity as judges should feel bound by the interests which they can be said to represent. They should, like the other members, carry out their duties as independent judges and not as representatives of party interests.\"", "Turning then to the case at hand, it rejected the challenge which was based on \"the viewpoint that every member who is closely linked to the tenants ’ movement, for that reason alone, is biased when dealing with such a case\".", "In setting out its reasoning the Supreme Court said inter alia:", "\"... it should first be pointed out that it is not the task of the lay assessors of the Housing and Tenancy Court to represent their organisations. They should represent the whole interest group in question without regard to their involvement in a particular organisation. The legislation is obviously based on the assumption that the lay assessors will be able to deal impartially with disputes even where the interests of their organisation are directly at issue, and it is not compatible with the provisions of the Act generally to regard members attached to an organisation as biased in such disputes.\"", "The Court added however:", "\"there may of course be grounds for challenging a member of the court if he has been involved in the dispute before the court.\"" ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "25. Mr Langborger ’ s application to the Commission (no. 11179/84) was lodged on 7 September 1984. He alleged that he had not been given a public hearing by an independent and impartial tribunal. He also complained of a breach of his rights to respect for his home, his freedom of association and enjoyment of his possessions and of the lack of an effective remedy before a national \"authority\". He relied on Articles 6 para. 1, 8, 11 and 13 (art. 6-1, art. 8, art. 11, art. 13) of the Convention and Article 1 of Protocol No. 1 (P1-1).", "26. The Commission found the application admissible on 9 July 1986. In its report of 8 October 1987 (Article 31) (art. 31), it expressed the unanimous opinion that:", "- there had been a failure to comply with the requirements of Article 6 para. 1 (art. 6-1) of the Convention regarding impartiality;", "- there had been no violation of Articles 8 and 11 (art. 8, art. 11) of the Convention and Article 1 of Protocol No. 1 (P1-1);", "- it was not necessary to consider separately the complaint based on Article 13 (art. 13) of the Convention, nor to determine whether there had been a failure to observe Article 6 para. 1 (art. 6-1) as regards the requirement of a public hearing and a public pronouncement of the judgment.", "The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "27. At the hearing on 21 February 1989, the Government confirmed their submission made in their memorial inviting the Court \"to hold that there has been no violation of the Convention in the present case\".", "AS TO THE LAW", "I. PRELIMINARY OBSERVATION", "28. The applicant argued that his various complaints were to be \"taken together\" and had \"a common cause\".", "The Court considers it necessary first to take separately the different articles relied upon. It will then appraise the case in the light of the complaints viewed together.", "II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION", "29. Mr Langborger alleged the violation of paragraph 1 of Article 6 (art. 6-1) of the Convention, which is worded as follows:", "\"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... \".", "A. \"Independent and impartial\" tribunal", "30. In the applicant ’ s submission, his claim for a fixed rent and no negotiation clause was not examined by an independent and impartial tribunal. His true opponents, he argued, were the landlords ’ association and tenants ’ organisation inasmuch as his proposal to delete the negotiation clause from the lease threatened the interests of both organisations since they derived their very existence from rent negotiations. As the lay assessors sitting on the Rent Review Board and the Housing and Tenancy Court were committed to the defence of those interests, they could not assess his claim with the necessary independence and impartiality.", "This view was contested by the Government.", "Like the Commission, the Court will limit its examination to the Housing and Tenancy Court. This body was the last national organ to determine both the questions of fact and the legal issues in dispute (the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 23, para. 51).", "31. When it decided the applicant ’ s case, the Housing and Tenancy Court was composed of two professional judges and two lay assessors nominated respectively by the Swedish Federation of Property Owners and the National Tenants ’ Union, and then appointed by the Government (see paragraphs 13 and 22 above). The independence and impartiality of the professional judges are not at issue. It remains to consider the position of the two lay assessors.", "32. In order to establish whether a body can be considered \"independent\", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence (see, inter alia, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 39-40, para. 78).", "As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, amongst other authorities, the De Cubber judgment of 26 October 1984, Series A no. 86, pp. 13-14, para. 24).", "In this case it appears difficult to dissociate the question of impartiality from that of independence.", "33. The proceedings instituted in the Housing and Tenancy Court concerned essentially the question whether the negotiation clause was to be retained (see paragraphs 10 and 12 above) and not how it was to be applied (the fixing of the rent payable by Mr Langborger).", "34. Because of their specialised experience, the lay assessors, who sit on the Housing and Tenancy Court with professional judges, appear in principle to be extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes. This does not, however, exclude the possibility that their independence and impartiality may be open to doubt in a particular case.", "35. In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof.", "As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause. As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court ’ s composition in other cases, was liable to be upset when the court came to decide his own claim.", "The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality are not in question, makes no difference in this respect.", "36. Accordingly, there has been a violation of Article 6 para. 1 (art. 6-1).", "B. Lack of a public hearing and public pronouncement", "37. Mr Langborger also complained of a lack of a public hearing and of the fact that there was no public pronouncement of the Housing and Tenancy Court ’ s decision.", "In accordance with the Commission ’ s opinion and in the light of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on a complaint which, moreover, the applicant has not pursued before it.", "III. ALLEGED VIOLATION OF ARTICLES 8 AND 11 (art. 8, art. 11) OF THE CONVENTION", "38. Mr Langborger further alleged a breach of his right to respect for his \"home\" within the meaning of Article 8 (art. 8). He considered that the power, conferred on the Tenants ’ Union, to negotiate on his behalf the amount of the rent for the flat in which he lived was incompatible with the requirements of this provision because the rights and obligations deriving from the lease were, in his view, rooted in the notion of \"home\".", "He also complained of a violation of his freedom of association guaranteed under Article 11 (art. 11), on the ground that he had to accept, against his will, the services of the Tenants ’ Union in the negotiations, for which services he also had to pay.", "The Government disputed these views.", "39. The Court finds that the questions raised under these heads do not come within the scope of the Articles relied upon.", "IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)", "40. According to Mr Langborger, the legal obligation to make financial contributions to the Tenants ’ Union (see paragraphs 7 and 16 above) also entails a deprivation of possessions contrary to Article 1 of Protocol No. 1 (P1-1), according to which:", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "41. In the Court ’ s view, the obligation to pay the small sums involved cannot be regarded as inconsistent with this Article (P1-1).", "V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION", "42. Finally, the applicant relied on Article 13 (art. 13) of the Convention, which provides as follows:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "He claimed that he did not have any effective remedy against the various breaches of the Convention of which he complained.", "43. With regard to the alleged violations of Article 6 (art. 6) of the Convention, the Court, like the Commission, does not find it necessary to examine the case under Article 13 (art. 13), whose requirements are less strict than, and are here absorbed by, those of Article 6 (art. 6) (see, inter alia, the Pudas judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43).", "Moreover, Article 13 cannot here be taken in conjunction with Articles 8 and 11 (art. 13+8, art. 13+11) of the Convention, which are themselves inapplicable (see paragraphs 38-39 above), or with Article 1 of Protocol No. 1 (art. 13+P1-1) because the complaint based on that provision has not given rise to an \"arguable\" claim (see paragraph 41 above).", "VI. EXAMINATION OF THE COMPLAINTS VIEWED TOGETHER", "44. After having considered the different Articles separately, the Court examined the case in the light of all the complaints viewed together. This appraisal did not lead it to alter the various conclusions set out above.", "VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "45. Mr Langborger sought just satisfaction under Article 50 (art. 50), according to which", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Work carried out by the applicant", "46. He claimed in the first place 30,000 Swedish crowns (SEK) for his work on the case. On this question he referred to a rule which was said to exist in Swedish law, but did not state whether his claim related to the proceedings in the national courts, the proceedings before the Convention organs, or both.", "The Government disputed the claim, while the Commission left the matter to be decided by the Court.", "47. The Court affords \"just satisfaction\" only \"if necessary\", and without being bound by domestic rules. Moreover the applicant, who was assisted by counsel both in Sweden and in Strasbourg, has not established why it is necessary to compensate him for his own work.", "B. Pecuniary damage", "48. Mr Langborger also claimed 50,000 SEK for the pecuniary damage which he allegedly sustained as a result of the unfavourable method used to calculate his rent.", "49. It is not for the Court to speculate as to what the outcome of the contested proceedings would have been if the violation which it has found had not occurred, and there is nothing to show that a decision taken by a court of a different composition would have been in the applicant ’ s favour.", "C. Non-pecuniary damage", "50. The applicant requested in addition 100,000 SEK in respect of non-pecuniary damage. He argued that a purely nominal award could not suffice.", "51. The Court considers that the finding of a breach of Article 6 (art. 6) constitutes in itself adequate just satisfaction in this respect.", "D. Costs and expenses", "52. Finally, Mr Langborger requested reimbursement of 104,000 SEK in lawyer ’ s fees and 13,475 SEK in general and travelling expenses.", "As regards the first claim, the Government did not dispute the hourly rate of 500 SEK, but considered excessive the total number of hours (208) which Mr Grennberg was said to have devoted to preparing the file. For his part, the Commission ’ s Delegate stressed that much time had been spent studying questions of secondary importance.", "53. The Court notes that it has declared only one of the applicant ’ s complaints founded and, making an assessment on equitable grounds, considers it appropriate to award the applicant, by way of reimbursement of the fees in question, 50,000 SEK, to which should be added 13,475 SEK in respect of general and travelling expenses." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "8. The applicant, who is a United States citizen, lives in Munich in the Federal Republic of Germany.", "Wishing to build a holiday residence in Hopfgarten, a village in the Austrian Tyrol, she approached, with the assistance of municipal officials, the owners of a plot of land which had until then been used for agricultural purposes. Sale negotiations began in 1971 and apparently led, in 1973, to an initial contract. One year later, Mrs. Sramek paid to the vendors the greater part of the agreed price. However, the definitive contract was not drawn up until 13 January 1977.", "9. Under section 3 of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz) 1970, as amended by, inter alia, an Act of 28 November 1973 which came into force on 1 January 1974 (\"the 1970/1973 Act\"), the contract could not take effect unless it were approved by the local Real Property Transactions Authority (Grundverkehrsbehörde); in fact, it contained a clause which so provided.", "The 1970/1973 Act applies to agricultural and forestry land and also to any land over which rights are acquired by, in particular, a natural person who does not possess Austrian nationality (section 1(1) and (2)).", "10. The local Real Property Transactions Authority for Hopfgarten at the office of the Kitzbühel District Administration (Bezirkshauptmannschaft), to which the contract had been submitted, approved it on 7 March 1977; the decision (Bescheid) was dated 31 March.", "11. On 6 April, the Real Property Transactions Officer (Landesgrundverkehrsreferent, \"the Transactions Officer\", see paragraph 23 below) at the Government Office of the Tyrol (Amt der Landesregierung) in Innsbruck exercised his right of appeal (Berufung) to the Regional Real Property Transactions Authority (Landesgrundverkehrsbehörde; section 13(3) of the 1970/1973 Act and see paragraphs 22-23 below). In his view, the contract fell foul of section 4(2) of the 1970/1973 Act.", "Under that sub-section, where the purchaser of real property is a foreigner a contract of the kind in question can be approved only", "\"if the acquisition of rights (Rechtserwerb) is not contrary to political (staatspolitisch), economic, social (sozialpolitisch) or cultural interests; such a conflict (Widerspruch) is deemed to exist, in particular, where,", "(a) having regard to the extent of existing foreign ownership or to the number of foreign owners, there is a risk of foreign domination (Uberfremdung) in the municipality or locality concerned,", "(b) ... .\"", "In the submission of the Transactions Officer, there were, in fact, already 110 foreign landowners in Hopfgarten and it could be seen from a series of decisions of the Regional Authority that this municipality was one of those where the danger of foreign domination was imminent. The contract in question was therefore contrary to social and economic interests within the meaning of the above-mentioned Act.", "The applicant received a copy of the appeal but did not file any observations in reply.", "12. The Government Office of the Tyrol was organised in a number of \"groups\" and each group comprised several \"divisions\". In the present case, the Transactions Officer was the director of group III; his secretariat was provided by one of the seven divisions in that group, namely division III b. 2.", "13. On 3 June 1977, the Regional Real Property Transactions Authority at the Government Office of the Tyrol held a hearing. The Regional Authority sat in camera but the parties, namely the Transactions Officer and Mrs. Sramek, were present. The latter appeared in person, without the assistance of a lawyer.", "In accordance with section 13(4), no. 1, of the 1970/1973 Act (see paragraph 24 below), the Regional Authority was composed as follows: the elected mayor of a municipality in the Tyrol, who was a farmer experienced in real estate matters, as chairman; a judge of the Innsbruck Court of Appeal; a civil servant from division III b. 3 - one of the seven divisions in group III - of the Government Office, as rapporteur; the head of group III d; the director of the Regional Forestry Service, being the head of group III f; a farmer; and a lawyer.", "The secretariat was provided by division III b. 3, to which the rapporteur belonged.", "14. According to the minutes of the hearing, the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation; the latter concerned, inter alia, the percentage of the parcels of land in Hopfgarten which was in foreign hands. The Transactions Officer then requested the Authority to uphold his appeal on the ground that as there was already a risk of foreign domination in Hopfgarten, the acquisition of the land in question would be contrary to social and political interests.", "The applicant stated that she had signed the initial contract (Erstvertrag), which could not then be found, on 13 March 1973. As early as 23 January 1971, she had reached an agreement to purchase (Vertragsabsprachen) and had received assurances that all would go well. Since that time, she had come to Austria several times each year to settle the matter. Her husband was living with the family in Munich, where he worked, but would be retiring shortly. She declared that she herself was prepared to apply for Austrian nationality. Their permit to reside in the Federal Republic was temporary and she did not wish to return to the United States. She added that she had already made a first payment of 111,591 schillings. In conclusion, she requested that the contract be approved.", "15. On the same day, that is 3 June 1977, the Regional Authority upheld the appeal: referring to the above-mentioned section 4(2)(a) of the 1970/1973 Act, it refused to approve the transfer of title. Its decision (Bescheid) was dated 16 June.", "The Authority noted firstly that according to a statement from the municipality of Hopfgarten, which had not been challenged at the hearing, there were 110 foreign landowners in Hopfgarten, owning 5.6 hectares of land. There were 4,800 inhabitants and 1,100 families in the locality, though not all of them were landowners. The proportion of non-Austrian owners already exceeded 10 per cent and the extent of their holdings revealed a tendency towards foreign domination.", "The Authority then recalled that for some years past it had been refusing to approve the transfer of land in Hopfgarten to foreigners since it had concluded that there was a risk of foreign domination in the area. It had to take account, inter alia, of the effects of its decision on third parties. According to the Authority, experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality. This caused prices to rise substantially, making it very difficult, if not impossible, for the indigenous population to find housing for themselves. For these reasons and in view of the scarcity of building plots in the Tyrol, very strict legal (gesetzlich) control had to be exercised: sales and purchases could normally be approved only if they contributed to the establishment or maintenance of an effective (leistungsfähig) agricultural population or if they served to satisfy domestic land needs (inländischer Bodenbedarf) for any kind of public or social purposes.", "However, Mrs. Sramek was intending to use the land in question - at least for some time - for the construction of a holiday residence. Such an objective could easily be satisfied by the local hotel trade which, furthermore, was losing potential customers as a result of the construction of villas by foreigners. The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of, in particular, section 4(2)(a) of the 1970/1973 Act.", "Lastly, the Regional Authority rejected the applicant ’ s argument that she had already concluded a contract in 1973, that is at a time when American citizens were treated on an equal footing with Austrians by virtue of a bilateral treaty dating from 1928. The Authority emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken. In its view, the 1928 treaty had not established any equality between citizens of the two States in the area concerned. In the case in question, the transfer of ownership contemplated fell under Article 1 para. 2, as interpreted by the Ministry of Foreign Affairs in a 1973 memorandum which stated that the general regulations with regard to foreigners were applicable. Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded (13 March 1973, see paragraph 14 above) - though this was not the case, since the above-mentioned memorandum dated from early 1973 -, Mrs. Sramek could not claim that she had acted in good faith: she was obliged under section 15 of the 1970/1973 Act to seek approval of the contract within two months and she alone bore the responsibility for not having done so.", "16. On 22 August 1977, the applicant appealed to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Authority. She claimed that her right to inviolability of property and her right to a decision by the legally competent court (gesetzlicher Richter) had been infringed and relied on Article 5 of the Basic Law (Staatsgrundgesetz), Article 83 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) and Article 6 (art. 6) of the Convention.", "As concerns the first complaint, Mrs. Sramek alleged that the Regional Authority had applied section 4(2)(a) of the 1970/1973 Act in a misconceived (denkunmöglich) manner by adopting an illogical approach; amongst other things, it had concluded that there was a danger of foreign domination in Hopfgarten without being in possession of detailed documentation, without defining the risk in question and without enquiring into the actual position in Hopfgarten regarding real property ownership.", "She further contended that the Regional Authority was not an \"independent tribunal\" within the meaning of Article 6 (art. 6) of the Convention.", "On these grounds, she requested the Constitutional Court to annul the decision under appeal or, in the alternative, to refer the case to the Administrative Court (Verwaltungsgerichtshof).", "Mrs. Sramek supplemented her grounds of appeal on 9 March 1978. She asserted that her lawyer had not been able to consult the minutes of the Regional Authority ’ s deliberations. She had, in fact, learnt that the Authority had not given its ruling on 3 June 1977, immediately after the closure of the hearing. She inferred from this that the decision complained of had not been taken by the legally competent court.", "She requested the Constitutional Court to provide her lawyer with an opportunity of reading the above-mentioned minutes.", "17. The Constitutional Court dismissed the appeal on 3 March 1979 (Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1979, vol. 44, no. 8501).", "It took the view that the Regional Authority was indeed a \"tribunal\" within the meaning of Article 6 (art. 6) of the Convention. It gave decisions which the executive could neither annul nor vary. As regards its members - who included a judge -, they had a degree of independence equal to that of judges. They were not bound by any instructions in the exercise of their functions and they could not be removed during their three-year term of office, except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties. The Constitutional Court accordingly held that Article 6 (art. 6) had not been violated.", "The applicant ’ s other ground of appeal was also rejected. Recalling that it had already held in another case, in 1974, that it was not misconceived to conclude that there was a danger of foreign domination in Hopfgarten, the Constitutional Court stated that it saw no reason to change its opinion in the instant case. As regards the facts noted by the Regional Authority, they had not been the subject of any dispute during the administrative proceedings.", "The Constitutional Court sat in camera and gave judgment without holding a hearing.", "18. Even before the above-mentioned judgment had been delivered, the plot in question was sold to an Austrian who, according to the Government, turned it back into grazing-land. The Regional Authority had taken the view that it could examine the new contract, provided that its decision was held in abeyance pending the outcome of the Constitutional Court ’ s proceedings.", "19. The Government stated that during the last ten years or so the Regional Authority had not approved any acquisition of real property in Hopfgarten by a foreigner. They supplied a list of thirteen refusals in the period between July 1973 and February 1983; according to the applicant, the list was insufficiently detailed to be conclusive." ]

[ "II. RELEVANT LEGISLATION", "20. Under Article 15 of the Federal Constitution, as interpreted by the Constitutional Court, the regulation of real property transactions is a matter coming within the jurisdiction of the Länder. Most of the Länder have enacted legislation whereby all contracts relating to agricultural or forestry land and also, in some cases, real property transactions with foreigners have to be approved by special authorities.", "21. In the Tyrol (see paragraph 9 above), section 15(1) of the 1970/1973 Act obliges the purchaser to seek such approval within two months of the conclusion of the contract. No entry can be made in the land register until the transaction has been approved by the competent authority (section 1(4)). If approval is withheld, the acquisition is null and void (section 16(1)).", "22. When the contract relates to agricultural or forestry land and irrespective of the purchaser ’ s nationality, the first-instance authority is the Höfekommission (\"Farm Commission\") (section 13(1)(a)). The Farm Commission is established at the seat of the District Administration and has three members: the head of the District Administration, or a legally qualified (rechtskundig) official of that Administration appointed by him, as chairman; a person designated by the chamber of agriculture of the district; and another person, designated by the municipality in question, who is engaged in agriculture or forestry (section 9 of the Tyrolean Farms Act of 12 June 1900; Gesetz betreffend die besonderen Rechtsverhältnisse geschlossener Höfe).", "The decisions of the Farm Commission are taken by majority vote (section 13(2) of the 1970/1973 Act); they are subject to appeal to the Regional Authority (see paragraph 24 below) by, amongst others, the parties to the contract or the Transactions Officer (section 13(3)).", "23. The Transactions Officer, who is appointed for three years by the Government of the Tyrol, must be a person who is experienced in real property transaction matters (section 14).", "His secretariat is provided by a division of the Office of the said Government.", "24. If the case is referred to it, the Regional Real Property Transactions Authority established at the Office of the Land Government takes a decision as the second and final instance (section 13(4)). Its membership varies according to the subject-matter of the contract to be examined. In the case of agricultural or forestry land - whether the buyer be Austrian or foreign - its voting members are (section 13(4), no. 1):", "\"(a) a person experienced in real property transaction matters, who shall act as chairman;", "(b) a member of the judiciary (Richterstand);", "(c) a legally qualified civil servant from the Office of the Regional Government, with training in real property transaction matters, who shall act as rapporteur;", "(d) a senior civil servant from the Agricultural Services Department (technischer Agrardienst) of the Office of the Regional Government;", "(e) a senior civil servant from the Forestry Services Department (forsttechnischer Dienst);", "(f) an agricultural expert;", "(g) a lawyer (Rechtsanwalt or Notar).\"", "25. The above-cited provision, which was introduced by the Act of 28 November 1973 (see paragraph 9 above), replaced a text which the Constitutional Court had held to be incompatible with Article 6 (art. 6) of the Convention, as interpreted by the European Court in its Ringeisen judgment of 16 July 1971 (Series A no. 13). The Constitutional Court had ruled that the Regional Authority, as it was constituted under the original Act of 1970, could not be considered an \"independent and impartial\" tribunal because its members included, as chairman, one of the members of the Government of the Tyrol (section 13(1), no. 1(a), former version). Furthermore, so the Constitutional Court held, the Act did not fix the duration of the members ’ term of office, conferred on the said Government the power of appointing the members (save for a judge, who was appointed by the Federal Minister of Justice) and did not lay down the circumstances in which members might be removed from office (judgment of 29 June 1973, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1973, vol. 38, no. 7099).", "26. Following this judgment, the Tyrolean legislature amended, by the same Act of 28 November 1973, the provisions in section 13 concerning, inter alia, exercise of the office of member of the Regional Authority. Sub-sections 5 to 13 of that section read as follows:", "\"(5) The member of the Regional Real Property Transactions Authority appointed from the judiciary (sub-section 4, no. 1 (b)), shall be appointed by the Federal Minister of Justice and the remaining members, by the Regional Government. For each member a substitute member shall be similarly appointed.", "(6) Only Austrian citizens who have reached the age of 25 years and are in full possession of their legal rights shall be eligible for appointment as members or substitute members. Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible.", "(7) Members and substitute members shall hold office for three years. Members or substitute members who are appointed within the general three-year term of office shall cease to hold office at the end of that term. Re-appointment is possible. Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced.", "(8) The quorum of the Regional Real Property Transactions Authority shall be constituted if the chairman, the member appointed from the judiciary, the rapporteur and at least two other members are present. Decisions shall be taken by majority vote. If the votes are equally divided, the chairman shall have a casting vote. Abstention shall count as a negative vote.", "(9) In the performance of their duties the members of the Regional Real Property Transactions Authority shall not be subject to any instructions; the executive may neither annul nor vary their decisions.", "(10) The details of the Real Property Transactions Authorities ’ procedure (such as the convening of sittings, summoning of substitute members, conduct of voting, keeping of minutes and signing of decisions) shall be laid down by the Regional Government in rules of procedure (Geschäftsordnung) for the said Authorities.", "(11) Unless they are civil servants, members of the Real Property Transactions Authorities shall receive for their work remuneration and a travel allowance, the amount of which shall be laid down in regulations made by the Regional Government.", "(12) A member or substitute member shall be removed from office, before the end of his term of office, if:", "(a) circumstances intervene which would have made him ineligible for appointment;", "(b) the regular performance of his duties becomes per 80", "manently impossible.", "(13) If an official of a \"territorial\" authority (Gebietskörperschaft) is suspended from duty under the regulations governing his employment, he shall cease to exercise his functions as a member or substitute member of a Real Property Transactions Authority for the duration of the suspension.\"", "Sub-section (9), cited above, corresponds to Article 20 para. 2 of the Constitution, which reads:", "\"If a Federal or a Land Act makes provision for the last-instance decision to be given by a collegiate body at least one of whose members is a judge and whose decisions cannot be annulled or varied by the executive, the other members of that body shall also not be subject to any instructions.\"", "Article 20 para. 3 of the Federal Constitution obliges the members of the Regional Authority not to disclose facts which have come to their knowledge in the exercise of their functions, if the interests of a \"territorial\" authority or of the parties so require (Amtsverschwiegenheit).", "27. Procedure before the Real Property Transactions Authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz).", "The parties are entitled to consult the case-file (section 17) and must be given an opportunity of presenting their arguments (section 37). The competent authority may decide to hold a hearing (section 39(2)), which will not take place in public; the parties have the right to be heard (rechtliches Gehör) and, inter alia, to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing, witnesses or experts (section 43(3)).", "In certain circumstances which may give reason to doubt his impartiality, the civil servant concerned must arrange to be replaced (section 7).", "28. By an order (Verordnung) of 13 September 1966, the Government of the Tyrol issued rules of procedure for the Real Property Transactions Authorities.", "Under Article 3 para. 1, the Authorities shall deliberate and vote in the absence of the parties, if appropriate after oral hearings. The deliberations shall be recorded in minutes to which the right to consult the case-file (Akteneinsicht), guaranteed by Article 17 of the General Administrative Procedure Act, does not extend (Article 3 para. 3). The Authorities ’ resolutions (Beschlüsse) must be recorded, but may be altered as long as they remain unpublished (nicht nach aussen in Erscheinung getreten) (Article 3 para. 4). Their decisions (Bescheide), which are to be reached on the basis of those resolutions (Article 4 para. 1), shall be given in writing but may in case of urgency be given orally by the chairman (Article 4 para. 2).", "Before the Regional Real Property Transactions Authority, the rapporteur shall, after setting out and commenting on the results of the investigation (Ermittlungsverfahren), present conclusions (Antrag); those who wish to propose alternative conclusions (Gegen- oder Abänderungsanträge) shall give reasons for them (Article 9 para. 2). The chairman shall decide the order in which voting on the conclusions is to take place (Article 9 para. 3).", "29. Decisions of a Regional Authority may be challenged before the Constitutional Court but not before the Administrative Court (Verwaltungsgerichtshof; Articles 133 para. 4 and 144 of the Federal Constitution).", "PROCEEDINGS BEFORE THE COMMISSION", "30. In her application of 19 September 1979 to the Commission (no. 8790/79), Mrs. Sramek alleged that she had not received a fair and public hearing by an independent and impartial tribunal established by law; she relied on Article 6 para. 1 (art. 6-1) of the Convention.", "31. On 4 March 1982, the Commission declared the application admissible. In its report of 8 December 1982 (Article 31) (art. 31), the Commission expressed the opinion, by eleven votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1).", "The full text of the Commission ’ s opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment .", "FINAL SUBMISSIONS PRESENTED BY THE GOVERNMENT", "32. At the close of the hearings on 24 January 1984, the Government requested the Court \"to hold that in the present case the provisions of paragraph 1 of Article 6 (art. 6-1) of the Convention ... were not violated and that, as a consequence, the facts underlying the dispute do not indicate any breach by the Republic of Austria of its obligations under the Convention\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)", "33. Article 6 para. 1 (art. 6-1) of the Convention reads as follows:", "\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"", "In the submission of the applicant, the Regional Real Property Transactions Authority was not an \"independent and impartial tribunal\"; in addition, it had not afforded her a \"fair\" and \"public\" hearing. The Government disputed all these contentions; the Commission, for its part, upheld them in so far as they related to an absence of independence and impartiality.", "A. Applicability of Article 6 para. 1 ( art. 6-1)", "34. Having purchased a plot of land, Mrs. Sramek was entitled to have the sale contract approved if, as she maintained, it satisfied the statutory conditions. An unfavourable decision in the matter would - and did - mean that the transaction was null and void. Accordingly, the outcome of the proceedings at issue was \"decisive for private rights and obligations\" (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94), with the result that Article 6 para. 1 (art. 6-1) was applicable in the present case; this was, in fact, accepted by the Government.", "35. Mrs. Sramek ’ s case came before three bodies, namely the District Real Property Transactions Authority for Hopfgarten, then the Regional Real Property Transactions Authority and finally the Constitutional Court.", "The Hopfgarten District Authority is not relevant for the present purposes: it had approved the contract and was not the subject of any complaint on the part of the applicant.", "The Constitutional Court was not called upon to determine the actual merits of the dispute (\"contestation\"), but solely to review the Regional Authority ’ s decision for conformity with constitutional law (see, mutatis mutandis, the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48).", "The question which has to be decided, therefore, is whether the requirements of Article 6 para. 1 (art. 6-1) of the Convention were met by the Regional Authority.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "1. \"Tribunal established by law\"", "36. Under Austrian law, the Regional Authority is not classified as one of the courts of the respondent State. For the purposes of Article 6 (art. 6), however, it comes within the concept of a \"tribunal\" in the substantive sense of this expression: its function is to determine matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner (see paragraph 71 of the Commission ’ s report and, mutatis mutandis, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76).", "The Regional Authority is also a tribunal \"established by law\", that is to say, by the 1970/1973 Act.", "2. \"Independent and impartial tribunal\"", "37. In addition to the foregoing, it has to be shown that the Regional Authority exhibits the independence and impartiality which are required by Article 6 para. 1 (art. 6-1).", "In the submission of Mrs. Sramek, this condition was not satisfied on account, inter alia, of the composition of the Authority and the manner of appointment of its members; of the position of the Transactions Officer - representing the Land Government, in their capacity as a party to the case - vis-à-vis the civil-servant members; of the brevity of the members ’ term of office (three years); and of the three-fold fact that the Authority has its headquarters in the Office of the Land Government, that the Land Government lays down the Authority ’ s rules of procedure and that the Land Government remunerates the Authority ’ s members.", "The Government compared the Tyrolean Regional Authority with the Upper Austrian Regional Real Property Transactions Commission. They contended that the independence of the former was even more extensive than that of the latter, a body which had been recognised by the Court to be independent in its above-mentioned Ringeisen judgment (Series A no. 13, p. 39, para. 95). According to the Government, this was shown by the composition of the Authority; by the length of its members ’ term of office; by the fact that they cannot be removed, save for reasons laid down by statute; by the rules expressly forbidding the giving of instructions to the members; and by the absence of any \"functional and organisational link\" between the Transactions Officer and the civil-servant members.", "In the Commission ’ s view, the present case gave rise to more issues of principle than did the Ringeisen case. The Commission considered that certain of the factors relied on by the Government were not without relevance, but nevertheless did not ensure full independence and impartiality of the members of the Regional Authority. In particular, the composition of the Regional Authority and the position of the Transactions Officer vis-à-vis the rapporteur prevented the Regional Authority from being regarded as sufficiently independent of the executive and of the appellant.", "38. In the opinion of the Court, the Tyrolean Act, as modified following a judgment by the Constitutional Court (see paragraphs 25-26 above), satisfies the requirements of Article 6 (art. 6) as regards the length of the term of office of the members of the Regional Authority and the - limited - possibility of removing them. Again, the procedure applicable under the General Administrative Procedure Act 1950 involves the participation of both parties (revêt un caractère contradictoire) (see paragraph 27 above). Although the power of appointing the members - other than the judge - is conferred on the Land Government, this does not suffice, of itself, to give cause to doubt the members ’ independence and impartiality: they are appointed to sit in an individual capacity and the law prohibits their being given instructions by the executive (see paragraph 26 above).", "39. As far as the membership of the \"tribunal\" was concerned, the Regional Authority was composed of a farmer, who was the mayor - elected by universal suffrage - of a municipality in the Tyrol, as chairman; a judge of the Innsbruck Court of Appeal; another farmer, sitting as an agricultural expert; a lawyer; and three civil servants from the Office of the Land Government, one of whom acted as rapporteur (see paragraphs 13 and 24 above).", "40. No question arises as to the independence and impartiality of the judge. The same applies to the agricultural expert. As for the lawyer, the applicant argued that he might on occasion have received instructions from the Land Government if he had been engaged to represent them in legal proceedings. However, even if he had - an eventuality that can in fact be discounted since it does not appear to have materialised in the present case -, his impartiality could not be called in question on that score alone.", "Neither is there any problem as regards the fact that the person who, by reason of his experience in real estate matters, acted as chairman of the Regional Authority happened to be a mayor. It is true that the municipalities in Austria exercise their powers - whether in their own right or under delegation - subject to the supervision of the Land or the Federation (see Articles 119 and 119 (a) of the Constitution and paragraph 77 in fine of the Commission ’ s report); however, it cannot be concluded from this that their mayors do not act independently in matters which - like those involved here - fall outside the ambit of those powers.", "41. There remain the three civil servants from the Office of the Land Government who, in accordance with the 1970/1973 Act (see paragraph 24 above), were, and had to be, included amongst the members of the Regional Authority.", "In considering their position, it has to be recalled that it was held in the above-mentioned Ringeisen judgment that the presence of civil servants on the Upper Austrian Regional Commission was compatible with the Convention (Series A no. 13, pp. 39-40, paras. 95-97). Furthermore, in proceedings of the kind at issue the Government of the Tyrol are prevented by law from giving their civil servants instructions on carrying out their judicial functions.", "However, the present case is distinguishable from the Ringeisen case in that the Land Government, represented by the Transactions Officer, acquired the status of a party when they appealed to the Regional Authority against the first-instance decision in Mrs. Sramek ’ s favour, and in that one of the three civil servants in question had the Transactions Officer as his hierarchical superior (see paragraph 12 above). That civil servant occupied a key position within the Authority: as rapporteur, he had to set out and comment on the results of the investigation and then to present conclusions; the secretariat was provided by his department, namely division III b. 3 (see paragraphs 13 in fine, 14 and 28 in fine above).", "As was pointed out by the Government, the Transactions Officer could not take advantage of his hierarchical position to give to the rapporteur instructions to be followed in the handling of cases (see paragraph 26 above), and there is nothing to indicate that he did so on the present occasion.", "42. Nonetheless, the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis-à-vis the Transactions Officer might have had as a matter of fact. In order to determine whether a tribunal can be considered to be independent as required by Article 6 (art. 6), appearances may also be of importance (see, mutatis mutandis, the above-mentioned Campbell and Fell judgment, Series A no. 80, pp. 39-40, para. 78, and the Piersack judgment of 1 October 1982, Series A no. 53, pp. 14-15, para. 30).", "Where, as in the present case, a tribunal ’ s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person ’ s independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30).", "There was accordingly a violation of Article 6 para. 1 (art. 6-1).", "3. Fair and public trial", "43. The applicant further contended that she did not receive a fair hearing and objected to the fact that the proceedings were not conducted in public.", "The conclusion in the preceding paragraph renders it unnecessary for the Court to rule on these complaints (see paragraph 83 of the Commission ’ s report and, mutatis mutandis, the above-mentioned Piersack judgment, p. 16, para. 33).", "II. APPLICATION OF ARTICLE 50 (art. 51)", "44. Under Article 50 (art. 50) of the Convention,", "\"if the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party\".", "45. The applicant claimed, for pecuniary loss, compensation which she quantified provisionally at 1,000,000 schillings. She alleged that she would have to pay 1,200,000 schillings to buy a similar plot of land today, as compared with 120,000 schillings at the time in question, and that, taking into account the interest which she could have earned on the latter sum in the meantime, she had suffered a loss of one million schillings. Moreover, she added, the construction of the residence which she had had in mind would now cost her 490,000 schillings more than formerly and her inability to implement this project had caused her a loss of income of at least 500,000 schillings. However, she made no immediate claim for the last two amounts.", "Mrs. Sramek also sought reimbursement of 100,000 schillings for legal costs before the Austrian authorities - notably the Real Property Transactions Authorities of the Tyrol, the Ministry of Foreign Affairs and the Constitutional Court - and the Strasbourg institutions; according to her, she had actually spent more than this.", "The Government submitted, in essence, that the applicant had not suffered any pecuniary loss; they did not comment on the claim for legal costs. The Commission, for its part, expressed no opinion on any of the claims.", "46. The Court considers that the question is ready for decision (Rule 53 para. 1, first sentence, of the Rules of Court).", "As far as material damage is concerned, Mrs. Sramek ’ s claims proceed solely from the assumption that if the Regional Authority had constituted an \"independent and impartial tribunal\" within the meaning of Article 6 para. 1 (art. 6-1), it would have approved the contract of sale. However, the evidence in the file does not warrant the conclusion that had it been differently composed the Regional Authority would have arrived at a decision in Mrs. Sramek ’ s favour and it is not for the Court to inquire whether, under Austrian law, the Regional Authority ought to have given such a decision. The applicant ’ s allegations as to pecuniary loss cannot therefore be upheld.", "On the other hand, the Court allows the claims for legal costs, which were not contested by the Government: it sees no reason to doubt that they satisfy the criteria which emerge from its case-law on the subject (see, amongst other authorities, mutatis mutandis, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, pp. 14-15, paras. 36 and 38)." ]

[ "I. PARTICULAR FACTS OF THE CASE", "A. General background and the incident on 16 September 1976", "8. The first applicant, Mr. John Joseph Campbell, is a United Kingdom citizen, born in Northern Ireland in 1944 and resident in England since 1965.", "In November 1973, he was convicted of various offences, including conspiracy to rob and possession of a firearm with intent to commit robbery, and sentenced to ten years ’ imprisonment. He was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison, Isle of Wight. He is now at liberty.", "9. The second applicant, Father Patrick Fell, is a United Kingdom citizen, born in England in 1940. He is a Roman Catholic priest.", "In November 1973, after being convicted of conspiracy to commit arson, conspiracy to commit malicious damage, and taking part in the control and management of an organisation using violent means to obtain a political end, he was sentenced to twelve years ’ imprisonment. He too was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison. He is now at liberty.", "10. At all relevant times, both applicants were classified as \"category A\" prisoners (see paragraph 44 (a) below). The offences of which they were convicted were believed by the authorities to form part of, or to be connected with, Irish Republican Army terrorist activities. According to the Commission ’ s report, both applicants have consistently denied that they were members of that organisation.", "11. On 16 September 1976, an incident occurred in Albany Prison. Before the Commission, there was considerable dispute between the Government and the applicants as to precisely what took place, notably as to the weapons and amount of violence used, but the following summary suffices for the present purposes.", "Mr. Campbell, Father Fell and four other prisoners engaged in a protest at the treatment of another prisoner, by sitting down in a corridor of the prison and refusing to move. They were removed by prison officers after a struggle and in the process injuries were sustained by certain members of staff and by both applicants. Mr. Campbell, who had been more seriously injured, was transferred to Parkhurst Prison hospital for treatment and returned to Albany Prison on 3O September 1976.", "B. The disciplinary proceedings against Mr. Campbell", "12. The six prisoners involved in the above-mentioned incident were all charged with, and found guilty by the Prison Board of Visitors of, disciplinary offences against the Prison Rules 1964, as amended (\"the Rules\"; see paragraphs 26-33 below). The Board heard the cases on 24 September 1976, except that of Mr. Campbell who was then still at Parkhurst.", "13. On 1 October 1976, immediately after his return to Albany Prison, Mr. Campbell was informed that he was charged with the disciplinary offences of mutiny or incitement to mutiny and doing gross personal violence to an officer, contrary to Rules 47 (1) and (2) (see paragraph 27 below). The first charge concerned his participation with the other prisoners in the incident; the basis of the second charge was an allegation that, on that occasion, he had struck an officer with a broomhandle.", "A preliminary hearing before the Prison Governor (see paragraph 31 below) took place on 1 October, when the charges were referred to the Prison Board of Visitors. The latter heard the case, in private, on 6 October. The applicant had received, before both hearings, \"notices of report\" and, before the Board ’ s hearing, a copy of a form outlining its procedure (see paragraph 36 below). The \"notices of report\" in connection with the Board ’ s proceedings were issued at 8 a.m. on 5 October. One notice began as follows:", "\"A report has been made against you by [a prison officer] that at about 19.30 on 16 September 1976 at ‘ D ’ hall you committed an offence under paragraph 1 of Rule 47, i.e. mutiny.\"", "The other notice began:", "\"A report has been made against you by [a prison officer] that at about 22.05 on 16 September 1976 at ‘ D ’ hall you committed an offence under paragraph 2 of Rule 47, i.e. did strike an officer with a broomhandle.\"", "Both notices concluded as follows:", "\"Your case will be dealt with at adjudication tomorrow, when you will be given every opportunity to make your defence.", "If you wish to reply to the charge in writing you may do so on the back of this form.\"", "Mr. Campbell attended neither hearing. It is recorded that he declared prior to the Governor ’ s hearing that he would be prepared to attend only if he were legally represented. His request for legal representation before the Board was also refused, in accordance with the standard practice at the time (see paragraph 36 below). Before the Board met, he had been visited by its chairman and warned that it would proceed in his absence; the records state that he understood this warning and the charges against him. It appears that he did not expressly seek either an adjournment of the Board ’ s hearing or a consultation with a solicitor beforehand; under the then practice, a request of the latter kind would also have been unsuccessful (ibid.).", "Before the Commission and the Court, Mr. Campbell gave additional reasons for his non-attendance: firstly, having learned of the outcome of the Board ’ s hearing on 24 September and having previous experience of such proceedings himself, he did not believe that he would receive a fair hearing and considered that his presence would be otiose; secondly, he was feeling very ill as a result of his injuries and, on 6 October, he was \"in the punishment cell; lying on the floor; unable to walk; not being fed and in considerable pain\". As regards the latter allegations, which were disputed by the Government, the applicant had been certified by the medical officer, before both hearings, to be fit for punishment. The Commission concluded that it was not established that Mr. Campbell was prevented from attending rather than that he had decided, for his own reasons, not to attend; it proceeded on the assumption that his absence from the Board ’ s hearing was a matter within his own responsibility.", "14. Before the Board of Visitors, a plea of not guilty on each charge was entered on behalf of the applicant, who did not submit any written defence. According to the record of the proceedings - which apparently in neither case lasted longer than fifteen minutes -, one prison officer gave evidence on the mutiny charge, reading a statement describing the part allegedly played by Mr. Campbell and the other prisoners in the incident, and another gave evidence on the personal violence charge, to the effect that he had been struck by Mr. Campbell. The evidence of the first witness was accepted by the Board and its chairman put certain questions to the second.", "On 6 October 1976, the applicant was found guilty on both charges and was awarded, for the mutiny and the violence offences respectively, 450 days ’ and 120 days ’ loss of remission, together, again respectively, with 56 days ’ and 35 days ’ loss of certain privileges, exclusion from associated work, stoppage of earnings and cellular confinement, the sanctions for the two offences to run consecutively (see paragraphs 28 and 29 below). On his reception into prison, Mr. Campbell had been given an estimated date for release (see paragraph 29 below) of May 1980; at the time of the Board ’ s award, he had already forfeited 145 days of remission in ten separate adjudications for offences against discipline and the balance of potential remission available to him totalled 1,072 days.", "15. Observations filed with the Commission on behalf of Mr. Campbell on 1 September 1977 and on 17 April 1979 indicated, respectively, that he was contemplating making and had made an application to the English courts, by way of certiorari proceedings (see paragraphs 39-41 below), for review of the October 1976 adjudication by the Board of Visitors in his case.", "A memorandum filed on 23 July 1980 revealed, however, that on counsel ’ s advice, given in November 1979 and June 1980, both Mr. Campbell and Father Fell had decided not to make such an application; counsel considered, as regards the former, that proceedings would be destined to fail on the ground that he had \"refused\" to participate in the adjudication. At the hearings of 20 September 1983 before the Court, the Government indicated that, even in 1980, the Home Office would probably not have opposed a request by Mr. Campbell for leave to apply for certiorari out of time (see paragraph 41 below), but would do so now. He has, in fact, never pursued the matter.", "The question was subsequently reconsidered in the case of Father Fell who had previously been advised, in November 1979, that an application might be feasible. In February 1981, senior counsel advised him to seek certiorari immediately on the ground of \"substantial unfairness\" in the Board ’ s hearing of 24 September 1976 in his case, which he had attended. Later in the year, he obtained the necessary leave from the court, but his application failed, both at first instance and on appeal.", "16. Whilst in custody Mr. Campbell was the subject of fifteen adjudications for disciplinary offences, as a result of which he lost 957 days of remission (including the 570 forfeited as a result of the Board ’ s award of 6 October 1976 ). Following applications by him pursuant to the procedure described in paragraph 38 below, 236 days of remission were restored to him. He was released from prison on 31 March 1982, having served approximately eight years and eight months of his ten years ’ sentence, including time spent in custody on remand.", "C. The applicants ’ access to legal advice in connection with their personal-injuries claim", "17. Father Fell petitioned the Home Secretary on or about 21 September 1976 in the following terms: \"During the course of [an incident at Albany Prison on 16 September], I sustained a number of physical injuries. My request to yourself is that I be permitted to see and to consult with my lawyer, pending further action that I may deem necessary to take.\" About a week later, in a supplementary petition, the applicant stated that he wanted to see his solicitor regarding compensation for his injuries and any civil proceedings he might be advised to take.", "The Home Secretary replied on 1 October. He informed Father Fell that, in accordance with the \"prior ventilation rule\" (see paragraph 44 (c) below), he would be able to seek legal advice on the substance of his complaints once they had been investigated through the normal internal channels and he had been given the result of the investigation.", "18. Father Fell petitioned again on 4 October 1976. He gave details of his allegations concerning the incident of 16 September and its aftermath and asked for a thorough investigation; he added further information concerning his injuries in a supplementary petition of 27 October.", "In his reply of 9 February 1977, the Home Secretary indicated that he was satisfied, after investigation, that there was no substance in the applicant ’ s allegations of assault and of inadequate or unnecessarily delayed medical treatment; he informed the applicant that he would be granted facilities to seek legal advice on the matters referred to in his petition, if he still wished to do so.", "19. In a petition of 28 November 1976 to the Home Secretary, Mr. Campbell stated, but without indicating the reasons, \"I want to see my lawyer\". On 8 December, the request was refused, on the ground that he had not supplied sufficient details for a proper internal inquiry to commence. On 3 March 1977, the same ground was given for refusing a further petition, dated 28 December 1976, in the following terms: \"As a result of injuries received at the hands of prison staff at Albany Prison I intend to take legal action and therefore need to see my solicitor. The incident happened in mid-September and I have petitioned about it once before.\"", "20. At this time, there was also a certain amount of correspondence with Messrs. Woodford & Ackroyd, the solicitors then acting for both applicants. After a letter of 17 January 1977 from Mr. Campbell to them had been posted through the normal prison channels, they wrote to the Home Office on 28 January stating that they had been instructed to represent him in civil proceedings and seeking authority to approach the Prison Governor to discuss their client ’ s allegations. However, a letter of 24 January from them to Mr. Campbell, referring, it seems, to legal aid, was stopped.", "Instructions from the prisoners involved in the September 1976 incident also apparently reached the solicitors by other means. On 10 February 1977, they wrote to the Albany Prison Governor stating that both of the applicants and four other prisoners wished to see them \"concerning certain matters of a legal nature\" and requesting confirmation that this could be done in private. On 14 February - that is five days after the Home Secretary had told Father Fell that he could consult a lawyer (see paragraph 18 above) -, the Governor replied that appointments to see, inter alios, that applicant could be made, but that according to prison rules Mr. Campbell was not yet in a position to seek legal advice, since the Prison Department ’ s examination of his complaints had not yet been completed.", "In a reply of 3 March to the solicitors ’ above-mentioned letter of 28 January, the Home Office stated that Mr. Campbell ’ s letter of 17 January to them had been posted in error and that he could not correspond with or receive visits from them until the \"prior ventilation rule\" (see paragraph 44 (c) below) had been complied with as regards any complaint he might wish to make.", "On 23 March, Messrs. Woodford & Ackroyd were given permission to consult with Mr. Campbell in connection with his application to the Commission (see paragraph 44 (e) below). His account of the September 1976 incident, contained in a memorandum of 1 September 1977 to the Commission, was subsequently accepted by the authorities as a sufficient basis for an internal inquiry into his complaints to be commenced. The inquiry - in which the applicant had not co-operated - was completed on 29 November and, on or about 16 December 1977, he was told that he could take legal advice concerning the complaints that had been investigated.", "21. Both applicants subsequently obtained various legal advice and, by writs issued on 13 September 1979, instituted proceedings, alleging assault, against individual prison officers, the Deputy Governor and the Home Office. These actions, in which statements of claim were served some fifteen months later, were still pending at the time of the hearings before the Court (September 1983).", "D. Conditions for visits to Father Fell by his solicitors", "22. In a reply of 23 March 1977 to a letter of 21 March from Messrs. Woodford & Ackroyd - who had already raised the matter in their letter of 10 February (see paragraph 20 above) -, the Albany Prison Governor stated that at that stage a visit by them to Father Fell would be subject to Rule 37 (2) (see paragraph 44 (d) below) and would therefore have to take place within sight and hearing of an officer. They replied that they were unable to accept these conditions and intended to refer the matter to \"the European Court of Human Rights\".", "On 11 May, the solicitors informed the Governor of the introduction, on 31 March, of Father Fell ’ s application to the Commission; on the following day, the Governor informed them that they could interview their client in connection with that application in sight but out of hearing of an officer (see paragraph 44 (e) below).", "E. The applicants ’ access to medical advice", "23. On or about 23 September 1976, Father Fell asked, in a petition to the Home Secretary, for the opportunity for an independent medical consultation. On 5 October, the Home Office stated that the Secretary of State was not prepared to grant this request.", "24. After Mr. Campbell ’ s return from Parkhurst to Albany Prison, a request was made by him or his family, apparently on about 18 October 1976, for him to be examined by an independent doctor. According to the Government, he was advised to pursue the matter by way of petition to the Home Secretary, but did not do so. According to the applicant, the request was categorically refused.", "F. Restrictions on Father Fell ’ s personal correspondence", "25. In October 1974, when in Hull Prison, Father Fell was informed, in reply to his petition of the previous July, that the Home Secretary was not prepared to allow him to correspond with a Sister Monica Power, on the ground that although she had been known to him before he came into custody, their relationship was not considered to amount to a \"close personal friendship\". In a letter of 17 December to a Member of Parliament, the Home Secretary maintained this decision, which he explained by reference to the practice concerning the permitted correspondents of \"category A\" prisoners (see paragraph 44 (a) below): there was no evidence of a friendship as aforesaid between the applicant and Sister Power, although he had known her for longer than some of his approved correspondents.", "Father Fell also alleged that he had not been allowed to correspond with other friends, including another nun, Sister Mary Benedict. According to the Government, he corresponded with 200 persons prior to his conviction, whilst detained on remand, and was allowed to correspond with 40 persons thereafter." ]

[ "II. DOMESTIC LAW AND PRACTICE", "A. Prison discipline", "1. Disciplinary offences and sanctions", "26. The control over and responsibility for prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47 (1) of that Act to make rules \"for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein\". Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves.", "The rules made by the Home Secretary and currently in force are the Prison Rules 1964, as amended.", "27. Rule 47 creates a total of twenty-one disciplinary offences of varying degrees of seriousness. So far as relevant to the present case, it provides that \"A prisoner shall be guilty of an offence against discipline if he", "(1) mutinies or incites another prisoner to mutiny;", "(2) does gross personal violence to an officer\".", "These acts are classified as \"especially grave offences\".", "28. The Rules list the \"awards\" which may be made for an offence against discipline; they range from a caution upwards and include:", "(a) forfeiture of certain privileges;", "(b) exclusion from associated work;", "(c) stoppage of earnings;", "(d) cellular confinement;", "(e) forfeiture of remission of sentence.", "In the case of an \"especially grave offence\", the sanctions mentioned at (b), (c) and (d) above may not be imposed for a period exceeding 56 days but there is no limit as regards those mentioned at (a) and (e) (Rules 51 and 52).", "Where more than one offence has been committed, the respective awards may be ordered to run consecutively, although there is no provision in the Rules on this point.", "29. Section 25 (1) of the Prison Act 1952 provides:", "\"Rules made under section 47 of this Act may make provision whereby, in such circumstances as may be prescribed by the rules, a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct, and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire.\"", "Under Rule 5 (made pursuant to this section), a prisoner serving a sentence of imprisonment other than for life \"may ... be granted remission\" not exceeding one-third of his sentence. This therefore represents the maximum period that may be forfeited under a disciplinary award.", "Under both the Prison Act and the Rules, remission - which is seen by the authorities as part of the process for encouraging the reform of prisoners - is a discretionary measure. In practice, at the outset of his sentence every prisoner is given an estimated date for release, calculated by reference to the maximum possible remission, and he will be released on that date unless remission has been forfeited in disciplinary proceedings. Forfeiture of remission - which is not awarded solely for the most serious offences - does not have the effect of increasing the original sentence and it is the latter which continues to provide the legal basis for the detention.", "2. Disciplinary proceedings", "(a) Institution of proceedings", "3O. Conduct constituting a disciplinary offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to an officer corresponds to the crime of assault occasioning actual bodily harm. Mutiny and incitement to mutiny, on the other hand, are not as such offences under the general criminal law, although the underlying facts might found a charge of, for instance, conspiracy.", "According to the Government, where the conduct amounts to both a disciplinary and a criminal offence, the Prison Department of the Home Office decides on an ad hoc basis whether the matter should be referred to the police with a view to prosecution in the courts. Conduct so referred, they said, generally involved substantial violence; other relevant factors might be the prevalence of the conduct in question within the prison, the feelings of staff and inmates, the prisoner ’ s record and behaviour, the amount of any remission he might previously have lost and of his sentence remaining to be served, and the cost, inconvenience and security risks involved in a criminal trial.", "According to the applicants, however, an individual prison officer may himself report the matter to the police, and the Government recognised that, in any case where the police themselves decided not to prosecute, a private prosecution remained a possibility. Moreover, the same facts may, theoretically at least, give rise to both criminal and disciplinary proceedings (see R. v. Hogan [1960] 3 All England Law Reports 149).", "31. Where a prisoner is to be charged with an offence against discipline, the charge must be laid as soon as possible and must, in the first instance, be inquired into by the prison governor, generally not later than the day following the laying of the charge (Rule 48). The prisoner must be informed of the charge as soon as possible and, in any event, before the governor ’ s inquiry (Rule 49).", "Certain less serious matters are dealt with by the governor alone. In the case, however, of a charge of an \"especially grave offence\", he has to inform the Home Secretary forthwith and, unless otherwise directed by him, refer the charge to the prison ’ s Board of Visitors (Rule 52).", "(b) The Board of Visitors", "32. A Board of Visitors is a body that has to be appointed, by the Home Secretary, for each prison in England and Wales; its members, at least two of whom must be justices of the peace - who are not necessarily lawyers -, hold office for three years or such less period as the Home Secretary may appoint (section 6 of the Prison Act 1952, as amended by the Courts Act 1971, and Rule 92). They may be re-appointed.", "There are l15 Boards in all and each has between 8 and 24 members, who are unpaid but are reimbursed their expenses. Anyone may seek appointment but in practice most candidates are persons suggested by existing members. The main principles adopted in making appointments are to achieve a roughly equal number of magistrates and non-magistrates; to provide members having the requisite personal qualities, interest and time; and to ensure that membership contains a good cross-section of the population. A Board is normally appointed for a three-year term; there is no express statutory provision enabling the Home Secretary to dismiss a member and resignation before expiry of a term of office would, according to the Government, be required only in the most exceptional circumstances.", "33. A Board ’ s duties include, in addition to inquiring into charges of disciplinary offences, satisfying itself as to the state of the premises, the administration of the prison and the treatment of inmates, hearing a prisoner ’ s complaints or requests, directing the governor ’ s attention to matters calling for his attention and making reports to the Home Secretary (Rules 94, 95 and 97). In case of urgent necessity, it has power to suspend any prison officer until the decision of the Home Secretary is known (Rule 94 (4)). Its members are required to visit the prison frequently, have a right of access to every part of the prison and to prison records and may interview any prisoner out of the sight and hearing of officers (Rule 96). A Board ’ s adjudicatory functions generally account for a small proportion of its overall duties and, of the small percentage of prison disciplinary proceedings which are conducted before Boards, few concern \"especially grave offences\".", "The various functions of Boards of Visitors were examined by an independent committee set up by \"Justice\", the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders. In its report of 1975 (\"the Jellicoe report\"), this committee noted that \"Boards take their duties of adjudication very seriously\", but that \"in spite of the efforts made to do justice it is doubtful whether it is seen to be done\". It concluded that to be involved in the adjudication of serious offences was incompatible with the supervisory body ’ s need to establish conspicuous independence and therefore recommended that \"the body responsible for supervision should not have a disciplinary function\". Nevertheless, \"after careful consideration\", the Home Secretary decided in 1976 that \"the independence of Boards of Visitors was compatible with their other functions\".", "The status of Boards was also considered in the St. Germain case (see paragraph 39 below). In the Court of Appeal, Lord Justice Waller stated that \"Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and, when sitting [in an adjudicatory capacity], can be regarded as ‘ an impartial and independent authority ’ \"; for Lord Justice Megaw, a Board ’ s adjudicatory function \"was properly regarded as a separate and independent function, different in character from [its] other functions\".", "(c) Procedure before the Board of Visitors", "34. When a charge of an \"especially grave offence\" is referred to a Board, its chairman must summon a special meeting at which not more than five nor fewer than three members - at least two being justices of the peace - must be present (Rule 52). If, after inquiring into the charge, the Board finds the offence proved, it has to make one of the awards mentioned in paragraph 28 above, although the implementation thereof may be suspended.", "35. Neither the Prison Act 1952 nor the Rules lay down a detailed code of procedure for disciplinary proceedings before Boards of Visitors. However, Rule 49 (2) - a similar provision appears in section 47 (2) of the Act - reads as follows: \"At any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case.\"", "The procedure used to be arranged as a matter of practice. Since 1977 Boards have been issued by the Prison Department of the Home Office with a booklet entitled \"Procedure for the Conduct of an Adjudication by a Board of Visitors\".", "36. Proceedings before the Board are initiated by means of a report by a prison officer to the governor containing details of the alleged offence. The prisoner will receive a \"notice of report\", stating the alleged offence and the time, date and place thereof, and may reply to the charge in writing. He will also be given a form, which has no statutory force, outlining the procedure which will be followed when he appears before the Board: he will be asked to plead to the charge and may question witnesses in support of the charge, request that witnesses on his behalf be heard and himself give evidence or make his defence. The hearing takes place in private within the prison and the Board ’ s decision is pronounced under the same conditions.", "The Rules themselves contain no specific provision as regards legal advice about, or legal representation at, an adjudication before a Board. Under the practice followed prior to 1981, a prisoner would not have been granted leave to seek legal advice before the hearing. Furthermore, the Court of Appeal held in Fraser v. Mudge ([1975] 3 All England Law Reports 78) that although a Board had to observe the requirements of natural justice and act fairly in disciplinary proceedings, a prisoner was not entitled to legal representation thereat. However, in its judgment of 8 November 1983 in R. v. Albany Prison Board of Visitors, ex parte Tarrant ([1984] 1 All England Law Reports 799), the Divisional Court held that although there is no absolute entitlement to such representation, a Board does have a discretion to allow it. Furthermore, the prisoner has a right to require that that discretion be exercised and that his request for representation be properly considered on its merits; if the Board fails to exercise its discretion properly, its decision must be quashed. Mr. Justice Webster added that in most, if not all, cases involving a charge of mutiny no Board of Visitors, properly directing itself, could reasonably decide not to allow legal representation.", "37. In 1978, in the St. Germain case (see paragraph 39 below), the Court of Appeal had to consider, for reasons of jurisdiction, whether disciplinary proceedings before a Board of Visitors were a \"criminal cause or matter\", within the meaning of the relevant legislation. It answered this question in the negative.", "Lord Justice Waller based his decision on the fact that the charges heard by the Board were not \"criminal\", that is charges \"of an offence against public law\", and that the Board was not a court of criminal jurisdiction.", "Lord Justice Shaw considered that the Board ’ s proceedings possessed some of the attributes of a criminal cause or matter (for example, accusation, inquiry, adjudication and possible punitive consequences) but lacked the essential characteristic, namely a penal proceeding for the infraction of a requirement relating to the enforcement and preservation of public law and order. In determining the nature of proceedings, account also had to be taken of their context and overall objective. Although an offence under the Rules might coincide with a crime under the general law and lead to a measure corresponding to a penalty or punishment, this did not transform the Board ’ s adjudication into a criminal cause or matter. It was essentially a domestic disciplinary proceeding, which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of a prison. It would also be illogical and anomalous to regard as a criminal cause or matter proceedings arising from an offence under the Rules which did not amount to a criminal offence under the general law.", "However, in R v. Highpoint Prison Board of Visitors, ex parte McConkey, Mr. Justice McCullough, in his judgment of 2O September 1982 (Times Law Reports, 23 September 1982), referred to the \"close similarity\" between an accusation of breach of the Rules and an accusation of a criminal offence: each was followed by an adjudication and might lead to consequences of a punitive character, for example, in the former case, forfeiture of remission. Although prison disciplinary offences were offences against a private code, they were also \"penal\"; in principle, the relevant Rules should be construed no more harshly against a prisoner than would be appropriate were the offences criminal. Again, in the Tarrant case (see paragraph 36 in fine above) it was conceded on behalf of the Board of Visitors that the standard of proof to be applied in disciplinary adjudications was a criminal one.", "3. Subsequent review of Board of Visitors ’ disciplinary proceedings", "(a) Internal channels", "38. Under Rule 56, disciplinary awards made by a Board of Visitors may be remitted or mitigated by the Home Secretary or, subject to his directions, by the Board itself. Procedures and criteria for the restoration of forfeited remission of sentence are laid down in Circular Instruction 58/1976 issued by the Minister: basically, the prisoner must show a significant improvement indicative of a genuine change of attitude, and the power to restore is not to be used merely to modify an award which is subsequently thought excessive or open to doubt.", "Applications for remission or mitigation of awards are normally made in the first instance to the Board itself. Its decision may be the subject of a petition by the prisoner to the Home Secretary. Under Rule 7, every prisoner has to be provided on or shortly after his reception into prison with information in writing about, inter alia, the proper method of making petitions.", "In the St. Germain case (see paragraph 39 below), the members of the Court of Appeal expressed the view that a petition under Rule 56 was not to be regarded as a formal appeal; it was noted, amongst other things, that the Home Secretary was not empowered to quash the Board ’ s finding of guilt.", "(b) Application to the domestic courts", "39. (a) The question whether the English courts have jurisdiction to review disciplinary proceedings before Boards of Visitors was considered in R. v. Hull Prison Board of Visitors, ex parte St. Germain and others. In that case, application was made for orders of certiorari to quash, on the ground of failure to observe the rules of natural justice, certain decisions imposing disciplinary awards, taken by a Board in 1976.", "(b) In a judgment of 6 December 1977 ([1978] 2 All England Law Reports 198), the Divisional Court held that although a Board was in the nature of a judicial body under a duty to act judicially, it was not subject to control by way of certiorari, a remedy which did not extend to private disciplinary proceedings in a closed body enjoying its own form of discipline and rules. It was stressed that a Board had an \"intimate relationship\" with the prison and, when adjudicating, was part of the latter ’ s disciplinary machinery.", "(c) Notice of appeal against this decision was served on 20 December 1977. The Court of Appeal allowed the appeal in its judgment of 3 October 1978 ([1979] 1 All England Law Reports 701). It held that there was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character. There was no binding authority as to whether certiorari would lie against disciplinary decisions of a Board of Visitors and the question had to be decided in the light of public policy. A Board ’ s disciplinary functions were separate and independent from its other functions. When hearing disciplinary charges it was not imposing summary discipline as part of the day to day administration of the prison but was instead an independent body which could only punish a prisoner after a formalised inquiry and/or hearing. In doing so it was exercising a judicial function and its decisions were therefore subject to control by the courts by certiorari in appropriate cases. However, the remedy was discretionary and relief would be granted only where there had been a failure to act fairly, having regard to all the circumstances and such unfairness had given rise to a substantial, as distinct from a trivial or merely technical, injustice.", "4O. The case was then remitted to the Divisional Court which, by judgment of 15 June 1979 ([1979] 3 All England Law Reports 545), quashed certain of the decisions taken by the Hull Prison Board of Visitors. The Divisional Court observed that section 47 (2) of the Prison Act 1952 and Rule 49 (2) (see paragraph 35 above) were declaratory of the basic rule of natural justice that every party to a controversy had a right to a fair hearing; although, on the facts, this rule had not been observed as regards the quashed decisions, there was nothing in the Board ’ s procedure in general to which any objection could properly be taken.", "The Divisional Court pointed out that the right to a fair hearing before a Board of Visitors included the right to call evidence; the chairman ’ s power to refuse to allow a prisoner to call witnesses had to be exercised reasonably, in good faith and on proper grounds (which would not include mere administrative convenience). Further, the prisoner must also have a sufficient opportunity to deal with the evidence given against him, which might necessitate giving him the opportunity to cross-examine witnesses whose evidence was initially before the Board in hearsay form.", "41. Applications for certiorari must in principle be made within a prescribed time-limit running from the date of the decision challenged: in 1976, the time-limit was six months; since 11 January 1978, it has been three months. Leave may be granted to apply out of time; this is a matter for the court ’ s discretion but experience shows that if a late application is not opposed by the Home Office, leave will not be refused.", "Where decisions taken by a Board of Visitors in disciplinary proceedings are quashed by a court, the charges in question may subsequently be the subject of a fresh adjudication by a differently constituted Board.", "B. Prisoners ’ correspondence and visits", "42. The question of prisoners ’ correspondence and visits is dealt with in a number of the Rules.", "With a view to securing uniformity of practice throughout prison establishments, the Home Secretary also issues to prison governors management guides or directives in the form of Standing Orders (\"Orders\") and Circular Instructions (\"Instructions\"). Unless otherwise authorised, governors are required to comply with these directives, but they do not have, or purport to have, the force of law. As far as correspondence and visits are concerned, the directives are intended to serve a dual function: on the one hand, to circumscribe the discretion conferred on governors by the Rules, and, on the other, to state the manner in which the Home Secretary has decided in certain respects to exercise his own discretionary powers thereunder.", "Prior to 1 December 1981, the directives in question were made available to Members of both Houses of Parliament for reference but not to the public or prisoners, although the latter received, by means of cell cards, information about certain aspects of the control of correspondence and visits.", "1. Position at the time of the events giving rise to the present case", "43. The basic Rules on correspondence and visits, which were in force at the time of the events giving rise to the present case, included the following:", "\"33(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.", "(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.", "(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.", "(4) Every visit to a prisoner shall take place within the sight of an officer, unless the Secretary of State otherwise directs.", "(5) Except as provided by these Rules, every visit to a prisoner shall take place within the hearing of an officer, unless the Secretary of State otherwise directs.", "(6) The Secretary of State may give directions, generally or in relation to any visit or class of visits, concerning the days and times when prisoners may be visited.\"", "\"34 (8) A prisoner shall not be entitled under [Rule 34]\" - which regulates the quantity of correspondence and visits - \"to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State.\"", "44. The foregoing Rules were supplemented or modified, either by Orders or Instructions or by further Rules, in a number of respects, including the following.", "(a) Under Rule 34 (8), as supplemented by Order 5A 23, prisoners had to seek the Home Secretary ’ s leave to correspond with or be visited by any person other than a close relation; they were, however, also normally allowed, without the necessity to seek such leave, to correspond with or be visited by other relatives or existing friends, but the governor could forbid such correspondence or visits on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. Governors had a discretion to allow communications with certain other persons not personally known to the prisoner before he came into custody. However, it would have been unlikely that such discretion would have been exercised in favour of \"category A\" prisoners, such as Mr. Campbell and Father Fell; this is the security category reserved for persons who, if they escaped, would be highly dangerous to the public or the police or to the security of the State.", "(b) With effect from 1 January 1973, the extent of the control of correspondence relating to civil or criminal proceedings to which the prisoner is already a party was limited by Rule 37A (1), which reads:", "\"A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33 (3) of these Rules.\"", "(c) Until 6 August 1975, inmates had to petition the Home Secretary for permission to seek advice about, or give instructions for, the institution of civil proceedings (with the exception of certain divorce cases). On that date, Instruction 45/1975 introduced changes that were subsequently reflected in Rule 37A (4), which came into operation on 26 April 1976 and reads:", "\"Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings.\"", "Instruction 45/1975 - and subsequently Order 17A - further provided, inter alia, that:", "(i) the inmate had to have sought a solicitor ’ s advice before he would be permitted to institute proceedings;", "(ii) at each stage a written application, with reasons, had first to be made to the prison governor for the necessary facilities, which could take the form of a letter or a visit; they had to be granted immediately, except that, in the case of prospective civil proceedings against the Home Office (or any servant thereof) \"arising out of or in connexion with\" the imprisonment, the \"prior ventilation rule\" generally applied.", "The effect of the last-mentioned rule was that the prisoner would not be granted facilities to obtain legal advice, by correspondence or at a visit, about such proceedings unless and until he had raised his complaint through the normal internal channels (petition to the Home Secretary, or application to the Board of Visitors, a visiting officer of the Home Secretary or the prison governor) and been given a definitive reply, whether favourable or not.", "(d) Visits by legal advisers were subject to the following special Rule:", "\"37 (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.", "(2) A prisoner ’ s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer.\"", "Disciplinary proceedings before a Board of Visitors were not considered by the authorities to be \"legal proceedings\" for the purposes of the Rules, notably Rule 37 (1) and Rule 37(A) 1.", "(e) There were special, less strict, provisions concerning applications to the Commission (Order 5B 22).", "2. Position with effect from 1 December 1981", "45. Prior to 1 December 1981, both Orders and Instructions contained, in addition to directives on the control of prisoners ’ correspondence and visits, internal rules and guidance of a general nature concerning the day to day administration of the prison. With effect from that date, the directives on correspondence and visits were substantially revised. In addition, revised Orders on those subjects have been published in their entirety, matters of a management or administrative nature which do not concern a prisoner ’ s entitlement to correspond or receive visits and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions. The Rules themselves have not been amended, although the Government have indicated that as soon as practicable Rule 34 (8) (see paragraph 43 above) would be repealed in so far as it affected correspondence.", "46. So far as is material to the present case, the earlier position is now modified in the following respects.", "(a) The new Orders (nos. 5B23-5B30) state that, with certain exceptions, a prisoner may correspond with any person or organisation, provided always that the regulations on the contents of correspondence and the \"simultaneous ventilation rule\" are observed.", "(b) The \"simultaneous ventilation rule\", set out in Order 5B34 j, has taken the place of the \"prior ventilation rule\" (see paragraph 44 (c) in fine above). Legal advice concerning civil proceedings in respect of prison treatment may now be obtained as soon as the prisoner has raised his complaint through the prescribed procedures; he no longer has to await the outcome of the internal inquiry.", "(c) Rule 37 (1) (see paragraph 44 (d) above) continues to apply to visits by a legal adviser concerning legal proceedings to which the prisoner is already a party. Under new Order 5A34, other visits by a legal adviser acting in a professional capacity are also now allowed out of the hearing of a prison officer, provided the subject to be discussed is disclosed to the governor in advance and does not offend against the restrictions on correspondence with legal advisers set out in new Order 5B34 (including the \"simultaneous ventilation rule\"). If the subject to be discussed is not disclosed, the visit will still be allowed but will be in the hearing of an officer.", "C. Obtaining of medical advice by prisoners", "47. Under Rule 17, responsibility for the health of prisoners is placed on the prison medical officer; he has discretion to call in another medical practitioner.", "The prison authorities will not generally allow a convicted prisoner to be examined by an outside doctor (other than one called in as aforesaid) unless the prisoner is a party to legal proceedings, in which event Rule 37A (3) applies. This Rule provides:", "\"Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of [a prisoner who is party to any legal proceedings] shall be afforded reasonable facilities for examining him in connection with the proceedings, and may do so out of hearing but in the sight of an officer.\"", "D. Complaints concerning the control of correspondence and visits", "1. Internal channels of complaint", "48. An inmate who is aggrieved by a decision concerning his correspondence or visits may complain to the prison governor, the Board of Visitors or a visiting officer of the Home Secretary or he may petition the Home Secretary himself. A prisoner may ventilate his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes.", "(a) The Board of Visitors", "49. As far as the Board of Visitors is concerned, it may examine the compatibility of the decision complained of with the Rules and the Home Secretary ’ s directives. It will draw the governor ’ s attention to any irregularity, or report to the Home Secretary; although its powers are advisory in character, its advice will be implemented save in exceptional circumstances.", "(b) Petitions to the Home Secretary", "50. Inmates have the right to submit petitions to the Home Secretary about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment.", "On a petition being made by a prisoner, complaining of a decision of the prison authorities concerning his correspondence or visits, the Home Secretary would, if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice.", "Prior to 1 December 1981, directives concerning the submission of petitions were contained in Orders 5B l-16. It was, in particular, provided that, with certain exceptions, a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition (Order 5B 12 (2)).", "With effect from 1 December 1981, the provisions of Order 5B 12 (2) have been relaxed by new Orders 5C9 and 5ClO. A further petition may now be submitted if a month has elapsed since the submission of the previous petition. Moreover, even though an earlier petition be outstanding, a prisoner may petition forthwith on certain specified matters, including interferences with his correspondence but not restrictions on his visits.", "2. The Parliamentary Commissioner for Administration", "51. Complaints concerning the control of correspondence or visits may also, on certain conditions, be raised with the Parliamentary Commissioner for Administration (the Ombudsman). However, his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Rules or the Home Secretary ’ s directives; moreover, the Ombudsman cannot grant direct relief since he is limited to reporting the results of his investigation to a Member of Parliament, the authority concerned and, in certain circumstances, each House of Parliament (sections 10 and 12 of the Parliamentary Commissioner Act 1967).", "3. Application to the domestic courts", "52. The exercise by the prison authorities of their powers under the Rules to control correspondence and visits is subject to the supervisory control of the English courts by way of proceedings for judicial review. In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to correspond or receive visits (for example, Rules 37(A) 1 and 37 (1); see paragraph 44, sub-paragraphs (b) and (d), above), and to ensure that the discretion conferred on the authorities by the Rules is not exercised arbitrarily or unreasonably, in bad faith, for an improper motive or in an ultra vires manner.", "The Court notes in this context that in Raymond v. Honey [1982] 1 All England Law Reports 759, Lord Wilberforce pointed out that it was a principle of English law that \"a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.\"", "PROCEEDINGS BEFORE THE COMMISSION", "53. Mr. Campbell and Father Fell applied to the Commission on 4 and 31 March 1977 respectively. In their applications or in subsequent memoranda each of them:", "(a) alleged that he had been convicted by the Board of Visitors of disciplinary charges amounting in substance to \"criminal\" charges, without having been afforded a hearing complying with the requirements of Article 6 (art. 6) of the Convention;", "(b) contended that the delay in allowing him to obtain legal advice following the incident of 16 September 1976 involved breaches of his right of access to court, guaranteed by Article 6 (art. 6), and of his right to respect for correspondence, guaranteed by Article 8 (art. 8);", "(c) maintained that the refusal to allow independent medical examination involved a further infringement of his rights under Article 6 (art. 6);", "(d) made a number of other complaints, notably concerning his treatment during and after the aforementioned incident.", "On 6 May 1978, the Commission declared Mr. Campbell ’ s application admissible as regards items (a), (b) and (c) above and inadmissible as regards the remainder.", "By a partial decision of 9 October 1980 and a final decision of 14 and 19 March 1981, the Commission:", "- declared Father Fell ’ s application admissible as regards items (b) and (c) above and his additional allegations that the refusal to allow him to consult with his lawyer in confidence constituted breaches of Articles 6 and 8 (art. 6, art. 8), that the refusal to allow him to correspond with certain individuals amounted to a violation of Article 8 (art. 8) and that, in breach of Article 13 (art. 13), he had no effective remedy for his complaints;", "- declared Father Fell ’ s application inadmissible as regards items (a) and (d) above, on the ground, in the case of item (a), that at the time of its March 1981 decision he had failed to exhaust the domestic remedy of applying for certiorari (see paragraphs 15 and 39-41 above).", "In the last-mentioned decision, the Commission also ordered the joinder of the two applications in pursuance of Rule 29 of its Rules of Procedure.", "54. In its report of 12 May 1982 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion:", "- that the proceedings before the Board of Visitors in Mr. Campbell ’ s case had involved a breach of his rights under Article 6 (art. 6) (nine votes, with three abstentions);", "- that the delay in allowing both applicants to obtain legal advice involved breaches of Article 6 para. 1 and Article 8 (art. 6-1, art. 8) (unanimously);", "- that no breach of Article 6 para. 1 (art. 6-1) arose from the refusal to allow the applicants facilities for an independent medical examination (unanimously);", "- that the refusal to allow Father Fell to consult in private with his lawyer was in breach of Article 6 para. 1 (art. 6-1) and that it was not necessary to consider whether it also breached Article 8 (art. 8) (unanimously);", "- that the refusal to allow Father Fell to correspond with Sister Power and Sister Benedict constituted a violation of Article 8 (art. 8) (unanimously);", "- that no effective remedy was available to Father Fell in relation to his complaints under Article 8 (art. 8) and that in this respect there was a breach of Article 13 (art. 13) (unanimously).", "The full text of the Commission ’ s opinion and of the one dissenting opinion contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "55. At the hearings on 20 September 1983, the Government invited the Court to decide the case - subject to such concessions as they had made on that occasion - in the manner stated in their memorial of 17 March 1983, namely:", "\"With regard to Article 6 (art. 6)", "(i) to decide and declare that Article 6 (art. 6) of the Convention does not apply to a Board of Visitors ’ inquiry into and adjudication upon the offences against discipline specified in Rule 47 of the Prison Rules 1964 (as amended) or any of them;", "(ii) to decide and declare that the facts found disclose no breaches arising out of the Prison Board of Visitors ’ inquiry into and adjudication upon the offences alleged against John Joseph Campbell;", "(iii) to decide and declare that John Joseph Campbell has failed to exhaust all domestic remedies in relation to all or any breaches arising out of the aforesaid inquiry and adjudication;", "(iv) to take express note in its judgment of the changes made to the law and practice in the United Kingdom relating to the control of communication between prisoners and their legal advisers since the judgment of the Court in the Golder case, and", "(a) in the light of such changes to decline to examine further the claims of breaches of Article 6 (art. 6) of the Convention relating thereto", "or alternatively", "(b) to decide and declare that the facts found disclose no breaches by the United Kingdom of its obligations under Article 6 (art. 6) of the Convention relating thereto other than as set forth in the report of the Commission.", "With regard to Article 8 (art. 8)", "(i) insofar as the Commission concluded that the facts found disclosed no breach by the United Kingdom of its obligations under Article 8 (art. 8) of the Convention, to confirm and uphold the Commission ’ s conclusions;", "(ii) insofar as the Commission ’ s findings of breaches of the Convention are not contested by the United Kingdom Government on the grounds of the changes made by the revised Standing Orders to the practice in the United Kingdom relating to prisoners ’ correspondence:", "(a) to decide and declare that the facts found disclose no breaches otherwise than as set forth in the report of the Commission;", "(b) to take express note in its judgment of the changes made by the revised Standing Orders as remedying the breaches so found by the Commission.", "With regard to Article 13 (art. 13)", "To decide and declare that the facts found would not disclose a breach by the United Kingdom of its obligations under Article 13 (art. 13) of the Convention after the coming into effect of the revised Standing Orders relating to prisoners ’ correspondence and visits.\"", "AS TO THE LAW", "I. PRELIMINARY PLEAS", "A. Mr. Campbell ’ s alleged failure to exhaust domestic remedies as regards the Board of Visitors ’ proceedings", "56. In their memorial of 17 March 1983 to the Court, the Government submitted that by failing to apply for judicial review, seeking an order of certiorari (see paragraphs 15 and 39-41 above), of the Board of Visitors ’ adjudication in his case, Mr. Campbell had not exhausted all his domestic remedies and that for that reason his complaints concerning those proceedings ought not to be given consideration.", "57. The Court will take cognisance of preliminary pleas of this kind if and in so far as the respondent State may already have raised them before the Commission to the extent that their character and the circumstances permitted; this should normally be done at the stage of the initial examination of admissibility. If this condition is not fulfilled, the Government are estopped from raising the plea before the Court (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, pp. 12 and 13, paras. 24 and 27).", "1. Estoppel", "58. The Government ’ s observations on the admissibility of Mr. Campbell ’ s application were filed with the Commission on 20 December 1977; they contained no reference to the question of the exhaustion of domestic remedies as regards the Board ’ s proceedings. It was only in their observations on the merits ( 13 December 1978 ) that the Government requested the Commission to reject, under Articles 26 and 29 (art. 26, art. 29) of the Convention, the complaints concerning those proceedings, on the ground that no application for certiorari had been made. The Commission, which had already, on 6 May 1978, declared these complaints admissible, found, on 14 and 19 March 1981, that there was no basis for the application of Article 29 (art. 29), that provision requiring unanimity.", "59. The Court notes that on 6 December 1977 it had been held by the Divisional Court in the St. Germain case that certiorari did not lie in respect of Board of Visitors ’ proceedings (see paragraph 39 (b) above). It would therefore have been difficult for the Government, a fortnight later, to plead before the Commission - contrary to the argument put to the Divisional Court by counsel for the Hull Prison Board of Visitors, who was instructed by the Treasury Solicitor - that this remedy was available. In contrast to the view expressed by the Commission ’ s Delegate, the Court also considers that since the authorities had just succeeded in the domestic action, the Government could scarcely have maintained that this was an uncertain or unresolved issue in English law and that Mr. Campbell should therefore test the matter in the courts.", "Notice of appeal in the St. Germain case was served on 20 December 1977 but the matter was not finally resolved until 3 October 1978, when the Court of Appeal reversed the Divisional Court ’ s decision (see paragraph 39 (c) above). It was clearly the 1978 judgment that prompted the Government to supplement their initial arguments and, in the particular circumstances, the Court does not consider that they could reasonably have been expected to raise the plea of non-exhaustion at an earlier stage (see the above-mentioned Artico judgment, ibid., p. 13, para. 27, third sub-paragraph). There is accordingly no estoppel.", "2. Whether the plea is well-founded", "60. The only remedies which Article 26 (art. 26) of the Convention requires to be exercised are those which relate to the breaches alleged and are at the same time available and sufficient (see, inter alia, the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, para. 27).", "As regards Mr. Campbell, the Commission expressed no opinion as to whether the remedy of certiorari fell within this category.", "61. The existence of a remedy must be sufficiently certain before there can be an obligation to exhaust it (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 34, para. 62, the Deweer judgment of 27 February 1980, Series A no. 35, p. 18, para. 32, and, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 30, para. 54). At the time of Mr. Campbell ’ s application to the Commission (4 March 1977), there was nothing to indicate that certiorari lay in respect of a Board of Visitors ’ adjudication; as the Court of Appeal observed in the St. Germain case, there was no binding authority on this point (see paragraph 39 (c) above). The position changed, however, with the Court of Appeal ’ s judgment of 3 October 1978 in that case, which established that prisoners could seek judicial review of such disciplinary proceedings.", "It has nevertheless to be remembered that in Mr. Campbell ’ s case the prescribed time-limit within which certiorari must in principle be applied for had long expired (see paragraph 41 above and the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, pp. 34-35, para. 62). It is true that leave may be granted to apply out of time and, indeed, the Government submitted that if Mr. Campbell had applied for leave soon after the Divisional Court ’ s second judgment in the St. Germain case (15 June 1979), this would not have been refused; however, they conceded that it was predictable that he would not now obtain leave because his delay would be regarded as inordinate and inexcusable (see paragraphs 15, 40 and 41 above). The availability of the remedy has to be seen in the light of these considerations.", "62. As to whether the remedy would have been effective, the Government conceded at the hearings before the Court that it would not have been in respect of a substantial number of the applicant ’ s complaints, namely his inability to obtain legal assistance before the Board ’ s hearing, the fact that the Board neither conducted its proceedings in public nor pronounced its decision publicly and the allegation that the Board was not \"independent\". They took the same view as regards the question of legal representation at the Board ’ s hearing, subject, however, to the outcome of the Tarrant case. The Court notes that in that case it was established, contrary to the Government ’ s opinion, that an application for judicial review seeking an order of certiorari could provide an effective remedy against an unreasonable decision not to allow legal representation (see paragraph 36 in fine above). Nevertheless, although the law has now been clarified in that sense, the fact remains, as was admitted by the Government that Mr. Campbell could no longer expect to obtain leave to pursue this remedy in his case.", "63. It is true that there are Mr. Campbell ’ s other complaints, namely his allegations that the Board was not \"impartial\" and had not afforded him a \"fair\" hearing, that the presumption of innocence had been infringed, that he had not been sufficiently informed of the accusations against him nor had adequate time to prepare his defence, and that he had been deprived of rights concerning witnesses.", "In respect of these complaints, the Government submitted that they could and should have been made the subject of proceedings for judicial review after 3 October 1978. However, when the existence of a remedy by way of an application for judicial review had been established by the Court of Appeal ’ s judgment in the St. Germain case and when in the Government ’ s submission it was still available to Mr. Campbell, the Commission decided not to reject his application on this ground. In this situation Mr. Campbell was, in the opinion of the Court, justified in relying on the Commission ’ s decision for the purpose of pursuing his case under the Convention and in not applying to the domestic courts for judicial review of the Board of Visitors ’ proceedings. Furthermore, the Government concede that recourse to that remedy is predictably no longer available to him. Consequently, the Court considers that it would be unjust now to find these complaints inadmissible for failure to exhaust domestic remedies.", "B. The admissibility of Father Fell ’ s complaints as regards the Board of Visitors ’ proceedings", "64. Father Fell ’ s complaints regarding the Board of Visitors ’ adjudication in his case were declared inadmissible by the Commission on the ground that, at the time of its decision (14 and 19 March 1981 ), he had failed to exhaust the domestic remedy of applying for certiorari (see paragraph 53 above).", "In his memorial to the Court, Father Fell, after pointing out that he had since made such an application, albeit unsuccessfully (see paragraph 15 above), submitted that the aforesaid complaints were now admissible.", "65. According to the settled case-law of the Court, decisions by the Commission to reject applications which it considers to be inadmissible are without appeal and the Court ’ s jurisdiction in contentious matters is limited to applications which have been accepted by the Commission (see, inter alia, the above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 30, para. 51, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, para. 157, and the Foti and Others judgment of 10 December 1982, Series A no. 56, p. 14, paras. 40-41).", "It follows that the Court has no jurisdiction to examine Father Fell ’ s submission.", "II. THE BOARD OF VISITORS ’ PROCEEDINGS IN THE CASE OF MR. CAMPBELL", "66. Mr. Campbell alleged that he had been convicted by the Board of Visitors of disciplinary charges amounting in substance to \"criminal\" charges, without having been afforded a hearing complying with the requirements of Article 6 (art. 6) of the Convention, which provides certain guarantees \"in the determination of ... civil rights and obligations or of any criminal charge\".", "A. The applicability of Article 6 (art. 6)", "1. The existence of a \"criminal charge\"", "67. The Commission came to the conclusion that the adjudication by the Board of Visitors in Mr. Campbell ’ s case did involve the determination of \"criminal charges\" and that Article 6 (art. 6) was therefore applicable.", "As their principal submission, the Government contested this view.", "68. The Court was confronted with a similar issue in the case of Engel and Others, which was cited in argument by those appearing before it in the present proceedings. In its judgment of 8 June 1976 in that case (Series A no. 22, pp. 33-35, paras. 80-82), the Court, after drawing attention to the \"autonomy\" of the notion of \"criminal charge\" as conceived of under Article 6 (art. 6), set forth the following principles which it re-affirmed in its Öztürk judgment of 21 February 1984 (Series A no. 73, pp. 17-18, paras. 48-50).", "(a) The Convention is not opposed to the Contracting States creating or maintaining a distinction between criminal law and disciplinary law and drawing the dividing line, but it does not follow that the classification thus made is decisive for the purposes of the Convention.", "(b) If the Contracting States were able at their discretion, by classifying an offence as disciplinary instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7), the application of these provisions would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention.", "69. The Court was careful in the Engel and Others judgment to state that, as regards the dividing line between the \"criminal\" and the \"disciplinary\", it was confining its attention to the sphere with which the case was concerned, namely military service. It is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments.", "However, the guarantee of a fair hearing, which is the aim of Article 6 (art. 6), is one of the fundamental principles of any democratic society, within the meaning of the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). As the Golder judgment shows, justice cannot stop at the prison gate and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Article 6 (art. 6).", "It follows that the principles set forth in the Engel and Others judgment are also relevant, mutatis mutandis, in a custodial setting and that the reasons mentioned above cannot override the necessity of maintaining, there too, a dividing line between the \"criminal\" and the \"disciplinary\" that is consistent with the object and purpose of Article 6 (art. 6). It therefore has to be determined whether the proceedings against Mr. Campbell have to be regarded as coming within the \"criminal\" sphere for Convention purposes. To this end, the Court considers it right to apply, making due allowance for the different context, the criteria stated in that judgment.", "70. The first matter to be ascertained is whether or not the text defining the offences in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently (see the above-mentioned Engel and Others judgment, Series A no. 22, pp. 34-35, para. 82).", "It is clear that, in English law, the offences with which Mr. Campbell was charged belong to disciplinary law: Rule 47 states that conduct of this kind on the part of a prisoner shall be \"an offence against discipline\" and the Rules go on to provide how it shall be dealt with under the special prison disciplinary regime (see paragraphs 27-31 above). Confirmation that domestic law regards Board of Visitors ’ adjudications as falling outside the criminal sphere is to be found in the Court of Appeal ’ s decision in the St. Germain case that they are not a \"criminal cause or matter\" (see paragraph 37 above). Lord Justice Shaw there expressed the view that such an adjudication was essentially a domestic disciplinary proceeding, which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of the prison. Indeed, the Court notes that it is for this precise purpose, amongst others, that the Home Secretary is empowered by section 47 (1) of the Prison Act 1952 to make rules (see paragraph 26 above). Nevertheless, the Court also notes that certain parallels between Board of Visitors ’ proceedings and criminal proceedings were drawn in the McConkey and the Tarrant cases (see paragraph 37 in fine above).", "71. In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a factor of greater import (see the above-mentioned Engel and Others judgment, ibid., p. 35, para. 82).", "In this respect, it has to be borne in mind that misconduct by a prisoner may take different forms; certain acts are clearly no more than a question of internal discipline, whereas others cannot be seen in the same light. Firstly, some matters may be more serious than others; in fact, the Rules grade offences, classifying those committed by Mr. Campbell as \"especially grave\" (see paragraph 27 above). Secondly, the illegality of some acts may not turn on the fact that they were committed in prison: certain conduct which constitutes an offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to a prison officer may correspond to the crime of \"assault occasioning actual bodily harm\" and, although mutiny and incitement to mutiny are not as such offences under the general criminal law, the underlying facts may found a criminal charge of conspiracy (see paragraph 30 above). It also has to be remembered that, theoretically at least, there is nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings (ibid.).", "The Court considers that these factors, whilst not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged have to be regarded as \"criminal\" for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter.", "72. It is therefore necessary to turn to the last criterion stated in the above-mentioned Engel and Others judgment (ibid., p. 35, para. 82) and in the above-mentioned Öztürk judgment (Series A no. 73, p. 18, para. 50), namely the nature and degree of severity of the penalty that Mr. Campbell risked incurring. The maximum penalties which could have been imposed on him included forfeiture of all of the remission of sentence available to him at the time of the Board ’ s award (slightly less than three years), forfeiture of certain privileges for an unlimited time and, for each offence, exclusion from associated work, stoppage of earnings and cellular confinement for a maximum of 56 days; he was in fact awarded a total of 570 days ’ loss of remission and subjected to the other penalties mentioned for a total of 91 days (see paragraphs 14 and 28 above).", "There was considerable discussion, both in the St. Germain case and before the Convention institutions, as to the nature of remission of sentence and its forfeiture. Under English law, remission is a discretionary measure (see paragraph 29 above). It is regarded by the English courts as being technically a privilege rather than a right, but the Court of Appeal did observe in the St. Germain case that \"although in form remission of sentence may have been the grant of a privilege, loss of remission was in fact a punishment or deprivation affecting the rights of the subject\".", "The Court, for its part, does not find that the distinction between privilege and right is of great assistance to it for the present purposes; what is more important is that the practice of granting remission - whereby a prisoner will be set free on the estimated date for release given to him at the outset of his sentence, unless remission has been forfeited in disciplinary proceedings (see paragraph 29 above) - creates in him a legitimate expectation that he will recover his liberty before the end of his term of imprisonment. Forfeiture of remission thus has the effect of causing the detention to continue beyond the period corresponding to that expectation. Confirmation of the foregoing is found in the following passage from the judgment of Lord Justice Waller in the St. Germain case:", "\"... it was common ground ... that a prisoner is credited with his full remission when he arrives in prison after sentence and he is told then his earliest date of release. Whether it is a right or a privilege a prisoner can expect to be released on that date unless he is ordered to forfeit some remission. Lord Reid quoted deprivation ‘ of rights or privileges ’ as being of equal importance, and I respectfully agree with him. Whether remission is a right or a privilege is in my opinion immaterial. It is only necessary to consider the case of [X], who was ordered to forfeit 720 days. As a result he would have to serve nearly two years beyond his earliest date of release. It was a very substantial privilege which he had lost.\" ([1979] 1 All England Law Reports, pp. 723j-724b)", "In its above-mentioned Engel and Others judgment (ibid., p. 35, para. 82), the Court stated that deprivation of liberty liable to be imposed as a punishment was, in general, a penalty that belonged to the \"criminal\" sphere. It is true that in the present case the legal basis for the detention remained, even after the Board ’ s award, the original sentence of imprisonment and that nothing was added thereto (see paragraph 29 above). However, the Court is of the opinion that the forfeiture of remission which Mr. Campbell risked incurring and the forfeiture actually awarded involved such serious consequences as regards the length of his detention that these penalties have to be regarded, for Convention purposes, as \"criminal\". By causing detention to continue for substantially longer than would otherwise have been the case, the sanction came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6 (art. 6). This conclusion is not altered by the fact that a considerable number of days of remission were subsequently restored to the applicant (see paragraph 16 above).", "73. Taking into account, therefore, both the \"especially grave\" character of the offences with which Mr. Campbell was charged (see paragraph 27 above) and the nature and severity of the penalty that he risked incurring - and did in fact incur -, the Court finds that Article 6 (art. 6) is applicable to the Board of Visitors ’ adjudication in his case. It is accordingly not necessary to consider the sanctions, other than forfeiture of remission, which could have been or were imposed on him.", "2. The existence of a \"determination\" of \"civil rights\"", "74. Having regard to the finding in the preceding paragraph, there is also no need to examine whether the aforesaid adjudication involved a \"determination\" of \"civil rights\". Like the Commission, the Court considers this question to be devoid of interest for the decision in the particular case (see the above-mentioned Deweer judgment, Series A no. 35, p. 24, para. 47).", "B. Compliance with Article 6 (art. 6)", "75. Mr. Campbell submitted that before the Board of Visitors he did not receive a \"fair hearing\" complying with paragraphs 1 (art. 6-1) and 3 (a) to (d) of Article 6 (art. 6-3-a, art. 6-3-b, art. 6-3-c, art. 6-3-d). He also contended that the presumption of innocence (Article 6 para. 2) (art. 6-2) had been infringed.", "1. Article 6 para. 1 (art. 6-1)", "76. Article 6 para. 1 (art. 6-1) of the Convention reads as follows:", "\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"", "It was not disputed in the present case that a Board of Visitors, when carrying out its adjudicatory tasks, is a \"tribunal established by law\". It is, in fact, clear that the relevant English legislation confers on Boards a power of binding decision in the area in question and the dicta in the St. Germain case show that this is a judicial function (see paragraphs 38 and 39 above). Again, the word \"tribunal\" in Article 6 para. 1 (art. 6-1) is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 53).", "(a) \"Independent\" tribunal", "77. Mr. Campbell alleged that the Board of Visitors which heard his case was not an \"independent\" tribunal, within the meaning of Article 6 para. 1 (art. 6-1). He contended that Boards were mere \"cyphers\", were not seen by prisoners to be independent and were, in practice, an arm of the executive: as regards many of their functions, they were under the control of the prison authorities and had to accept the Home Secretary ’ s directions. In particular, it was submitted that they were not independent in exercising their adjudicatory role.", "The Commission, whilst recognising that Boards were under a legal obligation to act independently and impartially, stated that this was not of itself sufficient: to be truly \"independent\" the body concerned must be independent of the executive in its functions and as an institution, such independence ensuring, notably, that justice is seen to be done. In the Commission ’ s view, a Board did not possess the necessary institutional independence: firstly, its members were appointed for limited periods by the Home Secretary and did not appear to be irremovable; secondly, although a Board was not part of the administration, its other functions were such as to bring it into day to day contact with the officials of the prison in such a way as to identify it with the management of the prison.", "This conclusion was contested by the Government. They maintained, inter alia, that a Board was not part of the management structure of the prison: it was independent of the prison administration locally and nationally and, in discharging its administrative role, did not act on behalf of the executive.", "78. In determining whether a body can be considered to be \"independent\" - notably of the executive and of the parties to the case (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., pp. 24-25, para. 57), the existence of guarantees against outside pressures (see the Piersack judgment of 1 October 1982, Series A no. 53, p. 13, para. 27) and the question whether the body presents an appearance of independence (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, para. 31).", "The factors which were relied on in the present case as indicative of the Board ’ s lack of \"independence\" will be considered in turn.", "79. Members of Boards are appointed by the Home Secretary, who is himself responsible for the administration of prisons in England and Wales (see paragraphs 26 and 32 above).", "The Court does not consider that this establishes that the members are not independent of the executive: to hold otherwise would mean that judges appointed by or on the advice of a Minister having responsibilities in the field of the administration of the courts were also not \"independent\". Moreover, although it is true that the Home Office may issue Boards with guidelines as to the performance of their functions (see paragraph 35 above), they are not subject to its instructions in their adjudicatory role.", "80. Members of Boards hold office for a term of three years or such less period as the Home Secretary may appoint (see paragraph 32 above).", "The term of office is admittedly relatively short but the Court notes that there is a very understandable reason: the members are unpaid (ibid.) and it might well prove difficult to find individuals willing and suitable to undertake the onerous and important tasks involved if the period were longer.", "The Court notes that the Rules contain neither any regulation governing the removal of members of a Board nor any guarantee for their irremovability.", "Although it appears that the Home Secretary could require the resignation of a member, this would be done only in the most exceptional circumstances and the existence of this possibility cannot be regarded as threatening in any respect the independence of the members of a Board in the performance of their judicial function.", "It is true that the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6 para. 1 (art. 6-1). However, the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that the other necessary guarantees are present (see the above-mentioned Engel and Others judgment, Series A no. 22, pp. 27-28, para. 68).", "81. There remains the question of the Board ’ s independence having regard to the fact that it has both adjudicatory and supervisory roles (see paragraph 33 above).", "In that latter role, a Board is, as the Government pointed out, intended to exercise an independent oversight of the administration of the prison. In the nature of things, supervision must involve a Board in frequent contacts with the prison officials and just as much with the inmates themselves; yet this in no way alters the fact that its function, even when discharging its administrative duties, is to \"hold the ring\" between the parties concerned, independently of both of them. The impression which prisoners may have that Boards are closely associated with the executive and the prison administration is a factor of greater weight, particularly bearing in mind the importance in the context of Article 6 (art. 6) of the maxim \"justice must not only be done: it must also be seen to be done\". However, the existence of such sentiments on the part of inmates, which is probably unavoidable in a custodial setting, is not sufficient to establish a lack of \"independence\". This requirement of Article 6 (art. 6) would not be satisfied if prisoners were reasonably entitled, on account of the frequent contacts between a Board and the authorities, to think that the former was dependent on the latter (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, p. 15, para. 30 in fine); however, the Court does not consider that the mere fact of these contacts, which exist also with the prisoners themselves, could justify such an impression.", "82. In the light of the foregoing, the Court sees no reason to conclude that the Board in question was not \"independent\", within the meaning of Article 6 (art. 6).", "(b) \"Impartial\" tribunal", "83. Mr. Campbell further contended that the Board of Visitors which heard his case was not an \"impartial\" tribunal.", "The Government contested this allegation. The Commission expressed no specific opinion thereon, although it took care to point out that the conclusions in its report were not to be taken as implying a finding of bias or anything similar on the part of the Board.", "84. The personal impartiality of members of a body covered by Article 6 (art. 6) is to be presumed until there is proof to the contrary (see the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, p. 25, para. 58). In the present case, the applicant has adduced no evidence to give the Court any cause for doubt on this score.", "85. However, it is not possible to confine oneself to a purely subjective test: in this area, appearances may be of a certain importance and account must be taken of questions of internal organisation (see the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30).", "Prior to 6 October 1976, the Albany Prison Board of Visitors played no role whatsoever in the disciplinary proceedings against the applicant; when it sat on that date, it came fresh to his case (see paragraphs 12-14 above). The Court, therefore, perceives nothing in the actual organisation of the adjudication that would reflect adversely on the Board ’ s objective \"impartiality\".", "There remains the fact that Mr. Campbell might not have seen the Board as being totally free from bias. However, for reasons similar to those given in paragraph 81 above, the Court does not consider that, in the particular context, this suffices to establish that this requirement of Article 6 (art. 6) was not satisfied.", "(c) \"Public hearing\"", "86. The applicant complained of the fact that the adjudication by the Board of Visitors in his case had not been conducted in public, although he admitted that for him this was a marginal point.", "The Commission considered that there had been a failure to comply with Article 6 (art. 6) in this respect. The Government submitted that the practice whereby a Board ’ s proceedings were always held in private (see paragraph 36 above) was legitimate: they relied on the entitlement under Article 6 (art. 6) to exclude press and public from a trial \"in the interests of ... public order or national security in a democratic society\", \"where ... the protection of the private life of the parties so require[s]\" or, alternatively, because there were \"special circumstances where publicity would prejudice the interests of justice\". Security problems, the possible propagation of malicious allegations by a prisoner and the latter ’ s own wishes for privacy were cited in support of this submission.", "87. It is true that ordinary criminal proceedings - which may well concern dangerous individuals or necessitate the production of a prisoner before the court - nearly always take place in public, notwithstanding the attendant security problems, the possible propagation of malicious allegations and the wishes of the accused. However, the Court cannot disregard the factors cited by the Government, notably the considerations of public order and the security problems that would be involved if prison disciplinary proceedings were conducted in public. Such a course would undoubtedly occasion difficulties of greater magnitude than those that arise in ordinary criminal proceedings. A Board ’ s adjudications are, as befits the character of disciplinary proceedings of this kind, habitually held within the prison precincts and the difficulties over admitting the public to those precincts are obvious. If they were held outside, similar problems would arise as regards the prisoner ’ s transportation to and attendance at the hearing. To require that disciplinary proceedings concerning convicted prisoners should be held in public would impose a disproportionate burden on the authorities of the State.", "88. The Court therefore accepts that there were sufficient reasons of public order and security justifying the exclusion of the press and public from the proceedings against Mr. Campbell. There was accordingly no violation of Article 6 para. 1 (art. 6-1) in this respect.", "(d) Public pronouncement of the decision", "89. Again as no more than a marginal point, the applicant complained of the fact that the Board of Visitors had not pronounced publicly its decision in his case.", "The Commission considered that this also constituted a failure to comply with Article 6 (art. 6). The Government relied in this context too on problems of security and public order; they further submitted that, if it was considered that the power to exclude the public applied only to the trial as distinct from pronouncement of the judgment, this particular requirement of Article 6 (art. 6) should be read as subject to the implied limitation that members of the public could legitimately be excluded in those cases in which disciplinary offences by prisoners were adjudicated upon.", "90. It is true that the Court has recognised that to a certain extent the right of access to the courts secured by Article 6 (art. 6) may be subject to limitations permitted by implication (see the above-mentioned Golder judgment, Series A no. 18, pp. 18-19, para. 38). However, that recognition resulted from the fact that the right in question was inherent in the first sentence of Article 6 para. 1 (art. 6-1) but was not defined therein. Again, unlike the first sentence, the second sentence does already contain a detailed list of express exceptions. Bearing in mind the terms of Article 17 (art. 17) and the importance of the principle of publication (see, inter alia, the Sutter judgment of 22 February 1984, Series A no. 74, p. 12, para. 26), the Court does not consider that that principle may be regarded as subject to an implied limitation as suggested by the Government.", "91. The Court has said in other cases that it does not feel bound to adopt a literal interpretation of the words \"pronounced publicly\": in each case the form of publication given to the \"judgment\" under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial (see the Pretto and Others judgment of 8 December 1983, Series A no. 71, pp. 11-13, paras. 21 and 26-27, and the above-mentioned Sutter judgment, Series A no. 74, pp. 12 and 14, paras. 26 and 33).", "92. However, in the present case it does not appear that any steps were taken to make public the Board of Visitors ’ decision. There has accordingly been a violation of Article 6 para. 1 (art. 6-1) on this point.", "2. Article 6 para. 2 (art. 6-2)", "93. Mr. Campbell claimed that during the course of the Board ’ s adjudication there had been a violation of paragraph 2 of Article 6 (art. 6-2), which reads as follows:", "\"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.\"", "The Government contested this allegation. The Commission expressed no specific conclusion thereon.", "94. The Court notes that when Mr. Campbell failed to attend the Board ’ s hearing, pleas of \"not guilty\" to both charges were entered on his behalf (see paragraph 14 above). He has adduced no evidence whatsoever to establish that the Board proceeded otherwise than on the basis of those pleas. His claim must therefore be rejected.", "3. Article 6 para. 3 (a) (art. 6-3-a)", "95. Mr. Campbell maintained that he had not been adequately informed of the nature of the accusation against him and that there had accordingly been a breach of sub-paragraph (a) of Article 6 para. 3 (art. 6-3-a), which entitles everyone charged with a criminal offence \"to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him\".", "The Government contested this allegation. The Commission expressed no specific conclusion thereon.", "96. The Court notes that, prior to both the Governor ’ s and the Board ’ s hearing, the applicant had received \"notices of report\" setting out the charges against him; he had also been visited by the chairman of the Board before it sat (see paragraph 13 above).", "The main thrust of Mr. Campbell ’ s argument appears to be that the offence of \"mutiny\" is a complex concept, especially in a prison context, and that he had not been sufficiently informed, or was not in a position to understand, precisely what was meant by this term or what defences might be available to him. He could, however, very well have obtained further information had he appeared at the Governor ’ s or the Board ’ s hearing; and it has to be remembered that his failure to attend on the latter occasion was, so the Commission found (see paragraph 13 in fine above), a matter within his own responsibility.", "In all the circumstances, the Court does not consider that a breach of Article 6 para. 3 (a) (art. 6-3-a) occurred.", "4. Article 6 para. 3, sub-paragraphs (b) and (c) (art. 6-3-b, art. 6-3-c)", "97. The applicant submitted that in connection with the Board ’ s adjudication he had been the victim of a violation of sub-paragraphs (b) and (c) of Article 6 para. 3 (art. 6-3-b, art. 6-3-c), which entitle everyone charged with a criminal offence \"to have adequate time and facilities for the preparation of his defence\" and \"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require\". He stressed that, in view of the nature of the charges against him, he should have been able to obtain legal advice and assistance.", "In its report, the Commission considered that there had been a failure to comply with the Convention ’ s requirements, in that Mr. Campbell was not afforded the opportunity to obtain legal advice and assistance before, or legal representation at, the Board ’ s proceedings; at the hearings before the Court, the Delegate added that, in view of the Commission ’ s opinion that the absence of a right to any legal assistance involved a breach of sub-paragraph (c) (art. 6-3-c), it was unnecessary to consider that aspect of the case further under sub-paragraph (b) (art. 6-3-b). The Government accepted that, under the law in force at the time (see paragraphs 13 and 36 above), the applicant had no right to legal representation at the Board ’ s hearing; they also conceded that had he requested legal assistance beforehand, this too would have been refused under the practice then followed (ibid.).", "98. Mr. Campbell was informed of the charges against him on 1 October 1976, five days before the Board sat (see paragraph 13 above). He also received \"notices of report\", those relative to the Board ’ s adjudication having been given to him on the day before it met; the notices drew attention to the fact that he could reply to the charges in writing (ibid.).", "The Court considers that in all the circumstances the applicant was left with \"adequate time\" to prepare his defence; it notes that he apparently did not seek an adjournment of the hearing (ibid.).", "99. As regards sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c), it is true that Mr. Campbell elected not to attend the Board ’ s hearing, but the Convention requires that a \"person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing\" (see the Pakelli judgment of 25 April 1983, Series A no. 64, p. 15, para. 31).", "Moreover, a lawyer could scarcely \"assist\" his client - in terms of sub-paragraph (c) (art. 6-3-c) - unless there had been some previous consultation between them. This latter consideration leads the Court to the conclusion that the \"facilities\" contemplated by sub-paragraph (b) (art. 6-3-b) were not afforded.", "Accordingly, there was a breach of sub-paragraphs (b) and (c) of Article 6 para. 3 (art. 6-3-b, art. 6-3-c).", "5. Article 6 para. 3 (d) (art. 6-3-d)", "100. The applicant also contended that as regards the Board ’ s adjudication he had been the victim of a violation of sub-paragraph (d) of Article 6 para. 3 (art. 6-3-d), which entitles everyone charged with a criminal offence \"to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him\".", "The Government contested this allegation. The Commission expressed no specific conclusion thereon.", "101. Mr. Campbell has furnished no details in support of this claim. In addition, it can be seen from the Divisional Court ’ s second judgment in the St. Germain case (see paragraph 40 above) that English law recognises that a prisoner appearing before a Board of Visitors does have definite rights in the matter of witnesses. Moreover and above all, this complaint has to be seen in the light of the fact that the applicant declined to attend the adjudication: what might have transpired had he been present is a matter of pure conjecture on which the Court cannot embark.", "In these circumstances, no violation of sub-paragraph (d) of Article 6 para. 3 (art. 6-3-d) has been established.", "6. Conclusions", "102. To sum up, the Court has found that there was a failure to comply with the requirements of Article 6 (art. 6), in that:", "- the Board of Visitors did not pronounce its decision publicly;", "- Mr. Campbell was not entitled to obtain legal assistance prior to the Board ’ s hearing or legal representation thereat.", "There remains a more general allegation made by the applicant, namely that he did not receive a \"fair\" hearing by the Board. His submission that Boards do not make serious attempts to investigate charges referred to them can be rejected at the outset, for he has furnished no data to contradict the Jellicoe committee ’ s finding that Boards take their duties of adjudication very seriously (see paragraph 33 above). Secondly, leaving aside the specific complaints with which the Court has dealt above, Mr. Campbell has adduced no evidence to establish any unfairness or miscarriage of justice, whether as regards the actual conduct of the proceedings, the assessment of the evidence, the finding of guilt, the selection of the penalties or otherwise. Having particular regard to the fact that he was entitled but declined to attend the hearing, the Court finds that this allegation is not substantiated.", "In reaching its conclusions on this part of the case, the Court has not been unmindful of the developments in English law in the matter of certiorari, as evidenced by the decisions in the St. Germain case (see paragraphs 39-40 above), and the recent changes as regards the possibility for a prisoner appearing before a Board of Visitors to obtain legal representation or assistance (see paragraphs 36 and 46 above). Neither has it overlooked the fact that, under the current practice (see paragraph 30 above), a criminal court rather than a Board of Visitors may be called upon to deal with misconduct which involves substantial violence or is committed by a prisoner having only a small part of his sentence remaining to be served.", "III. THE APPLICANTS ’ ACCESS TO LEGAL ADVICE IN CONNECTION WITH THEIR PERSONAL-INJURIES CLAIM", "A. Preliminary", "103. It is convenient to deal first of all with certain pleas which the Government based on the modifications made to English law and practice since the time of the events giving rise to the present proceedings (see paragraphs 42-52 above). These pleas related not only to the applicants ’ access to legal advice in connection with their personal-injuries claim but also to the conditions for visits by a lawyer to Father Fell, to the restrictions on the latter ’ s personal correspondence and to the alleged violation of Article 13 (art. 13) of the Convention (see sections IV, VI and VII below). The Government requested the Court:", "- in the context of Article 6 (art. 6), to take express note in its judgment of the changes made as regards the control of communication between prisoners and their legal advisers;", "- to take note of the changes made by the revised Standing Orders as \"remedying the breaches\" of Article 8 (art. 8) found by the Commission; and", "- to declare that the facts of the case would not disclose a breach of Article 13 (art. 13) after the coming into effect of the revised Orders.", "104. The Court examined analogous pleas by the United Kingdom Government in its Silver and Others judgment of 25 March 1983 (Series A no. 61, p. 31, para. 79); it sees no cause on the present occasion to depart from the ruling which it then gave. The Court therefore holds that it cannot examine the compatibility of the modified law and practice with the Convention; however, it notes that, in particular with effect from December 1981, substantial changes have been made in this area by the United Kingdom with a view to ensuring the observance of the engagements undertaken by it in the Convention.", "B. Article 6 para. 1 (art. 6-1)", "105. The applicants submitted that the delay in granting them permission to seek legal advice in connection with a civil action claiming compensation for the injuries sustained during the incident of 16 September 1976 (see paragraphs 17-20 above) constituted a denial of access to the courts, in violation of Article 6 para. 1 (art. 6-1) of the Convention, as interpreted by the Court in its above-mentioned Golder judgment (Series A no. 18).", "The Commission expressed the opinion that there had been a violation in this respect. The Government ’ s principal plea was that the Court should decline to rule on the matter in the light of the changes made to the law and practice since the Golder judgment.", "106. The Court is unable to accept this plea. The delay in allowing the applicants access to legal advice was occasioned in 1976-1977 by the \"prior ventilation rule\" but the latter was not replaced by the \"simultaneous ventilation rule\" until December 1981 (see paragraph 46 (b) above). Dating as it does from that time, this modification clearly could not have restored the right claimed by the applicants under Article 6 para. 1 (art. 6-1); it is therefore not possible to speak of a \"solution\", even partial, \"of the matter\" (see, mutatis mutandis, Rule 47 para. 2 of the Rules of Court and the above-mentioned Silver and Others judgment, Series A no. 61, pp. 31-32, para. 81). In addition, the applicants ’ observations of 13 October 1983 on the application of Article 50 (art. 50) (see paragraph 7 above) contain a claim for just satisfaction in respect, inter alia, of this alleged violation and a determination by the Court of the issue may be of relevance in this connection (see the same judgment, ibid.).", "107. The Government, in the alternative, stated that, in the light of the subsequent change to domestic practice, they did not contest the Commission ’ s finding that there had been a violation of Article 6 para. 1 (art. 6-1).", "It is true that the applicants were eventually granted the permission which they sought and that, in Mr. Campbell ’ s case, he may have contributed to the delay by not furnishing promptly sufficient details of his allegations for an internal inquiry to commence (see paragraphs 17-20 above). However, for evidentiary and other reasons speedy access to legal advice is important in personal-injury cases. Moreover, as the Court pointed out in its above-mentioned Golder judgment (Series A no. 18, p. 13, para. 26), hindrance, even of a temporary character, may contravene the Convention.", "The principles stated in that judgment being applicable in the instant case, the Court shares the Commission ’ s opinion that a violation has occurred.", "C. Article 8 (art. 8)", "108. The applicants contended that their inability, on account of the \"prior ventilation rule\", to correspond with their solicitors in connection with the aforesaid civil claim constituted a violation of Article 8 (art. 8) of the Convention, which reads as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "The Commission concluded that there had been a breach in this respect. The Government stated that, in the light of the subsequent change to domestic practice, they did not contest this opinion.", "109. According to the evidence before the Court, one letter was stopped, namely that of 24 January 1977 from Messrs. Woodford & Ackroyd to Mr. Campbell (see paragraph 20 above). Furthermore, as the Commission rightly pointed out, it is clear that the effect of the \"prior ventilation rule\" was to prevent all correspondence between the applicants and their advisers concerning the proposed litigation until the internal inquiry had been completed.", "There was, therefore, an interference with the applicants ’ right to respect for correspondence, as guaranteed by Article 8 (art. 8).", "110. The Court has already had the occasion, in its above-mentioned Silver and Others judgment, to consider under Article 8 (art. 8) the \"prior ventilation rule\" and its prohibition on the inclusion in letters to legal advisers of unventilated complaints about prison treatment. It there saw no reason to disagree with the Commission ’ s finding that this ground for stopping or restricting mail did not correspond to a necessity, within the meaning of Article 8 para. 2 (art. 8-2) (Series A no. 61, pp. 38-39, para. 99).", "The Court perceives no cause to depart from this conclusion on the present occasion. There has, therefore, been a violation of Article 8 (art. 8).", "IV. CONDITIONS FOR VISITS TO FATHER FELL BY HIS SOLICITORS", "A. Article 6 para. 1 (art. 6-1)", "111. After being given leave to contact his solicitors, Father Fell was, for about two months, refused permission to consult them out of the hearing of a prison officer (see paragraph 22 above). He alleged that this constituted a breach of Article 6 para. 1 (art. 6-1), as interpreted by the Court in its above-mentioned Golder judgment.", "The Commission considered that this absence of privileged contact between lawyer and client amounted to an interference with the right of access to court that was incompatible with Article 6 para. 1 (art. 6-1).", "112. The Government ’ s principal plea was that, in the light of the subsequent change to domestic practice, the Court should decline to rule on this claim.", "The reasons given in paragraph 106 above lead the Court to reject this plea. It notes, in this connection, that the rules on confidential consultation between a prisoner and his legal adviser were also not relaxed until December 1981 (see paragraph 46 (c) above).", "113. As was pointed out by the Commission, there may well be security considerations which would justify some restriction on the conditions for visits by a lawyer to a prisoner. However, even though Father Fell was a \"category A\" prisoner (see paragraph 44 (a) above), the Government have not argued before the Court that, as regards out-of-hearing consultation, such considerations obtained in his case; indeed, they stated, in the alternative, that they did not contest the Commission ’ s finding on this issue.", "The Court sees no reason to disagree with that finding and therefore holds that there has been a violation of Article 6 para. 1 (art. 6-1) on this point.", "B. Article 8 (art. 8)", "114. Father Fell also maintained that the aforesaid restriction on confidential consultation with his solicitors was in breach of his right to respect for his private life, as guaranteed by Article 8 (art. 8).", "115. The Commission, in view of its conclusion under Article 6 para. 1 (art. 6-1), considered that it was not necessary to examine this claim. The Court is of the same opinion.", "V. THE APPLICANTS ’ ACCESS TO INDEPENDENT MEDICAL ADVICE", "116. Before the Commission, the applicants alleged that the refusal to allow them access to independent medical advice (see paragraphs 23-24 above) also constituted a breach of Article 6 para. 1 (art. 6-1). This contention was not accepted by the Commission.", "117. Since the applicants have not pursued this claim before the Court, there is no necessity to examine it (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 43-44, paras. 74-75).", "VI. RESTRICTIONS ON FATHER FELL ’ S PERSONAL CORRESPONDENCE", "118. Father Fell complained of a restriction on his correspondence arising from the application of the rule prohibiting correspondence with persons other than relatives or existing friends (see paragraph 44 (a) above); he referred in particular to the fact that he was not allowed to correspond with Sister Power and Sister Benedict (see paragraph 25 above) and alleged that there had been a breach of Article 8 (art. 8) in this respect.", "The Commission concluded that the refusal to allow the applicant to correspond with these two nuns constituted a violation of Article 8 (art. 8). The Government stated that, in the light of the subsequent change to domestic practice (see paragraph 46 (a) above), they did not contest this opinion.", "119. The only specific example of restriction on correspondence cited by the applicant dated back to 1974, well before his application to the Commission (see paragraphs 25 and 53 above). However, the Commission observed that the restrictions complained of appeared to have lasted until the relevant rules were changed in December 1981, and this was not disputed by the Government.", "120. The Court has already had the occasion, in its above-mentioned Silver and Others judgment, to consider under Article 8 (art. 8) the restriction on prisoners ’ correspondence with persons other than a relative or friend. In the absence of special considerations relevant to the particular case in issue, it saw no reason, even as regards a \"category A\" prisoner (see paragraph 44 (a) above), to disagree with the Commission ’ s finding that this ground for restricting mail did not correspond to a necessity, within the meaning of Article 8 para. 2 (art. 8-2) (Series A no. 61, pp. 38-39, para. 99).", "The Court perceives no cause to depart from this conclusion on the present occasion. There has, therefore, been a violation of Article 8 (art. 8).", "VII. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)", "121. Father Fell alleged that there existed in the United Kingdom no effective remedy in respect of his claims under Articles 6 para. 1 and 8 (art. 6-1, art. 8) and that he was therefore the victim of a violation of Article 13 (art. 13), which reads as follows:", "\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "A. Article 13 taken in conjunction with Article 6 para. 1 (art. 13+6-1)", "122. According to the Commission, Father Fell ’ s complaints under Article 6 para. 1 (art. 6-1), concerning access to legal advice, refusal to allow independent medical examination and refusal to allow confidential consultation with his lawyer, raised no separate issue under Article 13 (art. 13).", "123. The Court agrees with this opinion, which was also urged by the Government. It has found that it is not necessary to examine the complaint concerning medical examination (see paragraph 117 above). The two other complaints relate to the question of access to court and, having regard to the Court ’ s conclusions under Article 6 para. 1 (art. 6-1) (see paragraphs 107 and 113 above), there is no need to examine them under Article 13 (art. 13); this is because the requirements of the latter Article (art. 13) are less strict than, and are here absorbed by, those of the former (see, as the most recent authority, the above-mentioned Silver and Others judgment, Series A no. 61, p. 41, para. 110).", "B. Article 13 taken in conjunction with Article 8 (art. 13+8)", "124. There remain Father Fell ’ s complaints under Article 8 (art. 8), concerning access to legal advice, refusal to allow confidential consultation with his lawyer and the restrictions on his personal correspondence. These complaints were considered under Article 13 (art. 13) by the Commission, which concluded that there had been a violation by reason of the absence of an \"effective remedy\".", "125. Having found that it is not necessary to consider under Article 8 (art. 8) the complaint relating to confidential consultation with a lawyer (see paragraph 115 above), the Court sees no call to examine this issue under Article 13 (art. 13). However, the same does not apply to the other two complaints.", "126. It was not alleged that the restrictions at issue were unlawful under domestic law or resulted from a misapplication of the relevant directives. Again, it was not suggested that any remedies were available to the applicant other than the four channels of complaint examined by the Commission, namely an application to the Board of Visitors, an application to the Parliamentary Commissioner for Administration, the institution of proceedings before the English courts and a petition to the Home Secretary.", "The Government accepted, in their memorial to the Court, that prior to December 1981 the first three channels of complaint would not have provided Father Fell with an \"effective remedy\", within the meaning of Article 13 (art. 13), in respect of the complaints in question. For the reasons given in its above-mentioned Silver and Others judgment (Series A no. 61, pp. 42-44, paras. 114-118), the Court finds that this must be so.", "127. At the hearings before the Court, the Government stated that they did not seek to argue that a petition to the Home Secretary would have provided an \"effective remedy\" as regards the delay in allowing contact with a lawyer. However, they suggested that the position might have been otherwise as regards the refusal to allow correspondence with Sister Power and Sister Benedict, had Father Fell established that the authorities had incorrectly applied the relevant directives in treating these two nuns as not being \"close personal friends\" (see paragraphs 25 and 44 (a) above).", "The Court has found (see paragraphs 110 and 120 above) that the restrictions on Father Fell ’ s access to legal advice and on his personal correspondence were the result of the application of norms that were incompatible with the Convention. In such circumstances, as the Court held in its above-mentioned Silver and Others judgment (ibid., p. 44, para. 118), there could be no \"effective remedy\" as required by Article 13 (art. 13). In particular, a petition to the Home Secretary could only have been effective if the complainant alleged that a measure of control over correspondence resulted from a misapplication of one of the relevant directives (ibid., p. 43, para. 116). And in the present case, Father Fell made no such allegation nor do the circumstances suggest that he would have been in a position to do so.", "128. As regards the applicant ’ s complaints concerning the two restrictions in question, there has accordingly been a violation of Article 13 (art. 13).", "VIII. THE APPLICATION OF ARTICLE 50 (art. 50)", "A. Introduction", "129. Article 50 (art. 50) of the Convention, the applicability of which was not contested in the present case, reads as follows:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "130. The Court, which has received the Government ’ s observations on the applicants ’ claims under this Article (art. 50) and noted that the Commission leaves the matter to the Court (see paragraph 7 above), considers that the question is ready for decision (Rule 50 para. 3, first sentence, of the Rules of Court).", "B. \"General\" and \"special\" damages", "1. Mr. Campbell", "(a) The Board of Visitors ’ disciplinary proceedings", "131. Mr. Campbell maintained that because of the defects in the procedure followed by the Board of Visitors in its adjudication in his case, the proceedings were \"null and void\" and the penalties awarded could not be regarded as legitimately imposed; this was said to apply, in particular, to an additional period of imprisonment which he calculated at 427 days. Referring, inter alia, to loss of society and alleged deterioration in his health, he claimed in this respect \"substantial\" but unquantified \"general\" damages; he also sought, by way of \"special\" damages, £12,400 and £3,745, respectively, for loss of earnings and for expenses relating to family visits to him in prison during that period.", "The Government resisted the argument that the Board ’ s proceedings were a nullity. Their principal submission was that Mr. Campbell had not shown that he had suffered any prejudice.", "132. The only violations of Article 6 (art. 6) found by the Court relate to Mr. Campbell ’ s inability to obtain legal assistance or legal representation and to the failure of the Board of Visitors to pronounce its decision publicly (see paragraph 102 above). The Court ’ s only task is to examine what consequences these violations had for Mr. Campbell.", "133. Bearing in mind the Court ’ s finding on Mr. Campbell ’ s general allegation of unfairness (see paragraph 102 above), there is nothing to suggest, nor can it be assumed, that the Board of Visitors would have reached any different conclusions if he had been legally assisted or represented. It also has to be remembered that the applicant did not avail himself of the possibility of replying in writing to the charges against him and, above all, declined to attend the hearing, thereby depriving himself of the opportunity of making a defence or raising a plea in mitigation (see paragraphs 13 and 14 above).", "Again, it goes without saying that the consequences for Mr. Campbell of the Board ’ s decision would have been the same even if it had been pronounced publicly.", "134. Accordingly, no causal link has been shown to exist between these particular violations and the alleged damage, with the result that no just satisfaction falls to be awarded in this respect (see, mutatis mutandis, the Albert and Le Compte judgment of 24 October 1983, Series A no. 68, p. 7, para. 11).", "(b) Access to legal advice in connection with the personal-injuries claim", "135. Mr. Campbell claimed \"substantial\" but unquantified \"general\" damages in respect of the delay in allowing him access to legal advice in connection with his intended civil action for damages for personal injuries (see paragraphs 17-20 above).", "The Government contested this claim, inter alia, on the ground that the delay had occasioned no prejudice.", "136. The Court has found that the delay in question gave rise to breaches of Articles 6 para. 1 and 8 (art. 6-1, art. 8) (see paragraphs 107 and 110 above). However, Mr. Campbell was eventually able to obtain the advice which he sought and he has not shown in what way, if at all, his inability to do so at an earlier date adversely affected the institution or prospects of his civil action. The Court notes, in particular, that even after consulting his lawyers, the applicant appears to have been far from diligent in pursuing the matter (see paragraph 21 above).", "This claim therefore has to be rejected.", "2. Father Fell", "(a) Access to legal advice in connection with the personal-injuries claim", "137. The reasons given by the Court in the preceding paragraph for rejecting Mr. Campbell ’ s claim apply equally to a claim by Father Fell for \"general\" damages, which in his case related not only to delay in obtaining access to legal advice but also to the absence of an effective domestic remedy in this regard (see paragraphs 17-20 and 124-128 above).", "(b) Conditions for lawyers ’ visits", "138. Father Fell sought \"substantial\" but unquantified \"general\" damages in respect of the refusal to allow him to consult his solicitors out of the hearing of a prison officer (see paragraph 22 above).", "The Government contested this claim, inter alia, on the ground that this restriction had occasioned no prejudice.", "139. The Court has found that there was a breach of Article 6 para. 1 (art. 6-1) as a result of the restriction in question (see paragraph 113 above). However, the applicant has not shown in what way, if at all, it adversely affected his intended civil action for damages. The Court notes, in particular, that the restriction was in any event of short duration.", "This claim must therefore be rejected.", "(c) Restrictions on personal correspondence", "140. Father Fell claimed \"general\" damages, again \"substantial\" but unquantified, in respect both of the restrictions on his personal correspondence and of the absence of an effective domestic remedy in this regard (see paragraphs 25 and 124-128 above).", "The Government contested this claim on various grounds.", "141. It is true that the applicant may have experienced some annoyance and sense of frustration as a result of the matters in question. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage. Father Fell was, in fact, apparently allowed to correspond fairly extensively (see paragraph 25 above) and he did not seek to establish that the prohibition on corresponding with Sister Power and Sister Benedict arose from a misapplication of the relevant directives (see paragraph 127 above). Furthermore, although the Court has held that it cannot examine the compatibility with the Convention of the correspondence control regime in force since 1981 (see paragraph 104 above), substantial changes have been introduced and do appear in principle to have led to a significant improvement.", "In these circumstances, the Court considers that in relation to this head of claim its findings of violation of Article 8 (art. 8) and of Article 13 in conjunction with Article 8 (art. 13+8) (see paragraphs 120 and 128 above) constitute in themselves adequate just satisfaction, without it being necessary to afford financial compensation (see, amongst other authorities, the Silver and Others judgment of 24 October 1983, Series A no. 67, pp. 6-7, para. 10).", "C. Mr. Campbell ’ s and Father Fell ’ s costs and expenses", "142. The applicants claimed in respect of costs and expenses referable to their representation in the proceedings before the Commission and the Court the following sums:", "(a) £13,860 for the fees and expenses of Mr. Thornberry, barrister-at-law;", "(b) £10,923.90 (together with value added tax of £1,641.59) for the fees and disbursements of Messrs. George E. Baker & Co., solicitors.", "143. The Court will apply the various criteria which emerge from its case-law on the subject, as regards both the purpose for which the costs in question were incurred and the requirements that they be actually incurred, necessarily incurred and reasonable as to quantum (see, inter alia, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, para. 36).", "It notes, in this connection, that Mr. Campbell, but not Father Fell, had the benefit of legal aid before the Commission and then, after reference of the case to the Court, in his relations with the Delegate (addendum to the Commission ’ s Rules of Procedure).", "144. The Government indicated that they were prepared to pay such costs and expenses of the applicants as the Court might find to have been actually incurred, necessarily incurred and reasonable as to quantum and which were not covered by the Commission ’ s legal aid. With the exception of the points mentioned in paragraph 145 below, the Government did not assert that the applicants ’ claim failed to satisfy the Court ’ s criteria; in particular, they did not contest that Mr. Campbell had incurred liability for costs additional to those covered by his legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, para. 13). Subject to an examination of those points, the Court therefore retains the whole of the claim.", "145. At the hearings before the Court, the Government submitted that a proportion of the Strasbourg costs should be disallowed to reflect the fact that a substantial proportion of the applicants ’ complaints had been found to be inadmissible or rejected. However, in their memorial of 2 December 1983, they stated that they left this matter to the Court ’ s discretion.", "The Government also contended that, as regards his fees, Mr. Thornberry had charged at an excessive hourly rate, for an excessive number of hours and too much for the preparation of the case; they suggested a figure of £5,456 (in lieu of £12,820). They also questioned certain of the amounts claimed for his expenses.", "146. Having regard to the extent to which the applicants ’ complaints were unsuccessful, the Court considers that their costs and expenses should be reimbursed to them only in part (see the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, p. 10, para. 21). It also finds that the Government ’ s objections concerning the amounts claimed for Mr. Thornberry ’ s fees are warranted.", "In these circumstances, the Court, deciding on an equitable basis as is required by Article 50 (art. 50) and making due allowance for the sum received by Mr. Campbell from the Commission by way of legal aid, fixes the costs and expenses to be reimbursed at £5,000 for Mr. Thornberry and £8,000 for Messrs. George E. Baker & Co. These figures are to be increased by any value added tax that may be due." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "A. Background", "6. Mr Carl G. Holm is a Swedish national. He is an economist and resides at Täby in Sweden. At the material time, he was employed by the Swedish Federation of Industries ( Sveriges Industriförbund ).", "7. In 1974 the applicant formed together with others a foundation named Contra. According to him its aim was to scrutinise governments of communist regimes in Eastern Europe and the Swedish Social Democratic Workers Party ( Sveriges socialdemokratiska arbetareparti - the \"SAP\").", "8. In 1985 a publishing house, Tidens förlag AB, published a book entitled \"Till höger om neutraliteten\" (To the right of neutrality). It contained a survey of right-wing organisations and individuals, including a 52-page chapter on the applicant and his involvement in Contra. The author of the book, Mr Sven Ove Hansson, was then employed by the publisher and had previously served as an ideological adviser to the SAP.", "Tidens förlag AB was, from its foundation in 1912 until 1 January 1985, owned by the SAP directly. As of the latter date, 85% of its shares were held by a company owned by the SAP, namely AB Förenade Arebolagen. The remaining 15% were held by Folkparkernas Centralorganisation which, the applicant states, was controlled by the SAP. Tidens förlag AB is known for publishing books and articles portraying social democratic views.", "B. Institution of libel proceedings", "9. On 15 April 1986 the applicant brought a private prosecution for aggravated libel ( grovt förtal ), and in the alternative for libel ( förtal ), against Mr Hansson in the District Court ( tingsrätten ) of Stockholm, under Chapter 7, section 4, paragraph 9, of the 1949 Freedom of the Press Act ( tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) and Chapter 5, Articles 1 and 2, of the Penal Code ( brottsbalken ). In the same proceedings he sued both the author and the publisher for damages, claiming 200,000 Swedish kronor. He contended that the book contained allegations implying that he belonged to certain nazi and fascist groups, calculated to cast doubt on his honour and to expose him to contempt; in view of the wide distribution of the book and the applicant ’ s central position in the Swedish Federation of Industries, the libel was aggravated.", "The impugned passages of the book included allegations which can be summarised as follows:", "(a) in 1973 the applicant had chaired the youth section of the World Anti-Communist League ’ s Conference in London, an organisation whose membership was said to consist largely of neo- nazis and former SS-members, for example the then chairman of the nazi -oriented Swedish National Union;", "(b) the applicant had, by reason of his right-wing extremism, been expelled in 1974 from the Democratic Alliance and the Conservative Youth Organisation; it was therefore regrettable that he still held important positions within the Swedish Federation of Industries and the Swedish Employers ’ Federation;", "(c) he had been reported to the police for embezzlement of the Democratic Alliance ’ s funds; an audit had shown that he had transferred 1,340 Swedish kronor from the association ’ s account to his own account;", "(d) he had failed to dissociate himself immediately from a co-member of a splinter group of the Democratic Alliance, who had provided grenades to two Nordic National Party activists and who had urged the latter to place one of the grenades in an office of the Democratic Alliance and advised them on how to enter the office; the activists had been convicted of having placed the grenades and the applicant ’ s associate of having aided and abetted causing bodily harm;", "(e) Contra had been collaborating with the above-mentioned Swedish National Union in Lund and Malmö and the applicant had negotiated with the latter about the setting up of a local Contra group;", "(f) organisations like Contra were infiltrated to the highest echelons by neo- nazi groups, which selected the most militant members of such organisations and incited them to engage in illegal activities.", "C. Constitution of a jury before the District Court and related proceedings", "10. At a sitting held by the District Court on 10 November 1986, the defendants, but not the applicant, asked for the case to be considered with a jury. As a result of the defendants ’ request, the question whether a criminal offence had been committed was to be examined, according to the provisions of the Freedom of the Press Act, by a jury, composed on the basis of a list of two groups of names (see paragraphs 15, 18 and 19 below). The list, which had been published by the Stockholm County Council ( Stockholms läns landsting ), indicated the jurors ’ political affiliations. The first group comprised sixteen persons, seven of whom were members of the SAP, five of the Conservative Party, two of the Liberal Party, one of the Centre Party and one of the Communist Party. The second group included eight names, of whom four were members of the SAP, two of the Conservative Party and two of the Liberal Party.", "The applicant, referring to paragraph 9 of Article 13 in Chapter 4 of the Code of Judicial Procedure ( rättegångsbalken ), filed a complaint with the District Court under Chapter 12, section 8, of the Freedom of the Press Act, asking it to exclude as being disqualified those jurors who were members of the SAP (see paragraph 21 below). In support of his request, he pointed to the position as regards ownership of Tidens förlag AB (see paragraph 8 above) and argued that the publisher was the \"mouthpiece\" of the social democratic movement. However, the District Court rejected his request on 10 November 1986, finding that, regardless of whether the publisher could be seen as a \"mouthpiece\" as described by the applicant, the reasons invoked by him did not constitute grounds for disqualifying the jurors concerned.", "In an appeal against this decision to the Svea Court of Appeal ( Svea Hovrätt ), the applicant submitted, in addition to the above arguments, that the contents of the book were of a political nature and that the case had political undertones. The Court of Appeal dismissed the appeal on 4 December 1986, without stating any reasons. It was not open to the applicant to appeal further against this decision (Chapter 12, section 8, of the Freedom of the Press Act).", "11. In the meantime, at the above-mentioned sitting on 10 November 1986, the District Court proceeded with the constitution of the jury in accordance with Chapter 12 of the Freedom of the Press Act. Exercising their right under section 10, the applicant and the defence each rejected three jurors from the first group and one from the second group. Those eliminated by the applicant were all SAP members and those by the defendants were members of the Conservative Party. Lots were drawn in accordance with the procedure described in paragraph 19 below, and a jury of nine members was constituted. Of these, five were members of the SAP - one of the them was subsequently replaced by another SAP member -, two of the Conservative Party, one of the Liberal Party and one of the Communist Party.", "12. As appears from information submitted by the applicant, which was not contested by the Government, the SAP jurors were active members of the Party, holding or having held various offices in it and on its behalf at local level (for further details, see paragraph 27 of the Commission ’ s report).", "D. The findings on the merits", "13. On 14 October 1987, the District Court, sitting with three judges and a jury of nine, examined the merits of the case. In its judgment of the same date the court noted that the jury had replied in the negative to the questions put to it concerning the alleged unlawfulness of the impugned passages of the book. Accordingly, the District Court dismissed the charges made by the applicant and his claims for damages. In view of the conclusions reached on the merits, it ordered him to pay 67,860 Swedish kronor in costs.", "It was not possible under Swedish law for the applicant to appeal against the jury ’ s verdict (see paragraph 16 below)." ]

[ "II. THE RELEVANT DOMESTIC LAW AND PRACTICE", "A. Freedom of the Press Act", "14. In Sweden freedom of expression as regards the printed word is regulated by the 1949 Freedom of the Press Act, which has constitutional status. The first such Act dates back to 1766. The jury system was introduced when a revised version of the Act entered into force in 1812. The merits of the system underwent a thorough examination in the course of the revision which led to the 1949 version of the Act. However, the predominant view was that the jury system constituted an important safeguard of press freedom in Sweden and that it should be maintained. For similar reasons, more recent proposals to abolish the jury system have also been resisted.", "1. Organisation and jurisdiction of Swedish courts in proceedings relating to the freedom of the press", "15. Chapter 12 of the Act contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print (section 1). These cases are heard by the District Court within whose jurisdiction the county administration has its seat (Chapter 12, section 1). It sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed or whether civil liability has been incurred, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (sections 2 and 14). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone.", "In a jury trial the District Court is presided over by a judge. If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred, the defendant must be acquitted or the case must be dismissed. If the reply is in the affirmative - and this requires a majority of at least six members - the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or, in civil proceedings, dismiss the case (sections 2 and 14).", "16. A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury ’ s verdict (Chapter 12, section 2).", "17. Chapter 1, section 4, provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented; where there is doubt, he should acquit rather than convict.", "2. Election of jurors", "18. In each county the county council, alone or in some cases together with the municipal council, elects jurors for a term of four years (Chapter 12, section 4). They are divided into two groups, one of sixteen jurors and the other of eight, the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts (section 3). The names of jurors are entered on a list in which each of the two groups are listed separately (section 9).", "Only Swedish citizens residing in Sweden are eligible for election as jurors. A further condition is that they be known to be independent and fair-minded and to have sound judgment. Different social groups and currents of opinion as well as geographical areas should be represented among the jurors (section 5). In practice, jurors are normally elected from among people who have been politically active.", "3. Composition of a jury", "19. In proceedings involving a jury, the District Court presents the above-mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors (Chapter 12, section 10; see also paragraph 21 below). Thereafter, each party is given the opportunity to exclude three jurors in the first group and one from the second. Subsequently, the District Court, by drawing lots, selects the substitute members until there remain six jurors in the first group and three jurors in the second group; these nine jurors become full members of the jury (Chapter 12, section 10).", "B. Other legislation", "20. Chapter 11, section 2, of the Instrument of Government ( regeringsformen ), which forms part of the Swedish Constitution, provides that neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. Moreover, all public power must be exercised subject to the law; courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, sections 1 and 9). These fundamental principles apply also to a jury sitting in a trial under the Freedom of the Press Act.", "21. The statutory rules on disqualification of judges extend to jurors (Chapter 12, section 10, of the Freedom of the Press Act). Chapter 4, Article 13, of the Code of Judicial Procedure enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Article, paragraph 9, which was the one relied on by the applicant in the domestic proceedings, a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case.", "22. According to section 5 of the 1949 Act containing certain provisions on Proceedings relating to the Freedom of the Press ( lagen 1949:164 med vissa bestämmelser om rättegången i tryckfrihetsmål ) jurors must take the following oath before participating in a trial:", "\"I, N.N., solemnly swear and declare on my faith and honour that, as a member of this jury, I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury ’ s deliberations and how the jurors have voted. This I will and shall faithfully observe as an honest and upright judge.\"", "C. Internal rules of political parties imposing duties of allegiance", "23. Clause 13 of the SAP ’ s articles of association provides that a member may be excluded if he is disloyal to the Party, disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests. SAP candidates for public office are required to contribute through their office to the implementation of the Party ’ s programme. Other political parties have similar rules.", "On the other hand, none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror. It appears from the legislation summarised in paragraphs 20 to 22 above and the preparatory works to the 1949 Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge (see Statens offentliga utredningar - \"SOU\" 1947:60, p. 194).", "PROCEEDINGS BEFORE THE COMMISSION", "24. In his application (no. 14191/88) filed with the Commission on 24 January 1987, Mr Holm alleged that his case against Mr Hansson and Tidens förlag AB was not determined by an independent and impartial tribunal within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.", "25. By decision of 9 January 1992, the Commission declared the application admissible. In its report of 13 October 1992 (Article 31) (art. 31), the Commission expressed the opinion, by fourteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment. [*]", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "26. At the hearing on 22 June 1993 the Government confirmed the submissions set out in their memorial, in which they asked the Court to hold that there had been no violation of the Convention in the present case.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)", "27. Mr Carl G. Holm alleged that, owing to the participation of five active SAP members in the jury at the District Court of Stockholm, his case had not been heard by \"an independent and impartial tribunal\" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, which in so far as relevant, provides:", "\"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...\"", "This claim was contested by the Government, but was accepted by the Commission.", "28. The Government disputed that the manner of composition of the jury had given rise to a legitimate fear as to its independence and impartiality. In their view, the question had to be examined in the light of Sweden ’ s legal system, its legal traditions and political history. Since 1812 a jury system for freedom-of-the-press cases has existed in Sweden; it had been maintained, despite a number of proposals to Parliament to abolish it, in order to safeguard press freedom from undue State interference, in particular as regards political matters. The jury system was seen as having constituted a crucial factor in the development of democracy in Sweden.", "In the present case there were admittedly certain links between the five SAP members of the jury and the defendants. However, these were only of a general political nature and ought to be distinguished from those at issue in the case of Langborger v. Sweden. In that case the Court found that a Housing and Tenancy Court had failed to satisfy the requirements of independence and impartiality in Article 6 para. 1 (art. 6-1), mainly because two lay assessors who sat in the proceedings had been nominated by, and had close links with, two associations which both had interests contrary to those of Mr Langborger, a party in the proceedings (judgment of 22 June 1989, Series A no. 155, p. 16, para. 35). Unlike the lay assessors in the latter case, the jurors in Mr Holm ’ s case had no direct interest in the outcome of the case, nor could the SAP be said to have had any such interest. Moreover, it was not contended that the jurors in question had a direct influence on or interest in the defendant company. In fact, the only object of their role was to ensure popular participation in the judicial process.", "Finally, the Government submitted that decisive importance should not be attached to the fact that under Swedish law the jury had the final say in the event of an acquittal. This rule, although it could be considered to favour the defence in cases such as the present, was consistent with the principle of according the printed word the benefit of the doubt, and hence with the right to freedom of expression as guaranteed by Article 10 (art. 10) of the Convention; indeed it might even go further than the requirements of that Article (art. 10).", "29. In the Commission ’ s opinion, the applicant ’ s doubts as to the independence and impartiality of the District Court could, in the specific circumstances of the case, be considered objectively justified. It placed emphasis inter alia on the links between the five SAP jurors and the two defendants in the case and on the political nature of the disputed passages of the book. It further noted the absence in the District Court ’ s judgment of reasoning indicating the objective basis for the acquittal and the lack of a possibility of obtaining an effective review of such a verdict on appeal.", "30. In determining whether the District Court could be considered \"independent and impartial\", the Court will have regard to the principles established in its own case-law (see, for instance, the above-mentioned Langborger judgment, Series A no. 155, p. 16, para. 32; and the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and 30), which apply to jurors as they do to professional judges and lay judges. Like the Commission, it finds it difficult in this case to examine the issues of independence and impartiality separately (see also the above-mentioned Langborger judgment, ibid.).", "31. It is only the independence and the objective impartiality of the five jurors who were affiliated to the SAP which are in issue; the applicant did not contest their subjective impartiality, finding it impracticable to do so in view of the secrecy of each juror ’ s vote (see paragraph 22 above).", "It is undisputed that the jurors in question were elected in the prescribed manner by the competent elective body, in conformity with the legal conditions for eligibility: namely that the persons concerned be known to be independent and fair-minded and to have sound judgment and also that different social groups and currents of opinion as well as geographical areas be represented among the jurors (see paragraph 18 above). The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors (see paragraphs 10, 11 and 21 above). It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicant, albeit unsuccessfully, availed himself of this remedy (see paragraph 10 above). Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities and in a judicial manner (see paragraph 22 above).", "Furthermore, jurors are in several respects viewed under Swedish law as affording the same guarantees of independence and impartiality as judges; in particular, the provisions in the Instrument of Government that aim at safeguarding the independence and impartiality of the judiciary cover juries and the statutory rules on disqualification of judges also extend to jurors (see paragraphs 20-21 above).", "Accordingly, as indicated by the Commission and the Government, there existed a number of safeguards to ensure the independence and impartiality of the jurors in question.", "32. On the other hand, the Delegate of the Commission stressed that under the relevant rules the defence was given the benefit of certain safeguards that were not applicable to the applicant. In this regard, the Court observes the following. Firstly, the defendants could opt for a trial by jury, despite the fact that the applicant did not wish to have one; secondly, an affirmative answer by the jury as to whether the impugned statements in the book constituted an offence required the votes of a special majority of six out of nine jurors (see paragraphs 10 and 15 above). Lastly, the jury had the final say in the event of an acquittal; had the verdict been against the defendants the issue would have been the subject of further review by the District Court judges (see paragraphs 13, 15 and 16 above). It thus appears that the applicant as a private prosecutor was placed in a less favourable position than the defence. However, these features, most of which are typical of a criminal trial involving a jury and which were designed to enhance freedom of the press, do not as such constitute a legitimate reason to fear a lack of independence and impartiality on the part of the jurors.", "Nevertheless, it is to be noted that there were links between the defendants and the five jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors ’ independence and impartiality. The jurors in question were active members of the SAP who held or had held offices in or on behalf of the SAP (see paragraph 12 above). One of the defendants, the publishing house Tidens förlag AB, had been directly owned by the SAP until 1 January 1985 - the year when the book was published; after that date, it was owned by the SAP indirectly through two companies (see paragraph 8 above). The other defendant, the author, was employed by the publishing house at the time of the book ’ s publication and had served as an ideological adviser to the SAP (see paragraph 8 above).", "Furthermore, Tidens förlag AB was known for publishing articles portraying opinions shared by the SAP (see paragraph 8 above). The impugned passages of the book were clearly of a political nature and undoubtedly raised matters of concern to the SAP in that they involved criticism of the applicant and Contra, an organisation which had been set up to scrutinise the SAP (see paragraphs 7 and 9 above).", "33. Having regard to the foregoing, the Court considers that the independence and impartiality of the District Court were open to doubt and that the applicant ’ s fears in this respect were objectively justified. Moreover, since the Court of Appeal ’ s jurisdiction, like that of the District Court, was limited by the terms of the jury ’ s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former (see paragraphs 13 and 16 above).", "In sum, there has been a violation of Article 6 para. 1 (art. 6-1) in the particular circumstances of the present case.", "II. APPLICATION OF ARTICLE 50 (art. 50)", "34. Article 50 (art. 50) reads:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Non-pecuniary damage", "35. Under this provision Mr Holm sought 400,000 Swedish kronor for non-pecuniary damage. He submitted that there could be no doubt that he had been under psychological pressure from the book ’ s publication until several years after the domestic proceedings ended. The publication, which was reported in the press, came at a very inconvenient time when he was about to start a new job in a new town. Bringing proceedings against the author and the publishing house had seemed to be the only means of regaining credibility. However, he had had little prospect of success, the jury being composed in the way it was. His failure to win the case had attracted extensive media coverage and had resulted in his encountering great professional difficulties.", "36. It is not for the Court to speculate on whether the District Court would have arrived at a conclusion in the applicant ’ s favour had it been composed in a different manner. In any event, the Court agrees with the Government that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself adequate just satisfaction in this respect.", "B. Legal costs", "37. The applicant also requested reimbursement of 352,500 kronor under the head of lawyer ’ s costs, of which 170,860 were referable to the domestic proceedings and 181,640 to those before the Convention institutions.", "The Government agreed to pay only costs in respect of the latter, the amount to be assessed on an equitable basis.", "38. As to legal costs in the domestic proceedings, the Court is of the view that it is only in so far as they related to his contesting the ability of the SAP members on the list to take part in the trial that they were necessarily incurred in order to avoid the violation found of Article 6 para. 1 (art. 6-1) of the Convention (see paragraphs 10 and 33 above).", "With regard to the above costs and those referable to the Strasbourg proceedings, the Court, making an assessment on an equitable basis, considers that the applicant is entitled to recover 125,000 kronor, from which 5,650 French francs already received from the Council of Europe by way of legal aid must be deducted." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1944 and lives in Innsbruck.", "8. The applicant is a medical practitioner whose contract with the Tyrol Regional Health Insurance Board ( Gebietskrankenkasse ) was terminated by the latter on 31 December 1996. Subsequently the applicant was practising without a contract with the Health Insurance Board and is meanwhile retired. He complains about two sets of proceedings.", "A. The first set of proceedings", "9. On 29 October 1996 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that the defendant had to pay an additional amount of 120 Austrian schillings (ATS) for doctor ’ s fees.", "10. On 2 April 1997 the Joint Arbitration Committee ( Paritätische Schiedskommission ) dismissed the applicant ’ s claim. The applicant appealed against this decision.", "11. On 2 July 1998 the Regional Appeals Commission ( Landesberufungskommission ) dismissed the appeal.", "12. On 25 September 1998 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the general agreement between the Association of Social Insurance Boards ( Hauptverband der Sozialversicherungsträger ) and the Tyrol Medical Association ( Ärztekammer ) on which his doctor ’ s fees were based violated his constitutional right to non-discrimination ( Recht auf Gleichheit ).", "13. On 15 April 1999 he amended his complaint and alleged that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition.", "14. On 17 December 1999 the Constitutional Court dismissed the complaint. It did not accept that the Regional Appeals Commission ’ s decision had violated the applicant ’ s constitutional rights. As regards the composition of the Regional Appeals Commission, the Constitutional Court noted that the applicant ’ s complaint had been lodged out of the statutory six months time-limit. However, referring to its constant case-law, it found that the applicant ’ s constitutional rights were not violated.", "B. The second set of proceedings", "15. On 11 February 1997 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that it had to pay some ATS 18 million (about 1,3 million euros) as the doctor ’ s fees provided for in the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association were far too low and, therefore, his contract with the Regional Health Insurance Board was null and void.", "16. On 11 August 1997 the applicant made a request for transfer of jurisdiction ( Devolutionsantrag ) as the Joint Arbitration Committee failed to decide within the statutory six months-period.", "17. On 28 October 1997 the Regional Appeals Commission, after having held a hearing, dismissed the applicant ’ s claim.", "18. On 15 December 1997 the applicant lodged a complaint with the Constitutional Court. He alleged that the contract between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor ’ s fees were based violated his constitutional right to non-discrimination. Further, he complained that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition and submitted that the Association of Social Insurance Boards had provided two deputy directors of the Tyrol Regional Health Insurance Board as assessors.", "19. On 16 December 1999 the Constitutional Court dismissed the complaint. Referring to its constant case law, the Constitutional Court found that the Regional Appeals Commission in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions. Further it found that ...", "“It is true that the assessors of the Regional Appeals Commission are representatives of two conflicting spheres of interest. However, these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations. Their task is rather to bring their experience to bear in the proceedings. ... A violation of the required impartiality could, thus, ... be due to specific circumstances in the individual case resulting, for example from an official or organisational dependence of the appointed member of the Regional Appeals Commission. ...", "Such official or organisational dependence does, however, in the Constiutional Court ’ s view, not arise from the mere fact that the parties of the general agreement provide the assessors of the Regional Appeals Commission. ... In view of the legally guaranteed freedom from instructions of the members of the Regional Appeals Commission, a constellation affecting the appearance of independence and impartiality could - also in the light of the case Hortolomei v. Austria (cited above) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters. ...”", "20. In conclusion, the Constitutional Court found no indication that the members of the Regional Appeals Commission lacked independence or impartiality." ]

[ "II. RELEVANT DOMESTIC LAW", "A. General provisions", "21. Pursuant to Sections 341 ff. of the Social Insurance Act ( Allgemeines Sozialversicherungsgesetz ) the Association of Social Insurance Boards ( Hauptverband der Sozialversicherungsträger ) on behalf of the Regional Health Insurance Board ( Gebietskrankenkasse ) concludes with the respective Regional Medical Association a general agreement ( Gesamtvertrag ). The Regional Health Insurance Board concerned has to consent to the general agreement which is the basis of individual contracts ( Einzelvertrag ) between the respective Regional Health Insurance Board and medical practitioners. It regulates, inter alia, the doctor ’ s fees for medical treatments effected by practitioners under contract.", "B. The composition of the Regional Appeals Commission", "22. The Social Insurance Act, in the version in force at the material time, provided as follows:", "\"344 (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land ...", "(2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the Regional Medical Association and two by the Regional Health Insurance Board, which is party to the individual contract. ...", "(4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ....", "345 (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Minister of Justice. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Regional Medical Association and the Association of Social Insurance Boards each provide two assessors.\"", "23. The non-judicial members of the Regional Appeals Commission are appointed for a renewable period of five years and not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitution). They may only be recalled, if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties. Moreover, they may be recalled upon request of the sending organisation for important personal reasons by the Federal Minister of Justice.", "24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court ( Verwaltungsgerichtshof ) by Article 133 § 4 of the Federal Constitutional Law.", "25. On 1 September 2002 an amendment of the Social Insurance Act, modifying the manner of appointment of the assessors, entered into force. The amended version of Section 345, in so far as relevant, provides as follows:", "“... The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "26. The applicant complained that the Regional Appeals Commission could not be regarded as an independent and impartial tribunal as required by Article 6 § 1 of the Convention which, so far as material, reads as follows:", "“1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law. ... ”", "27. Referring to the case of Hortolomei v. Austria (no. 17291/90, Commission ’ s report of 16 April 1998, § 46 ), the applicant submitted in particular that he was challenging a contract concluded by the two bodies, namely the Association of Social Insurance Boards and the Tyrol Medical Association, which had sent the assessors sitting in the Regional Appeals Commission. Moreover, in the second set of the proceedings, the Association of Social Insurance Boards provided as assessors two deputy directors of the Tyrol Regional Health Insurance Board, which was both party to the general agreement and to the individual contract.", "28. The Government contended that there was no appearance of a lack of independence and impartiality of the Regional Appeals Commission and relied in the first place on the Constitutional Court ’ s decision of 16 December 1999 (see paragraph 19 above). They pointed out that the Constitutional Court had quashed several decisions of the Regional Appeals Commission, if one of the assessors had been directly involved in the negotiations of the contracts to be examined in subsequent proceedings.", "29. However no member of the Regional Appeals Commission had been involved in the negotiation or conclusion of the general agreement to be considered in the proceedings at issue. The present case, therefore, had to be distinguished from McGonnell v. the United Kingdom (no. 28 488/95, §§ 53-58, ECHR 2000-II), where the Court found a violation of Article 6 § 1 on account of the direct involvement of a judge in the adoption of the development plan at issue in the proceedings. The present case was rather comparable to Siglfirđingur ehf v. Iceland (dec.) ( no. 34142/96, 7 September 1999 ) in which the Court found that the presence of assessors appointed by the Employers ’ Federation and the Federation of Labour in Icelandic labour courts did not in itself justify doubts as to their independence and impartiality. Finally, they submitted that the Social Insurance Act had been amended in 2002 (see above, paragraph 25).", "30. The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.", "As to the question of “impartiality”, there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I, p. 281, § 73).", "The concepts of independence and objective impartiality are closely linked (ibid.) and the Court will consider them together.", "31. The Regional Appeals Commission is composed of a professional judge as chairman who is appointed by the Federal Minister of Justice and of four assessors, two of which are appointed by the Regional Medical Association, two by the Association of Social Insurance Boards.", "32. What is at issue in the present case is the independence and objective impartiality of the four assessors. The Government argued in essence that only situations in which a member of the Regional Appeals Commission has been directly involved in the negotiation of the contract at issue give rise to objectively justified fears about a lack of independence and objective impartiality of the Regional Appeals Commission.", "33. The Court is not convinced by this argument. It considers that situations falling short of the direct involvement of a member of a tribunal in the subject matter to be decided may give rise to legitimate doubts as regards that tribunal ’ s independence and impartiality. It considers that the present case is comparable to the case of Hortolomei (cited above, § 46 ) in which the European Commission of Human Rights held that the Regional Appeals Commission set up under the Austrian Social Insurance Act did not present the necessary appearance of independence and impartiality as the assessors were nominated by and had close links with the bodies which had concluded the guidelines challenged in that case. It found that the applicant “could legitimately fear that the assessors – notwithstanding their five year terms of office and formal independence of the executive – had a common interest contrary to his own and therefore that the balance of interests, inherent in the sending of representatives of the medical profession and the Health Insurance Boards in other cases, was liable to be upset in his case.”", "34. The Court finds no reason to reach a different conclusion in the present case. It notes that, in both sets of proceedings against the Tyrol Regional Health Insurance Board the applicant challenged the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor ’ s fees were based.", "35. As regards the first set of proceedings the Court considers that, for the reasons set out in Hortolomei, the mere fact that the two bodies which had concluded the impugned general agreement appointed the assessors to the Regional Appeals Commission is sufficient to justify the applicant ’ s fears as regards the Commission ’ s lack of independence and impartiality. The case relied on by the Government ( Siglfirđingur ehf, cited above) cannot lead to another finding, since the assessors in the labour courts at issue in that case were representatives of conflicting spheres of interest but, unlike the present case, there were no circumstances liable to upset the balance inherent in such a system.", "36. As to the second set of proceedings the Court notes that, in addition, the two assessors appointed by the Association of Social Insurance Boards were senior officials of the Tyrol Regional Health Insurance Board, i.e. the applicant ’ s opponent in the proceedings. This must have aggravated the applicant ’ s legitimate fears that the Regional Appeals Commission might not approach his case with the necessary independence and impartiality.", "37. Finally, the Court notes that the lack of independence and impartiality of the Regional Appeals Commission was not remedied on appeal, as its decision was not subject to control by a judicial body that has full jurisdiction and provides the guarantees of Article 6 § 1. In the present case an appeal to the Administrative Court was excluded by law, and the Constitutional Court does not have full jurisdiction, the scope of the case before it being limited to issues of constitutional law (see Hortolomei, cited above, §§ 49-50, with further references).", "38. The Court therefore concludes that there has been a violation of Article 6 § 1 in both sets of proceedings.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "39. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "40. The applicant requested an overall amount of EUR 1,331,934 for pecuniary and non-pecuniary damage. In respect of pecuniary damage he claimed that he would have succeeded in the domestic proceedings had the Regional Appeals Commission been impartial.", "41. The Government commented that there was no causal link between the alleged violation and the pecuniary damage claimed. As to non-pecuniary damage the finding of a violation was sufficient.", "42. The Court reiterates that it is not called upon to speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 (see Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2514, § 72). Consequently, no award under this head is made.", "43. The Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered (see McGonnell, cited above, § 61).", "B. Costs and expenses", "44. The applicant claimed EUR 2,979.58, including VAT, in respect of costs and expenses incurred in the proceedings before the Constitutional Court and EUR 44,128.22, including VAT, for costs and expenses incurred in the Convention proceedings.", "45. The Government submitted that EUR 4,000 appeared appropriate in respect of the Convention proceedings.", "46. The Court observes that, in both sets of proceedings, the applicant ’ s complaint to the Constitutional Court did not only concern the issue of impartiality but also involved a number of other questions. Making an assessment on an equitable basis, it awards the applicant EUR 1,000 in respect of the domestic proceedings.", "47. Moreover, the Court observes that the applicant ’ s claim in respect of the Convention proceedings is excessive. It finds the sum accepted by the Government reasonable and therefore awards the applicant EUR 4,000 under this head.", "48. In sum, a total amount of EUR 5,000 is awarded in respect of costs and expenses plus any tax that may be chargeable on that amount.", "C. Default interest", "49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant is an Italian company, which was represented by Mr A. Saccucci, Mr A.G. Lana and Mr M. Desario, lawyers practising in Rome.", "3. The Government were represented by their former Co-Agent, Ms M.G. Civinini.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The factual background", "5. The applicant is a company which operates in the sector of the construction and management of hydroelectric power plants and the installation of renewable energy plants.", "6. On 12 February 1996 the applicant sent a letter to ENEL, informing it that it was about to start the construction of a hydroelectric power plant in Albania. The applicant wanted to assess ENEL’s interest in collecting the electrical energy that would be produced in the plant. ENEL, an acronym which stands for National Entity for Electrical Energy ( Ente nazionale per l’energia elettrica ), had been created as a public entity in 1962 by nationalising several hundred private electrical energy companies. In 1999, with the creation of a number of subsidiaries and 32% of its capital being sold on the stock market, a process of privatisation of the entity began. In 1996 it still had a monopoly in the Italian energy sector. At the time, N.I. was ENEL’s Vice-Chairman and a member of its Board of Directors.", "7. ENEL sent a first positive reply on 29 February 1996, by means of a letter signed by two senior managers of the company, C.P. and G.P., declaring that it would be available in principle to examine the energy supply proposal, provided that the activities necessary to ensure the technical feasibility of the project were completed.", "8. In June 1996 the applicant received a concession from the Albanian Government to build the hydroelectric plant. The concession was signed by the applicant in May 1997. A preliminary agreement between ENEL and the applicant, containing a commitment by the parties to implement the project, was then signed in March 1999.", "9. In 1999, having previously been an internal division within ENEL, ENELPOWER S.p.a. (“ENELPOWER”) was created as a separate corporation, albeit wholly controlled by ENEL and linked to the latter’s Engineering and Construction Division.", "10. On 2 February 2000, after almost four years of negotiations with ENEL, the applicant signed a cooperation agreement with ENELPOWER, the newly created entity. The agreement was reached on the basis of the construction of the above-mentioned hydroelectric power plant in Albania. One of the main provisions of the agreement was the applicant’s obligation to sell, to ENEL (the parent entity), the electrical energy which would be produced in the power plant, with a view to its distribution to ENEL’s customers in Italy.", "11. In the cooperation agreement the parties undertook, in Article 11, to refer any future disputes to the Arbitration Chamber of the Rome Chamber of Commerce (the “ACR”).", "12. On 16 March 2000, both parties agreed to entrust A.A., ENELPOWER’s auditors, with the task of assessing the value of the applicant’s concession. The aim of this assessment was to establish an amount of capital that should then be assigned to a newly created Albanian company, in order to implement the project. A.A. presented its assessment on 19 April 2000. ENELPOWER did not agree with the methods or the outcome of the audit, in addition to expressing its doubts as to the feasibility of the project, and decided not to perform the cooperation agreement.", "The arbitration proceedings", "13. On 23 November 2000 the applicant lodged a request with the ACR to commence arbitration proceedings against ENELPOWER. In particular, the applicant asked the ACR to establish ENELPOWER’s breach of the cooperation agreement and sought the termination of the latter, together with an order for damages, evaluated at 237,500,000,000 Italian lira (ITL) (about 130,000,000 euros (EUR)). At the same time, the applicant appointed Mr G.G. as its arbitrator.", "14. ENELPOWER filed its reply on 28 December 2000 and appointed, as its arbitrator, Mr N.I.", "15. On 12 February 2011 the ACR sent a letter to the named arbitrators to inform them of their appointment and to invite them to disclose in writing any potential conflict of interest. The acceptance statement given by N.I. did not explicitly refer to the absence of any conflict of interest.", "16. On 6 March 2001 the arbitral panel was completed by the appointment, by the parties, of a third arbitrator to act as Chair, namely P.D.L. After the latter’s resignation, A.V. was appointed by the ACR as Chair on 7 November 2001.", "17. At the time of the events, N.I. had been representing ENEL as its lawyer in a parallel civil dispute concluded by judgment no. 15029 of 27 November 2001 (R.G. 4386/1999) of the Court of Cassation. The dispute, between ENEL and, inter alia, the Italian national institute for insurance against accidents in the workplace (INAIL), concerned the reimbursement of insurance claims stemming from work-related accidents.", "18. On 17 June 2002 the ACR informed the parties’ lawyers that the deadline for the deposit of the award would expire on 15 December 2002.", "19. The versions of the facts given by the parties radically differ with regard to the events of 25 November 2002:", " The Government maintained that, on 25 November 2002, the ACR had dismissed, in a private session in which the arbitrators had participated in person (“ conferenza personale” ), all the applicant’s claims. Pursuant to Article 823 of the Italian Code of Civil Procedure (CCP), the award had been decided by a majority and had been deposited, with the signatures of A.V. and N.I., on 6 December 2002 at 16:34. According to the Government, during the private session the arbitrators had asked the Chair to draft the award and G.G. had expressed his intention not to sign the award.", " According to the applicant, it was not true that the arbitrators had reached an agreement on a decision at that meeting. The applicant argued that G.G. had never expressly manifested his intention not to sign the award or to consent to the latter being deposited without his dissenting opinion. Moreover, G.G. had not understood that the meeting had been called to adopt the final decision.", "20. Meanwhile, on 6 December 2002, the applicant by means of a registered letter with return receipt, faxed in advance at 16:50 to the ACR and to the three arbitrators, had lodged a request for the withdrawal of N.I. In particular, the applicant had alleged that the day before, on 5 December, it had become aware of the fact that the arbitrator appointed by ENELPOWER, N.I., had been member of the Board of Directors, Vice-Chairman and thus legal representative of ENEL, parent entity of ENELPOWER, between 1995 and 1996. Moreover the applicant had also become aware that N.I. had been, and still was, acting as a lawyer for ENEL. The applicant alleged that on 5 December 2002 its legal representative F.B., while talking with third parties of a conference held by ENEL at the Milan Stock Exchange on 8 November 2002, had discovered this information by chance.", "21. On the same day the ACR had sent to N.I. and G.G. a cover letter, together with the full text of the award. The letter read:", "“I herewith send you, on behalf of the Chair of the Arbitral Panel, the text of the arbitral award and I inform you that three original counterparts are at your disposal in the Registry, in order for you to sign them. I remind you that the deadline to formally deposit the award has been fixed at 15 December. I would ask you to let us know should you have any difficulty, in order to arrange a swift and smooth conclusion to the proceedings.”", "22. On 12 December 2002, G.G., allegedly unaware that the award had in the meantime been deposited (see paragraph 19 above), had sent his dissenting opinion to the ACR in which he challenged the conduct of the final stages of the arbitration proceedings. He referred to the fact that the principle of collegiality had been breached; he further complained that no collegial discussion had been held, and that a secretary had been present during the meeting of 25 November 2002. This latter circumstance had led him to believe that the meeting had not been called to adopt the decision, but that it was an informal gathering of the panel. According to the applicant, the fact that the minutes of the meeting indicated that the arbitrators had entrusted the Chair with the task of drafting the award proved nothing, as they had been drawn up some time after the meeting.", "23. On 13 December 2002 the ACR dismissed the request for the withdrawal of N.I., since the arguments put forward by the applicant had been lodged out of time and the award had already become binding in respect of the parties, pursuant to Article 823 of the CCP.", "24. In the meantime, on 10 December 2002, the applicant had deposited a request for the withdrawal of N.I. in the Registry of the Rome District Court, pursuant to Articles 815 and 51 of the CCP.", "25. On 20 February 2003 the President of the Rome District Court dismissed the applicant’s request for withdrawal as inadmissible, as it had been lodged out of time. In particular, according to the District Court, the arbitration proceedings had ended on 25 November 2002 (date of the arbitrators’ conference) or, at the latest, at the time of the signing of the arbitral award by two of the arbitrators on 6 December 2002. According to the District Court, any grounds for withdrawal, if discovered after the conclusion of the arbitration proceedings, could only have been raised through extraordinary revocation proceedings.", "26. Before the Rome District Court, N.I. spontaneously declared that he had previously represented ENEL as lawyer in two sets of proceedings, for which he had been appointed as lawyer prior to the beginning of the arbitration proceedings.", "27. For the same reasons as those mentioned at paragraph 25 above, on 29 April 2003 the President of the Rome District Court dismissed as inadmissible a further request for the withdrawal of N.I. that had been lodged by the applicant on 27 January 2003. As an additional ground for dismissal, the District Court made reference to the fact that, in the environment in which the parties to the dispute were operating, it was quite unlikely that the parties had not been aware, well before 5 December 2002, of the professional activities of N.I.", "28. The award was declared enforceable (pursuant to Article 825 of the CCP) on 19 December 2003, by a decision of the Rome District Court.", "The civil proceedings against the ACR", "29. On an unspecified date, the applicant lodged a claim against the ACR for negligence, seeking compensation of EUR 374,482.91. The applicant complained, inter alia, of the fact that the ACR had not requested and obtained the explicit disclosure of any conflict of interest from the arbitrators, in violation of Article 6 of its Rules of Procedure, and that it had erroneously indicated 6 December 2002 as the date of the deposit of the award.", "30. On 14 March 2005 the Rome District Court dismissed the applicant’s claims. In particular, it maintained that the arbitral panel had held a private conference on 25 November 2002 and that, on that occasion, the award had not been signed by the dissenting arbitrator. All the requirements of Article 823 of the CCP had been duly complied with. The ACR had therefore correctly indicated 6 December 2002 as the date of deposit and no negligence could be imputed to it. At the same time, the ACR could not be held responsible for the fact that N.I. had not indicated in his statement the absence of any conflict of interest, as the ACR did not have an obligation to require such an explicit negative disclosure.", "The nullity appeal", "31. On 2 December 2003, pursuant to Article 828 of the CCP, the applicant appealed against the arbitral award before the Rome Court of Appeal. In its appeal the applicant requested the courts to ascertain the non-existence or the nullity of the arbitral award of 25 November 2002, and, as a consequence, to refer the proceedings back to the panel for their continuation. The applicant argued that, inter alia, by not having disclosed his incompatibility in the independence declaration provided for by the rules of the ACR, the appointment of N.I. as arbitrator had lacked any lawfulness. It also complained of his lack of impartiality due to his ties to the ENEL group.", "32. On 7 April 2009 the Rome Court of Appeal dismissed the applicant’s appeal. It maintained that the award had been adopted at the conferenza personale (see paragraph 19 above) on 25 November 2002; that Article 823 of the CCP had been complied with in the sense that the majority of the arbitrators had signed the award; that the absence of an independence declaration was completely irrelevant and that the alleged lack of impartiality could not, in any case, have affected the validity of the award, as a question relating to an arbitrator’s impartiality could only have been raised in the request for withdrawal, and could never, in any event, lead to the nullity of the award.", "33. The applicant appealed against this judgment to the Court of Cassation. The latter, on 15 November 2010, dismissed the applicant’s appeal with final effect. The Court of Cassation, however, radically changed the reason for the dismissal. In fact it deemed admissible the applicant’s complaint as to the nullity of the award stemming from the lack of impartiality of N.I., as it had been lodged, albeit after the deliberation on the award, before it had been signed, thus in the course of the arbitration proceedings (as required by Article 829 § 1(2) of the CCP). At the same time, however, the Court of Cassation stated that the existence of a link between the arbitrator and ENELPOWER, resulting in an “alignment of interests” in a specific outcome of that very dispute (Article 51 § 1(1) of the CCP), had not been demonstrated.", "The criminal proceedings against A.V., G.G. and N.I.", "34. Following the events of 6 December 2002, the legal representative of the applicant lodged a complaint with the ACR against its arbitrator, G.G., who had allegedly blackmailed him on 10 December 2002, warning him to drop the request for withdrawal against N.I. or G.G. would otherwise not oppose the final approval of the award, even though it was in his opinion severely flawed by irregularities. The public prosecution office in Rome, having been informed by the ACR of this complaint, opened a criminal investigation for extortion.", "35. Following the criminal investigation and the acquisition of further evidence, the public prosecution indicted N.I. and A.V. The indictment against N.I. contained several charges, ranging from forgery (Article 479 of the Criminal Code) for having, inter alia, failed to disclose his professional relationship with one of the parties, to misfeasance in public office (Article 323 of the Criminal Code) for having intentionally procured an unfair pecuniary benefit to ENELPOWER.", "36. Proceedings were discontinued on 13 September 2004 (as to the forgery charges) and 30 September 2005 (as to the misfeasance charges). With particular regard to the offence of misfeasance in public office for having intentionally procured an unfair pecuniary benefit to one of the parties to the arbitration proceedings, the preliminary investigations judge referred to the well-established case-law principle whereby arbitration was private in nature and arbitrators could not be considered public officials, therefore not being liable under the relevant criminal provision.", "37. On 30 September 2005 criminal proceedings against G.G. for false declarations to the public prosecutor were also discontinued." ]

[ "RELEVANT LEGAL FRAMEWORK", "Relevant domestic law", "38. The Court of Cassation has repeatedly stated (see, among others, judgments nos. 3804 of 25 February 2015, 8532 of 28 May 2003, and 10922 of 25 July 2002) that arbitration proceedings are held to be pending when the complaining party has given notice to the other about its intent to refer a dispute for arbitration ( domanda di accesso agli arbitri ), since the notice includes the nature and legal basis for the proceedings.", "The Italian Code of Civil procedure (as in force at the relevant time)", "39. The applicable provisions of the Code of Civil Procedure (CCP), as in force at the relevant time, read as follows:", "Article 51 – Withdrawal of judges", "“Judges are under an obligation to stand down where:", "The judge has an interest in the dispute or in another dispute concerning the same legal issue.", "The judge or his/her spouse is a relative within the fourth degree of, or has adoptive ties to, lives or has friendly relations with, one of the parties or one of their representatives.", "The judge or his/her spouse is involved in pending litigation or has a serious conflict with, or is either a debtor or creditor of, one of the parties or one of their representatives.", "The judge has advised or acted in the dispute, or testified therein as witness, or has previously adjudicated it in another instance as judge or arbitrator, or has been appointed as an expert.", "The judge is a guardian, representative, agent or employer of one of the parties; or where he/she is the director or manager of a body, an association, even one that is not recognised, a committee, a company or a subsidiary that has an interest in the dispute.", "In any other case where there are serious reasons of propriety, the judge can ask the head of the relevant judicial authority for authorisation to stand down ...”", "Article 815 – Requests for withdrawal of arbitrators", "“A party can request the withdrawal of the arbitrator not appointed by it for the reasons indicated in Article 51.", "This request for withdrawal shall be made by petition to the President of the District Court ... within the peremptory time-limit of ten days ... from the time when the ground for the challenge came to the party’s knowledge. The President, having heard representations from the challenged arbitrator and, where necessary, having made summary enquiries, shall issue an order against which there shall be no appeal.”", "Article 820 – Time-limit for decision", "“Unless the parties have agreed otherwise, the arbitrators shall render their award within 180 days after acceptance of their appointment. If there are several arbitrators and they did not all accept at the same time, the time-limit begins to run from the last acceptance. Where a request for withdrawal against an arbitrator is filed, the time-limit shall be suspended until a decision is made on such request and it shall be interrupted where it is necessary to replace an arbitrator.", "...”", "Article 823 – Deliberation and requirements for the award", "“The award shall be decided by the majority vote of the arbitrators personally meeting together. It shall then be set down in writing.", "It shall contain:", "(1) the names of the parties;", "(2) the indication of the instrument of submission to arbitration or of the arbitration clause and of the issues submitted for decision;", "(3) a brief statement of the reasons;", "(4) the disposal of the issues ( dispositivo );", "(5) the indication of the seat of the arbitration and of the place or the manner in which it was deliberated upon;", "(6) the signature of all the arbitrators, with the indication of the day, month and year of their signature; the arbitrators may sign in a place other than the place of deliberation, as well as abroad; if there is more than one arbitrator, they may sign in different places without having to meet again in person.", "However, an award signed only by the majority of the arbitrators shall be valid provided that mention is made that it was deliberated upon in the presence of all the arbitrators and that it states expressly that the other arbitrators were either unwilling or unable to sign.", "The award shall be binding on the parties from the date of the last signature.”", "Article 825 – Depositing of the award", "“The arbitrators shall prepare the award in as many original counterparts as the parties and shall serve notice thereof upon each party by delivery of an original counterpart, also sending it by registered mail, within ten days from the date of the last signature.", "The party intending to have the award enforced in the territory of the Republic shall deposit an original counterpart of the award or a certified copy thereof, together with the instrument of submission to arbitration or the document containing the arbitration clause or an equivalent document, either an original or a certified copy, with the registry of the District Court ( tribunale ) of the district in which the arbitral tribunal has its seat.", "The District Court, after ascertaining that the award meets all formal requirements, shall declare it enforceable by decree. The award which has been declared enforceable may be registered ( trascritto ) in all cases where a judgment with the same content would be subject to registration.", "...”", "Article 827 – Means of appeal", "“The award may only be subject to a nullity appeal, to revocation or third party opposition.", "The appeal may be lodged irrespective of the depositing of the award.", "...”", "Article 828 – Nullity appeal", "“A nullity appeal may be lodged with the Court of Appeal of the district in which the arbitral tribunal has its seat, within ninety days of notification of the award.", "No appeal may be lodged after one year from the date of the last signature.", "...”", "Article 829 – Grounds for nullity", "“Notwithstanding any waiver, a nullity appeal may be lodged in the following cases:", "...", "(2) if the arbitrators have not been appointed in accordance with the provisions laid down in Chapters I and II of this Title, provided that this ground for setting aside has been raised in the arbitration proceedings;", "...”", "Article 830 – Decision on the nullity appeal", "“The Court of Appeal, when granting the appeal, shall issue a judgment declaring the award null and void; where the defect affects only a part of the award which is separable from the others, it shall declare the partial nullity of the award.", "Unless all of the parties have declared a contrary intention, the Court of Appeal shall decide also on the merits, if the case is ready for decision, or it shall refer the case back with an order to the investigations judge ( istruttore ), if the decision on the merits requires the taking of further evidence.", "While the case is pending, the Court of Appeal may, at the request of a party, make an order staying enforcement of the award.”", "Legislative Decree no. 40 of 2 February 2006", "40. Legislative Decree no. 40 of 2 February 2006, which entered into force after the conclusion of the arbitration proceedings in the present case, radically tightened the rules concerning disqualification of the arbitrators, by amending Article 815 of the CCP. The new amended text of Article 815 reads:", "“An arbitrator may be disqualified:", "If he/she lacks the qualifications expressly agreed upon by the parties.", "If he/she, or a body, association or company of which he/she is director, has an interest in the dispute.", "If he/she or his/her spouse is a relative within the fourth degree of, or lives or has regular relations with, the legal representative of one of the parties or with one of their lawyers.", "If he/she or his/her spouse is involved in pending litigation against, or has a serious conflict with, one of the parties, one of their legal representatives or one of their lawyers.", "If he/she is an employer or regularly gives paid advice or assistance or has any other relationship of a financial or affiliatory nature that might undermine his/her independence vis-à-vis one of the parties, a company controlled by that party, an entity controlling it or a company subject to joint control; or if he/she is the guardian or administrator of one of the parties.", "If he/she has advised, assisted or represented one of the parties at a previous stage of the case or has testified as a witness.", "A party may not seek disqualification of an arbitrator that it has appointed or has contributed to appoint, except for reasons discovered after the appointment", "...”", "The Rules of the ACR", "41. Article 6 of the Rules of the ACR, as in force at the relevant time, read as follows:", "Article 6 – Acceptance of appointment and disclosure by the arbitrator", "“All the arbitrators shall be impartial and independent of the parties to the proceedings.", "The arbitrator, having received notice of his or her appointment from the Arbitration Chamber, shall accept within 10 days.", "Together with the acceptance, the arbitrator shall indicate, by means of a written declaration:", "...”", "The Code of Conduct of the Italian Bar", "42. Article 55 of the Code of Conduct of the Italian Bar, as in force at the relevant time, established that lawyers could not act as arbitrators if they had had professional relations with one of the parties and that, in any event, they were under the obligation to disclose any factual circumstance or relationships with counsel and/or parties that might affect their independence.", "Relevant international material", "43. Standards on conflict of interest disclosure and on arbitrators’ independence and impartiality are set out by several international rules and guidelines, applying however mostly to international commercial arbitration or investment arbitration (see, among others, the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (“the IBA Guidelines”), the International Chamber of Commerce (“ICC”) Rules, the United Nations Commission on International Trade Law (“UNCITRAL”) Arbitration Rules, the Stockholm Chamber of Commerce (“SCC”) Rules, and the International Centre for Settlement of Investment Disputes (“ICSID”) Arbitration Rules).", "44. In particular, the 2004 IBA Guidelines, revised in 2014, reflect the understanding of the IBA Arbitration Committee as to the best current international practice. They seek to assist parties, practitioners, arbitrators, institutions and courts in dealing with the important questions of impartiality and independence.", "45. General Principle 1 reads:", "“Every arbitrator shall be impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so until the final award has been rendered or the proceedings have otherwise finally terminated.”", "46. The Guidelines categorise, in three colour-coded lists, the situations that may occur during arbitration proceedings in which a duty to disclose arises. In particular, the Red List enumerates specific situations that, depending on the facts of a given case, may give rise to justifiable doubts as to the arbitrator’s impartiality and independence. It is divided into two sub-categories, “a Waivable Red List” (situations that give rise to a conflict of interest that prevents a person from accepting or continuing to serve as arbitrator unless the parties otherwise agree or have full knowledge of the conflict of interest) and “a Non-Waivable Red List” (situations of such a gravity that any waiver by a party or any agreement by the parties shall be regarded as invalid).", "47. The Waivable Red List includes the following situation:", "“2.3.1 The arbitrator currently represents or advises one of the parties, or an affiliate of one of the parties.”", "48. The Non-Waivable Red List includes the following situation:", "“1.4 The arbitrator or his or her firm regularly advises the party, or an affiliate of the party, and the arbitrator or his or her firm derives significant financial income therefrom.”", "THE LAW", "PRELIMINARY ISSUESThe Co-Agent’s entitlement to represent the Government and to sign their written observations", "The Co-Agent’s entitlement to represent the Government and to sign their written observations", "The Co-Agent’s entitlement to represent the Government and to sign their written observations", "49. In a letter sent to the Court on 18 March 2019 the applicant, while asking for an extension of the time-limit to submit observations in reply, objected that the Government’s written observations had been signed solely by Ms M. G. Civinini, in her capacity as Co-Agent of the Government.", "50. The applicant noted that the said observations had been filed on 26 February 2019, i.e. after the entry into force of Decree-Law no. 113 of 4 October 2018 (“Decree-Law no. 113/2018”), which, under section 15(1), added by Law no. 132 of 1 December 2018 (“Law no. 132/2018”), provided that “ the functions of agent of the Government in defence of the Italian State are carried out by the Advocate General of the State, who may delegate to an Advocate of the State ”. Therefore, the applicant expressed its doubts that Ms Civinini had been duly empowered to represent the Italian Government in the proceedings before the Court.", "51. The applicant reiterated its doubts in a letter of 23 August 2019.", "52. The Court notes that Rule 35 of the Rules of Court reads:", "“The Contracting Parties shall be represented by Agents, who may have the assistance of advocates or advisers.”", "53. In addition, the Court notes that it is the duty of the Permanent Representative to the Council of Europe to inform the Court about the appointment of a Government Agent or Co-Agent or about the termination of his/her appointment.", "54. In this regard the Court observes that it is not disputed that Decree-Law no. 113/2018, as modified by Law no. 132/2018, provided that the functions of Agent of the Government were to be carried out by the Advocate General of the State. The Court notes that, on 5 December 2018, the Permanent Representative of Italy to the Council of Europe informed the Court that Mr M. Massella Ducci Teri, Advocate General of the State, had been appointed as the new Agent of the Government. On 24 December 2018, the Permanent Representative informed the Court that, on 21 December 2018, Mr Massella Ducci Teri had delegated the functions of Agent to Mr L. D’Ascia, Advocate of the State.", "55. Since the above-mentioned notifications exclusively concerned the functions of the principal Agent of the Government and not the functions of their Co-Agent, which were exercised by Ms Civinini before and after the above-mentioned appointments, in the absence of any formal communication by the Permanent Representative to the Council of Europe concerning the termination of her appointment, the Court has not identified any procedural incident that would have raised doubts about Ms Civinini’s status as Government representative. Therefore, the Court sees no reason to conclude that the Government’s observations were not validly submitted. Any other consideration would only concern, and operate within, the domestic legal system.", "Rule 47 of the Rules of Court", "56. The Government objected that the applicant had not proved that F.B., allegedly its legal representative, had been empowered to lodge the application with the Court on its behalf. They invoked in this regard Rule 47 § 3.1(d) of the Rules of Court. They argued that the applicant had not provided the Court with the company registration report ( visura ), allegedly the only document that could have proved F.B.’s role as its legal representative.", "57. The applicant invoked Article 2384 of the Italian Civil Code and Article 75 of the Italian CCP, under which the Chair of the board has authority to carry out all actions falling within the corporate purpose.", "58. The Court observes that it is only from 1 January 2014 that the amended Rule 47 applied stricter conditions for the lodging of an application with the Court (see, mutatis mutandis, Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 68, 21 July 2015).", "59. The Court further notes that at the time when the present application was lodged, the applicant had provided the Court with a document attesting that F.B. was the Chairman of the Board of Directors and legal representative of the applicant. He had moreover signed the authority form under Rule 36 of the Rules of Court in his capacity as Chairman of the Board of Directors. That form is dated 14 January 2011.", "60. The Court notes that the applicant lodged its application in 2011, and there is no reason to consider that it did not fulfil the requirements of Rule 47 as applicable at the time. Moreover, the Government solely complained that the applicant had not provided the Court with the company registration report, without contesting the actual role of F.B. Having regard to its practice under Rule 47 and the applicable domestic law at the time, the Court is therefore satisfied that the documents provided by the applicant on lodging its application show that F.B. was empowered to represent the applicant before the Court.", "61. The Government’s objection must therefore be dismissed.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "62. The applicant complained that, by reason of the professional links between N.I. and ENEL, parent entity of ENELPOWER, the arbitrator N.I. had lacked independence and objective impartiality. This had impinged upon its fair trial rights, enshrined in Article 6 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "AdmissibilityWhether the Court has jurisdiction ratione personae", "Whether the Court has jurisdiction ratione personae", "Whether the Court has jurisdiction ratione personae", "63. The Court notes that, although the respondent State has not raised any objection as to its jurisdiction ratione personae, this question calls for consideration by the Court of its own motion (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).", "64. In the present case, the Court observes that the complaint before it concerns the alleged lack of impartiality of N.I., one of the arbitrators composing the arbitral panel of the ACR, and the proceedings before the latter. The Court notes that the ACR is not a domestic court but rather a special agency of the Rome Chamber of Commerce, a local authority established under public law whose mission is, among others, to further the interests of businesses (the Chamber’s activities and functional autonomy are mainly regulated by Law no. 580 of 29 December 1993 and Legislative Decree no. 112 of 31 March 1998).", "65. That being said, the Court notes that Article 21 of the Rules of the ACR provided that the parties, when accepting the Rules, agreed to renounce all the waivable remedies. However, the Court also notes that in certain exhaustively enumerated circumstances, Italian law as in force at the relevant time conferred jurisdiction on the domestic courts to examine the validity of arbitral awards, by granting courts the powers both to declare the latter enforceable (pursuant to Article 825 of the CCP, see paragraph 39 above) and in particular to decide on nullity appeals aimed at reviewing the lawfulness of arbitral proceedings, including the lawfulness of the composition of the arbitral tribunal, and this notwithstanding any waiver of a right of appeal against the award as agreed by the parties in the arbitration clause (see Articles 827 et seq. of the CCP and in particular Article 829, paragraph 39 above). Italian law also conferred jurisdiction on domestic courts to examine the requests for withdrawal lodged against an arbitrator (see Article 815 of the CCP, paragraph 39 above). In this framework, the Court notes that the Rome District Court, on 19 December 2003, declared enforceable the arbitral award, giving it force of law in the Italian legal order (see paragraphs 28 and 39 above). Also, the Rome District Court on 20 January 2003 (see paragraph 25 above) and on 29 April 2003 (see paragraph 27 above) examined and dismissed the applicant’s requests for withdrawal. Finally, the Rome Court of Appeal on 7 April 2009 (see paragraph 32 above) and the Court of Cassation on 15 November 2010 (see paragraph 33 above) examined and dismissed the applicant’s nullity appeal lodged pursuant to Article 828 of the CCP.", "66. The impugned acts or omissions are thus capable of engaging the responsibility of the respondent State under the Convention (see, mutatis mutandis, Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, § 67, 2 October 2018). It also follows that the Court has jurisdiction ratione personae to examine the applicant’s complaint as to the acts and omissions of the ACR as validated by the Italian domestic courts.", "Abuse of the right of application", "(a) Allegedly vexatious expressions", "67. The Government submitted that the applicant had abusively used, in its application, the expression “ soluzione pilatesca ”, which could be translated as an “elusive, cowardly” solution, with reference to the idea of “washing one’s hands” of an issue, attributed to Pontius Pilate. This expression, used with regard to the Rome District Court’s decision on the request for withdrawal of N.I., had in their view amounted to a violation of Rule 44D of the Rules of Court, on account of its vexatious nature.", "68. The Government also contested the use of other expressions by the applicant in its observations. They submitted that the applicant had used strong language in relation to allegedly arbitrary decisions of the domestic courts, to the relationship between N.I. and ENELPOWER, and to the criminal proceedings against N.I.", "69. The applicant maintained that the expression mentioned in paragraph 67 above had been used to stress the fact that the President of the Rome District Court had dismissed its request on the allegedly erroneous assumption that the arbitration had already ended, without properly addressing the legal issues at stake.", "70. Although expressly raised as a violation of Rule 44D, the Court considers it appropriate to deal with the argument as an objection relating to alleged abuse of the right of application.", "71. The Court reiterates that the use of particularly vexatious, insulting, threatening or provocative language by an applicant – whether this is directed against the respondent Government, its Agent, the authorities of the respondent State, the Court itself, its judges, its Registry or members thereof – may be also considered an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. However, it does not suffice for the applicant’s language to be sharp, polemical or sarcastic; to be considered an abuse, it must exceed the limits of normal, civic and legitimate criticism (see, among many other authorities, Petrov and X v. Russia, no. 23608/16, § 74, 23 October 2018).", "72. In the present case it is certainly true that both the application and the applicant’s written observations are characterised by strong and heated language. The applicant expressed its criticism of the domestic decisions and all the events surrounding the arbitral award in a forceful manner.", "73. However, the Court does not accept the Government’s argument that the language used by the applicant, although certainly sharp and very polemical, had overstepped the limits of normal, civic and legitimate criticism against the judicial authorities of the respondent State. Accordingly, the Court rejects the Government’s objection in that respect.", "(b) Allegedly deliberate concealment of relevant facts", "74. The Government maintained that there had been an abuse of the right of individual application in that the applicant had not informed the Court, in the application form, that it had lodged a civil claim with the Rome District Court in order to obtain compensation for the alleged misconduct of the ACR (see paragraph 29 above). The Government argued that knowledge of such a fact had been essential for the examination of the case.", "75. They also maintained that the applicant had introduced new facts and allegations in its written observations ( inter alia the criminal proceedings against N.I., the alleged relationship between N.I. and A.A. and the public nature of ENEL) which should be declared inadmissible.", "76. The applicant argued that the proceedings mentioned in paragraph 74 above were not relevant to the scope of the application. In particular, they did not relate to the alleged lack of impartiality of N.I., but were directed against the alleged negligent conduct of the ACR. This was the reason why this set of proceedings had not even been mentioned in the statement of facts contained in the application form.", "77. The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or where new significant developments occurred during the proceedings and were not brought to the Court’s knowledge. Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and a sufficient explanation is not given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). However, not every omission of information will amount to abuse; the information in question must concern the very core of the case (see Mitrović v. Serbia, no. 52142/12, § 33, 21 March 2017). A deliberate attempt to mislead the Court must always be established with sufficient certainty, as mere suspicion will not be sufficient to declare the application inadmissible as an abuse of the right of application (see Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).", "78. The Court notes that, although it is not disputed that the applicant has been silent on the civil claim against the ACR that it lodged with the Rome District Court (see paragraph 76 above), those civil proceedings rested upon different grounds as compared to those raised in the context of the nullity appeal and the requests for withdrawal.", "79. Even admitting the relevance of those proceedings for the examination of the case, it would have been open to the Court to declare the application inadmissible, if the applicant had been successful in the civil proceedings and received compensation, and had failed to inform the Court of that fact (see Mitrović, cited above, § 34). The applicant, however, was unsuccessful in the civil proceedings, and so that question does not arise.", "80. With regard to the objection relating to the introduction of new facts which were already known at the time of the lodging of the application (see paragraph 75 above), the Court notes that knowledge of those facts does not affect the substance of the applicant’s complaint under the Convention. As such, they cannot be regarded as “concerning the very core of the case” (see Bestry v. Poland, no. 57675/10, § 44, 3 November 2015). Moreover, the Court does not have sufficient elements in its possession to establish with certainty that the applicant intended to mislead it (see mutatis mutandis Alpeyeva and Dzhalagoniya v. Russia, nos. 7549/09 and 33330/11, § 100, 12 June 2018, and contrast Gross v. Switzerland [GC], no. 67810/10, § 36, ECHR 2014).", "81. In view of the above, the Court does not consider that the applicant’s conduct amounted to an abuse of the right of application. Accordingly, the Government’s objection must be dismissed in its entirety.", "Six-month rule", "(a) The Government’s objection", "82. The Government submitted that the four different sets of proceedings (arbitration proceedings, requests for withdrawal, nullity appeal and civil claim for damages) were not to be considered as four phases of the same set of proceedings, and that compliance with the six-month rule should have been verified for each of them. In this regard, the Government maintained that the scope of the Court’s review should be limited to assessing the compatibility with Article 6 § 1 of the Convention solely of the decision not to quash the arbitral award, rendered in the context of the nullity appeal.", "83. As to the arbitration proceedings themselves, the Government maintained that they had ended on 6 December 2002, and that the award had been declared enforceable (pursuant to Article 825 of the CCP) on 19 December 2003, by a decision of the Rome District Court.", "84. In this regard the Government claimed that the remedy used by the applicant, i.e. a nullity appeal pursuant to Article 828 of the CCP, could not be considered an ordinary appeal against the award. In particular, they maintained that the award had acquired binding force for the parties from the time of the last signature, pursuant to Article 825 § 4 of the CCP; they further argued that, as an arbitral award, it had never acquired the force of res judicata, and that it needed the exequatur of the President of the District Court, pursuant to Article 825 of the CCP, in order to be executed.", "85. The Government argued that the applicant had erroneously considered the said remedy to be an ordinary remedy for the purposes of Article 35 § 1 of the Convention.", "86. As to the remaining sets of proceedings, the Government recalled that the two requests for withdrawal had been dismissed on 20 February 2003 and 29 April 2003. In this regard, the Government observed that the application had been lodged with the Court eight years after the final decision on the requests for withdrawal.", "87. The Government further stated that the civil action for damages brought by the applicant against the ACR had become final on 14 March 2005. The application would therefore be out of time also in respect of this set of proceedings.", "88. Regardless of all the previous considerations, the Government claimed that the application would in any case be out of time also with regard to the nullity appeal, which ended with the judgment of the Court of Cassation of 15 November 2010 (see paragraph 33 above). In particular, they claimed that the applicant had sent an introductory letter on 21 January 2011, which had not interrupted the six-month time-limit because:", "– the letter had been signed solely by the lawyers and not by the legal representative of the applicant company; and", "– the authority attached to the complete application sent on 6 June 2011 did not have a specific date.", "89. Moreover, they claimed that, being the applicant’s lawyers, members of an “international law firm”, those lawyers should have known the rules for lodging an application with the Court, and that the possibility for an applicant to interrupt the running of the six-month term was meant to be afforded solely to victims who had difficulty defending themselves.", "(b) The applicant’s reply", "90. The applicant contested the Government’s assertions. In its submission, it was undisputed that the nullity appeal was an ordinary remedy for the purposes of Article 35 § 1 of the Convention. The fact that such a challenge was not subject to any authorisation or approval and that the judicial authorities enjoyed a wide range of powers in the context of this procedure militated in favour of the ordinary nature of the remedy.", "91. The applicant further argued that the fact that the parties could not waive in advance their right to use such a means of appeal confirmed that judicial scrutiny in respect of the award was an integral part of the arbitration proceedings. Moreover, the existence of two other remedies, such as revocation and third-party opposition, the latter being an extraordinary remedy, corroborated the conclusion as to the ordinary nature of the remedy provided for by Article 829 of the CCP.", "92. As to the requests for withdrawal, the applicant maintained that their dismissal had not conclusively dealt with the issue of the arbitrator’s alleged bias. In fact, it had expressly lodged a nullity appeal in respect of N.I.’s alleged lack of impartiality.", "93. As to the civil action for damages, the applicant maintained that these proceedings had not concerned the alleged lack of impartiality of the arbitrator and that this explained why it had not mentioned the action in the statement of facts when it lodged its application (see paragraph 76 above).", "94. Finally, with regard to the introductory letter, the applicant observed that Article 47 § 5 of the Rules of Court, as in force at the time of the lodging of the application, stated that the date of introduction of the application must be considered that of the first communication with the Court. The applicant also maintained that there was no requirement for powers of attorney to be drawn up in accordance with national legislation. In any event, the relevant authority had been granted on 14 January 2011, before the introductory letter.", "(c) The Court’s assessment", "95. The Court reiterates that the six-month rule is closely linked to the rule of exhaustion of domestic remedies. In this regard, the Court shall first and foremost assess whether the applicant’s nullity appeal was a domestic remedy to be used pursuant to Article 35 § 1 of the Convention in order to complain of a violation of the Convention that had allegedly occurred in the context of the arbitration proceedings.", "96. The Court also reiterates that Article 35 § 1 cannot be interpreted in a manner which would require applicants to bring a complaint to the Court before their position in connection with the matter has been finally settled at the domestic level. If an extraordinary remedy is the only judicial remedy available to the applicant, the six-month time-limit may be calculated from the date of the decision given regarding that remedy (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 101, 7 November 2017 and the authorities cited therein).", "97. In this regard the Court would note that Article 829 § 1(2) of the CCP provided that a nullity appeal could be lodged, inter alia, where the arbitrators had not been appointed according to the provisions established by the law (therefore including cases where a fundamental prerequisite of the formation, impartiality, was allegedly lacking), provided that this ground for setting aside the award had been raised in the arbitration proceedings. This means that, regardless of the outcome of the autonomous requests for withdrawal, the domestic courts were empowered to hear the applicant’s complaint concerning N.I.’s impartiality, once it had been ascertained that the complaint had originally been raised, by way of a request for withdrawal, in the arbitration proceedings.", "98. In the present case, the Court notes that the applicant, after the dismissal of the requests for withdrawal, lodged a nullity appeal against the arbitral award on account of N.I.’s alleged lack of impartiality pursuant to Article 828 of the CCP. The Court notes that it was precisely the dismissal of the requests for withdrawal, which the applicant has referred to using the impugned expression “ soluzione pilatesca ” (see paragraph 67 above), that formed the legal basis for the subsequent nullity appeal.", "99. Without looking into the ordinary or extraordinary nature of such a remedy, the Court notes that, after the dismissal of the requests for withdrawal, and having regard to Article 829 § 1(2) of the CCP, the nullity appeal under Article 828 of the CCP was the only means by which the respondent State could have provided an opportunity to put matters right through its own legal system. The Court notes, in particular, that the Court of Cassation dealt with the merits of the applicant’s complaint concerning N.I.’s impartiality, having ascertained that it had been raised in the arbitration proceedings, and concluded that the existence of a link between the arbitrator and ENELPOWER, resulting in an “alignment of interests”, had not been demonstrated (see paragraph 33 above).", "100. The Court further notes that in the framework of this remedy the domestic courts enjoyed a wide range of powers extending from declaring the nullity of the award to the reopening of the arbitration proceedings, even after it had acquired binding force (Articles 829 and 830 of the CCP). For these reasons, the remedy as in force at the relevant time should be regarded as an accessible and effective remedy by which to complain of the alleged violation of Article 6 § 1 of the Convention (see, mutatis mutandis, Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999 ‑ V) and, as a consequence, the Government’s objection, in the part concerning the arbitration proceedings and the requests for withdrawal, must be dismissed.", "101. With regard to the civil proceedings against the ACR, there is no need to deal with the Government’s objection since, in any case, this set of proceedings rested upon different grounds from those to be considered by the Court in the present case (see paragraph 78 above).", "102. With regard to the last objection of the Government, that the application was out of time, the Court notes the following. According to the Court’s case-law based on Rule 47, as worded before the amendments of 6 May 2013, which entered into force on 1 January 2014, the date of introduction of the application was normally considered to be the date of the first communication from the applicant setting out – even summarily – the object of the application, on the condition that a duly completed application form was then submitted within the time-limit fixed by the Court (see, for instance, Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 19-20, 1 June 2010).", "103. As to the Government’s argument that the applicant’s lawyers should have submitted the introductory letter completed with the authority form, the Court observes that the date on which a form of authority has been submitted is not decisive for the purposes of the assessment of compliance with the six-month requirement (see Abubakarova and Midalishova v. Russia, nos. 47222/07 and 47223/07, § 224, 31 January 2017). Moreover, the Court reiterates that the mere fact that the applicant’s instruction to its legal representative was put in writing after the introduction of the application cannot deprive the introductory letter of its legal effect (see, mutatis mutandis, Neshev v. Bulgaria (dec.), no. 40897/98, 13 March 2003).", "104. In the present case the applicant sent an introductory letter on 21 January 2011, signed by its representatives, within the six-month term (the final decision of the Court of Cassation had been deposited on 15 November 2010). The Registry of the Court acknowledged reception of such letter and requested the applicant to submit a duly completed form by 6 June 2011. The applicant sent its complete application form, including the authority form signed by the legal representative of the applicant company and dated 14 January 2011, on 5 June 2011.", "105. In view of the foregoing, the Court finds that the application was sent in time and that the Government’s objection must therefore be dismissed.", "Non-exhaustion of domestic remedies", "106. The Government argued that the applicant had made reference to N.I.’s participation, as ENEL’s lawyer, in a specific dispute (concluded by the Court of Cassation’s judgment no. 15029/2001, deposited on 27 November 2001) for the first time in the application form. As a consequence, the Government objected that the applicant had not exhausted domestic remedies with regard to N.I.’s participation in the above-mentioned dispute as ENEL’s lawyer.", "107. The Court would point out that under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see among many authorities Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 52-53, 15 December 2016, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002 ‑ X). In the present case, the Government had not clearly raised an objection as to the non-exhaustion of domestic remedies in their observations of 26 February 2019 on the admissibility and merits, and the question of a failure by the applicant to refer, in domestic proceedings, to N.I.’s activity as lawyer in the dispute concluded by judgment no. 15029 of 27 November 2001 was raised only in their additional observations and submissions on just satisfaction. The Court further notes that during the proceedings before it the Government did not indicate any impediment by which they had been prevented from referring, in their initial observations of 26 February 2019 on the admissibility and merits of the case, to a failure by the applicant to challenge N.I.’s participation in the above-mentioned dispute.", "108. It follows that the Government are estopped from relying on a failure to exhaust domestic remedies.", "Conclusion as to admissibility", "109. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "110. The applicant stressed that, while it was true that a person could waive certain Convention rights in favour of arbitration, the safeguards provided for under Article 6 § 1 of the Convention would be applicable in a situation where the waiver was not established in an equivocal manner, and was not voluntary or attended by minimum safeguards commensurate with its importance. In this regard, the applicant argued that a decision to implicitly waive the independence and impartiality guarantees afforded by Article 6 presupposed that the party had been made aware of any conflicts of interest.", "111. Consequently, the applicant argued that no waiver of the right to an impartial tribunal could be inferred from its failure to complain of the absence of a conflict of interest disclosure from N.I., since the arbitrators were not under an obligation to explicitly disclose the absence of circumstances potentially affecting their independence and impartiality. According to the applicant, if an arbitrator did not disclose a potential conflict of interest, it was presumed that no such conflict existed. Nor was it relevant that the arbitrators were high-profile figures, given the obligation to disclose any potential circumstance affecting their independence and impartiality.", "112. The applicant further argued that the fact that it had complained of N.I.’s alleged lack of impartiality only after the deliberation on the arbitral award had nothing to do with a waiver of the right to an impartial tribunal. In this regard, the applicant recalled that the Court of Cassation, in its 2010 judgment, had found that the nullity appeal had been lodged in a timely fashion in the arbitration proceedings, i.e. prior to the signing of the award, albeit that after the deliberation.", "113. On the merits, the applicant complained that N.I., the arbitrator appointed by ENELPOWER, lacked the requisite independence and objective impartiality, by reason of his professional links with the ENEL group. In particular, the applicant referred to the fact that, between June 1995 and June 1996, right at the time when it was negotiating with ENEL the agreements that would later be at the heart of the arbitration proceedings, N.I. had been Vice-Chairman (with full authority to act as Chairman) and a member of the Board of Directors of ENEL (and, as a consequence, of ENELPOWER, at the time a mere division within ENEL, see paragraph 9 above). In particular, the applicant argued that in February 1996 N.I., being at the helm of ENEL, could not have been unaware of the ongoing negotiations. The letter of 29 February 1996 (see paragraph 7 above) had been signed by two of the top managers of ENEL, thus providing clear evidence that the project had been discussed at the highest levels of the entity.", "114. The applicant also argued that the arbitrator had acted as a lawyer in important proceedings before domestic courts, and in particular in one dispute, concluded by the Court of Cassation’s judgment no. 15029 of 27 November 2001, and had possibly received fees for the equivalent of hundreds of thousands of euros. Despite these serious circumstances of incompatibility, N.I. had wilfully failed to disclose them to the ACR.", "115. As to the fact that N.I.’s relationships had been with ENEL and not with ENELPOWER, the applicant argued that in the years 1995-1996, ENELPOWER was still an internal division of ENEL, and was constituted as a separate corporation (S.p.a.) only in 1999. The preliminary agreement at the origin of the arbitration proceedings had been signed, in 1999, between the applicant and ENEL itself. Moreover, the applicant recalled that ENELPOWER was wholly controlled by ENEL and that, for the purposes of the present application, they should be considered as a single entity. Finally, by reason of the fact that ENEL was at the time, in the applicant’s opinion, a State-controlled entity, the State had a dominant influence in both ENEL and ENELPOWER and, as a consequence, a direct financial interest in the outcome of the case.", "116. The applicant maintained that the provisions of the Italian CCP in force at the time were inadequate to ensure the impartiality and independence of arbitrators, since they subjected the disqualification of the arbitrator to the presentation of proof that he or she had an interest in the dispute (it referred to Article 51 § 1(1) CCP and to the Court of Cassation’s judgment of 15 November 2010; see paragraph 33 above). It further argued that N.I.’s previous involvements with one of the parties should have led in any case to the nullity of the award, in accordance with the general clause in Article 51 § 2 CCP (“serious reasons of propriety”). The applicant also maintained that the flaws in the arbitration proceedings were so flagrant that the award would not be entitled to receive recognition by other national legal systems.", "117. Finally, the applicant contested the Government’s argument according to which the applicant, directly or at least through its arbitrator G.G., was aware of N.I.’s ties with the ENEL group. According to the applicant, this presumption of knowledge had not been supported by any concrete evidence and, in any case, N.I. had a duty to disclose his current and prior involvement with the ENEL group.", "(b) The Government", "118. The Government did not contest the applicability of Article 6 § 1 to the arbitration proceedings. However, they referred to the Court’s case-law and observed that the present case concerned voluntary arbitration to which consent by the applicant had been freely given. In this regard, the Government submitted that the right to a court under Article 6 § 1 of the Convention was not absolute. They argued in particular that an individual could waive the exercise of certain Convention rights in favour of arbitration, in order to settle a dispute as to civil rights and obligations, provided that such waiver was free, lawful and unequivocal. The Government argued in the present case that the consent given by the applicant had been free, lawful and unequivocal and that the subsequent requests for withdrawal and the nullity appeal lodged by the applicant had not affected the nature of the consent given.", "119. The Government based their argument on the fact that neither G.G. nor N.I. had indicated in their acceptance statements the absence of a conflict of interest (see paragraph 15 above) and that the applicant had not complained of this fact. They further argued that the arbitrators were high-profile figures, that the parties were aware of the professional links of N.I. (they referred to the wording of the Rome District Court, see paragraph 27 above) and that, as a consequence, there was no need for such disclosure. In particular, the Government argued that G.G. and N.I. had been colleagues as professors at the Rome University “La Sapienza”, that they had often worked as lawyers in the same defence team in important disputes and that they had been members of several eminent advisory committees. In sum, the parties had such confidence in these important and illustrious figures that they had willingly refrained from challenging the absence of an explicit negative disclosure by N.I. and G.G.", "120. The Government further recalled that in the present case the applicant had raised the question of incompatibility only 11 days after the deliberation on the award and 16 minutes after its signature.", "121. On the merits, the Government argued that N.I.’s role as member of the Board of Directors and Vice-Chairman of ENEL had been a well-known fact of which the applicant, at the time when it entered into business with ENELPOWER, could not have been unaware. They further recalled that the arbitration proceedings concerned a dispute between the applicant and ENELPOWER. In this regard, they argued that there had never been any relationship before, during or after the arbitration proceedings between ENELPOWER and N.I. The latter had only had relationships with ENEL. N.I. had in fact been a non-executive Vice-Chairman and member of the Board of Directors of ENEL from 1995 to 1996. In any event, they argued that the reply sent by ENEL in 1996 had only been a declaration of intent, and that the applicant had not proved that N.I. was personally aware of the ongoing project.", "122. The Government contested the applicant’s argument that ENEL and ENELPOWER should be treated as a single entity, and, as a consequence, as a State-controlled company. The Government, relying also on domestic case-law, argued that ENEL could not be characterised as a State-controlled company, having been privatised in 1999 and being, at the time of the arbitration proceedings, a profit-oriented company. They further argued that controlled companies were free to apply directives issued by parent entities in a completely autonomous way.", "123. The Government stressed that the Court of Cassation had carefully taken into account the applicant’s arguments and, with duly and extensively reasoned decisions, at the end of a procedure fully respecting the adversarial principle, had rejected the allegation that N.I. had lacked impartiality.", "124. The Government lastly argued that the Court should refrain from assessing the 2002 arbitration proceedings in the light of the changes in legislation and in legal scholarship. The Government maintained that it was only in 2006, when judicial control had been broadened by a reform of the CCP, that arbitration had acquired significant importance in the Italian legal system.", "The Court’s assessment", "(a) General principles", "125. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. This Article thus enshrines the “right to a court”, of which the right of access, that is the right to bring proceedings before courts in civil matters, constitutes one aspect only (see Ali Rıza and Others v. Turkey, nos. 30226/10 and 4 others, § 171, 28 January 2020, and the authorities cited therein).", "126. This access to a court is not necessarily to be understood as access to a court of law of the classic kind, integrated within the standard judicial machinery of the country; thus, the “tribunal” may be a body set up to determine a limited number of specific issues, provided always that it offers the appropriate guarantees (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 201, Series A no. 102). Article 6 does not therefore preclude the establishment of arbitral tribunals in order to settle certain pecuniary disputes between individuals (see Suda v. the Czech Republic, no. 1643/06, § 48, 28 October 2010). Arbitration clauses, which have undeniable advantages for the individuals concerned as well as for the administration of justice, do not in principle offend against the Convention (see Tabbane v. Switzerland (dec.), no. 41069/12, § 25, 1 March 2016).", "127. In addition, a distinction must be drawn between voluntary arbitration and compulsory arbitration. In the case of voluntary arbitration, to which consent has been freely given, no real issue arises under Article 6. The parties to a dispute are free to take certain disagreements arising under a contract to a body other than an ordinary court of law. By signing an arbitration clause the parties voluntarily waive certain rights secured by the Convention. Such a waiver is not incompatible with the Convention provided it is established in a free, lawful and unequivocal manner. In addition, in the case of certain Convention rights, a waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance (see Mutu and Pechstein v. Switzerland, nos. 40575/10 and 67474/10, § 96, 2 October 2018, and the authorities cited therein).", "128. As is well established in the Court’s case-law, in order to ascertain whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 190, ECHR 2003 ‑ VI). A tribunal or a tribunal’s member must be independent vis-à-vis the executive, Parliament, but also the parties. In order to determine whether a tribunal can be considered to be independent as required by Article 6, appearances may also be of importance (see Sramek v. Austria, 22 October 1984, § 42, Series A no. 84).", "129. Impartiality normally denotes the absence of prejudice or bias. According to the Court’s settled case-law, for the purposes of Article 6 § 1 the existence of impartiality must be determined according to a subjective test, that is, on the basis of the personal convictions and conduct of a particular judge, by ascertaining whether he showed any personal prejudice or partiality in a given case, and also according to an objective test, that is, whether the court offered, in particular through its composition, guarantees sufficient to exclude any legitimate doubt about his impartiality (see, among many authorities, Nicholas v. Cyprus, no. 63246/10, § 49, 9 January 2018).", "130. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v. Switzerland, no. 33958/96, § 43, ECHR 2000 ‑ XII). As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see among many authorities, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 287, 4 December 2018).", "131. In itself, the objective test is functional in nature: for instance, professional, financial or personal links between a judge and a party to a case (see, for example, Pescador Valero, cited above, § 27, and Wettstein, cited above, § 47), may give rise to objectively justified misgivings as to the impartiality of the tribunal, which thus fails to meet the Convention standard under the objective test (see Kyprianou v. Cyprus [GC], no. 73797/01, § 121, ECHR 2005‑XIII). It must therefore be decided in each individual case whether the connection in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 148, 6 November 2018).", "132. In this connection even appearances may be of a certain importance, a principle that is reflected in the adage “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 106, ECHR 2013).", "133. Lastly, the concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Anželika Šimaitienė v. Lithuania, no. 36093/13, § 80, 21 April 2020).", "134. Having regard to the facts of the present case, the Court finds it appropriate to examine the issues of independence and impartiality together.", "(b) Application of those principles to the present case", "135. At the outset, the Court would point out that there is no dispute between the parties as to the voluntary nature of arbitration proceedings before the ACR. Indeed, it notes that the applicant and ENELPOWER had agreed, in Article 11 of their cooperation agreement (see paragraph 11 above), to refer any future dispute arising from that agreement to an arbitral panel to be appointed under the scheme provided by the ACR. Nor had the validity or the legality of the cooperation agreement ever been challenged or called into question by the parties.", "136. It remains to be ascertained whether, despite initially opting, even freely, for the jurisdiction of the ACR’s arbitral panel instead of that of a court of law of the classic kind, the applicant subsequently waived, in an unequivocal manner and among other rights secured by Article 6, specifically its right to have its dispute with ENELPOWER settled by an independent and impartial tribunal.", "137. The Court primarily notes that the applicant company had freely and voluntarily accepted the ACR arbitration at a point in time before the actual appointment of N.I. as one of the arbitrators.", "138. The Court does not agree with the Government’s argument that the fact that the applicant had not challenged the lack of an explicit negative disclosure demonstrates a waiver of its right to have its dispute settled by an independent and impartial tribunal.", "139. In this regard it would note that Article 6 of the Rules of the ACR (see paragraph 41 above) compelled the arbitrators to indicate, in their written declaration, any relationship with the parties or their counsel that might have an impact on their independence and impartiality, and any direct or indirect personal or economic interest in the subject matter of the dispute. However, the said Article did not compel arbitrators to explicitly indicate the absence of such relationships and/or economic interests. Having regard to the documents at its disposal, the Court notes that, contrary to what the Government asserted, G.G., A.V. and P.D.L. had expressly indicated the absence of any reason that might have had an impact on their independence and impartiality, while N.I. had simply accepted the appointment. The Court agrees in this regard with the applicant’s argument that, in the absence of an explicit negative disclosure, one could legitimately presume that such relationships and/or economic interests did not exist.", "140. As to the Government’s assertion that the arbitrators were well-known figures and that the applicant, through its arbitrator G.G., was most probably aware of the professional links between N.I. and the ENEL group, the Court notes the following. The reasons advanced by the domestic courts (see paragraph 27 above) and the Government are based on a presumption of knowledge which does not rest on any concrete evidence to the effect that the applicant was in fact aware of the professional activities of N.I. (see, mutatis mutandis, Pescador Valero v. Spain, no. 62435/00, § 26, ECHR 2003 ‑ VII). The Court therefore disagrees with the Government and does not find that facts have been demonstrated from which it could infer the unequivocal waiver of the requirement of impartiality in respect of the arbitrator.", "141. Finally, as to the impartiality complaint lodged with the domestic courts, the Court would refer to its decision in Suovaniemi and Others v. Finland ((dec.), no. 31737/96, 23 February 1999), where it took the view that the applicants’ choice to have recourse to arbitration had not only been voluntary, because they had freely accepted the arbitration agreement, but also “unequivocal”, because although they had been aware of the grounds for challenging the independence and impartiality of an arbitrator, they had not sought his withdrawal during the arbitration proceedings. By employing such a test, as suggested by its case-law, as regards the need for a voluntary and unequivocal waiver of the right to an impartial adjudicator be established, the Court emphasises that it has been developed in the context of arbitral proceedings, which is material to the present case, without having to decide whether a similar waiver would be valid in the context of purely judicial proceedings.", "142. In the present case the Government suggested that the applicant’s request for withdrawal had been out of time. In this regard the Court would note that the applicant, as soon as it became aware of the professional links between N.I. and one of the parties, informed the ACR and the other arbitrators of its intention to lodge a request for withdrawal (see paragraph 20 above), immediately filed a request for withdrawal with the Rome District Court (see paragraph 24 above) and later challenged the validity of the award, pursuant to Article 828 of the CCP before the civil courts. Although it is not disputed that the requests for withdrawal lodged with the Rome District Court were later dismissed as out of time (see paragraphs 25 and 27), the Court notes that the civil courts called upon to rule on the alleged nullity of the award, and in particular the Court of Cassation in its decision of 15 November 2010 (see paragraph 33 above), stated that the complaint as to the nullity of the award stemming from a lack of impartiality of N.I. had been regularly lodged in the arbitration proceedings, even though the deliberation on the award had already taken place. It proceeded therefore to analyse the merits of the applicant’s complaint, then dismissing it. The case in this sense radically differs from Suovaniemi and Others, cited above.", "143. Having regard to the above, the Court finds that the applicant company could not be considered to have unequivocally waived both the guarantee of impartiality of the arbitrators, as established under the Rules of the ACR (see paragraph 139 above), and the expectation that the domestic courts would ensure that the arbitral award complied with the relevant rules in the Italian CCP, including those relating to the impartiality of the arbitrators (see paragraphs 39 and 142 above). Consequently, the arbitration proceedings had to afford the safeguards provided for under Article 6 § 1 of the Convention (see paragraph 127 above).", "144. Turning to the analysis of the merits of the applicant’s complaint, the Court considers at the outset that, for the purposes of the examination of the present case, establishing whether or not N.I.’s impartiality was tainted is not dependent on the public or private nature of ENEL and ENELPOWER. What is at stake is in fact whether the arbitration proceedings to which the applicant was a party afforded the safeguards provided for under Article 6 § 1 of the Convention, namely in view of the alleged lack of impartiality of one of the arbitrators. In this regard, what matters are the relationships between ENEL and ENELPOWER (see paragraphs 6 and 9 above, and 148 and 151 below), which are independent from the issue of their public or private nature. The Court will therefore not dwell any further on the issue.", "145. As to the subjective aspect of impartiality, the Court finds that there is no evidence in the present case to suggest any personal prejudice or bias on the part of N.I.", "146. With regard to the objective test, it must be determined whether, apart from N.I.’s conduct, there are ascertainable facts which may raise doubts as to his impartiality.", "147. As to the Government’s contention that the applicant had been well aware of N.I.’s professional links with ENEL, the Court reiterates that it has already rejected this argument when dealing with the applicant’s waiver (see paragraph 140 above).", "148. The Court notes that it is not disputed by the parties that N.I. had been Vice-Chairman and member of the Board of Directors of ENEL from June 1995 to June 1996. It is also an undisputed fact that the formal invitation to participate in the project was sent by the applicant to ENEL on 12 February 1996, whereas ENEL’s first positive reply was sent on 29 February 1996 (see paragraphs 6 and 7 above). In this regard, the Court will not speculate as to N.I.’s effective knowledge of the ongoing negotiations. However, the Court notes that all negotiations concerning the business project, including the 1999 preliminary agreement, were conducted between ENEL and the applicant (see paragraph 8 above).", "149. In this regard, the Court reiterates that even appearances may be of a certain importance (see paragraph 134 above). It would therefore note that, given the importance and the economic stakes of the business project, N.I.’s senior role in the entity which had conducted the first negotiations and whose subsidiary ENELPOWER would later oppose the applicant in the arbitration proceedings, seen from the point of view of an external observer, could legitimately give rise to doubts as to his impartiality.", "150. As to N.I’s role in parallel proceedings, the parties do not disagree on the fact that N.I. had been the lawyer of ENEL in some domestic sets of civil proceedings. It was N.I. himself who declared this before the Rome District Court (see paragraph 26 above). In this regard, the Court notes that it is a fact that N.I. had been ENEL’s lawyer in a set of civil proceedings concluded by a judgment of the Court of Cassation of 27 November 2001, at a time when the parties had already appointed their arbitrators.", "151. It is true, as the Government argued, that in the said dispute N.I. was the counsel of ENEL and not of ENELPOWER and that the latter had been created, as a separate entity from ENEL, in 1999. However, the Court notes that ENELPOWER was at the time wholly controlled by ENEL, which held 100% of its share capital. Moreover, when the civil dispute had started, ENELPOWER was still an internal division within ENEL.", "152. The Court notes that Legislative Decree no. 40 of 2 February 2006 (see paragraph 40 above) radically amended Article 815 of the CCP and the grounds for disqualification of arbitrators, providing for a strengthening of the principles of independence and impartiality in arbitration, to an extent similar to ordinary courts of law. In particular, new Article 815 § 1 (5) indicates as a reason for disqualification the fact that the arbitrator regularly advises a party to the arbitration proceedings or, inter alia, the company that controls it. The Court notes with interest the change in the law, which provides for clearer and, if applicable, wider guarantees against a lack of impartiality in the context of arbitration proceedings, such that, if the case had been domestically adjudicated after this reform the outcome might have been different.", "153. To conclude, having regard to N.I.’s role as Vice-Chairman and member of the Board of Directors of ENEL between 1995 and 1996 and his role as lawyer for ENEL in at least one dispute which overlapped with the arbitration proceedings, the Court is of the view that N.I.’s impartiality was capable of being, or at least appearing, open to doubt and that the applicant’s fears in this respect can be considered reasonable and objectively justified.", "154. There has accordingly been a violation of Article 6 § 1 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "155. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "DamageThe applicant", "The applicant", "The applicant", "156. The applicant in the first place asked the Court to direct the Italian State to reopen the proceedings that had validated the arbitral award in breach of Article 6 § 1 and to proceed with a fresh determination of its claims by an independent and impartial tribunal. In particular, the applicant argued that, since the extraordinary remedy of revocation (Articles 395 and 396 of the CCP) could not be used in order to seek the reopening of a case following a judgment of the Court finding a violation of Article 6 of the Convention, an order of the Court providing for the reopening of proceedings would be the most effective, if not the only, means of achieving restitutio in integrum.", "157. As to pecuniary damage, the applicant argued that it had sustained direct and immediate pecuniary damage as a result of the lack of independence and impartiality of the arbitral tribunal. In particular, it claimed that the arbitrator’s vote had been essential for the approval of the award and that, if N.I. had not been subjectively biased due to his close professional relationship with one of the parties to the arbitration proceedings, its claims would have been ultimately accepted by the arbitral tribunal. The alleged material damage (in the form of damnum emergens ) amounted to EUR 395,089,527.77, i.e., an amount equal to the compensation claims which had been dismissed by the arbitral tribunal, whereas the loss of profit ( lucrum cessans ) could be quantified at EUR 816,000,000.00, if calculated from the date of the arbitral award, or at a round figure of EUR 343,200,000.00, if calculated from the date of the final decision of the Court of Cassation upholding the validity of the award. Under both heads, the applicant claimed that the question of just satisfaction in respect of pecuniary damage was not ready for decision and requested that the Court reserve the question of the application of Article 41 in this regard.", "158. The applicant also claimed EUR 646,746.37, plus any tax that may be chargeable to it, in respect of pecuniary damage related to the costs and expenses of the arbitration proceedings. In particular, it argued that, since the arbitration proceedings were flawed by the lack of independence and impartiality of N.I., the respondent State should bear all the costs and expenses of the arbitration, since in any case the applicant would not be able to recover such costs and expenses.", "159. The applicant lastly claimed EUR 1,000,000.00 plus any tax that may be chargeable to it, in respect of non-pecuniary damage. It based its claim on the prolonged uncertainty in the conduct of its business and on the feeling of helplessness and frustration caused to the members of its management and to its shareholders.", "The Government", "160. The Government objected that the reopening of proceedings would upset the legitimate interests of third parties. They referred to the jurisprudence of the Italian Constitutional Court that had declared unfounded (in its judgments nos. 123 of 7 March 2017 and 93 of 21 March 2018) the question of constitutionality of Articles 395 and 396 of the CCP in the part in which they did not include, among the cases for revocation of a judgment, the re-examination of a civil case after a judgment finding a violation of a provision of the Convention, mainly by reason of the protection of third parties. In any case, the Government argued that the only proceedings of which the Court could order reopening would be the nullity proceedings and not the arbitration proceedings themselves.", "161. The Government requested that no pecuniary damage be recognised as having been sustained by the applicant since, had the domestic courts in the proceedings for nullity annulled the arbitral award, they could not have decided on the merits, and a new set of arbitration proceedings should have started. Moreover, they claimed that no causal link could be discerned between the violation found and the pecuniary damage alleged. As to non-pecuniary damage, they objected that the applicant’s claim was excessive and not justified. In any event, they opposed the request that the decision on just satisfaction be reserved.", "The Court’s assessment", "162. As to the reopening of proceedings, the Court would reiterate that it is in principle for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res judicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 57, ECHR 2015). The Court therefore dismisses the applicant’s request.", "163. The foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place to allow a case to be revisited in the light of a finding that the safeguards of a fair hearing afforded by Article 6 have been violated (see Bochan v. Ukraine (no. 2) [GC], cited above, § 58, and Tence v. Slovenia, no. 37242/14, § 43, 31 May 2016). This is particularly true in Italy where the Constitutional Court has repeatedly stated that there is no mechanism for the reopening of civil proceedings in order to give effect to the execution of a judgment of the Court finding a violation of a Convention provision.", "164. With regard to the remainder of the claim for just satisfaction, the Court considers that in the instant case the only basis for awarding just satisfaction lies in the fact that the applicant did not have the benefit of the guarantees of Article 6 of the Convention. Since the Court cannot speculate as to the outcome of the proceedings had the position been otherwise, having regard to all the circumstances, and in accordance with its normal practice in civil and criminal cases as regards violations of Article 6 § 1 caused by a lack of objective or structural independence and impartiality, the Court does not consider it appropriate to award financial compensation to the applicant in respect of the material damage and/or the loss of profit allegedly flowing from the outcome of the domestic proceedings (see Ramos Nunes de Carvalho e Sá v. Portugal, nos. 55391/13 and 2 others, § 104, 21 June 2016). Thus the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "165. On the other hand, having regard to the violation found under Article 6 § 1 of the Convention, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000, plus any tax that may be chargeable.", "Costs and expenses", "166. The applicant also claimed EUR 220,088.45 for the costs and expenses incurred before the domestic courts and EUR 135,659.57 for those incurred before the Court. It produced documents in support of its claims.", "167. The Government objected that the claim was excessive.", "168. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 35,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.", "Default interest", "169. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant company is a private company registered in Ukraine. At the time of the events it carried out barter trade operations with Russian companies involving, in particular, exchange of some food raw materials from Ukraine for Russian crude oil and further sale of finished oil products.", "A. The events between 1991 and 199 6", "6. On 18 December 1991 the applicant company signed a contract with the Lysychansk Oil Refinery ( “the Refinery” – the biggest company in the oil refining industry in the country at the time, with 67.41% of its shares being owned by the State) for the refining of 225,000 tons of crude oil.", "7. On 5 March 1993 the Higher Arbitration Court (“the HAC”), allowing a claim brought by the applicant company, directed the Refinery to deliver to the applicant company the oil products produced from its raw materials.", "8. During June and July 1993 the Refinery only delivered a small part of the oil products to the applicant company.", "9. On 19 August 1993 the applicant company supplied another 150,000 tons of crude oil to the Refinery for refining.", "10. In autumn 1993 the State -owned companies in the Lugansk region involved in harvesting, coal mining and other activities essential for the local economy suffered a particularly acute shortage of fuel. As a part of the emergency measures instituted to overcome the crisis, the local authorities directed the Refinery to provide for local needs, free of charge, some oil products, regardless of whether they had been produced from oil owned by customers.", "11. Following a further claim brought by the applicant company, on 18 November 1994 the HAC ordered the Refinery to comply with the contract of 19 August 1993.", "12. At some point the Refinery was renamed LysychanskNaftoOrgSyntez (“LyNOS”).", "13. By a ruling of 5 April 1995, the HAC amended its judgment of 5 March 1993 and ordered LyNOS to pay the applicant company for the undelivered oil products.", "14. On 26 April 1995 the Cabinet of Ministers instructed the State Department for the Oil, Gas and Oil Refining Industries (“Derzhnaftogazprom”) to verify whether the applicant company ’ s claims against LyNOS were justified. As can be seen from a letter from Derzhnaftogazprom to Parliament of 6 May 1995, it found the claims to be well grounded. It was noted in the letter, in particular, that the main reason for the Refinery ’ s failure to comply with its contractual obligations vis-à-vis the applicant company had been the unpaid diversion of oil products by the regional authorities in 1993.", "15. On 19 July 1996 the HAC awarded the applicant company compensation for the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994 and ordered that the court fees be paid by LyNOS.", "B. The insolvency proceedings against LyNOS and other developments concerning the settlement of its arrears vis-à-vis the applicant company", "16. On 22 July 1996 the applicant company applied to the HAC for the initiation of insolvency proceedings against LyNOS, referring to the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994.", "17. On 9 August 1996 the Poltava Regional Arbitration Court (“the Poltava Arbitration Court ”), to which the HAC had referred the aforementioned motion of the applicant company, started insolvency proceedings.", "18. On 3 March 1997 it made a preliminary finding that the outstanding debts of LyNOS vis-à-vis the applicant company had been confirmed by documentary evidence as 169,323,720 Ukrainian hryvnias (UAH) and 77,802 tons of oil products.", "19. On 10 July 1997 the applicant company asked the HAC to secure the creditors ’ claims by seizing the State ’ s shares in LyNOS.", "20. On 15 July 1997 the court allowed the request and prohibited “ [LyNOS], the State Property Fund and any other authorities from taking any action with a view to transferring ownership or changing the status of the State ’ s shares in [LyNOS] until the court completes the [insolvency proceedings].”", "21. On 30 July 1997 the Prosecutor General ’ s Office informed the HAC ’ s President of the results of its investigation into the reasons for the arrears and the insolvency of LyNOS. It concluded, inter alia, that LyNOS ’ s debts vis-à-vis its customers had mainly been caused by the unpaid diversion of oil products for State needs in 1993.", "22. On 20 August 1997 the applicant company concluded an agreement with LyNOS concerning the procedure for and conditions of repayment of the latter ’ s arrears resulting from the judgments of the HAC of 5 March 1993 and 18 November 1994, as well as the ruling of the Poltava Arbitration Court of 3 March 1997. Having signed that agreement, the debtor recognised its debt vis-à-vis the applicant company in the amount of UAH 225,355,355, which was, according to the agreed schedule, to be repaid in kind within five years. The parties also underlined that the agreement could not be understood as a friendly settlement and did not imply a request for termination of the insolvency proceedings against LyNOS.", "23. On 18 November 1997 the HAC stayed the proceedings until the debtor, the creditors and the competent authorities had agreed on guarantees for the repayment of the arrears.", "24. On 3 December 1997 the applicant company requested that the Prime Minister consider the possibility of transferring the State ’ s shares in LyNOS, equal to 26% of its share capital, into its trust for the period of the repayment of the arrears as a guarantee of that repayment.", "25. On 14 January 1998 the HAC resumed the insolvency proceedings.", "26. On 29 January 1998 it decided to leave unexamined the outstanding claims of LyNOS ’ s creditors. At the same time, referring to the need to continue to make efforts to settle the creditors ’ claims and prevent the debtor ’ s insolvency, the court decided to conduct further review of the parties ’ actions in that connection. Namely, it instructed LyNOS and the creditors whose claims remained unsettled to inform it on a monthly basis of the progress of the repayment of the arrears. Moreover, all the parties concerned were instructed to develop a mechanism to ensure the continued repayment of the arrears. The court also decided to invite the Cabinet of Ministers to take measures to prevent the insolvency of LyNOS. The court noted that it was common ground between the parties that the arrears could be repaid in kind.", "27. On 13 February 1998 the HAC decided that the insolvency proceedings should be heard by a three-judge panel, instead of by a single judge. Prior to this, the single judge sitting in the case had been challenged by the applicant company.", "28. On 20 February 1998 LyNOS wrote a letter to the First Deputy Speaker of Parliament asking for his “assistance in establishing the lawfulness” of the HAC ’ s rulings issued in the course of the insolvency proceedings.", "29. On 21 March 1998 the First Deputy Speaker of Parliament wrote a letter to the acting President of the HAC with a request “not to tolerate any prejudice or issuance of ungrounded decisions concerning the insolvency of LyNOS ”, which was claimed to be strategically important for the State. The letter also contained the following request:", "“ ... with a view to preventing any infringements of the interests of the State and violations of the legislation of Ukraine, you are requested to take an urgent decision quashing the ruling of 13 February 1998 and terminating the proceedings concerning the insolvency of LyNOS .”", "30. By a letter of 6 April 1998 the HAC ’ s President replied that the ruling of 13 February 1998 was in compliance with the relevant legislation and could not be reviewed under a supervisory review procedure.", "31. The applicant company, in turn, requested that the HAC review the ruling of 29 January 1998 by means of a supervisory review procedure. It maintained that, while the debts of LyNOS had been confirmed by documentary evidence and had to be repaid, the court had failed to establish the final amount of the outstanding debt or to demand any effective guarantees of its redemption from the debtor.", "32. On 6 April 1998 the Panel of the HAC for the Review of Judgments, Rulings and Resolutions (“the Review Panel”) quashed the HAC ’ s ruling of 29 January 1998 inasmuch as it concerned leaving the outstanding creditors ’ claims unexamined, and remitted the case for fresh examination by a different bench. It noted that the procedures by which the debt would be repaid and the scope and methods of the debt ’ s repayment remained unclear.", "33. On 20 April 1998 the Chairman of the Department for the Fuel and Energy Sectors of the Cabinet of Ministers of Ukraine, who was also the Chairman of the Supervisory Board of LyNOS, sent a “ statement regarding the case” to the HAC, in which he noted, in particular, the following:", "“The prolonged continuation of the insolvency proceedings against LyNOS is inflicting both pecuniary and non-pecuniary damage on the company and deters potential investors. ... I urge you to terminate the insolvency proceedings against LyNOS .”", "34. On 22 April 1998 LyNOS complained to the President of Ukraine that the HAC ’ s ruling of 6 April 1998 had been unlawful and asked him to intervene with a view to terminating the insolvency proceedings.", "35. On 4 May 1998 the Prime Minister informed the HAC ’ s President that the management board and the trade unions of LyNOS disagreed with the court ’ s ruling of 6 April 1998 and requested that “this issue be considered in line with the established procedure”.", "36. On 18 May 1998 the State Property Fund asked the HAC to terminate the insolvency proceedings. It noted that it could not proceed with the sale of its shares in LyNOS, given the prohibition by the HAC in its ruling of 15 July 1997 on any change in the status of the company ’ s shares.", "37. On 21 May 1998 the HAC found substantiated the requests of the creditors ’ committee to speed up the final determination of the amount of outstanding arrears and to demand guarantees of their repayment from the debtors. It instructed both the creditors and the debtor to comply with their obligations under its earlier ruling of 6 April 1998 and to develop a scheme ensuring the further repayment of the arrears. The court rejected as unsubstantiated a request by the State Property Fund to terminate the insolvency proceedings so that it could conduct a non-commercial competition for the sale of the shares. It instructed the Fund to submit to it all the documents concerning the aforementioned competition and its results.", "38. On 2 July 1998 the HAC considered the applicant company ’ s request for determination of the final amount of the debtor ’ s outstanding arrears owed to it. The court noted that the applicant company had originally estimated the arrears at UAH 660,000,000, but, following negotiations with the debtor, that amount had been reduced to UAH 225,355,355 in accordance with the agreement of 20 August 1997 (see paragraph 22 above). Following the partial implementation by LyNOS of that agreement in September-December 1997, which the court viewed as confirmation that LyNOS had accepted its terms, the outstanding debt was UAH 216,150,544.", "39. Having regard to the critical financial situation of the debtor, as well as its strategic significance for the economy of the State, the applicant company requested that the court confirm that amount as the final total of the arrears. Furthermore, it was prepared to consider the debt satisfied in full once 90% of it had been repaid.", "40. LyNOS, in turn, accepted the applicant company ’ s claims only in part and requested that the court establish the amount of the outstanding arrears to be paid in kind. It considered the rulings of the HAC allowing the applicant company ’ s claims to be unlawful, even if they had remained valid. The company also blamed the Government for its non-compliance with its contractual obligations vis-à-vis the applicant company. It maintained that the agreement of 20 August 1997 could not be considered valid, as it did not regulate essential terms such as costs, time limits and conditions placed upon the supply of the oil products.", "41. The court found that the total outstanding debt of LyNOS to the applicant company was UAH 216,150,544.", "42. On 7 July 1998 LyNOS complained to the President of Ukraine that the Prosecutor General and the HAC ’ s President had failed to bring a protest on the basis of LyNOS ’ s request with a view to overturning the HAC ’ s ruling of 6 April 1998 and, accordingly, terminating the insolvency proceedings. It was noted in the letter:", "“ ... the absence of prosecutorial reaction to the unlawful insolvency proceedings against LyNOS ... and the absence of a clear position on the part of the President of the Higher Arbitration Court as regards this case, multiplied by the boldness, unsated ambitions and, probably, some selfish interests on the part of the creditors ’ committee, ... have become an obstacle not only to the normal process of privatisation of LyNOS ’ s shares, but even to its normal functioning.”", "43. On 30 July 1998 the HAC ’ s President wrote a letter to the Prime Minister (no. 01-2.1/181), in which he “informed [him] of the ongoing insolvency proceedings against LyNOS pursuant to the instructions of the President of Ukraine of 6 May and 13 July 1998”. The following was noted, inter alia, in the above letter:", "“The arrears of the former Lysychansk Oil Refinery vis-à-vis [its] creditors who undertake entrepreneurial activities in Ukraine, are, first of all, the result of its improper compliance with its contractual obligations.", "Having received oil owned by customers, the refinery is obliged to return finished oil products to its owners as agreed. The companies had to supply most of those oil products, [in turn], to Ukrainian agricultural enterprises.", "The systematic violations by LyNOS of its contractual obligations, as well as its evasion of enforcement of the judicial decisions, have not only resulted in the arrears, but have also led to their accrual. ...", "In the course of the examination of the case, the court, within its competence, took appropriate measures for settlement of the debts between LyNOS and its creditors. LyNOS concluded civil law agreements with some of the creditors governing the terms and conditions of the debts ’ repayment, which are being implemented and which offers some hope that all the arrears can be settled that way. This is the expectation that the debtor itself expressed in its application to the President of Ukraine. However, despite this, the debtor is evading complying with the procedure of debt repayment agreed with [the applicant company ].", "Having regard to the difficult economic situation of LyNOS, [the applicant] company considerably reduced [its] claims ... - from UAH 596,055,564 to UAH 216,150,544 ....", "I note for your information that the arrears of LyNOS in respect of [the applicant company ] emerged in 1992-93 and are confirmed by judgments of the Higher Arbitration Court of Ukraine. The lawfulness of those judgments has been verified by the supervision instances, including by the Plenary Session of the Higher Arbitration Court, which upheld them.", "However, since the commencement of the insolvency proceedings, LyNOS has not enforced the judgments despite the fact that they have the force of law. Its statement that by the conclusion of the agreements with the creditors concerning the terms of and procedures for the repayment of the arrears it was released from the necessity to comply with the judgments is unlawful.", "Derzhgazprom, on the instruction of the Cabinet of Ministers of 26 July 1998 ..., investigated and fully confirmed the fact of LyNOS ’ s non-compliance with its contractual obligations, as a result of which the claims of [the applicant company ] were found to be fully justified.", "In its letter of 6 May 1995 ... this authority noted that during the second half of 1993 the leadership of the Lugansk regional authorities had grossly violated Ukrainian legislation, having ordered LyNOS to divert, free of charge, the oil products belonging to [the applicant company]. This undermines the statements of the debtor that it was not its fault that those oil products had not been delivered to their owners.", "The debtor did not even use the aid provided by the Government for repayment of the arrears. In June 1993 Ukrderzhnaftogaz provided LyNOS with resources ... and approved a schedule of delivery of oil products during the period from June to September 1993 which was to remain in force until the full repayment of the debt to [the applicant company ]. The [debtor] company delivered only 33,000 tons of those oil products during June and July 1993 and refused further repayment of the arrears, which exceeded this volume by several times.", "The demand to terminate the proceedings contradicts the law and cannot be satisfied until the complete repayment of the arrears. ...", "In the course of the examination of the case, the court exhausted all legally envisaged possibilities of saving the debtor from insolvent liquidation. The creditors have made it clear that it is not their goal to have the debtor liquidated or to get its assets into their possession. They insist on gradual repayment of the debts in compliance with the agreed schedules and, subject to that, do not object to termination of the proceedings upon the complete repayment of the arrears.", "Given the complexity of the settlements between the debtor and the creditors and the lack of clarity as to the final time- frame of the repayment of the arrears, which inevitably leads to the accrual of damages due to inflation and a loss of income for the creditors, and with a view to the recovery of the debtor company, it is deemed necessary to create a taskforce to investigate the problem onsite.", "In our opinion, it would be desirable to investigate and finally determine the destiny of the oil products produced by LyNOS from the oil owned by customers .”", "44. On the same date, 30 July 1998, the Cabinet of Ministers created a taskforce to establish the reasons for the arrears of LyNOS vis-à-vis its foreign and domestic creditors and to study the consequences of settlement of their claims. It consisted of representatives of: the Cabinet of Ministers, the Ministry of Justice, the Ministry of the Economy, the Ministry of the Interior, the Ministry of Finance, the State Property Fund, the Main Audit Department, the Insolvency Prevention Agency, the National Agency for Reconstruction and European Integration, the State Security Service, the Prosecutor General ’ s Office, and LyNOS.", "45. On 31 August 1998 the taskforce issued its report, which contained, inter alia, the following findings. LyNOS was the biggest oil refinery in Ukraine and was able to satisfy up to 35% of the fuel needs of the country. All the oil it had refined during 1998 belonged to Russian commercial entities, which had showed increasing interest in the company given its proximity to the Russian border. The report concluded that the company was insolvent. It noted that the final amount of its arrears vis-à-vis the applicant company, as confirmed by the HAC in its ruling of 2 July 1998, was UAH 216,150,544. The main reason for the company ’ s indebtedness had been the decision of the State authorities (in 1992 – according to the report in question, in 1993 – according to all the other documents in the case file) to divert the oil products produced by LyNOS from oil owned by customers for State needs.", "46. The report also contained the following statement:", "“The taskforce supports the proposal [apparently, advanced by LyNOS] that the Higher Arbitration Court of Ukraine must also take into account ... the State ’ s share of the company ’ s assets and the other factors which were not taken into account during the previous hearings. This concerns fulfilment of the obligations in kind, since their translation into pecuniary terms caused the amount of the arrears to be overstated. ”", "47. However, the taskforce considered that the amount of the outstanding debt of the company vis-à-vis the applicant company had to be verified, by means of expert reports if required. It further underlined a finding of the HAC in another case, according to which the indexation of debt to inflation had not been envisaged by the relevant legislation, and maintained that a similar line should be followed in the present case. It recommended suspending the insolvency proceedings until the “factual indebtedness of LyNOS vis-à-vis commercial enterprises was established on the basis of a documentary audit”.", "48. According to the above report, the taskforce had been created at the request of the HAC ’ s President, such request having been expressed in a letter (no. 01-2.1/181) dated 30 July 1998, and pursuant to the above-mentioned order of the Cabinet of Ministers.", "49. On 31 August 1998 the Review Panel rejected a request from LyNOS for an extension of the time-limit for challenging the HAC ’ s ruling of 15 July 1997 under the supervisory review procedure.", "50. On 10 September 1998 the HAC ’ s President lifted the ban on changing the status of LyNOS ’ s shares which had been imposed by the HAC ’ s ruling of 15 July 1997. This was done at the request of LyNOS, which intended to conduct a non-commercial competition for the sale of the State ’ s shares in the company equal to 41.4% of its share capital. The sale was intended to help the company overcome its financial crisis and avoid insolvency.", "51. On 12 September 1998 the First Deputy Prime Minister wrote a letter to the HAC ’ s President in which he asked him to also lift the ban on transferring the ownership of LyNOS ’ s shares. The letter stated:", "“ ... the members of the taskforce created at your request by an order of the Cabinet noted that the amount of [LyNOS ’ s] arrears vis-à-vis its domestic creditors requires further clarification and in-depth and thorough verification.", "Given the fact that LyNOS runs the biggest and the most modern oil refinery in Ukraine and having regard to its importance to the economy and security of the State, ... you are requested to consider the findings of the taskforce, to lift the ban on the sale of the company ’ s shares and to postpone the examination of the insolvency proceedings pending a determination of the final amount of its arrears vis-à-vis the domestic creditors.”", "52. On 14 September 1998 the First Deputy Prime Minister instructed the Ministry of Finance, the Ministry of the Economy, the Ministry of the Interior, the National Agency for Reconstruction and European Integration, the State Property Fund, the State Tax Administration, Derzhnaftogazprom and the Insolvency Prevention Agency to ensure that a “thematic documentary audit of the agreements for oil refining entered into by LyNOS in 1992 and the amount of [its] arrears vis-à-vis the domestic creditors ” be undertaken by 10 October 1998.", "53. On 9 October 1998 the Main Audit Department informed the Cabinet that it had checked the agreements entered into by LyNOS in 1992 and found that the company had delivered oil products to State agricultural enterprises pursuant to governmental instructions. There had been no documents or information suggesting that the Government had ever paid for that. As a result, the arrears of LyNOS (then called the Refinery) had emerged vis-à-vis its customers, commercial enterprises, and as of 1 January 1993 had been equal to 640,700 tons of oil products.", "54. On 26 October 1998 the HAC rejected a request by LyNOS for an expert assessment of its arrears in respect of the applicant company, noting that it had already established the final amount of those arrears. On 21 January and 26 April 1999 the Review Panel upheld that ruling.", "55. On 22 June 1999 the applicant company lodged a request with the Review Panel for review of the ruling issued by the HAC ’ s President on 10 September 1998. It claimed that he had lacked the power to make such a ruling. The applicant company submitted that the creditors had not previously challenged the ruling because it had been issued in order to enable a non-commercial competition to be held for sale of the State ’ s shares, amounting to 41.4% of the share capital in the company, and the competition had been subject to a guarantee that the arrears would be repaid by the company ’ s new owners. Referring to the fact that such a competition had never taken place and that, according to the media, there was instead a new plan to sell over 50% of the shares ( a controlling share) without any guarantee of repayment of the debts, the applicant company had sought to have the ruling of 10 September 1998 overturned and its claim secured by a ban on the sale of the State ’ s shares in LyNOS until the insolvency proceedings were complete.", "56. On 9 July 1999 the HAC ’ s President wrote a letter to the First Deputy Prime Minister, in which he noted that the original claim of the applicant company in respect of LyNOS had been reduced through an agreement between the parties from UAH 596,055,564 to UAH 216,150,544, with the latter figure having been confirmed by the court. The letter stated that the creditors had agreed to a restructuring of LyNOS ’ s arrears for a term of five years, subject to an approved debt repayment schedule being formalised by a judicial decision and having its enforcement guaranteed. At the same time they had agreed, subject to the aforementioned conditions, to reduce the amount of the arrears payable in kind. With reference to the aforementioned points, the HAC ’ s President underlined that the court had exhausted all procedural possibilities for saving the debtor from insolvent liquidation. He proposed to take into account the above suggestions of the creditors for overcoming the company ’ s financial crisis made in the extrajudicial restructuring process, as the situation pertaining at the time had led to the accrual of the arrears due to inflation and to a loss of income for the creditors.", "57. On 16 July 1999 the creditors ’ committee submitted its proposals for restoring the solvency of LyNOS and preventing its insolvency to the First Deputy Prime Minister. It proposed, inter alia, to transfer into the trust of the creditors ’ committee the State ’ s shares in LyNOS in an amount equal to the company ’ s arrears as a guarantee of the repayment of those arrears. The creditors ’ committee drew the attention of the First Deputy Prime Minister to what it described as “unlawful pressure by the authorities on the creditors and on the court, as well as the unacceptable protraction of the search for a solution to [this] acute problem”.", "58. On 15 September 1999 LyNOS asked the Speaker of Parliament “to apply to the Higher Arbitration Court with a view to termination of the insolvency proceedings”. It contended that the HAC had wrongly resumed the insolvency proceedings, having overturned its earlier ruling of 29 January 1998 on 6 April 1998. It submitted that the HAC had “chosen to allow the claims of the creditors, who seek unjust enrichment ... ”.", "59. On 12 November 1999 LyNOS instituted proceedings before the Kyiv City Arbitration Court seeking to have its contracts with the applicant company for oil refining entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears, declared formally invalid. On 24 December 1999 the HAC took the case over.", "60. On 25 February 2000 LyNOS wrote a letter to the President of Ukraine in which it noted that extensive efforts were being made to overcome its financial crisis and that there was interest in it from a potential foreign investor. It considered, however, that “the position of a number of non- State creditors of the company [was] an obstacle to obtaining an effective result from the measures taken by the State authorities and to realisation of the investor ’ s potential”. It underlined that the applicant company was “blocking the possibility of resolving the problem in a civilised manner”. The company asked the President “to give instructions to the relevant State authorities to verify, within the legal framework, the soundness of [the applicant company ’ s] claims against LyNOS, the nature of their emergence and to determine the correct amount of the arrears.”", "61. On 13 March 2000 the State Property Fund ordered that a tendering commission be created to further the commercial sale of the State ’ s shares in LyNOS (representing 67.41% of its share capital ).", "62. On 17 March 2000 the HAC rejected LyNOS ’ s claim for the invalidation of its contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears.", "63. On 27 March 2000 the HAC ’ s President wrote a letter to the President of Ukraine with the following contents:", "“Pursuant to your instruction of 20 March 2000, I am informing you of the progress of the insolvency proceedings against LyNOS.", "Twenty enterprises are creditors in this case, with claims for the repayment of arrears amounting to over one billion hryvnias.", "In the course of the examination of the case, the court took, within its competence, certain measures to settle the debts of LyNOS owed to its creditors.", "However, given the complexity of the settlements between the debtor and the creditors and with a view to the company ’ s recovery, I request that you create a taskforce of specialists which will investigate, within the company, the problem, including clarification of the amount of the arrears.”", "64. On 12 April 2000 the State Property Fund requested that the HAC ’ s President lift the ban on sale of shares in LyNOS, given that the ruling of 10 September 1998 had only lifted the ban on changing the status of the shares and it remained unclear whether that also concerned their sale. On the same date the HAC ’ s President allowed the request.", "65. On 15 April 2000 the Lugansk Regional Audit Department issued a report on the “ verification of the validity of the debt obligations of LyNOS vis-à-vis [the applicant company] and the lawfulness of inflation indexation and application of penalties”, which had been undertaken pursuant to the instructions of the Main Audit Department. It established the final arrears owed by LyNOS to the applicant company in the amount of UAH 36,401,894. The report considered that the findings of the HAC concerning the outstanding debt to the applicant company had been wrong and in contradiction of the applicable legislation.", "66. By a ruling of 6 June 2000 the HAC imposed a moratorium on allowing the creditors ’ claims in the case and appointed an administrator of the debtor ’ s property (an individual person).", "67. In July 2000 the State ’ s shares in LyNOS, amounting to 67.41% of its share capital, were sold to a Russian company.", "68. On an unspecified date in 2000 LyNOS applied to the Review Panel for review of the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 (both rulings concerning the amount of the outstanding debts of LyNOS vis-à-vis the applicant company ) on the basis of newly-discovered circumstances. It referred to the above report of the Lugansk Regional Audit Department of 15 April 2000 as the newly ‑ discovered circumstance warranting the review.", "69. On 19 September 2000 the HAC examined the above application. Having found that the report relied on did not contain any new information that was not known at the time when the challenged rulings had been issued, the HAC ruled to “uphold the part of the [ relevant ] ruling regarding the final determination of the debt of LyNOS to the [applicant company]”. The court also noted that the ruling of the Poltava Arbitration Court of 3 March 1997 had determined the amount of the debt only in preliminary terms, while the amount later defined as final in the HAC ’ s ruling of 2 July 1998 had been based on the agreement between the parties of 20 August 1997. Furthermore, the court had secured the creditors ’ claims by imposing a ban on any activities involving the debtor ’ s assets.", "70. Later in September 2000 the HAC ’ s President, relying on Article 92 of the Code of Arbitration Procedure, instructed his two deputies to review the HAC ’ s ruling of 19 September 2000, as, according to him, “it had virtually [paralysed] the work of a company strategically important for the State, which could harm the property interests of both the creditors and the debtor, as well as undermine the fulfilment of the investor ’ s obligations to the State Property Fund”.", "71. On 4 October 2000 the Review Panel allowed an application brought by LyNOS for the suspension of the enforcement of the HAC ’ s ruling of 19 September 2000 until the Panel had decided whether to undertake the supervisory review sought by the company.", "72. On 26 December 2000 the Review Panel quashed the HAC ’ s ruling of 19 September 2000 (with the exception of two unrelated points) and remitted the case for fresh examination.", "73. On the same date, the Chairman of the Board of LyNOS wrote a letter to the President of Ukraine thanking him “for [his] firmness and insistence in solving the issues of the company ’ s privatisation and recovery”. The letter noted that “the positive results were self-explanatory”. The company considered, in particular, that the new investor had contributed to overcoming its crisis. The letter also contained the following statements:", "“As a manager, I find disturbing the actions of [the applicant company], which [is] trying to put pressure on LyNOS and the investor ..., constantly exaggerating its claims in the insolvency proceedings examined by the Higher Arbitration Court ... It will be extremely difficult for LyNOS to solve these problems without your intervention. In this connection, I ask you to support our team of employees and to instruct the Prosecutor General ’ s Office and the Higher Arbitration Court of Ukraine to sort the situation out and to issue lawful decisions”.", "74. On 29 December 2000 the President of Ukraine forwarded the above request to the HAC ’ s President and to the Prosecutor General with a note as follows:", "“Please sort this out and take decisions according to the legislation in force”.", "75. At the request of LyNOS, on 20 June 2001 the Review Panel reviewed the HAC ’ s ruling of 17 March 2000 under the supervisory review procedure and upheld the ruling, having found no grounds for the invalidation of LyNOS ’ s contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 on the repayment of arrears.", "76. On 27 June 2001 the HAC, at the request of LyNOS, reviewed the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 concerning the amount of its outstanding debts vis-à-vis the applicant company on the basis of newly-discovered circumstances. The court considered that the agreement between the parties of 20 August 1997 (on which the earlier determination of the outstanding arrears had been based) was to be considered in law as a contract of supply. However, it had not contained all the elements required for such a contract and thus had to be declared invalid. Furthermore, the court considered that the creditors ’ committee had lost its powers on 4 May 2000, the effective date of amendments to the insolvency legislation envisaging new procedures for the creation and activities of creditors ’ committees.", "77. By the same ruling, the HAC established the final amount of the outstanding debts of LyNOS vis-à-vis the applicant company to be UAH 97,406,920, having noted that the earlier amounts established had been of a preliminary nature.", "78. The applicant company appealed against the above ruling of the HAC, contending, inter alia, that the review and reduction of the amount of the arrears contradicted the final judicial decisions in that connection, which had become res judicata.", "79. On 13 July 2001 the Higher Commercial Court (the former Higher Arbitration Court, as renamed in June 2001) transferred the insolvency case to the Lugansk Regional Commercial Court (“the Lugansk Commercial Court ”) for further examination in line with amendments introduced to the legislation governing arbitration proceedings in June 2001.", "80. On 26 July 2001 the Higher Commercial Court returned the applicant company ’ s appeal against the HAC ’ s ruling of 27 June 2001 to it, making reference to the transfer of the case to the Lugansk Commercial Court on 13 July 2001.", "81. Between March and July 2001 the applicant company introduced several applications with the HAC for access to the case files regarding the insolvency proceedings and the proceedings concerning its claims against LyNOS (then called the Refinery) lodged in 1993 and 1994. By a letter of 16 July 2001 the Higher Commercial Court informed the applicant company that the files relating to its claims brought in 1993 and 1994 had been destroyed, as the time-limit for their storage had expired. The applicant company was, however, given access to the case file concerning the insolvency proceedings. It complained to the Prosecutor General ’ s Office and to the President of the Supreme Court about the destruction of the case files pertaining to the 1993 and 1994 claims and of irregularities in respect of the file concerning the insolvency proceedings (lack of page numbering and inadequate numbering and inventory of contents). On 3 August 2001 the Prosecutor General ’ s Office informed the applicant company that it had brought the irregularities discovered in the case file with regard to the insolvency proceedings to the attention of the President of the Higher Commercial Court.", "82. On 29 October 2001 the Donetsk Commercial Court of Appeal considered an appeal by the applicant company against the HAC ’ s ruling of 27 June 2001. As a result, it changed the total of the outstanding arrears of LyNOS vis-à-vis the applicant company to UAH 90,762,268 in debt and UAH 220,809 in compensation for delayed repayment (UAH 90, 983,077 in total).", "83. On 16 April 2002 the Higher Commercial Court dismissed an appeal in cassation brought by the applicant company against the above-mentioned ruling of 29 October 2001.", "84. On 25 June 2002 the Lugansk Regional Commercial Court commenced the court-supervised restructuring of LyNOS.", "85. On 26 December 2002 the Supreme Court, sitting as a bench of five judges, rejected the applicant company ’ s request for leave to appeal in cassation against the rulings of 26 December 2000 and 16 April 2002, having “failed to come to an agreement as to the presence in this case of legal grounds for the institution of cassation proceedings before the Supreme Court”.", "86. On 21 November 2003 the creditors ’ committee and the debtor signed a friendly settlement agreement, according to which the creditors ’ claims were to be settled by exchanging them for the debtor ’ s assets. The applicant company, in particular, was to receive 90,983,077 shares owned by the debtor in the share capital of the Lysychansk Oil Investment Company in settlement of its claims (equal to UAH 90,983,077). Its claims would also have been considered settled had it refused to accept the aforementioned shares.", "87. On 8 December 2003 the Lugansk Regional Commercial Court approved the above friendly settlement agreement, noting, inter alia, that the creditors ’ committee had voted for it unanimously. It declared the court-supervised restructuring of the debtor company complete and lifted the moratorium on settling the creditors ’ claims. The applicant company was not present at the hearing, although, as noted in the ruling of the Donetsk Commercial Court of Appeal of 22 April 2004 (see below), it had been duly notified of it.", "88. The applicant company appealed against the above ruling, submitting, amongst other things, that it had had no opportunity to object to the friendly settlement agreement, that there had been no assessment of the value of the shares in the Lysychansk Oil Investment Company, and that it had not been established whether LyNOS had been authorised to repay its debts with the assets of the aforementioned company.", "89. On 22 April and 28 September 2004 the Donetsk Commercial Court of Appeal and the Higher Commercial Court, respectively, dismissed the applicant company ’ s appeal and cassation appeal as unsubstantiated.", "90. On 25 November 2004 the Supreme Court rejected a further request by the applicant company for leave to appeal in cassation." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution of Ukraine 1996", "91. The relevant provisions can be found in Miroshnik v. Ukraine, no. 75804/01, § 30, 27 November 2008 ( independence of the judiciary ), and in Seryavin and Others v. Ukraine, no. 4909/04, § 22, 10 February 2011 ( protection of property).", "B. Code of Arbitration Procedure 1991 (renamed into the Code of Commercial Procedure by amendments of 21 June 2001 effective since 5 July 2001 )", "92. The relevant provisions, as worded before the amendments of 21 June 2001 (effective since 5 July 2001), are quoted in Ukraine -Tyumen v. Ukraine, no. 22603/02, § 20, 22 November 2007.", "93. Chapter XII-2 (in force since 5 July 2001) can be found in MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005 ‑ XI.", "94. Under Article 112, final judicial decisions may be reviewed on the basis of newly - discovered circumstances, where those circumstances were of significant importance for the case and could not have been known to the party concerned. According to Article 114, the examination of a request for the review of a case on the basis of newly- discovered circumstances should result in a court judgment (ruling or resolution) upholding the judgment (ruling or resolution) sought to be reviewed, modifying it or quashing it. The relevant decision may be challenged under standard procedure.", "C. Code of Arbitration Procedure (Amendments) Act of 21 June 2001 ( in force from 5 July 2001)", "95. Under paragraph 4 of the Final and Transitional Provisions, a judgment not challenged by the time of the entry into force of the Act before the president of an arbitration court may be appealed against to the commercial court of appeal or cassation instance in compliance with the procedures envisaged by the Code of Commercial Procedure.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1", "96. The applicant company complained about the length and alleged unfairness of the debt recovery proceedings initiated by it against LyNOS (named “the Lysychansk Oil Refinery ” at the time) back in 1993 and continuing through 2004. It submitted, in particular, that the courts had breached the principle of res judicata by reconsidering the amount of the debt due to it after that amount had been established by the final judicial decision of 2 July 1998. It also contended that the courts dealing with the case could not be regarded impartial or independent given the intense pressure from high-ranking State officials. The applicant company relied on Article 6 of the Convention, which reads, insofar as relevant, as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”", "97. The applicant company further complained under Article 1 of Protocol No. 1 to the Convention of a violation of its property rights. It complained, in particular, that it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard. Article 1 of Protocol No. 1 relied on by the applicant company reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "1. Compatibility ratione temporis", "98. The Government argued that the application was incompatible ratione temporis insofar as it concerned events prior to the entry into force of the Convention in respect of Ukraine on 11 September 1997.", "99. While agreeing with the Government ’ s view as to the Court ’ s temporal jurisdiction, the applicant company maintained that facts occurring before that date also had to be taken into consideration.", "100. The Court notes that, indeed, as it has made it clear in many cases against Ukraine, it is competent to examine the facts of an application for their compatibility with the Convention only in so far as they occurred after 11 September 1997 (see, for example, Kozak v. Ukraine (dec.), no. 21291/02, ECHR 2002 ‑ X).", "101. The present case concerns facts occurring both before and after that date. The Court considers that the applicant company ’ s complaints, insofar as they pertain to the period prior to 11 September 1997, are beyond the Court ’ s jurisdiction ratione temporis. It therefore upholds the Government ’ s objection and declares this part of the application inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.", "102. At the same time, the Court may and will have regard to events prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 74-77, ECHR 2002-X).", "2. Applicability of Article 6 § 1 of the Convention", "103. The Government further submitted that the applicant company ’ s complaint about the allegedly unjustified review of the HAC ’ s ruling of 2 July 1998 (establishing the amount of the debt owed to it by LyNOS) should be declared inadmissible within the meaning of Article 35 § 3 of the Convention because Article 6 § 1 did not apply to that review as such. They contended that the ruling in question could not be regarded as a final judicial decision determining the applicant company ’ s civil rights or obligations. The Government noted in this connection that, at the relevant time, the insolvency proceedings brought by the applicant company against LyNOS had still been underway, and that the applicant company ’ s civil rights and obligations had therefore yet to be determined.", "104. The applicant company contested that argument.", "105. The Court notes that the complaint raises questions of fact and law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. It considers that the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits (see and compare with Esa Jussila v. Finland (dec.), no. 73053/01, 9 November 2004, and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001 ‑ VII).", "106. Accordingly, the Court joins this objection of the Government to the merits of the complaint.", "3. Compliance with the six-month time-limit", "107. The Government also submitted that the application had been introduced out of the six-month time-limit. According to them, the six- month period for the purposes of Article 35 § 1 of the Convention had started running on 26 December 2000 – the date when the HAC ’ s Review Panel had quashed the HAC ’ s earlier rejection of LyNOS ’ s application for review of the ruling of 2 July 1998 establishing the amount of its debt to the applicant company on the basis of newly - discovered circumstances and had remitted that request for fresh examination.", "108. The applicant company disagreed. It noted that the above-mentioned application lodged by LyNOS had been allowed by the HAC ’ s judgment of 27 June 2001, which the applicant company had challenged before the higher courts in compliance with commercial procedure legislation. It maintained that the final domestic decision had therefore been the ruling of the Supreme Court of 26 December 2002. Accordingly, the applicant company considered that its application, which had been lodged on 23 June 2003, had been brought in compliance with the six-month time-limit.", "109. The Court notes at the outset that, although the Government raised this objection in respect of the general admissibility of the application, it is in fact confined to challenging the applicant company ’ s compliance with the six-month time-limit only insofar as it concerns the review of the HAC ’ s ruling of 2 July 1998 on the basis of newly-discovered circumstances.", "110. In its case-law, the Court has viewed the quashing of a final judgment as an instantaneous act, which does not create a continuing situation, even if it entails the reopening of proceedings (see, for well ‑ established authority, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 ‑ II). In the absence of an effective remedy, the Court has considered the very act of quashing of a final judgment to trigger the start of the six ‑ month time-limit for lodging a related complaint with the Court (ibid. ).", "111. Turning to the present case, the Court discerns particular circumstances which make it distinguishable from the cases cited above, as well as from the numerous other comparable cases (see, for example, The Mrevli Foundation v. Georgia (dec.), no. 25491/04, 5 May 2009; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; and Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004).", "112. Certain particularities of the relevant legislation governing Ukrainian commercial arbitration procedure in force at the material time are noteworthy. Thus, unlike in civil procedure – where the courts are required to deliver a separate decision granting or rejecting a request for the reopening of a case on the basis of newly- discovered circumstances, such a decision not being amenable to appeal (for the relevant legal provisions and an analysis of them see the Voloshchuk decision, cited above) – the arbitration procedure in Ukraine does not envisage such a separate procedural decision. Following the examination of a request for reopening of a case on the basis of newly- discovered circumstances, a court has the following options: to uphold the judgment ( decision ) which the claimant has sought to have reviewed; to quash it; or to amend it. The court ’ s decision in the matter may then be challenged in accordance with standard procedures (see paragraph 94 above).", "113. The Court notes that, in the present case, LyNOS ’ s application for review of the HAC ’ s ruling of 2 July 1998 on the basis of newly - discovered circumstances was initially unsuccessful. Thus, on 19 September 2000 the HAC found that there had in fact been no newly-discovered circumstances. It did not, however, reject the application for review, but rather upheld the challenged ruling of 2 July 1998 (see paragraph 69 above). Strictly speaking, the HAC had already examined the merits of the case by doing so. Later on, that decision was quashed and the application for review was remitted for fresh examination (see paragraph 72 above). As a result, on 27 June 2001 the HAC, acting as a court of first instance, changed its ruling of 2 July 1998 by a decision which the applicant company was able to and did challenge before the higher courts (see paragraphs 76-78, 80, 82-83 and 85 above).", "114. Bearing in mind the above, the Court considers that the date upon which the final ruling of 2 July 1998 was quashed, triggering the running of the six-month time-limit, would not have been apparent for the applicant company under the circumstances: technically, the period could have commenced as early as on 19 September 2000 (when the initial ruling was upheld); or on 26 December 2000 – as submitted by the Government – when the decision of 19 September 2000 was quashed; on 27 June 2001 – when the HAC modified the ruling of 2 July 1998 in the light of the newly- discovered circumstances referred to by LyNOS; or, finally, on 26 December 2002 – when the Supreme Court upheld the aforementioned judgment of 27 June 2001 by a final ruling.", "115. The Court will examine all these possibilities.", "116. As to the failure to complain to the Court about the review of the ruling of 2 July 1998 resulting in its being upheld by the decision of 19 September 2000, the applicant company can hardly be reproached for this, given that the outcome was in its favour.", "117. Furthermore, contrary to the Government ’ s assertions, the outcome of the application for review was yet to be determined following the decision of 26 December 2000 remitting the application for fresh examination. Accordingly, the ruling of 2 July 1998 cannot be regarded as having been quashed on that date.", "118. The Court also observes that on 27 June 2001 the HAC, sitting as a court of first instance, modified the ruling of 2 July 1998, to the detriment of the applicant company, in allowing LyNOS ’ s application for review. It is noteworthy that: it was the only judicial decision regarding the application for review that the applicant company found itself confronted with; the decision was on the merits of the case; and it was amenable to an ordinary appeal, which the applicant company resorted to. The applicant company could therefore have hardly been expected to calculate the six-month time-limit for bringing its case to the Court from 27 June 2001.", "119. Lastly, the Court notes that, following the legislative amendments which entered in force on 5 July 2001, the applicant company ’ s appeal was examined by the Donetsk Commercial Court of Appeal (see paragraphs 82 and 95 above). Subsequently, the applicant company appealed in cassation to the HCC (formerly the HAC) and later sought leave from the Supreme Court to bring a further cassation appeal (see paragraphs 83 and 85 above). According to the Court ’ s case-law, a second appeal in cassation to the Supreme Court was, after 5 July 2001, an effective domestic remedy in commercial proceedings in Ukraine (see the MPP Golub decision, cited above).", "120. The Court therefore concludes that, in the specific circumstances of the present case, the applicant company cannot be reproached for calculating the six-month time-limit for complaining to the Court of the allegedly unlawful quashing of the HAC ’ s final ruling of 2 July 1998 from the date of the Supreme Court ’ s decision on the case of 26 December 2002.", "121. Given that the application was lodged with the Court within six months thereafter, on 23 June 2003, the Court also dismisses this objection of the Government.", "4. Otherwise as to the admissibility", "122. The Court further notes that this part of the application, insofar as it falls within the Court ’ s temporal jurisdiction (see paragraphs 101 and 102 above), is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It should therefore be declared admissible.", "B. Merits", "1. Alleged violations of Article 6 § 1 of the Convention", "(a) Independence and impartiality of the courts", "123. The applicant company maintained that the courts dealing with the insolvency proceedings against LyNOS had not been independent or impartial, given the strong political pressure and the enduring control over the proceedings exerted by various State authorities, which had had a strong interest in their outcome. It referred, in particular, to the correspondence between the high- ranking officials and the courts dealing with the case ( or their senior officials ), on the one hand, and between LyNOS and those authorities, on the other hand.", "124. The Government disagreed, referring to the guarantees of the independence and impartiality of the judiciary enshrined in the Ukrainian Constitution and other laws. While the Government admitted that there had been attempts to influence the proceedings, they insisted that there was no proof that those attempts had in fact had any impact. In support of that submission, the Government referred to the fact that, although the State authorities had sought the termination of the insolvency proceedings since 1998, those proceedings had continued until 2004.", "125. The Court reiterates that in order to determine whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the following criteria: the manner of appointment of its members and their term of office; the existence of safeguards against outside pressures; and whether the tribunal presents an appearance of independence (see, among many other references, Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997 ‑ I ).", "126. As regards the question of “impartiality” for the purposes of Article 6 § 1, it is well established in the Court ’ s case-law that there are two aspects to this requirement, a subjective and an objective one. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed, unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint – that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999 ‑ V (extracts)). More specifically, it must be determined, under the objective test, whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 et seq., § 191, ECHR 2003 ‑ VI).", "127. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Kleyn and Others, cited above, § 194).", "128. The Court observes that the concepts of independence and objective impartiality are closely linked (see Findlay, cited above, § 73). They are particularly difficult to dissociate, where – like in the present case – the arguments advanced by the applicant to contest both the independence and impartiality of the court are based on the same factual considerations (see also Kleyn and Others, cited above, § 194, and Salov v. Ukraine, no. 65518/01, § 82, ECHR 2005 ‑ VIII (extracts)). The Court will therefore examine both these issues together.", "129. The Court notes that – as confirmed by documentary evidence – various State authorities did indeed intervene in the judicial proceedings in question on a number of occasions. Moreover, those interventions took place in an open and persistent manner and were often expressly solicited by the applicant company ’ s adversary.", "130. Thus, the case file contains copies of LyNOS ’ s requests to the First Deputy Speaker and the Speaker of Parliament, as well as the Prime Minister and the President of Ukraine, for intervention in the court proceedings, as well as letters from those officials to the HAC ’ s President with instructions to quash or reconsider the court ’ s earlier decisions, to terminate the proceedings, or simply enclosing the relevant request made by LyNOS (see paragraphs 28-29, 34-35, 42, 51, 58, 60 and 74 above). The Court also notes that the HAC ’ s President responded to some of those letters with reports on the status of the proceedings and with explanations of the measures taken within those proceedings (see paragraphs 43, 56 and 63 above). Furthermore, the Court does not lose sight of the fact that LyNOS explicitly thanked the President of Ukraine for his interventions, which it considered to be successful – noting that “the positive results [were] self ‑ explanatory” (see paragraph 73 above).", "131. Although the notion of the separation of powers between the executive and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010 ), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the interaction between the two branches. The Court must clarify whether in each particular case the requirements of the Convention are met (see Pabla Ky v. Finland, no. 47221/99, § 29, ECHR 2004 ‑ V).", "132. It is not the Court ’ s task to analyse the soundness of the relevant constitutional arrangements in Ukraine. The sole question it is faced with is whether, in the circumstances of this case, the domestic courts had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000 ‑ II, and Kleyn and Others, cited above, § 193).", "133. The Court has already condemned, in the strongest terms, attempts by non-judicial authorities to intervene in court proceedings, considering them to be ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002-VII, and Agrotehservis v. Ukraine (dec.), no. 62608/00, 19 October 2004 ).", "134. Similarly to its approach outlined in the Sovtransavto Holding case, cited above (§ 80), the Court finds it to be of no relevance whether the impugned interventions actually affected the course of the proceedings. Coming from the executive and legislative branches of the State, they reveal a lack of respect for the judicial office itself and justify the applicant company ’ s fears as to the independence and impartiality of the tribunals.", "135. The Court is mindful of the fact that the proceedings in question concerned the insolvency of what was at the time the country ’ s biggest oil refinery and in which the State was the major shareholder (see paragraphs 6 and 45 above). It is therefore natural that they attracted the close attention of the State authorities at the highest level. Those authorities, however, did not confine themselves to passive monitoring of the developments in the court case in the context of their extrajudicial efforts to overcome LyNOS ’ s crisis, but blatantly interfered in the court proceedings, which is unacceptable.", "136. The Court emphasises in this connection that the scope of the State ’ s obligation to ensure a trial by an “independent and impartial tribunal ” under Article 6 § 1 of the Convention is not limited to the judiciary. It also implies obligations on the executive, the legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they do not agree with them. Thus, the State ’ s respecting the authority of the courts is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law. For this to be the case, the constitutional safeguards of the independence and impartiality of the judiciary do not suffice. They must be effectively incorporated into everyday administrative attitudes and practices.", "137. The Court further observes that judicial independence and impartiality, as viewed from an objective perspective, demand that individual judges be free from undue influence – not only from outside the judiciary, but also from within. This internal judicial independence requires that judges be free from directives or pressures from fellow judges or those who have administrative responsibilities in a court such as, for example, the president of the court. The absence of sufficient safeguards ensuring the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant ’ s doubts as to the independence and impartiality of a court may be said to have been objectively justified (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 86, 22 December 2009, with further references).", "138. Turning back to the present case, the Court notes that in September 2000 the HAC ’ s President gave direct instructions to his two deputies to reconsider the court ’ s ruling of 19 September 2000 (by which it had rejected LyNOS ’ s application for the revision of the amount of its debt to the applicant company).", "139. The Court considers such influence by a judicial superior on the course of the proceedings to be contrary to the principle of internal judicial independence as outlined above.", "140. In sum, the Court concludes that, in the circumstances, the domestic courts could not be regarded independent or objectively impartial.", "141. There has accordingly been a violation of Article 6 § 1 of the Convention in that regard.", "(b) Compliance with the principle of legal certainty", "142. The applicant company contended that by overturning the final ruling of 2 July 1998 establishing the amount of arrears due to it by LyNOS, the courts had acted in breach of the principle of legal certainty inherent in the notion of fair trial under Article 6 § 1 of the Convention.", "143. Referring to their objection as to applicability of Article 6 § 1 to the situation complained of, the Government did not submit any further observations on the merits of this complaint.", "144. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, requires that where courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).", "145. As regards the present case, the Court notes that, in the absence of any appeal to the Review Panel – which could have been submitted by either party within two months of the pronouncement of the HAC ’ s ruling (see the reference in paragraph 92 above) and which was considered, before 5 April 2001, to be an appeal to the court of final instance for the purposes of exhaustion of ordinary domestic remedies in arbitration proceedings (see Sovtransavto Holding v. Ukraine (dec.), no. 48553/99, 27 September 2001, and MPP Petrol v. Ukraine (dec.), no. 62605/00, 25 March 2008) – the HAC ’ s ruling of 2 July 1998 was a final judicial determination of the amount of the outstanding arrears owed by LyNOS to the applicant company. The fact that the modalities of its repayment were yet to be defined, at that stage, within the ongoing insolvency proceedings, has no bearing on this finding.", "146. Proceeding from the standpoint that a court whose lack of independence and impartiality has been established cannot in principle guarantee a fair trial, the Court has occasionally chosen not to examine complaints regarding the fairness of the relevant proceedings (see Çiraklar v. Turkey, 28 October 1998, §§ 44-45, Reports 1998 ‑ VII). Having regard to the circumstances of each particular case before it, the Court has, however, at times found it necessary to undertake a separate examination of the fairness issue under Article 6 of the Convention, along with that regarding the courts ’ independence and impartiality (see, for example, Salov, cited above, §§ 78-98, and Bochan v. Ukraine, no. 7577/02, §§ 60-85, 3 May 2007).", "147. The Court considers that in the present case the applicant company ’ s complaint of the alleged breach of the principle of legal certainty raises a serious issue warranting a separate examination under Article 6 § 1 of the Convention.", "148. The principle of legal certainty implies that no party is entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Review by higher courts should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not grounds for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX).", "149. Turning to the present case, the Court notes that, while the HAC ’ s ruling of 2 July 1998 determining the amount of the outstanding arrears of LyNOS vis-à-vis the applicant company was not challenged and became final, later in July 1998 the Government created a taskforce of representatives of various high-level State authorities for clarifying the reasons for the company ’ s indebtedness. In its report of 31 August 1998 that taskforce stated a need for verification of the amount of arrears. Subsequently, on 14 September 1998, the First Deputy Prime Minister instructed certain ministries and State agencies to undertake an audit with a view to verifying the amount of the debt. As a result, in its report of 15 April 2000, the Lugansk Regional Audit Department concluded that the HAC ’ s findings in its ruling of 2 July 1998 concerning the outstanding debt owed to the applicant company had been wrong and in contradiction of the applicable legislation, and that LyNOS ’ s debt was in fact equal to UAH 36,401,894, instead of UAH 216,150,544 as had been established on 2 July 1998. LyNOS relied on that conclusion as a newly-discovered circumstance warranting revision by the courts of the previously established amount of debt, and its application for review was granted. As result, the courts reconsidered and reduced the finally established debt of UAH 216,150,544 to UAH 97,406,920 and subsequently to UAH 90,983,077 (see, in particular, paragraphs 41 and 77 above).", "150. These facts indicate that the non-judicial State authorities called into question the judicial decision of 2 July 1998 even though it had become final, revised it as they saw fit and criticised its findings as wrong and unlawful. Moreover, the non-judicial revision of the debt amount was then referred to as a newly-discovered circumstance, on the basis of which the courts reconsidered, to the applicant company ’ s disadvantage, the amount of the arrears owed to it by LyNOS.", "151. The Court therefore concludes that the reopening of the finally settled legal issue of the amount of arrears in the present case was based merely on the State authorities ’ disagreement with it, this being disguised as a newly-discovered circumstance. It considers that this amounted to a flagrant breach of the principle of legal certainty enshrined in Article 6 § 1 of the Convention.", "152. Accordingly, the Court rejects the Government ’ s objection as to applicability of Article 6 § 1 of the Convention to this complaint, which was previously joined to the merits (see paragraph 106 above), and finds that that there has been a violation of this provision.", "(c) Length of proceedings", "153. The applicant company maintained that the proceedings initiated by it against LyNOS had lasted for an unreasonably long time.", "154. The Government did not consider the overall length of the proceedings to be unreasonable, given the complexity of the case and the applicant company ’ s own allegedly uncooperative conduct.", "155. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "156. The period to be taken into consideration in the present case is from 11 September 1997 (the date of the entry into force of the Convention in respect of Ukraine – see paragraphs 100-102 above) to 25 November 2004 (the ruling of the Supreme Court finalising the bankruptcy proceedings against LyNOS by upholding its friendly settlement with the creditors ’ committee ). The proceedings therefore lasted for over seven years.", "157. The Court notes that the case was of importance for the applicant company, with a significant pecuniary interest being at stake. It was, however, factually and legally complex. At the same time the Court observes that, on the one hand, the major delay (from July 1999 to 16 April 2002) can be explained mainly by the authorities ’ efforts to have the amount of the debt owed to the applicant company revised, despite a final judicial decision in that regard. On the other hand, no delays in the proceedings were attributable to the applicant company.", "158. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues of the length of proceedings (see Frydlender, cited above).", "159. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "160. There has accordingly been a breach of Article 6 § 1 of the Convention in this regard too.", "2. Alleged violations of Article 1 of Protocol No. 1", "161. The applicant company contended that, due to the fault of the State, it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard by their final decisions of 5 March 1993, 18 November 1994 and 2 July 1998.", "162. The applicant company referred, in particular, to the revision of the amount of arrears after it had already been established by the HAC ’ s final ruling of 2 July 1998, and its subsequent considerable reduction (from UAH 216, 150,544 to UAH 90,700,000).", "163. It next submitted that the ban on selling shares in LyNOS had been lifted by mere decisions of the HAC ’ s President on 10 September 1998 and 12 April 2000, and that the State ’ s shares had eventually been sold to a foreign investor without any safeguards that LyNOS ’ s outstanding debt to the applicant company would ever be repaid.", "164. Furthermore, the applicant company contended that it had been forced, in 2003, into what it considered to be a discriminatory friendly settlement resulting in the transfer to it of shares owned by LyNOS which were neither transferable nor free from encumbrances nor eligible for dividends, instead of the money or oil products which it would have received had its rights not been violated.", "165. The Government maintained that there had been no interference with the applicant company ’ s rights under Article 1 of Protocol No. 1, as, until the completion of the insolvency proceedings against LyNOS, it could not have been regarded as having any possessions or enforceable property claims.", "166. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt will be paid and constitutes the beneficiary ’ s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment therefore amounts to an interference with the right to peaceful enjoyment of possessions (see, among other references, Brumărescu, cited above, § 74, and Ponomaryov v. Ukraine, no. 3236/03, § 43, 3 April 2008).", "167. The Court observes that the debt of LyNOS, a State-owned company at the time, to the applicant company was confirmed by the final judicial ruling of 2 July 1998 in the amount of UAH 216,150,544. Accordingly, that sum of money constituted the applicant company ’ s possessions, and its subsequent reduction, as a result of the reopening of the case on the basis of newly-discovered circumstances, amounted to an interference with its right to peaceful enjoyment of those possessions.", "168. As the Court has found in the context of Article 6 § 1 of the Convention, the quashing of the HAC ’ s enforceable ruling of 2 July 1998 was contrary to the principle of legal certainty (see paragraphs 1 48 -1 49 above). It frustrated the applicant company ’ s reliance on a binding judicial decision and deprived it of an opportunity to receive the money it had legitimately expected to receive.", "169. The Court therefore concludes that, in these circumstances, the revision of the amount of debt due to the applicant company under the HAC ’ s final and binding ruling of 2 July 1998 placed an excessive burden on the applicant company and was therefore incompatible with Article 1 of Protocol No. 1.", "170. In a broader context, the Court notes that the insolvency proceedings initiated by the applicant company against LyNOS had a direct impact on the property interests of the former. Given the Court ’ s findings that the courts dealing with those proceedings lacked the requisite independence and objective impartiality owing to the wholly unwarranted interventions by the State ’ s legislative and executive authorities (see paragraphs 1 36-137 above), the Court considers that no “fair balance” was struck between the demands of the public interest and the need to protect the applicant company ’ s right to the peaceful enjoyment of its possessions (see and compare with the judgment in the Sovtransavto Holding case, cited above, §§ 97-98).", "171. The above considerations suffice for the Court to find a violation of Article 1 of Protocol No. 1, without the need to examine the applicant company ’ s further arguments in support of its complaint under this heading.", "172. Accordingly, there has been a violation of Article 1 of Protocol No. 1.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "173. The applicant company also complained under Article 6 § 1 of the Convention of irregularities in the case file concerning the insolvency proceedings and of the destruction of files regarding the 1993-1994 proceedings. It further complained, relying on Articles 6 § 1 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention, that it had been deprived of access to court by the fact that on 26 December 2002 the Supreme Court, sitting as a five-judge bench, had rejected its request for leave to appeal in cassation. It referred in that regard to the requirement of the applicable procedural legislation to have the consent of at least five judges for proceedings to be started and the Supreme Court ’ s failure to specify the total number of judges on the bench.", "174. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "175. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "176. The applicant company submitted two alternative claims in respect of pecuniary damage – 179,119,430.67 euros (EUR) or EUR 143,873,981.28 – with its calculations being based, respectively, on United States and Ukrainian interest and inflation rates. It also claimed EUR 250,000 in respect of non-pecuniary damage and EUR 253,878.95 in legal costs and expenses.", "177. The Government contested those claims.", "178. The Court considers that, in the circumstances of the case, the issue of the application of Article 41 of the Convention is not ready for decision. Consequently, it decides to reserve it and to fix the subsequent procedure in the light of the possibility of an agreement between the respondent State and the applicant company (Rule 75 § § 1 and 4 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is a limited partnership company founded in 1986 and based in Helsinki.", "8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant company paid 251,000 Finnish marks (approximately 42,200 euros ) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced.", "9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court ( käräjäoikeus, tingsrätt ) known as “the Housing Court ” ( asunto-oikeus, bostadsdomstolen ). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract. KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below).", "10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases.", "11. The applicant company appealed to the Helsinki Court of Appeal ( hovioikeus hovrätt ), requesting that the District Court's decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995.", "12. On 9 February 1998 the applicant company applied to the Supreme Court ( korkein oikeus, högsta domstolen ) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "13. Under section 9 of the Parliament Act ( valtiopäiväjärjestys, riksdagsordning 278/1983 ), which was in force in 1997, only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with the duties of a member of parliament, but there were no such restrictions as regards membership of a court of appeal. That provision read as follows:", "“The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.”", "This provision corresponds to the existing section 27 of the Constitution ( perustuslaki, grundlagen 731/1999 ).", "14. According to section 23 of the State Civil Servants Act ( valtion virkamieslaki, statstjänstemannalagen 750/1994 ), a public official must be absent from office for the period of time he or she performs the duties of a member of parliament.", "15. Under section 29 (1) (504/1984) of the Act on Court Proceedings in Cases concerning Rental Matters ( laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål 650/1973 ), as in force at the relevant time, the court of appeal was required to consider appeals concerning rent contracts as a bench of three judges and two expert members, one of whom represented the views of landlords and the other the views of tenants. The expert members of the court of appeal were appointed by the President of the Republic for a period of four years. Members must be between 25 and 70 years old, and have full legal capacity ( section 29 (2) ). Expert members were required to take an oath ( section 31).", "16. The Act on Court Proceedings in Cases concerning Rental Matters was repealed by Act no. 597/2002, which came into force on 1 January 2003. Expert members no longer take part in the proceedings before the district courts or courts of appeal. Instead, the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) applies to the proceedings.", "17. The provisions concerning the disqualification of judges are contained in Chapter 13, section 1, of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows:", "“If the plaintiff or the defendant wishes to challenge a judge, he shall do so in a proper manner, and that judge shall decide whether or not to stand down. The following shall be the legal grounds for disqualification: where the judge is related by blood or marriage to one of the parties to a degree which would constitute a bar to marriage under Chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; where the judge is the opposing party or a publicly known “enemy” of a party; where the judge or a listed relative has an interest in the case, where they stand to obtain particular benefit or suffer particular loss in it; where the judge has served as a judge in the case in another court; where the judge has served as an advocate or witness in the case; where the judge has previously, on the orders of a court, decided a part of the case; or where the judge has a similar case pending before another court. If the judge knows that such grounds exist in his regard, even though the parties are not aware of the same, the judge shall stand down of his own accord.”", "18. The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were amended by an Act (441/2001) which came into force on 1 September 2001. The government bill ( HE 78/2000 ) contains an extensive account of the existing legislative provisions, the case - law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government's assessment of the present case.", "19. The Act on Commercial Leases ( laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal 482 /1995 ) was presented as a government bill on 21 November 1994. It was adopted on 17 February 1995 and came into force on 1 May 1995.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "20. The applicant company complained about a lack of independence and impartiality as one of the expert members sitting on the Court of Appeal when it was determining its case was also a member of the Finnish parliament. The applicant company relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”", "A. The parties'submissions", "1. The applicant company", "21. The applicant company submitted that while M.P. was a fully qualified member of the Court of Appeal, he was also a member of parliament. According to the theory of the separation of powers, a member of parliament should not act as a judge in an individual case since judicial and legislative powers should not be exercised by one and the same person. Thus a court of appeal in which a judge was a member of parliament could not be considered to be independent of the legislature. The applicant company argued that inclusion of members of parliament in the composition of judicial bodies disclosed serious structural problems.", "22. The applicant company also pointed out that M.P. was a social democrat, as were the President and Prime Minister at the time. It submitted that social democrats considered their relations with insurance companies to be important and that Finnish judges generally favoured big companies as they wished to obtain arbitration assignments for lucrative fees.", "2. The Government", "23. The Government submitted that M.P. was one of the two expert members of the Court of Appeal, in a composition where the three other members of the court were professional judges and in the majority. The provisions in Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were also applicable to expert members, who had to take an oath.", "24. The Government noted, moreover, that the applicant company had not suggested that the parliament would have interfered in M.P.'s exercise of his duties as an expert member of the Court of Appeal. They considered that the position of a member of parliament was a position of trust which did not entail any statutory or other obstacle to prevent him or her from acting as an expert member of a court of appeal in cases concerning rental matters. M.P. had sat as a lay member in rental matters since 1974 and gained extensive expertise. The fact that he was a social democrat was of no relevance to the proceedings.", "25. The Government emphasised the fact that the prerequisite for expert members is the same as for judges, that is, the expert member may not have a personal relationship with any party to the proceedings or with the case that would jeopardise his or her impartiality. The applicant company alleged that the group of insurance companies to which its adversary belonged offered funding and inexpensive lease contracts to members of parliament and that M.P. was partial because of this. The Government observed in this respect that, according to the Court's constant case-law, a mere suspicion of partiality did not render M.P. partial. The applicant company had neither shown that M.P. rented an apartment from the opposite party, nor that he received any funding from them.", "B. The Court's assessment", "1. General principles", "26. In order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the manner of appointment of its members and their terms of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.", "27. The “impartiality” requirement has two aspects. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges'personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence that the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).", "28. The concepts of independence and objective impartiality are closely linked, and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73, and Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 192, ECHR 2003-VI ).", "29. This case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers'interaction. The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the Court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The Court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000-II, and Kleyn and Others, cited above, § 19 3 ).", "30. Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements have not been met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48).", "2. Application in the present case", "31. The Court notes, first of all, that there is no indication that M.P. was actually, or subjectively, biased against the applicant company when sitting in the Court of Appeal in its case. The only issue is whether due to his position as a member of the legislature his participation cast legitimate doubt on the objective or structural impartiality of the court which decided the applicant company's appeal.", "32. There is no objection per se to expert lay members participating in the decision-making in a court. The domestic legislation of the Council of Europe's member States affords many examples of tribunals in which professional judges sit alongside specialists in a particular sphere whose knowledge is desirable and even essential in settling the disputes (see, for example, Ettl and Others v. Austria, judgment of 23 April 1987, Series A no. 117, pp. 18-19, §§ 38-40, and Debled v. Belgium, judgment of 22 September 1994, Series A no. 292-B, p. 43, § 36). The Court observes that M.P. had sat on the Court of Appeal as an expert in rental matters since 1974 and had, in the Government's view, acquired considerable experience, permitting him to make a valuable contribution to the adjudication of these types of cases. The Court notes in that regard that two expert members sit alongside a majority of three judges in the composition of the court of appeal in such cases.", "33. While the applicant company pointed to M.P.'s political affiliation, the Court does not find that there is any indication in the present case that M.P.'s membership of a particular political party had any connection or link with any of the parties in the proceedings or the substance of the case before the Court of Appeal ( see, mutatis mutandis, Holm v. Sweden, judgment of 25 November 1993, Series A no. 279-A, pp. 15-16, §§ 32-33). Nor is there any indication that M.P. played any role in respect of the legislation which was in issue in the case. The Act on Commercial Leases had been submitted by the government for adoption by the parliament on 21 November 1994 and it had been adopted on 17 February 1995, before M.P. had been elected for his second term of office on 19 March 1995. Even assuming therefore that participation by a member of parliament in, for example, the adoption of a general legislative measure could cast doubt on later judicial functions, it cannot be asserted in this case that M.P. was involved in any other capacity with the subject matter of the applicant company's case through his position as a member of parliament.", "34. Accordingly, the Court concludes that, unlike the situation it examined in Procola v. Luxembourg (judgment of 28 September 1985, Series A no. 326 ) and McGonnell, cited above, M.P. had not exercised any prior legislative, executive or advisory function in respect of the subject matter or legal issues before the Court of Appeal for decision in the applicant company's appeal. The judicial proceedings therefore cannot be regarded as involving “the same case” or “the same decision” in the sense that was found to infringe Article 6 § 1 in the two judgments cited above. The Court is not persuaded that the mere fact that M.P. was a member of the legislature at the time he sat on the applicant company's appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant company relies on the theory of separation of powers, this principle is not decisive in the abstract.", "35. In these circumstances, the Court is of the opinion that the applicant company's fear as to lack of independence and impartiality of the Court of Appeal, due to the participation of an expert member who was also a member of parliament, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1978 and lives in Limay.", "6. On 24 September 2008 the Société Générale bank lodged a criminal complaint against a person or persons unknown for forgery, uttering forged documents, and fraud, following complaints by Mr Nicolas Sarkozy, the then President of France, about four fraudulent payments to mobile telephone companies from his bank account for a total amount of 176 euros (EUR).", "7. On 25 September 2008 the preliminary investigation was entrusted jointly to the fraud squad and the serious crime squad. On the same day Mr Sarkozy himself filed a criminal complaint, which was joined to the investigation. On 23 October 2008 the public prosecutor of Nanterre opened a judicial investigation in respect of fraud committed as a premeditated joint enterprise, to the detriment of the companies concerned, Mr Sarkozy and eight other individuals including relatives of his. During the judicial investigation Mr Sarkozy applied to join the proceedings as a civil party.", "8. On 11 June 2009 the investigating judge committed the applicant and six other individuals to stand trial before the Nanterre Criminal Court on a charge of fraud committed as a premeditated joint enterprise. They were accused of having obtained 148 telephone lines, mobile telephones and the payment of subscriptions using the references of payment cards and bank accounts belonging to a third party.", "9. Before the trial court, the applicant claimed that Mr Sarkozy ’ s application to join the proceedings as a civil party was inadmissible. He argued, first, that the possibility for the serving President to intervene as a civil party, when it was impossible to bring proceedings against him or to have him summoned as a witness during his term of office ( see Article 67 of the Constitution, paragraph 17 below ), would create an imbalance in the proceedings. Secondly, he contended that the President ’ s power to appoint judges and prosecutors under Articles 64 and 65 of the Constitution ( see paragraphs 17, 22 and 25 below ) cast doubt on the impartiality of the judicial proceedings to which he was a party.", "10. In a judgment of 7 July 2009 the court found the applicant guilty of the charges against him and sentenced him to one year ’ s imprisonment, after establishing his participation in the preparatory acts and his role in the organisation of the fraud. It held that Mr Sarkozy ’ s application to join the proceedings as a civil party was admissible on the basis of his right of access to a court, but deferred its decision on his claim for damages until the expiry of a one-month period after the end of his term as President (see Article 67 of the Constitution, paragraph 17 below). The court took the view, with reference to Article 6 of the Convention, that the President ’ s status before the court would entail a breach of the equality of arms principle because, as a civil party, he could not, for the duration of his term of office, be the subject of any sanction for bringing unjustified proceedings or be prosecuted for malicious or rash accusations, or be questioned or confronted with the defendant ( ibid., see also, paragraph 31 below ). It further emphasised that the President ’ s power to appoint judges and prosecutors was capable of creating the appearance, for the defendant, that he was not being tried by an independent and impartial tribunal.", "11. In a judgment of 8 January 2010 the Versailles Court of Appeal varied the judgment and sentenced the applicant to eight months ’ imprisonment. It found the applicant guilty, based on his own confessions and the statements of other defendants, together with the material discovered during searches. In respect of the civil claim, it ordered the applicant to pay EUR 1 to Mr Sarkozy in respect of non-pecuniary damage and, jointly with the other defendants, EUR 2, 500 for costs at first instance and on appeal :", "“ ... L.S., [ the applicant ] and F.T. contend that the special status of the Head of State rules out, in the present proceedings, any summons, interview, confrontation, investigative act or adversarial debate concerning Mr Sarkozy. It is not so much the securing of equality in the factual or legal arguments which matters, but the equal opportunity, for each of the parties, to submit its own ‘ arms ’ and to discuss those of the other party. In the present case, it is clear that this submission and discussion were effective throughout the proceedings, both during the judicial investigation and first-instance proceedings and before this court. A fair hearing has thus been guaranteed, not only in the balance between the parties but also through the effectiveness of the adversarial debate.", "As regards the second aspect, concerning the impartiality of the tribunal which has allegedly been undermined by the supposed partiality of the public prosecutor and the President ’ s intervention in the proceedings when he is the guarantor of judicial independence and authority, a distinction must be made. On that first point, the submissions by the public prosecutor of Nanterre rightly observe that the criminal proceedings were brought by the public prosecutor ’ s office, which is not subject to any application for withdrawal, and the proceedings did not therefore depend on a civil- party intervention. On the second point, many civil or criminal courts, in particular in press-related matters, have, on many occasions, admitted proceedings brought by the serving President of the Republic, who in that capacity is also chair of the National Legal Service Commission, without at any time considering that he was in any way contravening his constitutional duties.”", "The Court of Appeal further sought to ascertain whether the impartiality of the tribunal could also be called into question in the light of the theory of appearances. It pointed out the ambiguity of the Head of State ’ s status, which “[came] from the fact that it [was] wholly intended to protect him from attacks before the courts, but [did] not prevent him from acting as an ordinary litigant when he decide[d] to have recourse to judicial proceedings”. It emphasised, however, that the public prosecutor ’ s office was not affected by the guarantee of the right to an impartial tribunal and that the President ’ s powers of appointment had not infringed the right to a fair trial :", "“... the fact that, in the present case, the public prosecutor ’ s offices both of Nanterre and of Versailles had endeavoured to ensure that the case was examined as quickly as possible, and exceptional means of investigation were deployed ( serious crime squad and fraud squad ), could no doubt be attributed to the identity of the victim, but also to the fact that members of his family were affected by the same offences, those factors suggesting that a large-scale action targeting the Head of State and his family was likely to have been organised on account of their identity.", "Thus, without there being any evidence that the President intervened directly in the proceedings, it is certain that the local public prosecutor ’ s office, of its own initiative, showed a manifest zeal, which could not, however, have undermined the legitimate interests and fundamental rights of those concerned. The defendants have not demonstrated that they have suffered as a result of any breach by the French institutions of the principles which must govern a fair trial.", "Moreover, ... Article 64 of the Constitution states ... that the President is the guarantor of the judicial authority, and this provision legitimises, at the highest level of the hierarchy of legal norms – and even when the President of the Republic is a party to the proceedings – his powers over the public prosecutor ’ s office, while also ruling out any doubt as to the independence of the judiciary ... [ The applicant ] cannot dispute the President ’ s capacity to act as an ordinary citizen.", "In addition, even supposing that French judicial organisation and the Convention are incompatible, only a reform of the Constitution would be capable of resolving that contradiction.", "In those conditions, as there is nothing to show that the public prosecutor ’ s office or the power to appoint judges and prosecutors caused any concrete impairment of the independence or impartiality of the judges, the objection is unfounded.”", "12. The applicant appealed on points of law and, in addition to complaining of a breach of his right to a fair trial, argued that Article 2 of the Code of Criminal Procedure (see paragraph 31 below) was unconstitutional as it did not preclude the President of the Republic from joining criminal proceedings as a civil party. In the meantime, in pleadings of 16 August 2010, the applicant asked the Court of Cassation to refer a question to the Constitutional Council for a preliminary ruling on constitutionality ( question prioritaire de constitutionnalité – “QPC” ) relating to the compatibility of the above-mentioned Article 2 with the principle of the separation of powers and the rights of the defence, and with the right to a fair trial.", "13. In a judgment of 10 November 2010 ( Bull crim., no. 180) the Court of Cassation decided not to seek a preliminary ruling on constitutionality on the following grounds :", "“ The question, which does not pertain to the interpretation of a constitutional provision that the Constitutional Court has not yet had occasion to apply, is not a new one.", "The question raised does not have any serious merit in so far as it seeks, in reality, to clarify the scope of Article 2 of the Code of Criminal Procedure, in the light of Article 67 of the Constitution, and thus falls within the jurisdiction of the ordinary courts. ”", "14. In his opinion before the Court of Cassation, the Advocate- General called for the partial quashing of the judgment of the Court of Appeal in so far as it had not stayed its ruling on Mr Sarkozy ’ s civil action until the end of his term of office. The Advocate- General took the view that the fact that no proceedings could be brought against the President ( for malicious, improper or de facto fanciful accusation ), or that he could not be summoned to testify, had not created, in the circumstances of the case, any inequality between the parties, while acknowledging that this inability could cause serious difficulties in other proceedings if mainly based on accusations or evidence emanating from the President. However, in the Advocate- General ’ s view, the President ’ s power to appoint judges and prosecutors was such as to cast doubt on the objective impartiality of any private disputes to which the President might be a party during his term of office. He nevertheless indicated that the fact of declaring inadmissible the President ’ s application to join the proceedings as a civil party would have the effect of depriving him of his right of access to a court and concluded that it was necessary to opt for a compromise solution in the form of suspending any civil action brought by the President for the defence of his personal interests until the end of his term of office.", "15. In a judgment of 15 June 2012 the Plenary Court of Cassation quashed the Court of Appeal ’ s judgment in so far as it had not given sufficient reasons for the prison sentence handed down against the applicant. For the remainder, it found as follows :", "“First, the President of the Republic who, in his status as victim, is entitled, under Article 2 of the Code of Criminal Procedure, to exercise his rights as a civil party during his term of office, joined proceedings that had already been initiated by the public prosecutor, and the appellant has not been granted a discontinuance or an acquittal.", "Secondly, the judgment observes that the appellant was found guilty on the basis of both his own confessions and the statements of other defendants, together with the evidence gathered during searches.", "Thirdly, the Court of Appeal, in assessing, without contradiction, the particulars of the case, found that the public prosecutor ’ s action had not breached either the legitimate interests or the fundamental rights of the accused persons.", "Fourthly, the judgment finds in precise terms that the guarantee of the right to an independent and impartial tribunal, under Article 6 § 1 of the Convention, applies only to judges and not to the prosecution.", "Lastly, the mere fact that judges are appointed by the President does not render them subordinate to him, since once they have been appointed, they enjoy tenure and are not subjected to any pressure or instructions in the exercise of their judicial duties. After finding that each party was able to present its arguments and discuss those of the opposite party throughout the judicial pre-trial investigation and the hearings both at first instance and before the Court of Appeal, the judgment indicates that the defendant had not demonstrated that he had sustained a breach of his right to a fair trial on the part of the French institutions. The Court of Appeal thus rightly concluded that the principle of the equality of arms had not been infringed. ...”", "16. In a judgment of 24 January 2014 the Versailles Court of Appeal set aside the applicant ’ s sentence, replacing it with a suspended term of ten months ’ imprisonment.", "III. INTERNATIONAL AND COUNCIL OF EUROPE TEXTS ON JUDICIAL INDEPENDENCE AND SECURITY OF TENURE", "36. The Court refers to its judgment in Baka v. Hungary ([GC], no. 20261/12, ECHR 2016), and in particular paragraphs 77 to 83. It also refers to Tsanova-Gecheva v. Bulgaria ( no. 43800/12, § 63, 15 September 2015) in which mention is made of Opinion no. 10 (2007) of the Consultative Council of European Judges (CCJE), in the part concerning the selection, appointment and promotion of judges.", "37. The relevant passages from the European Charter on the statute for judges ( 8-10 July 1998 ) [1] read as follows :", "“ 1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”", "38. The compilation of Venice Commission opinions and reports concerning courts and judges (CDL-PI (2015)001), under “ Appointment of judges ” reads as follows :", "“ 2.2.3.1 Multitude of systems", "...", "In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time.", "...", "Notwithstanding their particularities appointment rules can be grouped under two main categories.", "In elective systems, judges are directly elected by the people (this is an extremely rare example and occurs at the Swiss cantonal level) or by the Parliament ...", "Appointments of ordinary judges [in contrast to constitutional judges] are not an appropriate subject for a vote by Parliament because the danger that political considerations prevail over the objective merits of a candidate cannot be excluded.", "...", "In the direct appointment system the appointment body can be the Head of State ...", "In assessing this traditional method, a distinction needs to be made between parliamentary systems where the president (or monarch) has more formal powers and (semi-) presidential systems. In the former system the President is more likely to be withdrawn from party politics and therefore his or her influence constitutes less of a danger for judicial independence. What matters most is the extent to which the head of state is free in deciding on the appointment. It should be ensured that the main role in the process is given to an independent body – the judicial council. The proposals from this council may be rejected only exceptionally, and the President would not be allowed to appoint a candidate not included on the list submitted by it. As long as the President is bound by a proposal made by an independent judicial council ... the appointment by the President does not appear to be problematic.", "In some countries judges are appointed by the government ... There may be a mixture of appointment by the Head of State and appointment by the Government. ... As pointed out above, this method may function in a system of settled judicial traditions but its introduction in new democracies would clearly raise a concern. ... ”", "39. Opinion no. 10 (2007) on “Council for the Judiciary in the service of society” issued by the Consultative Council of European Judges (CCJE), an advisory body of the Council of Europe, to the Council of Europe ’ s Committee of Ministers, reads as follows on the presidency of a “council for the judiciary” :", "“III. C. 3. Selection of the Chair", "33. It is necessary to ensure that the Chair of the Council for the Judiciary is held by an impartial person who is not close to political parties. Therefore, in parliamentary systems where the President / Head of State only has formal powers, there is no objection to appointing the Head of State as the chair of the Council for the Judiciary, whereas in other systems the chair should be elected by the Council itself and should be a judge.”", "40. In its above-cited compilation ( see paragraph 38 above ), under “ Council of Justice ”, the Venice Commission emphasises that while the participation of such councils in judicial appointments is crucial, they need not take over the whole administration of the justice system, which can be left to the Ministry of Justice (4.1). Point 4.2 deals with the composition of judicial councils and reads as follows :", "“ 4.2.1 General approach", "There is no standard model that a democratic country is bound to follow in setting up its Supreme Judicial Council so long as the function of such a Council fall within the aim to ensure the proper functioning of an independent Judiciary within a democratic State. Though models exist where the involvement of other branches of power (the legislative and the executive) is outwardly excluded or minimised, such involvement is in varying degrees recognised by most statutes and is justified by the social content of the functions of the Supreme Judicial Council and the need to have the administrative activities of the Judiciary monitored by the other branches of power of the State. It is obvious that the Judiciary has to be answerable for its actions according to law provided that proper and fair procedures are provided for and that a removal from office can take place only for reasons that are substantiated. Nevertheless, it is generally assumed that the main purpose of the very existence of a Supreme Council of the Judiciary is the protection of the independence of judges by insulating them from undue pressures from other powers of the State in matters such as the selection and appointment of judges and the exercise of disciplinary functions.”", "...", "4.2.6. Chair of the Council; structure and working bodies of the Council", "It is necessary to ensure that the chair of the judicial council is exercised by an impartial person who is not close to party politics. Therefore, in parliamentary systems where the president / head of state has more formal powers there is no objection to attributing the chair of the judicial council to the head of state, whereas in (semi-) presidential systems, the chair of the council could be elected by the Council itself from among the non-judicial members of the council. Such a solution could bring about a balance between the necessary independence of the chair and the need to avoid possible corporatist tendencies within the council.", "CDL-AD(2007)028, Report on Judicial Appointments by the Venice Commission, § 35", "...", "In addition, the Commission considers that [the proposed measure], providing that the President chairs the Council of Justice, could prove rather problematic. Having the President as the Chair is not necessarily the best solution (although provided for in a number of European Constitutions) and his or her role as the Chair should be purely formal. In this regard, the Commission wishes to recall the European Charter on the Statute for Judges, which stresses the importance of the absolute independence of this body from both the executive and the legislative powers", "CDL-AD (2004)044, Interim Opinion on Constitutional Reforms in the Republic of Armenia, § 58", "...”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution and other relevant provisions governing the appointment, promotion and disciplinary regime of judges and prosecutors and the National Legal Service Commission", "1. The Constitution", "17. Articles 64, 65 and 67 of the Constitution read as follows :", "Article 64", "“ The President of the Republic shall be the guarantor of the independence of the judicial authority.", "He shall be assisted by the National Legal Service Commission ( Conseil supérieur de la magistrature ).", "An Institutional Law shall determine the status of judges and prosecutors.", "Judges shall enjoy security of tenure.”", "Article 65", "( in force until 31 January 2011 [ see paragraph 19 below ])", "“ The National Legal Service Commission shall be chaired by the President of the Republic. The Minister of Justice shall be its ex officio vice- chair. He may deputise for the President of the Republic.", "The National Legal Service Commission shall consist of two sections, one responsible for judges, the other for public prosecutors.", "The section responsible for judges shall comprise, in addition to the President of the Republic and the Minister of Justice, five judges and one public prosecutor, one Conseiller d ’ État appointed by the Conseil d ’ État, and three prominent citizens who are not members either of Parliament or of the ordinary courts, appointed respectively by the President of the Republic, the President of the National Assembly and the President of the Senate.", "...", "The section of the National Legal Service Commission responsible for judges shall make recommendations for the appointment of judges to the Court of Cassation, of the presidents of Courts of Appeal and of the presidents of tribunaux de grande instance. The other judges shall be appointed with the binding approval of this section.", "This section shall act as the disciplinary board for judges. It shall then be chaired by the President of the Court of Cassation.", "...”", "Article 65", "( amended by Constitutional Law no. 2008-724 of 23 July 2008 on the modernisation of the institutions of the Fifth Republic, which entered into force on 1 February 2011 [ see paragraph 19 below ])", "“ The National Legal Service Commission shall consist of a section responsible for judges and a section responsible for public prosecutors.", "The section responsible for judges shall be chaired by the President of the Court of Cassation. It shall comprise, in addition, five judges and one public prosecutor, one conseiller d ’ État appointed by the Conseil d ’ État, one lawyer, and six qualified, prominent citizens who are not members of Parliament, or of the ordinary or administrative courts. The President of the Republic, the President of the National Assembly and the President of the Senate shall each appoint two qualified, prominent citizens. The procedure provided for in the last paragraph of Article 13 shall be applied to the appointments of the qualified, prominent citizens. The appointments made by the President of each Chamber of Parliament shall be submitted solely for the approval of the relevant standing committee in the Chamber concerned.", "The section responsible for public prosecutors shall be chaired by the Principal Public Prosecutor at the Court of Cassation. It shall comprise, in addition, five public prosecutors and one judge, together with the conseiller d ’ État and the lawyer, and the six qualified, prominent citizens referred to in the second paragraph.", "The section of the National Legal Service Commission responsible for judges shall make proposals for the appointment of judges to the Court of Cassation, the presidents of Courts of Appeal and the presidents of tribunaux de grande instance. Other judges shall be appointed with the binding approval of this section.", "The section of the National Legal Service Commission responsible for public prosecutors shall give its opinion on the appointment of public prosecutors.", "The section of the National Legal Service Commission responsible for judges shall act as the disciplinary board for judges. When acting in such capacity, in addition to the members mentioned in the second paragraph, it shall comprise the judge belonging to the section responsible for public prosecutors.", "The section of the National Legal Service Commission responsible for public prosecutors shall give its opinion on disciplinary measures concerning them. When acting in such capacity, it shall comprise, in addition to the members mentioned in paragraph three, the public prosecutor belonging to the section responsible for judges.", "The National Legal Service Commission shall meet in its plenary formation to respond to requests for opinions from the President of the Republic under Article 64. It shall give its opinion, in its plenary formation, on questions concerning the ethics of judges or prosecutors or on any question concerning the operation of the justice system that may be referred to it by the Minister of Justice. The plenary formation comprises three of the five judges mentioned in the second paragraph, three of the five prosecutors mentioned in the third paragraph, and the conseiller d ’ État, the lawyer and the six qualified, prominent citizens referred to in the second paragraph. It is chaired by the President of the Court of Cassation who may be replaced in this capacity by the Principal Public Prosecutor at the said court.", "The Minister of Justice may participate in all the sittings of the National Legal Service Commission, except those concerning disciplinary matters.", "Complaints may be brought to the National Legal Service Commission by individuals under the conditions determined by an Institutional Act.", "...”", "Article 67", "“ The President of the Republic shall not be held liable for any acts he performs in that capacity, subject to the provisions of Articles 53-2 and 68 hereof.", "Throughout his term of office the President shall not, before any French court of law or administrative authority, be called as a witness or as a defendant in any proceedings, neither shall he be the subject of any pre-trial investigation or prosecution. All statutory limitation periods shall be suspended for the said term.", "All actions and proceedings thus stayed may be reactivated or brought against the President one month after the end of his term of office. ”", "2. The National Legal Service Commission", "18. Under the Third Republic, the National Legal Service Commission ( Conseil supérieur de la magistrature – “ CSM ” ) denoted the formation of the Court of Cassation when it sat as the disciplinary authority for judges. The Constitutions of 1946 and 1958 made the CSM a separate organ under a specific Article. The Constitutional Laws of 27 July 1993 and 23 July 2008 altered its composition and remit.", "19. Before the above-mentioned Constitutional Law of 23 July 2008 and Institutional Law no. 2010-830 of 22 July 2010 by which it was implemented (due to come into force at the end of January 2011 ), and since 1958, the President of the Republic had been the chair of the CSM. Thus Mr Sarkozy was its chairman from 2006 to January 2011. The Minister of Justice was then its vice- chair. The explanatory memorandum in respect of the draft Constitutional Law stated that the reform of the CSM required, in particular, the abolition of its chairmanship by the Head of State : “The evolution in the role played by the judicial authority in a modern democracy requires that it should cease to be chaired by the President of the Republic”. Also prior to the 2008 reform, the CSM section for judges comprised, in addition to the President of the Republic and the Minister of Justice, five judges and a prosecutor, a conseiller d ’ État, appointed by the Conseil d ’ État, and three prominent citizens, not being members of parliament or of the ordinary courts, appointed respectively by the President of the Republic, the President of the National Assembly and the President of the Senate. In addition to its power to appoint judges ( see paragraphs 22 et seq. below ), this section operated as a disciplinary board and was then chaired by the President of the Court of Cassation.", "20. The current composition of the CSM, as a result of the constitutional reform of 2008, is described in Article 65 of the Constitution cited in paragraph 17 above.", "3. Appointment and promotion of judges and prosecutors", "21. Admission to the national legal service ( la magistrature ) traditionally depends on passing a competitive examination. The successful candidates are appointed as legal service trainees ( auditeurs de justice ) and receive professional training in the national training college for judicial office ( École nationale de la magistrature ). Recruitment by direct integration is also provided for and strictly governed by Ordinance no. 58 ‑ 1270 of 22 December 1958 pertaining to the Institutional Law on the status of members of the national legal service ( “the 1958 Ordinance” ).", "22. Articles 4, 6 and 28 of the 1958 Ordinance read as follows :", "Article 4", "“Judges shall have security of tenure.", "Consequently, judges may not receive, without their consent, a new assignment, even by way of advancement .”", "Article 26", "“The President of the Republic shall appoint legal service trainees to posts of the second level of the judicial hierarchy on the proposal of the Ministry of Justice.", "Depending on their ranking, with the exception of the duties covered by the examiners ’ reservations provided for in Article 21, and depending on the list proposed to them, the legal service trainees will inform the Minister of Justice of the post to which they wish to be appointed.", "...", "Having regard to these choices, the Minister of Justice, shall refer the decision for the approval of the competent section of the Commission. ... ”", "Article 28", "“ Instruments of appointment to the duties of president of a tribunal de grande instance or a tribunal de première instance or of a conseiller référendaire at the Court of Cassation shall be made by the President of the Republic on the proposal of the competent section of the National Legal Service Commission.", "Instruments pertaining to an advancement to a higher grade or to an appointment to duties as judge or prosecutor other than those mentioned in the previous paragraph, shall be made by the President of the Republic on the proposal of the Ministry of Justice, subject to the binding approval of the competent section of National Legal Service Commission as regards judges and of the competent section of the said Commission as regards prosecutors. The rules governing the appointment of prosecutors shall apply to the officers assigned to the central administration of the Ministry of Justice. ”", "23. The hierarchy of the judiciary consists of two grades ( Article 2 of the 1958 Ordinance ). The advancement of judges is discretionary, on the basis of merit. However, conditions are laid down for advancement from the second to the first grade. In addition to having served for seven years, the judges who so request and who are worthy of advancement will be listed on an advancement table drawn up by the promotions board, comprising a majority of elected judges or prosecutors. The board will take its decision based on an individual examination of the judge ’ s file, after assessment by his line manager in an adversarial process. The table will then be notified to each of the judges concerned and displayed with full transparency in each court, such as to allow those who have not been proposed to send the board an application for listing ( Articles 15, 18, 21, and 22 - 27 of Decree no. 93-21 of 7 January 1993 made for the application of the 1958 Ordinance ).", "24. Moreover, the access of judges to certain duties depends on their inclusion on an aptitude and selection list drawn up by the promotions board. The proposed appointment is then notified to the CSM and to the heads of the Court of Cassation and the Courts of Appeal, who ensure its dissemination ( Article 27-1 of the 1958 Ordinance ).", "25. As is the case for the appointment of new judges ( Article 26 of the 1958 Ordinance, paragraph 22 above ), any promotion or appointment to a new post takes the form of an instrument issued by the President of the Republic on the proposal of the Minister of Justice, based on a proposal by the CSM or on the binding approval of the latter in accordance with Article 65 of the Constitution ( see paragraph 17 above ). That instrument may be appealed against, by way of judicial review, before the Conseil d ’ État. The formation examining such an appeal has a limited scrutiny, verifying that the choice is not vitiated by any manifest error in the assessment of the needs of the service or of the respective aptitude of the judges concerned. The formation further ensures that the appointment is not vitiated by any mistake of law or any improper exercise of authority ( see, for example, Conseil d ’ État, no. 259294, 10 August 2005; Conseil d ’ État, no. 325268, 10 January 2011). The Conseil d ’ État stated that the principle of equal treatment implied that the CSM should carry out an in- depth assessment of the value of each of the candidates. While the CSM was free, on an indicative basis, to set selection criteria such as geographical mobility or a better matching of profiles to posts, it would always be required to engage in an individual examination of the specific particulars of each file ( Conseil d ’ État, no. 273176, 14 December 2005; Conseil d ’ État, no. 272232, 10 March 2006).", "4. Disciplinary measures concerning judges", "26. Pursuant to Article 43 of the 1958 Ordinance, “any failure by a member of the national legal service to discharge his official duties, or to act in accordance with the requisite honour, scrupulousness or dignity, shall constitute misconduct for disciplinary purposes”. Under Article 65, paragraph 2, of the Constitution, disciplinary actions are brought before the CSM section responsible for judges, sitting in its capacity as a disciplinary board, and chaired by the President of the Court of Cassation. Such actions are referred to the CSM by the Minister of Justice, who is entitled to request an investigation, prior to any proceedings, by the General Inspectorate of the Justice System ( at the material time known as the General Inspectorate of Judicial Services ) which comes under the Ministry of Justice. Actions may also be brought to the CSM by the President of the Court of Appeal under which the disciplined judge is serving, and since 2010 by any citizen in connection with judicial proceedings concerning the conduct of a judge in the exercise of his duties ( Article 50-1 to 50-3 of the 1958 Ordinance ). In the latter case, a filtering panel first examines the admissibility of the complaint.", "27. During the disciplinary proceedings, the chair of the disciplinary board appoints a rapporteur. The judge is summoned and his file is disclosed to him. At the hearing, after evidence has been taken from the director of judicial services and the report has been read, the disciplined judge, who may be represented by a lawyer, is asked to submit his explanations and any pleas in his defence. The hearing is public. However, if the protection of public order or private life so require, or if there are any special circumstances that may undermine the interests of the justice system, the hearing room may be closed to the public, for all or part of the hearing, by the disciplinary board, if necessary of its own motion. The CSM ’ s decision must give reasons and is delivered in open court ( Articles 51 to 58 of the 1958 Ordinance ). It may be appealed against before the Conseil d ’ État.", "5. Relevant provisions concerning prosecutors", "28. As to the relevant provisions concerning prosecutors, the Court would refer to Moulin v. France ( no. 37104/06, §§ 22 to 29, 23 November 2010). It should be observed that, unlike judges, they are bound by a hierarchical relationship with the Ministry of Justice.", "29. On 26 April 2016, a plan for the reform of the CSM was adopted at second reading by the National Assembly. It provided in particular that the CSM section responsible for prosecutors would have the power to decide on proposed appointments by giving its binding approval, and no longer by a non-binding opinion. That constitutional reform, which was supposed to have been approved by the two chambers of Parliament sitting together as the Congrès, was ultimately unsuccessful. Moreover, Institutional Law no. 2016-1090 of 8 August 2016 abolished the appointment of Principal Public Prosecutors by the Cabinet.", "B. Relevant provisions of the Code of Criminal Procedure", "30. Under Article 31 of the Code of Criminal Procedure, as in force at the material time, “[t]he public prosecutor shall bring criminal proceedings and formally request the application of the law”. The Law of 25 July 2013 on the powers of the Minister of Justice and public prosecutors in matters of criminal policy and the conducting of prosecutions complemented that provision by adding “in full compliance with the principle of impartiality by which he shall be bound”. That law also abrogated the possibility for the Minister of Justice to give general instructions to the public prosecutor in respect of individual cases.", "31. Under Article 2 of the Code of Criminal Procedure, civil action is open to all those who have personally suffered damage directly caused by the offence. While victims who join criminal proceedings as a civil party now face certain constraints, because they can no longer give testimony and may incur sanctions if their claims are unsuccessful or improper, they nevertheless benefit from the status of party to the criminal proceedings and are kept informed of any developments; they may also submit requests for investigative acts, use any remedies and above all obtain reparation from the criminal court for the damage they have suffered. Any improper use of a civil party intervention may give rise to criminal sanctions for malicious or fanciful accusations ( Articles 226 ‑ 10 and 434-26 of the Criminal Code ). At the civil level, the actions provided for by Articles 91, 472 and 516 of the Code of Criminal Procedure enable a defendant after an acquittal, or where there is no case to answer, to seek damages from the person who improperly used the civil party intervention. Such actions can be brought only against a civil party which itself initiated the prosecution.", "32. In the course of the pre-trial proceedings, the parties may ask the investigating judge to take testimony from them or from a witness, to hold a confrontation or an on-site visit, to order one of them to adduce in evidence any material that may be useful for the investigation, or to perform any other task that they consider necessary for the discovery of the truth ( Article 82-1 of the Code of Criminal Procedure ).", "33. Before the court, the public prosecutor and the parties ’ lawyers may put questions directly to the defendant, the civil party, the witnesses or anyone else called to testify, by asking the presiding judge for leave to speak. The defendant and the civil party may equally put questions through the intermediary of the presiding judge ( Article 442-1 of the Code of Criminal Procedure ).", "C. Commissions reviewing the President ’ s status before the courts", "34. Following the guidance of the “ Avril ” Commission set up in 2002, the current status of the President of the Republic before the courts, as provided in Articles 67 and 68 of the Constitution (paragraph 17 above ), consists in :", "(a) immunity in respect of any acts performed in the course of his presidential duties ( subject to proceedings before the International Criminal Court or impeachment proceedings by Parliament sitting as a High Court in the case of a breach of his duties that is manifestly incompatible with his office);", "(b) immunity before the courts during his term of office in respect of any acts performed by him that are unconnected with his presidential office.", "35. By a decree of 16 July 2012 the President of the Republic decided to set up a Commission for modernisation and ethics in public life, chaired by the former Prime Minister Lionel Jospin. This Commission was asked to propose reforms that might be given effect in an amendment to the Constitution, but also in an institutional law or an ordinary statute, and particularly concerning the question of the President ’ s status before the courts. In a report published on 7 November 2012, the Commission looked for the first time at the President ’ s position in terms of “intervention”, in other words the possibility for him to intervene as a civil party. It found that it was “necessary to call into question, in both criminal and civil proceedings, the immunity of the President of the Republic in respect of acts that [had] not been performed in his capacity as Head of State”. In civil matters, the Commission found “that the extension of the immunity to civil actions [was] questionable as a matter of principle, disproportionate to the aim pursued and shocking in terms of its consequences”. It took the view in particular that “the rule of the Head of State ’ s immunity in civil matters, since there [was] no concurrent prohibition on the bringing of proceedings by the President himself during his term of office, as a private individual, for the defence of his civil interests, [had] led to a highly regrettable asymmetry”.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "41. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant alleged that the civil-party intervention by the President of France had breached the equality of arms principle and his right to an independent and impartial tribunal. Those provisions read as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.", "...", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”", "A. Admissibility", "42. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The complaint concerning the equality of arms", "43. The applicant argued that respect for the equality of arms principle meant formally examining whether the parties to the criminal trial were on an equal footing, and that this had not been the case. He took the view that the Government could not reproach him for failing to seek the questioning of the President when he knew that this was precluded by Article 67 of the Constitution. Moreover, the status of Head of State, which prohibited any action or counter-claim against him, necessarily entailed a breach of the equality of arms principle.", "44. The applicant emphasised that equality of arms could not be reduced merely to the adversarial principle. It also meant that there should be no special relations between the parties and that a balance of powers should necessarily be afforded to the parties.", "45. The Government, after emphasising that there was no provision of domestic law which would prevent the President of the Republic from joining criminal proceedings as a civil party, in the course of his term of office, pointed out that, in accordance with the Court ’ s case-law ( Perna v. Italy [GC], no. 48898/99, ECHR 2003 ‑ V), it would not be useful to hold an adversarial examination of witnesses for each side if the conviction was not based on witness statements. The Government observed that in the present case, it could not be seen from the decisions of the domestic courts that the arguments developed by Mr Sarkozy, particularly in his criminal complaint, had been used in evidence against the applicant. His conviction had been based on other findings, in particular the statements of another defendant and his own confessions. Moreover, he had never asked for testimony to be taken from the President.", "46. As to the applicant ’ s allegation that he had been precluded from bringing any proceedings against the President on grounds of unjustified accusations, in the event of the discontinuance of the proceedings or of his acquittal, the Government pointed out that such proceedings were possible only when the civil party had itself initiated the prosecution. In the present case, by contrast, it was the public prosecutor who had taken the decision to prosecute and there had been no discontinuance or acquittal. The fact that the criminal investigation had been conducted expeditiously demonstrated the proper functioning of the justice system (members of Mr Sarkozy ’ s family had also been targeted, suggesting that a large-scale fraud was likely ) and the applicant had not established how this fact had deprived him of a fair trial. Lastly, the Government submitted that the applicant did not have any legal standing to bring proceedings against the President on account of malicious or fanciful accusations because no such offences were made out. They concluded that the applicant could not argue that his inability to bring such actions was capable of placing him in a situation of clear disadvantage in relation to the other party.", "( b) The complaint concerning the independence and impartiality of the tribunal", "47. The applicant argued that the participation of the President of the Republic in the appointment of judges had rendered the judgment against him unfair, without it being necessary to adduce evidence of any pressure on the judges. The future career of those judges fell within that power of appointment, which could be regarded as a means of pressure, at least in appearance. In any event, the possibility for the President to ask judges whose career was dependent on him to pass judgment on his private interests raised an issue with regard to the right to a fair trial.", "48. The applicant also complained that the public prosecutor lacked impartiality. The fact that the proceedings had been brought by the public prosecutor rather than by the President did not guarantee the appearance of an independent and impartial tribunal. Having regard to the relationship of dependence between a public prosecutor who was subordinate to the executive, and a civil party who was the head of the executive, the defendant could not be sure to have a fair trial. In the present case, the use of unusual investigative means, the rapidity of the judicial pre-trial investigation, and the manifestly zealous attitude of the public prosecutor in making submissions at the court hearing in support of the admissibility of the President ’ s civil-party intervention, could only be attributed to the identity of the victim.", "49. The applicant took the view that his ability to submit his arguments to the court had no bearing on the question whether that court presented an appearance of independence and impartiality.", "50. Lastly, as to the Government ’ s allegation that the President would be deprived of his right of access to a court, the applicant replied that the inadmissibility of the President ’ s civil-party intervention was a necessary appendage to his immunity, in order to permit an effective separation of powers.", "51. The Government first emphasised that an independent and impartial tribunal within the meaning of Article 6 of the Convention referred to judges and not to prosecutors, who for their part were responsible for the criminal charge, within the meaning of that provision.", "52. The Government acknowledged that the appointment of judges by the President of the Republic might appear to give the latter an advantage when he was a party to proceedings. However, Article 64 of the Constitution guaranteed the independence of judges, who had security of tenure, were not subordinate to the Minister of Justice, were protected from any form of outside interference and whose decisions were collegial. The Government added that judges were appointed with the assistance of the CSM, a constitutional body with equal representation through which the independence of the judiciary could be ensured.", "53. The Government further emphasised that the presence in the proceedings of the President of the Republic as a civil party had not had any negative impact on the tribunal ’ s appearance of independence and impartiality : the decision to prosecute had been taken by the public prosecutor, the applicant had been able to submit his arguments and comment on those submitted against him throughout the pre-trial investigation and the proceedings in the domestic courts, he had acknowledged his involvement in the offence and other material in the file had established his participation in the fraud.", "54. Lastly, the Government observed that in the present case there had been no link between the purely private dispute and the institutional or political activity of the President. Thus, a decision finding his civil-party intervention inadmissible would have impaired the very essence of his right of access to a court, a right enjoyed by any citizen. In addition, to restrict the President ’ s civil action during his term of office would entail a risk of impunity for those seeking to undermine the presidential office, and this would be at odds with the right of all citizens to respect for their freedoms and with the principle of the proper administration of justice.", "2. The Court ’ s assessment", "( a) General principles", "55. The Court observes that, under its case-law, the principle of equality of arms – one of the elements of the broader concept of fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent ( see Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997 ‑ I), including in connection with the use of remedies ( see Ben Naceur v. France, no. 63879/00, 3 October 2006).", "56. The Court further reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision and it will examine the applicant ’ s complaint under those two provisions taken together ( see Schatschaschwili v. Germany [GC], no. 9154/10, §100, ECHR 2015, and the case-law cited therein ).", "57. When it examines a complaint under Article 6 § 1, the Court ’ s primary concern must be to evaluate the overall fairness of the criminal proceedings ( see Correia de Matos v. Portugal [GC], no. 56402/12, § 126, 4 April 2018). When making this assessment, the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interest of the public and the victims in seeing crime properly prosecuted and, where necessary, to the rights of witnesses ( see Schatschaschwili, cited above, § 101 ).", "58. In addition, Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him normally has to be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle can only be accepted on the condition that the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him – either when that witness is making his statements or at a later stage of the proceedings (ibid., §§ 103 ‑ 105).", "59. Moreover, the Court points out that in determining in previous cases whether a body could be considered as “independent” – that is, mainly, of the executive or of the parties to the case – it has had regard to such factors as the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. The security of tenure of judges during their term of office must in general be regarded as a corollary of their independence and therefore as one of the requirements of Article 6 § 1 ( see Campbell and Fell v. United Kingdom, 28 June 1984, § 78, Series A no. 80, Maktouf and Damjanović v. Bosnia -Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013 (extracts) and Haarde v. Iceland, no. 66847/12, § 103, 23 November 2017). The fact that judges are appointed by the executive is admissible if, once appointed, they receive no pressure or instructions in the performance of their judicial duties ( see Sacilor-Lormines v. France, no. 65411/01, § 67 ECHR 2006 ‑ XIII, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 49, 30 November 2010).", "60. Lastly, the Court would refer, as regards the general principles governing the question of the impartiality of a tribunal, to its judgment in Morice v. France ( [GC], no. 29369/10, §§ 73 - 78, ECHR 2015). The concepts of independence and objective impartiality are closely linked and the Court may, depending on the circumstances, consider both issues together ( see Sacilor-Lormines, cited above, § 62).", "(b) Application to the present case", "61. The Court would observe, at the outset, that the domestic courts had some hesitation, on account of the ambivalence of the position of the President of the Republic when he acts as a claimant in proceedings, in deciding that the civil action that he brought for the defence of his civil interests was consonant with the principles of equality of arms and an independent and impartial tribunal ( see paragraphs 10 and 11 above; see also the submissions of the Advocate-General at the Court of Cassation, paragraph 14 above ). The Court of Cassation, sitting as a plenary court, its most solemn formation, nevertheless took the view that Article 2 of the Criminal Code did not rule out a civil-party intervention by the President and decided that there was no need to refer a priority question of constitutionality to the Constitutional Council as to the compatibility of that provision with the principle of the separation of powers and the safeguards of a fair trial ( see paragraphs 13 and 15 above ). The Court notes that at the time when the Court of Cassation delivered its judgment in the present case, new Article 65 of the Constitution had entered into force ( see paragraph 17 above ) and the Head of State no longer chaired the CSM. On that date also, the question of the status before the courts of the President of the Republic, who is protected from any judicial action but not prohibited from acting in proceedings in the form of a civil-party intervention, with regard to the principle of equality before the law, was not yet a matter of debate at national level ( see paragraph 35 above ).", "62. The Court reiterates that it is in the first place for the domestic authorities, notably the courts, to interpret and apply the domestic law and to decide on issues of constitutionality ( see Henryk Urban and Ryszard Urban, cited above, § 51). The Court further points out that it is not a matter of imposing on States a given constitutional model governing, in one way or another, the relations and interaction between the various State powers ( Savino and Others v. Italy, nos. 17214/05 and 2 others, § 92, 28 April 2009). The choice of the French legislature in allowing the President to act in judicial proceedings during his term of office cannot therefore constitute in itself a subject of dispute before the Court. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court ’ s case-law, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of interaction between the powers. The question is always whether, in a given case, the requirements of the Convention have been met ( see Henryk Urban and Ryszard Urban, cited above, § 46, and Haarde, cited above, § 84 ).", "( i ) Equality of arms", "63. In so far as the applicant complained of the imbalance created in relation to the President of the Republic, because the latter was protected by Article 67 of the Constitution from any action available to sanction improper use of his civil-party intervention, the Court notes that the Court of Cassation took the view that the conditions for bringing such actions were not satisfied in point of fact, as the applicant had not been granted any discontinuance or acquittal and Mr Sarkozy had not himself initiated the prosecution ( see paragraph 15 above ). In those conditions, the Court sees no reason to consider that the President ’ s intervention in the proceedings deprived the applicant of equal treatment as to the possibility of exercising the above-mentioned actions. Moreover, if the applicant had not been found guilty, and if Mr Sarkozy had brought the prosecution, the applicant could have brought such proceedings within one month from the end of the President ’ s term of office in accordance with Article 67 paragraph 3 of the Constitution (paragraph 17 above ). The Court finds that the same applies to the other criminal actions mentioned by the applicant, namely proceedings for malicious or fanciful accusations, that he clearly had no interest in bringing, as the President had only taken the initiative of complaining to his bank about fraudulent debits from his bank account, acts for which the public prosecutor considered that a judicial investigation should be opened.", "64. The applicant further alleged that, for the sake of a fair trial, a confrontation should have been held between him and the President in the presence of the investigating judge or during the court proceedings. The Court notes that the President is precluded from an obligation to testify by virtue of his protective status defined in the second paragraph of Article 67 of the Constitution. His absence from the trial is thus based on a serious legal ground, provided for by the Constitution, and on objective considerations of protection which pertain to the office of a Head of State, and does not as such breach Article 6 of the Convention ( see, mutatis mutandis, Urechean and Pavlicenco v. Republic of Moldova, nos. 27756/05 and 41219/07, § 47, 2 December 2014).", "65. At all events, the Court finds that, in convicting the applicant, the domestic courts did not refer to any decisive incriminating evidence that the civil party, whose criminal complaint and intervention followed the complaint of the bank ’ s director and the bringing of a prosecution by the public prosecutor, may have adduced and whose credibility and reliability would have required examination during questioning or a court hearing. The Court observes in this connection that the Court of Cassation found that the Court of Appeal had rightly taken the view that the applicant had been “found guilty on the basis of both his own confessions and the statements of other defendants, together with the evidence gathered during searches”. Accordingly, the nature of the case, the evidence available, and the consistent versions of the defendant (the applicant) and the civil party, did not require the taking of testimony from the latter in any event.", "66. In so far as the applicant also complained about a breach of the equality of arms principle on account of the public prosecutor ’ s support for the civil party, the Court notes that there is no material in the file to indicate that Mr Sarkozy ’ s intervention during the proceedings might have encouraged the public prosecutor to take action with the aim or effect of unduly influencing the criminal court or of preventing the applicant from defending himself effectively. The Court does not therefore disagree with the Court of Appeal ’ s conclusion that the action of the “public prosecutor ’ s office ... could not ... have undermined the legitimate interests and fundamental rights of those concerned” ( see paragraph 11 above ). It does not deny, in this connection, that the offence in question might have warranted the expeditious nature of the investigation, since such acts could cause harm to many people, as shown by the facts of the case ( see paragraphs 7 and 8 above ).", "67. Lastly, the Court notes that it cannot be seen from the file that the applicant did not have the benefit of adversarial proceedings.", "68. Having regard to the foregoing, the Court takes the view that Mr Sarkozy ’ s intervention in the proceedings as a third party did not have the concrete effect of creating an imbalance in the rights of the parties and in the conducting of the proceedings. Accordingly, there has been no violation of Article 6 § 1 as regards the equality of arms principle.", "( ii ) The independence and impartiality of the tribunal", "69. Like the domestic courts, the Court will draw a distinction, in examining the allegation of a lack of independence and impartiality, between the application of this principle to prosecutors on the one hand and to judges on the other.", "( α ) As to the alleged lack of independence and impartiality of the public prosecutor ’ s office", "70. As regards public prosecutors, the Court observes that while it found them to be lacking in independence in the Moulin judgment, cited above, its conclusion only engaged Article 5 § 3 of the Convention in a case concerning judicial review of deprivation of liberty, and therefore fell within the meaning of that specific provision and the autonomous concepts developed by its case-law in that area. It would observe, moreover, that the status of prosecutors still appears to be under discussion in France, but it reiterates that it is not for the Court to take a stance in this debate, which is a matter for the national authorities ( see paragraph 29 above; and Moulin, cited above, § 57).", "71. In any event, in the present case, the public prosecutor, as a party to the proceedings, was not responsible, in that capacity, for the “determination” of any “criminal charge” within the meaning of Article 6 § 1 of the Convention. The Court reiterates in that connection that the public prosecutor ’ s office cannot be bound by the obligations of independence and impartiality that Article 6 imposes on a “ tribunal ”, which is a judicial organ “called upon to determine, on the basis of legal norms and following organised proceedings, any question within its jurisdiction” ( see Thoma v. Luxembourg (dec.), no. 38432/97, 25 May 2000; Agnelet v. France (dec.), no. 61198/08, 27 September 2011; Nastase v. Romania (dec.), no. 80563/12, 18 November 2014; and Ryan James Clements v. Greece (dec.), no. 76629/14, 19 April 2016).", "( β ) As to the alleged lack of independence and impartiality of the “tribunal” hearing the applicant ’ s case", "72. As to the applicant ’ s allegation that the judges lacked impartiality, the Court reiterates that his guilt was established by evidence which was independent of the civil action of the President of the Republic. In addition, it is noteworthy that the applicant has not alleged that the trial judges or the Court of Cassation acted on the President ’ s instruction or otherwise demonstrated bias. The Court therefore finds that the applicant ’ s trial does not reveal anything which could have undermined its impartiality.", "73. As regards the applicant ’ s allegation that the “ tribunal ” lacked independence, the Court notes that the Court of Cassation did not take the view that the appointment of judges by the President rendered them subordinate to the latter. It emphasised in particular that judges were protected by their security of tenure and that they were independent, not being subjected to any pressure or instructions from the appointing authority. The Court observes that, in so finding, the Court of Cassation assessed the independence of the “tribunal” in purely objective terms, in relation to the statutory situation of judges, without looking into whether there was an appearance of independence.", "74. The Court reiterates that in order to determine whether a tribunal can be considered to be independent as required by Article 6 § 1 of the Convention, appearances may also be of importance ( see Sramek v. Austria, 22 October 1984, § 42, Series A no. 84). As regards the appearance of independence, the standpoint of a party is important but not decisive. What is decisive is whether the fear of the party concerned can be held “objectively justified” ( see Sacilor -Lormines, cited above, § 63). The Court will thus proceed to examine the applicant ’ s complaint in terms of appearances.", "75. The Court finds that the applicant focuses his argument on the President ’ s power to appoint judges. In the applicant ’ s view, being associated with his status as civil party, the exercise of this power was, at least in terms of appearances, capable of casting doubt on the independence of the “tribunal” dealing with the case. The Court will therefore mainly examine the terms of the judges ’ appointment, in order to ascertain whether this “tribunal” could be regarded as independent, after first noting that the other criteria for the assessment of independence, namely the term of office of judges and the existence of protection against external pressure, were such as to guarantee their functional independence and to protect them from any pressure, particularly on the part of the executive.", "76. In this connection, and as the Government have pointed out, the Court finds that the statutory situation of judges protects them from any attempt to undermine their independence.", "77. The Court thus finds that their security of tenure is guaranteed by the Constitution ( see paragraph 17 above; see also paragraph 22 above ). It reiterates that security of judicial tenure is a fundamental guarantee of the independence of members of a court against any arbitrary acts of the executive ( see Baka, cited above, and Sacilor- Lormines, cited above, § 67).", "78. In addition, and as the Court of Cassation pointed out, judges are not in a position of subordination in relation to the Ministry of Justice and are not subjected to any pressure or instructions in the exercise of their judicial duties.", "79. Lastly, security of judicial tenure, as a guarantee of independence, is accompanied under French law by precise rules on the advancement and discipline of judges. Decisions affecting the appointment of judges, or their career path, transfer and promotion, are taken after the intervention of the CSM and adversarial proceedings, or are even based solely on its proposal for the most important positions ( see paragraphs 23 to 25 above ). In disciplinary matters, the CSM rules as a disciplinary board and directly imposes the sanction, such that its decisions in such matters are judicial in nature ( see paragraphs 17, 26 and 27 above ).", "80. It remains for the Court to address the question of the independence of the “ tribunal ” having regard to the power of appointment of the President of the Republic. The Court reiterates that the mere appointment of judges by the executive does not entail a relationship of subordination if, once appointed, they are free from influence or pressure when carrying out their adjudicatory role ( see Henryk Urban and Ryszard Urban, cited above, § 49).", "81. In France, the power to appoint judges exercised by the President of the Republic takes the form of an instrument issued by the President on the proposal of the Minister of Justice, based on the “binding approval” of the CSM in accordance with Article 65 of the Constitution, which means in practical terms that the executive could not appoint a judge in disregard of the CSM ’ s decision. Moreover, the competent formation of the CSM makes “proposals” for the appointment of judges of the Court of Cassation, together with the presidents of Courts of Appeal and tribunaux de grande instance, and thus, by itself, considers and chooses candidates as it sees fit. The applicant ’ s appeal was thus examined by the Court of Cassation, a superior court of the judicial order, whose judges are appointed on the proposal of the CSM itself. Lastly, the instrument of appointment of a judge is not an act of unfettered discretion and may thus be appealed against before the Conseil d ’ État ( see paragraph 25 above ).", "82. The Court infers from the prerogatives of the CSM, whose role it is, together with the President, to guarantee the independence of the judiciary, that the signing by the President of instruments for the appointment of new judges or for promotion or assignment to a new post ( see paragraphs 22 and 25 above ) is the formal culmination of the relevant decision-making process and does not, per se, undermine the independence of the judges concerned. In addition, the collegial exercise of the CSM ’ s power of “proposal” and “binding approval” constitutes, in the Court ’ s opinion, an essential safeguard against the risk of pressure on judges by the executive. This is, moreover, the position of the Venice Commission, which highlights the crucial role of judicial councils or commissions – as independent bodies – in the process of judicial appointment ( see paragraphs 38 and 40 above ), this being essential to the balance of a democratic society.", "83. Nevertheless, and even though the CSM ’ s powers are capable of addressing the fears expressed about the functional independence of judges, the Court finds that, in the circumstances of the case, Mr Sarkozy, as a party to the dispute, remained the Chairman of the CSM when the judges of the Nanterre Criminal Court and the Versailles Court of Appeal adjudicated on the applicant ’ s case ( see paragraphs 10 and 11 above ). Thus, at the relevant time, Mr Sarkozy was both Chairman of the CSM and civil party in the case. The President ’ s intervention in the proceedings thus gave the applicant cause for concern about his influence on the future career of the judges to whose appointment he had contributed and who were dealing with a claim about his private interests. The Court takes the view, however, that such an impression does not suffice for a lack of independence to be established.", "84. The applicant, who was ordered to pay Mr Sarkozy just one euro in damages, together with court costs, has not provided any concrete evidence to show that he could have had an objectively justified fear that the judges of the Nanterre Criminal Court and the Versailles Court of Appeal were under the President ’ s influence. The Court observes in this connection that the case before the judges did not bear any relation to the political duties of Mr Sarkozy, who had neither brought the prosecution nor provided any evidence to establish the applicant ’ s guilt. In addition, the Court notes that it was on 15 June 2012 that the Court of Cassation delivered its judgment, in which it examined the applicant ’ s complaints about the equality of arms and about the independence and impartiality of the tribunal, at a date when Mr Sarkozy no longer chaired the CSM. The Court points out that, after the judgment of the Versailles Court of Appeal of 8 January 2010, the reform of the French Constitution ( brought about by the Law of 23 July 2008 ) came into force. The chairmanship of the CSM was thereby transferred from the President of the Republic to the President of the Court of Cassation, in order to secure the independence of the judicial system.", "85. The Court finds it necessary to reiterate that, where a high-ranking figure with an institutional role in the career path of judges acts as claimant in a dispute, such situation is capable of casting legitimate doubt on the independence and impartiality of the bench. However, in the present case, having regard to the foregoing and taking account of the subject-matter of the dispute, the Court does not see any reason to find that the judges called upon to adjudicate on the applicant ’ s case were not independent within the meaning of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant was born in 1952 and lives in Budapest.", "A. Election of the applicant as President of the Supreme Court and his functions", "12. On 22 June 2009, after seventeen years of service (from 1991 to 2008) as a judge at the European Court of Human Rights and, subsequently, more than one year ’ s service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI. 24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015.", "13. In that capacity, the applicant carried out managerial tasks and also had a judicial role, presiding over deliberations which resulted in uniformity resolutions (on consistency in case-law) and in guiding resolutions. He was also President of the National Council of Justice. This second function had been added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Law no. LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (see paragraph 44 below).", "14. On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union elected the applicant President of the Network for a two-year term (from 2011 to 2013).", "B. The applicant ’ s public statements and positions concerning the legislative reforms affecting the judiciary", "15. In April 2010 the alliance of Fidesz – Hungarian Civic Union (hereafter “Fidesz”) and the Christian Democratic People ’ s Party (KDNP) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms. In his professional capacity as President of the Supreme Court and of the National Council of Justice, the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary, notably the Nullification Bill, the retirement age of judges, the amendments to the Code of Criminal Procedure, and the new Organisation and Administration of the Courts Bill.", "16. On 12 February 2011, in relation to the Nullification Bill (subsequently Law no. XVI of 2011, ordering the annulment of final convictions relating to the dispersal of crowds in the autumn of 2006), the applicant ’ s spokesman explained to the newspaper Népszabadság that, in the applicant ’ s view,", "“the Bill ordering the annulment of certain judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to assess evidence freely. This is a serious constitutional problem. ... [T]he judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”.", "17. On 8 March 2011, the day after the enactment of the Nullification Bill, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time) responded at a press conference to the criticisms made by the judiciary, declaring that:", "“The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way.”", "18. On 24 March 2011, in a speech delivered to Parliament in the course of the debate on the Bill on the Fundamental Law of Hungary (the new Constitution), the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary, notably the new name given to the Supreme Court – Kúria –, the new powers attributed to the Kúria in the field of ensuring consistency in the case-law, the management of the judiciary and the functioning of the National Council of Justice, as well as the introduction of a constitutional appeal against judicial decisions.", "19. On 7 April 2011, in relation to the proposal to reduce the mandatory retirement age of judges (from 70 years to the general retirement age of 62) in Article 26 § 2 of the Fundamental Law of Hungary, the applicant, together with other court presidents, addressed a letter to various actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by the given proposal. Their concern was that, by abolishing the possibility for judges to remain in office until the age of 70, the proposed rule would force one-tenth of Hungarian judges (274 persons) to end their careers in 2012, earlier than planned, with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings.", "20. On the morning of 11 April 2011 (the day of the vote on the proposals to amend the retirement age of judges), the applicant addressed a letter to the Prime Minister, in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of the independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He refuted accusations of bias in favour of any political ideology within the judiciary, and continued:", "“It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.”", "In his letter the applicant asked the Prime Minister to use his influence to prevent Parliament from adopting the proposal. On the same day, however, Parliament adopted the proposal (see “Relevant Domestic Law and Practice” below).", "21. On 14 April 2011 a joint communiqué was addressed to the Hungarian and EU public by the plenary session of the Supreme Court, by the applicant in his capacity as President of the National Council of Justice, and by the presidents of regional and county courts. It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self-governance embodied in the National Council of Justice. The relevant extracts from the communiqué read as follows.", "“According to the proposal, the mandatory retirement age of judges will be reduced by 8 years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervision) will be terminated on that same date, without any transition period, since they will have turned 62. By 31 December 2012 a further 46 judges will have to terminate their careers. As a consequence of this decision, the rapidity of judicial proceedings will significantly deteriorate (nearly 40,000 cases will have to be reassigned, which may even result in several years ’ delay in judicial proceedings, concerning tens of thousands of persons). The administration of the courts will be seriously hindered, since it is extremely difficult to replace dozens of retiring judges.", "The multiple effect of the forced pensioning-off, with no real justification, of highly qualified judges who have several years of experience and practice, most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice, and who have devoted their lives to the judicial vocation.", "It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no possibility of contesting this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court.", "Such an unjustified step implies political motivation.”", "22. On 14 June 2011 Bill no. T/3522 on the amendment of certain legislative acts concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant ’ s request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to members of parliament. On 4 August 2011, as no substantive changes had been made to the Bill prior to its enactment on 4 July 2011 as Law no. LXXXIX of 2011, the applicant challenged the Law before the Constitutional Court, on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties, making use of that power for the first time in Hungarian history. The Constitutional Court, in its judgment no. 166/2011. (XII. 20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General ’ s right to establish the competence of a court by derogation from the default statutory rules).", "23. Lastly, on 26 October 2011 the applicant addressed to Parliament a detailed analysis of two new cardinal bills, namely the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time President of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the President of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the President of the Supreme Court (which would be called by the historical name of “ Kúria ”).", "The applicant also decided to express his opinion directly before Parliament, as permitted by Article 45 § 1 of Parliamentary decision no. 46/1994 (IX. 30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the draft legislation. He said that it did not address the structural problems of the judiciary, but left them to “the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability”. The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as “unconstitutional”. In this regard, he stated as follows:", "“This unrestricted, non-transparent and uncontrollable power is unparalleled in contemporary Europe ... The extent and uncontrollability of such centralised authority is without precedent, even in countries where the administration of the judiciary lies with the ministry of justice and even if we think of the socialist dictatorship, in the last years of which Kálmán Kulcsár, member of the Hungarian Academy of Sciences and Minister of Justice responsible for the administration of the judiciary, declared that he would appoint only persons recommended by the professional organs of the judiciary.”", "Finally, in his speech the applicant again raised the issue of the new retirement age for judges, saying that it would have a severe effect on the Supreme Court and that the need to have enough judges at the Kúria had not yet been addressed. In this connection, he maintained that the Kúria ’ s main responsibility – that of ensuring consistency in the judicial application of laws – could be met only if that court were able to deliver judgments in a sufficient number of relevant cases.", "C. Termination of the applicant ’ s mandate as President of the Supreme Court", "24. The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court). The date of entry into force of the Fundamental Law was scheduled for 1 January 2012.", "25. On 14 April 2011, during a debate on the Fundamental Law, a Fidesz politician, Gergely Gulyás, MP, declared on the radio station InfoRádió that the President of the Supreme Court would remain the same and that only the name of the institution would change. On 19 October 2011, in an interview on the television channel ATV, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the name of the Supreme Court would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”.", "26. On 6 July 2011, in the Position of the Government of Hungary on the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011, CDL ‑ AD(2011)016), transmitted by the Minister for Foreign Affairs of Hungary, the Government assured the Venice Commission that the drafting of the transitional provisions of the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime.", "27. In the period between 19 and 23 November 2011, members of parliament submitted several amendments proposing that the applicant ’ s mandate as President of the Supreme Court be terminated.", "28. On 19 November 2011 Gergely Gulyás submitted a Bill (no. T/4996) to Parliament, proposing an amendment to the 1949 Constitution (then in force). The amendment provided that Parliament would elect the President of the Kúria by 31 December 2011 at the latest. The reasoning of the Bill reads as follows:", "“ In view of the Fundamental Law of Hungary and of the modifications to the court system resulting from that Law, in compliance with the Bill on the Transitional Provisions of the Fundamental Law of Hungary, and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the Kúria as from 1 January 2012, this Bill provides that Parliament must elect, by 31 December 2011 and according to the rules laid down in the Fundamental Law, the President of the Kúria who is to take office on 1 January 2012.”", "29. On 20 November 2011 two members of the parliamentary majority submitted a Bill (no. T/5005) to Parliament, on the Transitional Provisions of the Fundamental Law. Under section 11 of the Bill, the legal successors of the Supreme Court and of the National Council of Justice would be the Kúria, for the administration of justice, and the President of the National Judicial Office, for the administration of the courts. Pursuant to section 11(2), the mandates of the President of the Supreme Court and of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stated as follows:", "“The Bill regulates in a comprehensive manner the succession of the Supreme Court and the National Council of Justice and its president, in that the successor body or person shall be different for the respective duties. Having regard to the modifications to the court system, the Bill provides that the term of office of the President of the Supreme Court currently in office, and that of the President and the members of the National Council of Justice, shall be terminated upon the entry into force of the Fundamental Law.”", "30. On 23 November 2011 another member of parliament submitted a proposal for an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. While the previous versions of the Bill submitted by the Government (on 21 October and 17 November 2011) provided that the term of office of the court executives appointed before 1 January 2012 would last until the date fixed at the time of their appointment, this last mentioned amendment provided for an exception. It sought to terminate ex lege the mandate of the President and Vice-President of the Supreme Court. The reasoning of the proposal read as follows:", "“The aim of this proposal for an amendment, submitted before the final vote, is to ensure the compliance of consolidated Bill no. T/4743/116, by amending its transitional provisions, with the Fundamental Law, having regard to Bill no. T/4996 on the Amendment of Law no. XX of 1949 on the Constitution of the Republic of Hungary and also to Bill no. T/5005 on the Transitional Provisions of the Fundamental Law of Hungary, both submitted to Parliament.”", "31. On 28 November 2011 Parliament adopted both the Organisation and Administration of the Courts Bill (as Law no. CLXI) and the Constitution of the Republic of Hungary (Amendment) Bill (as Law no. CLIX), with the content described above.", "32. On 30 December 2011 the Transitional Provisions of the Fundamental Law Bill was adopted without amendment. [1] The Transitional Provisions were published in the Official Gazette on 31 December 2011.", "33. As a consequence of the entry into force of all these constitutional and legislative amendments, the applicant ’ s mandate as President of the Supreme Court terminated on 1 January 2012, three and a half years before its expected date of expiry.", "34. The applicant remained in office as president of a civil-law division of the Kúria.", "D. Election of a new president to the Kúria", "35. In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Law no. CLIX of 2011, adopted on 28 November 2011 – see paragraph 31 above) came into force on 2 December 2011. On 9 November 2011 the Organisation and Administration of the Courts Bill was amended, and an additional criterion for the election of the new president of the Kúria was introduced. This provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term and who had served for at least five years as a judge (section 114(1) of Law no. CLXI of 2011 – see “Relevant Domestic Law and Practice” below). On 9 December 2011 the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria, and Tünde Handó as President of the National Judicial Office. On 13 December 2011 Parliament elected those candidates, in line with the proposal by the President of the Republic.", "E. Consequences of the early termination of the applicant ’ s mandate as President of the Supreme Court", "36. Firstly, the applicant lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court was entitled throughout the period of the fixed presidential term.", "37. Secondly, the legislation dealing with certain post-term benefits for outgoing presidents of the Supreme Court (Remuneration and Allowances Act 2000) was repealed with effect from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011 and in force from 1 January 2012) supplemented this abrogation, and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), had reached retirement age at the time of the entry into force of the Act and had requested the allowance. Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit.", "I. Legal Status and Remuneration of Judges Act (Law no. CLXII of 2011), which came into force on 1 January 2012", "52. The relevant parts of the 2011 Legal Status and Remuneration of Judges Act, as in force at the material time, provided as follows.", "Section 90", "“A judge shall be exempted [from judicial service]:", "...", "(h) if the judge", "(ha) has reached the applicable retirement age (hereafter referred to as the “upper age limit”). This provision does not apply to the President of the Kúria ...”", "Section 227", "“(1) The person who occupied the office of President of the Supreme Court prior to the entry into force of the present Act shall be governed by the provisions of Law No. XXXIX of 2000 on the remuneration and benefits of the President of the Republic, the Prime Minister, the Speaker of the House, the President of the Constitutional Court and the President of the Supreme Court, inasmuch as he shall be entitled to the benefits under section 26(1) and section 22(1) of Law No. XXXIX of 2000 on the remuneration and benefits of the President of the Republic, the Prime Minister, the Speaker of the House, the President of the Constitutional Court and the President of the Supreme Court if he had reached retirement age at the time of the entry into force of the present Act and requested the benefits.”", "Section 230", "“ (1) The provisions of the present Act shall govern judges reaching the upper age limit before 1 January 2013, subject to the differences set forth in subsections (2) and (3).", "(2) If a judge has reached the upper age limit before 1 January 2012, the initial date of the exemption period is 1 January 2012, while the closing date is 30 June 2012, and his judicial mandate shall cease as of 30 June 2012. The proposal concerning exemption shall be made at a time which permits the adoption of the decision on exemption on 30 June 2012, at the latest.", "(3) If the judge reaches the upper age limit between 1 January 2012 and 31 December 2012, the initial date of the exemption period is 1 July 2012, while the closing date is 31 December 2012, and his judicial mandate shall cease as of 31 December 2012. The proposal concerning exemption shall be made at a time which permits the adoption of the decision on exemption on 31 December 2012, at the latest.”", "J. Judgment no. 33/2012. (VII. 17.) AB of the Constitutional Court of 16 July 2012", "53. The Hungarian Ombudsman appealed to the Constitutional Court against the retrospective lowering of the retirement age of judges. In its judgment of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (sections 90(ha) and 230 of the 2011 Legal Status and Remuneration of Judges Act) as of 1 January 2012 (the date of entry into force of the Act). The Constitutional Court held that the new regulation violated the constitutional requirements for judicial independence on both “formal” and “substantive” grounds. From a formal perspective, a cardinal Act ought to determine the length of judicial service and the retirement age, in order to guarantee the irremovability of judges. Reference to the “general retirement age” in an ordinary Act did not fulfil that requirement. With regard to the substantive unconstitutionality of the provision, the new regulation had resulted in the removal of judges within a short period of three months. Notwithstanding the relative freedom of the legislature to determine the maximum age of serving judges, and the fact that no specific age can be deduced from the Fundamental Law, the Constitutional Court held that the introduction of a lowered retirement age for judges had to be done gradually, with an appropriate transition period and without violating the principle of the irremovability of judges. The greater the difference between the new retirement age and the age of 70 years, the longer the transitional period required for introducing a lower retirement age. Otherwise, the irremovability of judges, which constituted an essential element of the independence of the judiciary, would be violated.", "54. Following the Constitutional Court ’ s judgment of 16 July 2012, Parliament adopted Law no. XX of 2013, which repealed section 230, amended section 91 and added section 233/C to Law no. CLXII of 2011, with effect from 2 April 2013. Under the modified scheme, the reduction of the compulsory retirement age to a unified limit of 65 years will be effective as of 1 January 2023. Transitional provisions apply to the period between 2 April 2013 (the entry into force of the amendment) and 31 December 2022. During this interval, the age-limit for compulsory retirement will vary between 70 and 65 years, according to the date of birth of the person concerned (the older a judge is, the longer the preparation time accorded to him or her before compulsory retirement). For those judges who had already been affected by the rules of compulsory retirement and forced to retire, the new law introduced the possibility of choosing, within a 30-day time-limit to be calculated from the amendment ’ s entry into force, from three options. Firstly, they could request a stand-by post at the court from which they had retired, meaning that they would receive the difference between their pension allowance and 80% of their last basic salary (that is, calculated without the additional allowances received for holding senior positions, and so forth) and that, once in every three-year period, they may be ordered to perform judicial or managerial tasks for a maximum of two years. Secondly, they could apply to be reinstated to their normal judicial service. In that case, they would also be entitled to salary arrears for the period of their unconstitutionally ordered retirement. However, they could not be reinstated to their previous senior positions, such as court president (vice-president) or head of division (deputy head of division), unless that position had not been filled in the meantime. Thirdly, those who did not request reinstatement or placement in a stand-by post were entitled to lump-sum compensation, equal to one year ’ s salary.", "K. Judgment no. 3076/2013. (III. 27.) AB of the Constitutional Court, of 19 March 2013", "55. The Vice-President of the Supreme Court, appointed by the President of the Republic for six years from 15 November 2009 on a proposal by the applicant, was also removed from his executive position as of 1 January 2012 by virtue of section 185(1) of the Organisation and Administration of the Courts Act (Law no. CLXI of 2011), which stated that the mandate of the Vice-President of the Supreme Court was to be terminated when the Fundamental Law came into force (see paragraph 50 above). The former Vice-President submitted a constitutional complaint to the Constitutional Court, alleging that the termination of his position violated the rule of law, the prohibition on retrospective legislation and his right to a remedy. In its judgment no. 3076/2013. (III. 27.) AB, adopted by eight votes to seven, the Constitutional Court dismissed the constitutional complaint. It held that the premature termination of the claimant ’ s term of office as Vice-President of the Supreme Court had not violated the Fundamental Law, since it was sufficiently justified by the full-scale reorganisation of the judicial system and the important changes in the tasks and competences of the President of the Kúria. It noted that the Kúria ’ s tasks and competences had been broadened, in particular with regard to the supervision of the legality of municipal council regulations. The relevant parts of the judgment read as follows.", "“[30] 1. The impugned statutory provision terminated the mandate of an executive of an organ of the judiciary, an independent branch of State power, whose status was regulated by the Constitution.", "[31] The Vice-President of the Supreme Court was one of the executive officials of the judiciary, whose term of office was regulated by Article 48 § 1 of the Constitution. This Constitutional provision provided that the Vice-President of the Supreme Court was to be appointed by the President of the Republic upon the proposal of the Supreme Court ’ s President. Under section 69(1) of the old AOAC [Law no. LXVI of 1997 on the organisation and administration of the courts], the Vice-President ’ s term of office should last for a fixed duration of 6 years. One element of the system of separation of powers was that the Constitution distinguished the appointment of the executives of the highest judicial forum from the ordinary system for appointing court executives by placing their appointment in the hands of another branch, namely Parliament in the case of the Supreme Court ’ s President, and the President of the Republic in the case of its Vice-President. The fact that the former AOAC stipulated a longer fixed-term office for court executives than the mandate of the Government (thus overlapping governmental cycles) constituted one of the constitutional guarantees of the independence of the judiciary, a separate branch within the State.", "[32] The Fundamental Law and the new AOAC maintained this distinction with regard to the executives of the Kúria. Although the Fundamental Law does not regulate the appointment and dismissal of the Vice-President, the new AOAC contains a regulation which is similar to the previous one. According to its section 128(1), Vice-Presidents of the Kúria shall be appointed by the President of the Republic on proposals from the Kúria ’ s President. Their term of office lasts for a determinate period of six years, as stipulated in section 127(1). Pursuant to this regulation, the declaration of the termination of the Vice-President ’ s term of office by a unilateral State decision, that is, dismissal, is also within the power of the President of the Republic (see decision 176/1991. (IX. 4.) KE of the President of the Republic).", "[33] Under section 73 of the former AOAC and section 138 of the new AOAC, the term of office of a judicial executive shall be terminated, as a general rule, upon the expiry of the determinate period of appointment. However, it may be terminated sooner in the event of: resignation, mutual agreement, loss of judicial status and (if an appraisal concludes that the executive is inapt) dismissal.", "[34] 2. Taking into account the Constitutional Court ’ s case-law, it is observed that the shortening of fixed-term appointments via legislation has not been automatically declared unconstitutional if certain conditions were met. The Constitutional Court established [in its judgment no. 5/2007. (II. 27.) AB] that ‘ [t]he shortening of fixed-term appointments of State officials may only result from objective or subjective statutory causes (resignation, decease, establishment of incompatibility, application of a specified cause for dismissal or another reason directly affecting the term of office, such as structural modification of the institution) ’ (ABH 2007, 120, 126). The Constitutional Court holds that, in addition to organisational restructuring, an important change in the organisation ’ s functions, that is, in its powers and tasks, may warrant legislative intervention. Specifically, by the time of the selection of the executive in office, competencies required for the new functions of the organisation could not have been assessed. However, it cannot be ruled out that the organisation ’ s new tasks would require a person with different attitudes, professional experience and practice.", "[35] Accordingly, the Constitutional Court had to examine in the present case whether the entry into force of the Fundamental Law affected the functions and tasks of the highest judicial forum in a way which would justify the premature termination of the Vice-President ’ s term of office.", "[36] The Supreme Court was renamed Kúria. The Fundamental Law and the new AOAC modified thoroughly the central administration of the judicial system. Article 11 of the Transitional Provisions of the Fundamental Law separated the professional guidance of judicial activities and the organisational management of the judicial system from each other, on both an institutional and personal level. It provided that the successors to the Supreme Court, the National Council of Justice and its President are to be the Kúria in respect of adjudicating activities, and, in respect of court management – unless otherwise provided in a cardinal Act – the President of the National Judicial Office. It is because of this modification of the central management of the judiciary that Article 11 § 2 of the Transitional Provisions terminated the term of office of the President of the Supreme Court and of the President and the members of the National Council of Justice upon the entry into force of the Fundamental Law. This provision does not put an end to the Vice-President ’ s term of office, despite the fact that his mandate was regulated in the Constitution.", "[37] With the entry into force of the Fundamental Law and the new AOAC, the functions of the Kúria broadened and new tasks have been assigned to it. Pursuant to the Fundamental Law, it was given jurisdiction to supervise the legality of municipal council regulations and to establish whether or not local government had failed to comply with their legislation-related statutory obligations. The new AOAC contains a new chapter on the local government chamber of the Kúria as well as detailed regulations on the procedural rules related to the above-mentioned competences.", "[38] The Kúria ’ s competences in safeguarding the uniform application of law [coherence of the case-law] have also been extended. Besides adopting resolutions to promote the unity of jurisprudence [ jogegységi határozat ], it became competent to publish judicial resolutions of theoretical importance [ elvi bírósági határozat ] and to analyse the case-law on the basis of final and binding decisions.", "[39] Since safeguarding the consistent application of law became one of the main tasks of the Kúria, its President became responsible, besides internal management of the Kúria, for providing professional guidance on the monitoring, development and consistency of the case-law with regard to the entire court system.", "[40] The new AOAC, in its separate chapter on the uniform application of law, contains more detailed and in-depth regulations as regards the tasks and powers already contained in the old AOAC and vests new tasks in both the judicial organisation as a whole and in its executives. Whereas the relevant chapter of the old AOAC referred to the President of the Supreme Court only twice, the new AOAC designates the President or the Vice-President as holders of thirteen specific tasks and powers. In particular, the presidents of the Court of Appeals must inform the President of the Kúria about any decision of theoretical importance adopted by a court under their supervision, about emerging practice based on divergent principles or about final judgments based on divergent principles. The Presidents and Heads of Divisions of High Courts, as well as the Heads of Regional Administrative and Labour Law Divisions, have similar obligations to inform the President of the Kúria directly. A proposal for the publication of a decision of theoretical importance must be addressed to the President of the Kúria, and it is the President of the Kúria who should be notified by the President of the National Judicial Office about the necessity of initiating a uniformity procedure.", "[41] It is the President of the Kúria who defines on an annual basis the subjects to be examined by the case-law analysis groups. He or she appoints the heads and members of these groups. If the analysis indicates the need for legislative amendments, it is the President of the Kúria who proposes to the President of the National Judicial Office that he or she submit such a motion. It is the President of the Kúria who proposes to the Publication Panel the publication of a decision qualifying as a decision of theoretical importance. He or she is entitled to order that uniformity procedure be conducted, based on a proposal from the President of the Kúria, who also presides in such proceedings (in addition to the Vice-President and the Head or Deputy-head of the competent Division). In uniformity proceedings related to more than one Division, it is only the President or Vice-President of the Kúria who may preside. Similarly, if the aim of the uniformity proceedings is to modify or abrogate a previous uniformity resolution or to take a stance on a question of principle, the uniformity panel may only be presided by the President or the Vice-President of the Kúria.", "[42] Section 123(2) of the new AOAC provides that ‘ the Vice-President of the Kúria may replace the President ... with full power ’. It is therefore clear that the modification of the judicial system seriously affects not only the President ’ s but also the Vice-President ’ s functions. It follows from the possibility of a replacement exercising the full power of the President (which may occur at any time if the President is hindered for any reason or if the position is vacant) that there must be constant and close cooperation between the President and the Vice-President. Besides acting as a replacement, the Vice-President ‘ fulfils the tasks vested in him by the Rules of Court ’ (see section 123(2) of the new AOAC). This legal authority enables the Vice-President to fulfil some of the President ’ s tasks on a constant basis and to relieve him or her [of certain duties].", "[43] In the Constitutional Court ’ s opinion, the full-scale restructuring of the judicial system and the important changes relating to the functions and tasks of the Kúria and its President have significantly modified the legal position of the President compared to the date that the Vice-President was appointed. All this necessarily entails the simultaneous modification of the functions, tasks and competences of the Vice-President.", "[44] In the light of these changes, the relationship of trust between the President and the Vice-President, enshrined in Constitutional and statutory regulations, is of increased importance.", "[45] Consequently, the Constitutional Court finds that these changes provide sufficient justification for the premature termination of the applicant ’ s term of office.", "...”", "56. Seven judges dissented and considered that the changes with regard to the judicial system, the new Kúria and the person of its President had not fundamentally affected the status of the Vice-President. The position of the Vice-President within the organisation of the supreme judicial instance did not change. Under the 1997 Organisation and Administration of the Courts Act, the Vice-President had already been entitled to replace the President of the Supreme Court with regard only to managerial tasks at the Supreme Court but not with regard to his or her functions as President of the National Council of Justice. The dissenting judges concluded that the premature termination of the applicant ’ s term of office had weakened the guarantees for the separation of powers, had been contrary to the prohibition on retrospective legislation, and had breached the principle of the rule of law and the right to a remedy.", "IV. INTERNATIONAL AND COUNCIL OF EUROPE MATERIALS ON THE INDEPENDENCE OF THE JUDICIARY AND THE IRREMOVABILITY OF JUDGES", "A. The United Nations", "72. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which took place in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant points read as follows.", "“ 8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.", "...", "12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.", "...", "18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.", "...", "20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”", "73. In its General Comment No. 32 on Article 14 of the International Covenant on Civil and Political Rights (Right to equality before courts and tribunals and to a fair trial) published on 23 August 2007, the UN Human Rights Committee stated as follows (footnotes omitted).", "“19. The requirement of competence, independence and impartiality of a tribunal in the sense of Article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.", "20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.”", "74. In the decision of the UN Human Rights Committee (CCPR) in Pastukhov v. Belarus, Communication No. 814/1998, UN Doc. CCPR/C/78/D/814/1998 (2003), the Committee stated as follows.", "“7.3 The Committee takes note of the author ’ s claim that he could not be removed from the bench since he had, in accordance with the law in force at the time, been elected a judge on 28 April 1994 for a term of office of 11 years. The Committee also notes that presidential decree of 24 January 1997 No. 106 was not based on the replacement of the Constitutional Court with a new court but that the decree referred to the author in person and the sole reason given in the presidential decree for the dismissal of the author was stated as the expiry of his term as Constitutional Court judge, which was manifestly not the case. Furthermore, no effective judicial protections were available to the author to contest his dismissal by the executive. In these circumstances, the Committee considers that the author ’ s dismissal from his position as a judge of the Constitutional Court, several years before the expiry of the term for which he had been appointed, constituted an attack on the independence of the judiciary and failed to respect the author ’ s right of access, on general terms of equality, to public service in his country. Consequently, there has been a violation of Article 25 (c) of the Covenant, read in conjunction with Article 14, paragraph 1, on the independence of the judiciary and the provisions of Article 2.”", "75. In the decision of the UN Human Rights Committee (CCPR) in Mundyo Busyo et al. v. Democratic Republic of the Congo, Communication No. 933/2000, UN Doc. CCPR/C/78/D/933/2000 (2003), the Committee held as follows (footnotes omitted).", "“5.2 The Committee notes that the authors have made specific and detailed allegations relating to their dismissal, which was not in conformity with the established legal procedures and safeguards. The Committee notes in this regard that the Minister of Justice, in his statement of June 1999 ..., and the Attorney-General of the Republic, in the report by the Public Prosecutor ’ s Office of 19 September 2000 ... recognize that the established procedures and safeguards for dismissal were not respected. Furthermore, the Committee considers that the circumstances referred to in Presidential Decree No. 144 could not be accepted by it in this specific case as grounds justifying the fact that the dismissal measures were in conformity with the law and, in particular, with Article 4 of the Covenant. The Presidential Decree merely refers to specific circumstances without, however, specifying the nature and extent of derogations from the rights provided for in domestic legislation and in the Covenant and without demonstrating that these derogations are strictly required and how long they are to last. Moreover, the Committee notes that the Democratic Republic of the Congo failed to inform the international community that it had availed itself of the right of derogation, as stipulated in Article 4, paragraph 3, of the Covenant. In accordance with its jurisprudence, the Committee recalls, moreover, that the principle of access to public service on general terms of equality implies that the State has a duty to ensure that it does not discriminate against anyone. This principle is all the more applicable to persons employed in the public service and to those who have been dismissed. With regard to Article 14, paragraph 1, of the Covenant, the Committee notes the absence of any reply from the State party and also notes, on the one hand, that the authors did not benefit from the guarantees to which they were entitled in their capacity as judges and by virtue of which they should have been brought before the Supreme Council of the Judiciary in accordance with the law, and on the other hand, that the President of the Supreme Court had publicly, before the case had been heard, supported the dismissals that had taken place ... thus damaging the equitable hearing of the case. Consequently, the Committee considers that those dismissals constitute an attack on the independence of the judiciary protected by Article 14, paragraph 1, of the Covenant. The dismissal of the authors was ordered on grounds that cannot be accepted by the Committee as a justification of the failure to respect the established procedures and guarantees that all citizens must be able to enjoy on general terms of equality. In the absence of a reply from the State party, and inasmuch as the Supreme Court, by its ruling of 26 September 2001, has deprived the authors of all remedies by declaring their appeals inadmissible on the grounds that Presidential Decree No. 144 constituted an act of Government, the Committee considers that, in this specific case, the facts show that there has been a violation of Article 25, paragraph (c), read in conjunction with Article 14, paragraph 1, on the independence of the judiciary, and of Article 2, paragraph 1, of the Covenant.”", "76. In the decision of the UN Human Rights Committee (CCPR) in Bandaranayake v. Sri Lanka, Communication No. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005 (2008), the Committee noted as follows (footnotes omitted).", "“7.1 The Committee observes that Article 25 (c) of the Covenant confers a right to access, on general terms of equality, to public service, and recalls its jurisprudence that, to ensure access on general terms of equality, not only the criteria but also the ‘ procedures for appointment, promotion, suspension and dismissal must be objective and reasonable ’. A procedure is not objective or reasonable if it does not respect the requirements of basic procedural fairness. The Committee also considers that the right of equal access to public service includes the right not to be arbitrarily dismissed from public service. The Committee notes the author ’ s claim that the procedure leading to his dismissal was neither objective nor reasonable. Despite numerous requests, he did not receive a copy of the proceedings from his first hearing before the JSC [Judicial Service Commission] on 18 November 1998; this is confirmed in the Supreme Court decision of 6 September 2004, and is not contested by the State party. Nor did he receive the findings of the Committee of Inquiry, on the basis of which he was dismissed by the JSC. The decision of the Court of Appeal confirms that these documents were never provided to him, in accordance with the express provision of Rule 18 of the JSC rules.", "7.2 ... The Committee finds that the JSC ’ s failure to provide the author with all of the documentation necessary to ensure that he had a fair hearing, in particular its failure to inform him of the reasoning behind the Committee of Inquiry ’ s guilty verdict, on the basis of which he was ultimately dismissed, in their combination, amounts to a dismissal procedure which did not respect the requirements of basic procedural fairness and thus was unreasonable and arbitrary. For these reasons, the Committee finds that the conduct of the dismissal procedure was conducted neither objectively nor reasonably and it failed to respect the author ’ s right of access, on general terms of equality, to public service in his country. Consequently, there has been a violation of Article 25 (c) of the Covenant.", "7.3 The Committee recalls its general comment [no. 32] on Article 14, that a dismissal of a judge in violation of Article 25 (c) of the Covenant, may amount to a violation of this guarantee, read in conjunction with Article 14, paragraph 1 providing for the independence of the judiciary. As set out in the same general comment, the Committee recalls that ‘ judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. ’ For the reasons set out in paragraph 7.2 above, the dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary. For this reason the Committee concludes that the author ’ s rights under Article 25 (c) in conjunction with Article 14, paragraph 1, have been violated.”", "B. The Council of Europe", "77. The relevant extracts from the European Charter on the Statute for Judges of 8 to 10 July 1998 [6] read as follows.", "“1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.", "...", "5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.", "...", "7.1. A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof.", "7.2. The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof.”", "78. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers of the Council of Europe to member States on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide as follows.", "“ Tenure and irremovability", "49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.", "50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.", "...", "52. A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.”", "79. The relevant passages of Opinion no. 1 (2001) of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges, adopted on 23 November 2001, read as follows.", "“ Tenure – irremovability and discipline", "57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: see the UN basic principles [on the Independence of the Judiciary], paragraph 12; Recommendation No. R (94) 12 [of the Committee of Ministers on the independence, efficiency and role of judges] Principle I(2)(a)(ii) and (3) and Principle VI (1) and (2). The European Charter [on the Statute for Judges] affirms that this principle extends to appointment or assignment to a different office or location without consent (other than in case of court re-organisation or temporarily), but both it and Recommendation No. R (94) 12 contemplate that transfer to other duties may be ordered by way of disciplinary sanction.", "...", "59. The existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and basis upon which, judges may be disciplined. Recommendation No. R (94) 12, Principle VI(2) and (3), insists on the need for precise definition of offences for which a judge may be removed from office and for disciplinary procedures complying with the due process requirements of the Convention on Human Rights. Beyond that it says only that ‘ States should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself ’. The European Charter assigns this role to the independent authority which it suggests should ‘ intervene ’ in all aspects of the selection and career of every judge.", "60. The CCJE considered", "(a) that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (...);", "(b) that the intervention of an independent authority, with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and", "(c) that it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which may lead to any disciplinary steps or change of status, including for example a move to a different court or area. ...”", "80. The relevant extracts from Opinion no. 3 (2002) of the CCJE on the principles and rules governing judges ’ professional conduct, in particular ethics, incompatible behaviour and impartiality, adopted on 19 November 2002, read as follows.", "“ b. Impartiality and extra-judicial conduct of judges", "...", "31. More generally, it is necessary to consider the participation of judges in public debates of a political nature. In order to preserve public confidence in the judicial system, judges should not expose themselves to political attacks that are incompatible with the neutrality required by the judiciary.", "...", "33. The discussions within the CCJE have shown the need to strike a balance between the judges ’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality.", "34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system. ... ”", "81. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant sections read as follows.", "“ Rule of law and justice", "1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner.", "Judicial Independence", "2. Judicial independence and impartiality are essential prerequisites for the operation of justice.", "3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence.", "4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment, nomination until the age of retirement, promotions, irremovability, training, judicial immunity, discipline, remuneration and financing of the judiciary.", "Guarantees of independence", "...", "6. Disciplinary proceedings shall take place before an independent body with the possibility of recourse before a court.", "...", "9. The judiciary shall be involved in all decisions which affect the practice of judicial functions (organisation of courts, procedures, other legislation).”", "82. The Venice Commission, in its Opinion on the draft law on introducing amendments and addenda to the Judicial Code of Armenia (term of office of court presidents), adopted at its 99th Plenary Session (Venice, 13-14 June 2014, CDL-AD(2014)021), observed with regard to the proposed termination of office of court presidents appointed for an indefinite term as follows.", "“ V. The second question", "46. As far as the second question is concerned, the proposed termination of office of court chairpersons appointed for an indefinite time by the new (amended) law, raises certain concerns.", "47. As it was stated above among theoretical considerations, retroactivity of a new regulation is doubtful in general. If it affects rights ensured by or legitimate expectations based on the law before the amendment took effect, there should be compelling reasons to justify it. Moreover, the interest of maintaining the independence of the Judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions.", "48. There is no doubt that the Draft Law will negatively affect the Court presidents, who already have been appointed until retirement. According to the proposed transitional rule of Article 10.2 of the Draft Law the chairpersons of the courts of first instance and the courts of appeal appointed prior to the entry into force of the law shall hold office until 1 January 2015.", "49. It might be argued that the court presidents who have already been appointed until retirement had legitimate expectations that their past appointments will not be re-opened and terminated before their retirement age. Such expectations could originate from the provisions of the Judicial Code itself, namely Article 4 (court chairmen are judges) and Article 14.2 (“A judge shall hold office until the age of 65”).", "50. The dismissal of judges on such a short notice practically means that after the entry into force of the amendment elections for court chairpersons should be organised, and after the elections all the mandate of chairpersons appointed before the amendment (except the chairperson of the Court of Cassation) is terminated. This radical change could give the impression that the only reason of the transitional rule is to create the opportunity of a radical change of court chairpersons.", "51. The Venice Commission observes that the principle of legal certainty with the protection of legitimate expectations and the independence of the Judiciary and the effective administration of justice – if no compelling reasons can be given – require a significantly longer period for the removal of the court presidents from their offices.", "52. As far as the justification or compelling reasons for such a transitional rule are concerned, the amendments are proposed at the background of the possible estimation of the role of the court chairpersons in Armenia that could involuntarily create a situation when court chairpersons may exercise some influence on other judges of the court. The Venice Commission notes, however, that the powers of court presidents, as defined in Article 25 of the Judicial Code are essentially of an administrative character. Although the proposed reform serves the legitimate aim of avoiding any undue influence of the court presidents on other judges, it does not appear from the rationale that the need of the removal of the sitting presidents of these courts from their office is so urgent as to justify such a radical and immediate removal of court presidents from their office.", "53. The Commission therefore concludes that such a radical change of chairpersons has no justification within the amendment and it does not follow from the rules of the Constitution of the Republic of Armenia. As already said, the proposed rules might give an impression that a radical change of court persons was their only purpose. Such an appearance is necessarily contrary to the principle of the independence of the Judiciary.", "54. A smoother transitional rule, e.g. termination of office after a four year period beginning with the entry in force of the amendment in case would be less disturbing.”", "83. In the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe, on the draft law on amendments to the Organic Law on General Courts of Georgia, adopted by the Venice Commission at its 100th Plenary Session (Rome, 10 ‑ 11 October 2014, CDL-AD(2014)031), the issue of the termination of the mandates of court presidents was examined as follows (footnotes omitted).", "“ 3. Termination of certain mandates with the enactment of the Draft amendment law (Art. 2 of the Draft amendment law)", "95. According to Article 2 (3) of the Draft amendment law, upon enactment of this draft law, the mandate of chairpersons of district courts and courts of appeal and deputy chairpersons of courts of appeal shall be terminated. Article 2(4) terminates in the same manner the mandate of chairpersons of court chambers/court panels/investigation panels and Article 2(5) provides for the reappointment of court managers.", "96. The amendments provide no justification for such a wide ranging termination of judicial mandates.", "97. The Venice Commission and the Directorate consider that the interest of maintaining the independence of the judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions. Also, although currently the term of office of court presidents is limited to five years from the date of their appointment, it might still be argued that the court presidents had legitimate expectations that their past appointments will not be terminated before the term of five years as set out in the Organic Law. This radical change of court presidents could give the impression that the only reason of the transitional rules is to create the opportunity of such a change, which could undermine public trust in the judiciary.", "98. For these reasons, such dismissal of court presidents with the enactment of the amendment law can be justified only if compelling reasons are given. However, it does not appear from the explanatory note provided by the authorities, the meetings held in Tbilisi, and from the draft amendment law itself that the need of the removal of the sitting presidents of these courts from their office is so urgent as to justify such a wide ranging termination of judicial mandates.", "99. For these reasons, it is recommended that the Article 2 of the Draft amendment law be removed and the sitting court presidents stay in office until the end of their term.”", "C. The Inter-American Court of Human Rights", "84. The Inter-American Court of Human Rights, in its case-law concerning the removal of judges, has referred to the UN Basic Principles on the Independence of the Judiciary and to General Comment No. 32 of the UN Human Rights Committee. The case of Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (preliminary objection, merits, reparations and costs), judgment of 23 August 2013, Series C No. 266, concerned the removal of twenty-seven judges of the Supreme Court of Justice of Ecuador through a parliamentary resolution. The Inter-American Court found that the State had violated Article 8 § 1 (right to a fair trial), in conjunction with Article 1 § 1 (obligation to respect rights) of the American Convention on Human Rights, to the detriment of the victims, because they had been dismissed from office by a body without jurisdiction, which moreover had not granted them an opportunity to be heard. Furthermore, the Court found a violation of Article 8 § 1 in conjunction with Article 23 § 1 (c) (right to have access, under general conditions of equality, to the public service of his country) and Article 1 § 1 of the American Convention, given the arbitrary effects on the tenure in office of the judiciary and the consequent effects on judicial independence, to the detriment of the twenty-seven victims. It noted as follows as regards the general standards on judicial independence (footnotes omitted).", "“ 1(1). General standards on judicial independence", "144. In its case law, the Court has indicated that the scope of judicial guarantees and effective judicial protection for judges must be examined in relation to the standards on judicial independence. In the case of Reverón Trujillo v. Venezuela, the Court emphasized that judges, unlike other public officials, enjoy specific guarantees due to the independence required of the judiciary, which the Court has understood as ‘ essential for the exercise of the judiciary. ’ The Court has reiterated that one of the main objectives of the separation of public powers is to guarantee the independence of judges. The purpose of protection is to ensure that the judicial system in general, and its members in particular, are not subject to possible undue restrictions in the exercise their duties by bodies outside the Judiciary, or even by judges who exercise functions of review or appeal. In line with the case law of this Court and of the European Court of Human Rights, and in accordance with the United Nations Basic Principles on the Independence of the Judiciary (hereinafter ‘ Basic Principles ’ ), the following guarantees are derived from judicial independence: an appropriate process of appointment, guaranteed tenure and guarantees against external pressures.", "145. Regarding the scope of security of tenure relevant to this case, the Basic Principles establish that ‘ [t]he term of office of judges [...] shall be adequately secured by law ’ and that ‘ [j]udges, whether appointed or elected, shall have guaranteed tenure until the mandatory retirement age or the expiry of the term of office, where such exists. ’ Moreover, the Human Rights Committee has stated that judges may be dismissed only on grounds of serious misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or the law. This Court has accepted these principles and has stated that the authority responsible for the process of removing a judge must act independently and impartially in the procedure established for that purpose and must allow for the exercise of the right to defense. This is so because the free removal of judges raises the objective doubt of the observer regarding the judges ’ real possibilities of ruling on specific disputes without fear of reprisals.", "...", "147. Nevertheless, judges do not have absolute guarantees of tenure in their positions. International human rights law accepts that judges may be dismissed for conduct that is clearly unacceptable. In General Comment No. 32, the Human Rights Committee has established that judges may be dismissed only for reasons of serious misconduct or incompetence. ...", "148. In addition, other standards draw a distinction between the sanctions applicable, emphasizing that the guarantee of immovability implies that dismissal is the result of serious misconduct, while other sanctions may be considered in the event of negligence or incompetence. ...", "150. Furthermore, regarding the protection afforded by Article 23(1) (c) of the American Convention in the cases of Apitz Barbera et al., and Reverón Trujillo, this Court specified that Article 23(1) (c) does not establish the right to participate in government, but to do so ‘ under general conditions of equality. ’ This means that respect for and guarantee of this right are fulfilled when there are ‘ clear procedures and objective criteria for appointment, promotion, suspension and dismissal ’ and that ‘ persons are not subject to discrimination ’ in the exercise of this right. In this respect, the Court has pointed out that equality of opportunities in access to and tenure in office guarantee freedom from all interference or political pressure.", "151. Likewise, the Court has stated that a judge ’ s guarantee of tenure is related to the right to remain in public office, under general conditions of equality. Indeed, in the case of Reverón Trujillo it established that ‘ access in equal conditions would constitute an insufficient guarantee if it were not accompanied by the effective protection of the continuance in what is accessed. ’", "152. For its part, in cases of arbitrary dismissal of Judges the Human Rights Committee has considered that failure to observe the basic requirements of due process violates the right to due process enshrined in Article 14 of the International Covenant on Civil and Political Rights (the counterpart of Article 8 of the American Convention), in conjunction with the right to have access under general conditions of equality to public office in the country, as provided for under Article 25(c) International Covenant on Civil and Political Rights (the counterpart of Article 23(1)(c) of the American Convention).", "153. The foregoing serves to clarify some aspects of the Court ’ s jurisprudence. Indeed, in the case of Reverón Trujillo v. Venezuela, the Court concluded that the right to be heard by an independent tribunal, enshrined in Article 8(1) of the Convention, only implied that a citizen has a right to be judged by an independent judge. However, it is important to point out that judicial independence should not only be analyzed in relation to justiciable matters, given that the judge must have a series of guarantees that allow for judicial independence. The Court considers it pertinent to specify that the violation of the guarantee of judicial independence, as it relates to a judge ’ s tenure and stability in his position, must be examined in light of the conventional rights of a judge who is affected by a State decision that arbitrarily affects the term of his appointment. In that sense, the institutional guarantee of judicial independence is directly related to a judge ’ s right to remain in his post, as a consequence of the guarantee of tenure in office.", "154. Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole. Likewise, there is a direct connection between the objective dimension of judicial independence and the right of judges to have access to and remain in public service, under general conditions of equality, as an expression of their guaranteed tenure.", "155. Bearing in mind the aforementioned standards, the Court considers that: i) respect for judicial guarantees implies respect for judicial independence; ii) the scope of judicial independence translates into a judge ’ s subjective right to be dismissed from his position exclusively for the reasons permitted, either by means of a process that complies with judicial guarantees or because the term or period of his mandate has expired, and iii) when a judge ’ s tenure is affected in an arbitrary manner, the right to judicial independence enshrined in Article 8(1) of the American Convention is violated, in conjunction with the right to access and remain in public office, on general terms of equality, established in Article 23(1)(c) of the American Convention.”", "85. The Inter-American Court reiterated the same principles and reached a similar conclusion in the cases of Constitutional Tribunal (Camba Campos et al.) v. Ecuador (preliminary objections, merits, reparations and costs), judgment of 28 August 2013, §§ 188-99, Series C No. 268, and López Lone et al. v. Honduras (preliminary objection, merits, reparations and costs), 5 October 2015, §§ 190-202 and 239-40, Series C No. 302.", "D. Other international texts", "86. The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999. Its Article 8 reads as follows:", "Security of office", "“A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.", "A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered.", "Any change to the judicial obligatory retirement age must not have retroactive effect.”", "87. The International Bar Association ’ s Minimum Standards of Judicial Independence (1982) read in their relevant part as follows:", "“20. (a) Legislation introducing changes in the terms and conditions of judicial services shall not be applied to judges holding office at the time of passing the legislation unless the changes improve the terms of service.", "(b) In case of legislation reorganising courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same status.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution of 1949", "38. The relevant Articles of the Constitution (as amended and in force until its replacement by the Fundamental Law of Hungary, with effect on 1 January 2012) provided as follows.", "Article 7", "“(1) The legal system of the Republic of Hungary accepts the generally recognised principles of international law, and shall harmonise the country ’ s domestic law with the obligations assumed under international law.", "...”", "Article 47", "“(1) The Supreme Court shall be the highest judicial organ of the Republic of Hungary.", "(2) The Supreme Court shall ensure uniformity in the application of the law by the courts; its uniformity resolutions [ jogegységi határozat ] shall be binding on all courts.”", "Article 48", "“(1) The President of the Supreme Court shall be elected by Parliament upon the recommendation of the President of the Republic; its vice-presidents shall be appointed by the President of the Republic upon the recommendation of the President of the Supreme Court. A majority of two-thirds of the votes of Members of Parliament shall be required to elect the President of the Supreme Court.", "...", "(3) Judges may only be removed from office on the grounds and in accordance with the procedures specified by law.”", "Article 50", "“...", "(3) Judges are independent and answer only to the law. Judges may not be members of political parties and may not engage in political activities.", "...”", "Article 57", "“(1) In the Republic of Hungary everyone is equal before the law and has the right to have the accusations brought against him or her, as well as his or her rights and duties in legal proceedings, judged in a just and public trial by an independent and impartial court established by law.", "...”", "Article 61", "“(1) In the Republic of Hungary everyone has the right to freely express his or her opinion, and furthermore to access and distribute information of public interest.", "...”", "B. Organisation and Administration of the Courts Act (Law no. LXVI of 1997)", "39. To fulfil the task of ensuring the uniformity in the application of the law by the courts, the Supreme Court was empowered to adopt uniformity resolutions ( jogegységi határozat, section 25(c) of the Act) and to publish guiding resolutions ( elvi bírósági határozat, section 27(2)).", "40. Section 62 of the 1997 Organisation and Administration of the Courts Act listed the president of a court among the so-called “court executives”, that is, those judges responsible for the management and administration of courts and judicial organisational units.", "41. Under section 69 of the Act, court executives were appointed for six years.", "42. Section 73 of the Act contained an exhaustive list of reasons for terminating the mandates of court executives. It provided that", "“[t]he term of office of a court executive shall come to an end by:", "(a) mutual agreement,", "(b) resignation,", "(c) dismissal,", "(d) the expiry of the period of the term of office,", "(e) the termination of the person ’ s judicial mandate”.", "43. Under section 74/A(1) of the Act, if an assessment of the court executive ’ s management activity established his or her incompetence for such a managerial position, the court executive was to be dismissed from his or her office with immediate effect. A dismissed court executive was entitled to seek a legal remedy before the Service Tribunal to contest the dismissal within fifteen days of service of a dismissal notice (section 74/A(2)).", "44. The Act established the National Council of Justice and added the function of President of that Council to that of President of the Supreme Court, the roles to be held simultaneously. The President of the National Council of Justice was under an explicit statutory obligation to express an opinion on draft legislation that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (section 46(1)(q) of the Act).", "C. Legal Status and Remuneration of Judges Act (Law no. LXVII of 1997)", "45. Under section 57(2), sub-paragraphs (ha) and (hb) of the 1997 Legal Status and Remuneration of Judges Act, a judge was entitled to serve beyond the general retirement age, up to the age of 70.", "D. Parliamentary decision no. 46/1994. (IX. 30.) OGY on the Rules of Parliament", "46. Article 45 § 1 of Parliamentary decision no. 46/1994. (IX. 30.) OGY on the Rules of Parliament provided as follows:", "“The President of the Republic, the members of the Government, the President of the Constitutional Court, the President of the Supreme Court, the Chief Prosecutor, the Ombudsman, the President of the State Audit Office, and also persons required to report to Parliament during debates on their reports and Hungarian members of the European Parliament during debates on matters of European integration, shall be entitled to take part and speak in sittings of Parliament.”", "E. Constitution of the Republic of Hungary (Amendment) Act (Law no. CLIX of 2011), which came into force on 2 December 2011", "47. The Constitution of Hungary of 1949 was amended as follows with regard to the election of the President of the Kúria :", "Section 1", "“The Constitution shall be amended with the following section:", "...", "Section 79. In accordance with Article 26 § 3 of the Fundamental Law, Parliament shall elect the President of the Kúria by 31 December 2011 at the latest.”", "F. Fundamental Law of Hungary of 25 April 2011, which came into force on 1 January 2012", "48. Articles 25 and 26 of the Fundamental Law provide as follows.", "Article 25", "“(1) The courts shall administer justice. The supreme judicial body shall be the Kúria.", "(2) The courts shall decide on:", "(a) criminal matters, civil disputes, and other matters defined by law;", "(b) the legitimacy of administrative decisions;", "(c) conflicts between local ordinances and other legislation, and on their annulment;", "(d) the establishment of non-compliance by a local authority with its statutory legislative obligations.", "(3) In addition to the responsibilities defined by paragraph (2), the Kúria shall ensure uniformity in the judicial application of laws and shall make decisions accordingly, which shall be binding on the courts.", "...", "(8) The detailed rules for the organisation and administration of the courts, and of the legal status and remuneration of judges shall be regulated by a Cardinal Act [ sarkalatos törvény ] [2] .”", "Article 26", "“(1) Judges shall be independent and only subordinated to laws, and may not be instructed in relation to their judicial activities. Judges may be removed from office only for the reasons and in a procedure defined by a Cardinal Act. Judges shall not be affiliated to any political party or engage in any political activity.", "(2) Professional judges shall be appointed by the President of the Republic as defined by a Cardinal Act. No person under thirty years of age shall be eligible for the position of judge. With the exception of the President of the Kúria, no judge may serve after reaching the general retirement age.", "(3) The President of the Kúria shall be elected by Parliament from among the judges for nine years on the proposal of the President of the Republic. The election of the President of the Kúria shall require a two-thirds majority of the votes of Members of Parliament.”", "G. Transitional Provisions of the Fundamental Law of Hungary, which came into force on 1 January 2012", "49. The relevant parts of the Transitional Provisions of the Fundamental Law of Hungary read as follows.", "Section 11", "“(1) The legal successor to the Supreme Court, the National Council of Justice and their President shall be the Kúria for the administration of justice and the President of the National Judicial Office for the administration of the courts, with any exceptions defined by the relevant Cardinal Act.", "(2) The mandates of the President of the Supreme Court and the President and members of the National Council of Justice shall be terminated when the Fundamental Law comes into force [3] .”", "Section 12", "“(1) If a judge has reached the general retirement age defined by Article 26 § 2 of the Fundamental Law before 1 January 2012, his or her service shall be terminated on 30 June 2012. If a judge reaches the general retirement age defined by Article 26 § 2 of the Fundamental Law in the period between 1 January and 31 December 2012, his or her service shall be terminated on 31 December 2012.”", "Section 31", "“(2) ... The Transitional Provisions shall form part of the Fundamental Law [4] .”", "H. Organisation and Administration of the Courts Act (Law no. CLXI of 2011), which came into force on 1 January 2012", "50. The relevant parts of the 2011 Organisation and Administration of the Courts Act read as follows.", "Chapter IIThe organisation of the courts", "6. The Kúria", "Section 24", "“The Kúria shall:", "(a) adjudicate, in the cases specified in an Act, on appeals lodged against the decisions of a tribunal or a high court;", "(b) adjudicate on motions for extraordinary review of a final court decision;", "(c) adopt uniformity resolutions [ jogegységi határozat ], which shall be binding on all courts;", "(d) analyse the judicial practice in cases closed with a final judgment, explore and examine the case-law of the courts;", "(e) publish guiding resolutions [ elvi bírósági határozat ] [adopted by the Kúria ] and guiding decisions [ elvi bírósági döntés ] [adopted by the lower courts];", "(f) adjudicate on the conflict of local ordinances with other legislation and on their annulment;", "(g) adjudicate on the establishment of non-compliance by a local authority with its statutory legislative obligations;", "(h) act in other cases falling within its scope of competence.”", "Chapter VIIIPresident of the Kúria and court executives", "32. President of the Kúria", "Section 114", "“(1) The President of the Kúria shall be elected by Parliament from among judges appointed for an indeterminate duration and with at least five years of judicial service, in accordance with Article 26 § 3 of the Fundamental Law.”", "Chapter XVTransitional Provisions", "58. Election of the President of the National Judicial Office and the President of the Kúria for the First Time", "Section 177", "“(1) The President of the Republic shall nominate the President of the National Judicial Office and the President of the Kúria for the first time by 15 December 2011, at the latest. The nominees shall be heard by the committee of Parliament responsible for justice.", "(2) Parliament shall elect the President of the National Judicial Office and the President of the Kúria for the first time by 31 December 2011. ...”", "60. Determination of Date of Expiry of Mandates and Beginning of New Mandates", "Section 185", "“(1) The mandates of the National Council of Justice ... and its members, its President as well as the President and the Vice-President of the Supreme Court and the Head and Deputy Head of the Office of the [National Council of Justice] shall terminate upon the entry into force of the Fundamental Law.", "(2) The mandates of the President of the National Judicial Office and the President of the Kúria shall commence as of 1 January 2012. ...”", "Section 187", "“The mandates of court executives appointed before 1 January 2012 shall be valid for the term determined in their appointments, except as set forth in section 185(1).”", "Section 188", "“(1) The legal successor to the Supreme Court, the National Council of Justice and its President shall be the Kúria for the purposes of activities related to the administration of justice, and – in respect of the administration of courts – the President of the National Judicial Office, except as determined in the Cardinal Acts.”", "51. Under section 173 of the Organisation and Administration of the Courts Act, section 177 came into force on the day following its promulgation (3 December 2011), and sections 185, 187 and 188 came into force on 1 January 2012.", "III. RELEVANT MATERIALS CONCERNING THE SITUATION IN HUNGARY, INCLUDING THE TERMINATION OF THE APPLICANT ’ S MANDATE AS PRESIDENT OF THE SUPREME COURT", "A. Opinions of the Venice Commission", "57. The relevant extracts from the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011, CDL-AD(2011)016), read as follows.", "“107. According to Article 25 (1) of the new Constitution, the ‘ Curia ’ (the Hungarian historical name for the Supreme Court) will be the highest justice authority of Hungary. In the absence of transitional provisions and despite the fact that the election rules for its president remain unchanged in the new Constitution a question arises: will this change of the judicial body ’ s name result in replacement of the Supreme Court ’ s president by a new president of the ‘ Curia ’? As to the judges, they ‘ shall be appointed by the President of the Republic as defined by a cardinal Act ’ (Article 26 (2)). This also leaves of margin of interpretation as to the need to change (or not) the composition of the supreme body.", "108. As stipulated by Article 26 (2), the general retirement age will also be applied to judges. While it understands that the lowering of the judge ’ s retirement age (from 70 to 62) is part of the envisaged reform of the judicial system, the Commission finds this measure questionable in the light of the core principles and rules pertaining to the independence, the status and immovability of judges. According to different sources, this provision entails that around 300 of the most experienced judges will be obliged to retire within a year. Correspondingly, around 300 vacancies will need to be filled. This may undermine the operational capacity of the courts and affect continuity and legal security and might also open the way for undue influence on the composition of the judiciary. In the absence of sufficiently clear information on the reasons having led to this decision, the Commission trusts that adequate solutions will be found, in the context of the reform, to address, in line with the requirements of the rule of law, the difficulties and challenges engendered by this measure.", "...", "140. As previously indicated, the reference in [the] second paragraph of the Closing Provisions to the 1949 Constitution seems to be in contradiction with the statement, in the Preamble, by which the Hungarian 1949 Constitution is declared as invalid. The Venice Commission tends to interpret this apparent inconsistency as a confirmation of the fact that the said statement does not have legal significance. Nevertheless, it is recommended that this is specifically clarified by the Hungarian authorities. The adoption of transitional provisions (as required by the third paragraph of the Closing Provisions), of particular importance in the light of the existence, for certain provisions of the new Constitution, of possibly diverging interpretations, could be used as an excellent opportunity for providing the necessary clarifications. This should not be used as a means to put an end to the term of office of persons elected or appointed under the previous Constitution.”", "58. In the Position of the Government of Hungary on this Opinion, transmitted by the Minister for Foreign Affairs of Hungary on 6 July 2011 (see CDL(2011)058), the Government fully subscribed to the suggestion in paragraph 140 of the Opinion and assured the Venice Commission that the drafting of the transitional provisions of the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime.", "59. The relevant extracts from the Opinion on the Legal Status and Remuneration of Judges Act (Act CLXII of 2011) and the Organisation and Administration of the Courts Act (Act CLXI of 2011), adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-17 March 2012, CDL-AD(2012)001), read as follows.", "“ 2. The President of the Curia", "111. In its opinion on the new Constitution, the Venice Commission appealed to the Hungarian authorities that the occasion of adopting transitional provisions ‘ should not be used as a means to put an end to the term of office of persons elected or appointed under the previous Constitution ’. In its reply to the Venice Commission, the Hungarian Government pointed out that ‘ Hungary fully subscribes to this suggestion and assures the Commission that the drafting of transitional provisions will not be used to unduly put an end to the terms of office of persons elected under the previous legal regime. ’", "112. Article 25 of the Fundamental Law provides that the supreme judicial body shall be the Curia. According to Article 11 of the Temporary Provisions of the Fundamental Law, the Curia is the heir (legal successor) to the Supreme Court. All judges of the Supreme Court remained in office as judges with the exception of its President. Section 114 [of the Organisation and Administration of the Courts Act] established a new criterion for the election of the new President, which leads to the ineligibility of the former President of the Supreme Court as President of the Curia. This criterion refers to the time served as a judge in Hungary, not counting the time served as a judge for instance in a European Court. Many believe that the new criterion was aimed at preventing an individual person – the actual president of the Supreme Court – from being eligible for the post of the President of the Curia. Although the Law was formulated in a general way, its effect was directed against a specific person. Laws of this type are contrary to the rule of law.", "113. Other countries have rules that accept time periods that judges have spent abroad. Section 28.3 [of the Legal Status and Remuneration of Judges Act] states that a judge ’ s long-term secondment abroad shall be regarded as time completed at the service post occupied prior to the commencement of his or her time abroad. The Law does not provide for a minimum time a judge must have spent in Hungary before being posted abroad. Therefore, regulations of equivalence between national and international functions should be established, particularly with regard to requirements that a person has to fulfil in order to be appointed e.g. President of the Curia. Furthermore, it is highly uncommon to enact regulations that are retroactive and lead to the removal from a high function such as the President of the Curia.", "114. The unequal treatment between the judges of the Supreme Court and their President is difficult to justify. The Hungarian authorities seem to argue that the nature of the tasks of the President of the Curia and of the Supreme Court are radically different, and that the latter would be more engaged in administrative matters as the President of the previous National Council of the Judiciary, whereas the President of the Curia would deal more with substantive law and ensure the uniformity of the case-law. However, this argument is not convincing. The experience of the European Court of Human Rights could be particularly useful for the tasks of the President of the Curia.", "115. Since the provision of the Fundamental Law concerning the eligibility to become President of the Curia might be understood as an attempt to get rid of a specific person who would be a candidate for the President, who has served as president of the predecessor of the Curia, the law can operate as a kind of a sanction of the former president of the Supreme Court. Even if this is not the case, the impression that this might be the case, bears the risk of causing a chilling effect, thus threatening the independence of the judiciary.”", "60. The relevant extracts from the Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of the above-mentioned Opinion CDL ‑ AD(2012)001 on Hungary, adopted by the Venice Commission at its 92nd Plenary Session (Venice, 12-13 October 2012, CDL ‑ AD(2012)020), read as follows.", "“XII. Transitional issues – Retirement of judges and President of the Curia", "74. The amendments to the [Legal Status and Remuneration of Judges Act – Law no. CLXII of 2011] did not pertain to the criticisms expressed in the Opinion of the Venice Commission on the provisions on the retirement age. All those judges who would have reached the age limit by 31 December 2012 at the latest were released by presidential order of 7 July 2012.", "75. The Venice Commission acknowledges the judgment no. 33/2012 (VII. 17.) AB határozat of 16 July 2012 of the Hungarian Constitutional Court, which declared the sudden reduction of the upper-age limit for judges unconstitutional. It trusts that the Hungarian authorities will respect this judgment and ensure its implementation, i.e. re-instate the former judges to their previous positions. It seems that the labour courts have started to reinstate the retired judges. The Venice Commission ’ s delegation has however learned that the implementation of this judgment has resulted in considerable legal uncertainty. While the legal basis of early retirement was annulled with ex tunc effect, the individual resolutions of the President of Hungary, which dismissed some ten per cent of the Hungarian judges, are considered to remain in force, even if their legal basis had ceased to exist. The President of Hungary did not repeal them. The Legislator should adopt provisions re-instating the dismissed judges in their previous position without requiring them to go through a re-appointment procedure.", "76. The President of the NJO [National Judicial Office] invited the judges concerned to appeal to the labour courts in order to have their dismissal reversed. Several judges already won their cases before the labour courts, but these judgments were appealed against by the President of the NJO because she disagreed with their reasoning. Most importantly, even final judgments of the labour courts would not result in a reinstatement of the judges concerned in their previous position, but they will go through a new appointment process and could be assigned to other courts than those, which they belonged to before their dismissal.", "77. In September 2012, the Hungarian Government introduced the legislative proposal T/8289, which would amend the Transitory Provisions of the Fundamental Law, introducing a new retirement age of 65 years for judges and prosecutors. Judges who are older than 65 would (after their re-appointment) be able to continue in office for one year before they would have to retire. The legislative proposal remains however silent on how the dismissed judges should be reinstated, leaving open only the way through the labour courts.", "78. The Commission ’ s delegation was told that automatic reinstatement would be impossible because new judges had been appointed in the meantime and not all judges wished to be reinstated. The Commission is of the opinion that it should be possible to find a legislative solution that takes into account the various cases.", "79. Furthermore, the legislative proposal provides that judges who are over the age of 62 cannot have leading positions in the courts. This concerns reinstated judges but in the future also all other judges who turn 63. They would lose their leading position and would have to terminate their career as an ordinary judge. Apart from the fact that these judges are the most experienced to lead the courts, such a limitation constitutes evident age discrimination. The delegation was told that these experienced judges should train younger judges rather than hold leading positions in courts. This argument is hard to follow because younger judges learn from older ones precisely when they see how they act in leading positions.", "80. The situation of the dismissed judges is very unsatisfactory. The Legislator should adopt provisions re-instating dismissed judges who so wish in their previous position without requiring them to go through a re-appointment procedure.", "81. The Hungarian Legislator did not address the remarks on the eligibility to become President of the Curia, which should be revised.”", "B. The Council of Europe Commissioner for Human Rights", "61. The relevant extracts from the press release published on 12 January 2012 by the Council of Europe Commissioner for Human Rights read as follows:", "“Furthermore, the Commissioner has noted steps taken in Hungary which might undermine the independence of the judiciary. As a consequence of the lowering of the retirement age for judges, more than 200 new judges will now have to be appointed. This measure has been accompanied by a change in the procedure for such appointments, which now rests on the decision of a single politically appointed individual. Moreover, the Commissioner considers it unfortunate that, as a consequence of the new law on the judiciary, the mandate of the President of the Supreme Court has been terminated before the end of the regular term. ‘ The approach whereby judges are appointed by the President of the National Judicial Office, who is nominated by the government for nine years, gives rise to serious reservations. The judiciary must be protected from undue political interference. ’ ”", "C. The Parliamentary Assembly of the Council of Europe", "62. On 10 June 2013 the Committee on the Honouring of Obligations and Commitments by the Member States (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe adopted a report on the Request for the opening of a monitoring procedure in respect of Hungary. The Monitoring Committee recommended opening a monitoring procedure in respect of Hungary because of serious and sustained concerns about the extent to which the country was complying with its obligations to uphold the highest possible standards in democracy, human rights and the rule of law. The relevant extracts of the explanatory memorandum to the report concerning the applicant ’ s case read as follows.", "“4.3.3. The dismissal of the President of the Supreme Court", "113. The Curia that was established by the Fundamental Law is the legal successor to the Supreme Court of Hungary. The Cardinal Act on the Judiciary therefore provides that all judges of the Supreme Court can serve until the end of their mandate. However, an exception was made for the President of the Supreme Court, who needed to be re-elected. In addition, a new election criterion for the President of the Supreme Court was adopted. According to this new criterion, a candidate must have at least five years ’ experience as a judge in Hungary. Time served on international tribunals is not taken into account.", "114. The unequal treatment of the President of the Supreme Court is highly questionable. These new provisions are widely seen as being solely adopted to dismiss the sitting President of the Supreme Court, Mr Baka, who in the past had been critical of the government ’ s policies of judicial reform and who had successfully challenged a number of government decisions and laws before the Constitutional Court. Mr Baka was the Hungarian Judge to the European Court of Human Rights from 1991 to 2007, and was elected President of the Supreme Court by the Hungarian parliament in June 2009. Mr Baka had not previously served a five year term as a judge in Hungary, and was therefore, despite his 17 years of experience as a judge on the ECHR, ineligible for the post of President of the Curia. The widespread perception that these legal provisions were adopted against a specific person is strengthened by the fact that, in June 2011, the parliament adopted a decision that suspended all appointment procedures for judges until 1 January 2012, when Mr Baka would no longer be in office. This despite the backlog in cases that is often mentioned by the authorities as one of the underlying reasons for the reform of the judiciary. As mentioned by the Venice Commission, generally formulated legal provisions that are in reality directed against a specific person or persons are contrary to the rule of law. In addition the politically motivated dismissal of the President of a Supreme Court could have a chilling effect that could threaten the independence of the judiciary.”", "63. On 25 June 2013 the Parliamentary Assembly decided not to open a monitoring procedure in respect of Hungary, but resolved to follow the situation in the country closely. The Parliamentary Assembly called on the Hungarian authorities to continue their open and constructive dialogue with the Venice Commission (Resolution 1941 (2013)).", "D. The European Union", "1. The European Commission", "64. On 12 December 2011 the then EU Justice Commissioner, Viviane Reding, wrote a letter to the Hungarian authorities raising concerns about the retirement age of judges. An annex to the letter also raised the issues of the President of the new National Judicial Office and the transformation of the Supreme Court into the Kúria, in particular the early termination of the applicant ’ s mandate as President of the Supreme Court before the end of the expected term. The Hungarian authorities replied and on 11 January 2012 the European Commission issued a statement on the situation of Hungary.", "65. On 17 January 2012 the Commission decided to open “accelerated” infringement proceedings against Hungary concerning, inter alia, the new retirement age for judges, prosecutors and public notaries from 70 years to the general pensionable age (62 years). [5] The Commission stated that EU rules ( Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16 ) prohibited discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the European Union (CJEU), an objective and proportionate justification was needed if a government were to decide to lower the retirement age for one group of people and not for others. The Commission did not find any objective justification for treating judges and prosecutors differently from other groups, notably at a time when retirement ages across Europe were being progressively increased.", "66. With regard to other measures affecting the independence of the judiciary, the Commission asked Hungary for more information regarding the new legislation on the organisation of the courts. In its press release IP/12/24, the Commission stated as follows:", "“Under the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. ... In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011.", "In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court ...”", "67. On 7 March 2012 the Commission decided to send Hungary a reasoned opinion on the measures regarding the retirement age of judges and an administrative letter asking for further clarifications about the independence of the judiciary, particularly in relation to the powers attributed to the President of the National Judicial Office (powers to designate a court in a given case) and the transfer of judges without their consent.", "68. On 25 April 2012 the Commission noted that there were ongoing discussions between the Hungarian authorities and the Council of Europe and its Venice Commission, and that amendments to the legislation on the administration of justice were under discussion in the Hungarian Parliament. It decided to keep the matter under close review and to reserve its right to launch infringement proceedings also on this matter. With regard to the mandatory retirement age of judges, the Commission decided that the case should be brought before the CJEU.", "2. The Court of Justice of the European Union", "69. On 7 June 2012 the European Commission brought an action against Hungary before the CJEU with regard to the lowering of the mandatory retirement age of judges, prosecutors and notaries. In its judgment of 6 November 2012 in Commission v. Hungary, C-286/12, EU:C:2012:687, the CJEU declared that by adopting a national scheme requiring the compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 – giving rise to a difference in treatment on grounds of age which was not proportionate as regards the objectives pursued – Hungary had failed to fulfil its obligations under Council Directive 2000/78/EC (see paragraph 65 above). The CJEU observed that the categories of persons concerned by the provisions in issue benefited, until their entry into force, from a derogation allowing them to remain in office until the age of 70, which gave rise, in those persons, to a well-founded expectation that they would be able to remain in office until that age. However, the provisions in issue abruptly and significantly lowered the age-limit for compulsory retirement, without introducing transitional measures to protect the legitimate expectations of the persons concerned.", "70. In its judgment of 8 April 2014 in Commission v. Hungary, C ‑ 288/12, EU:C:2014:237, the CJEU examined the case of a former Hungarian data-protection supervisor whose mandate had been terminated upon the entry into force of the Fundamental Law, well before the end of his term. The case was brought before the CJEU by the European Commission in the context of a separate infringement procedure concerning Hungary ’ s obligations under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 1995 L 281, p. 31, in relation to the requirement that the data-protection supervisory authority be independent. The relevant extracts from the judgment read as follows.", "“ 57. In the present case, Article 15(1) of the Law of 1993, applicable to the Supervisor pursuant to Article 23(2) of the Law of 1992, provided that the Supervisor could be called upon to vacate office only upon expiry of his term of office or upon death, resignation, declaration of a conflict of interest, compulsory retirement or compulsory resignation. The last three situations require a decision of the Parliament to be adopted by a two-thirds majority. Moreover, compulsory retirement and compulsory resignation cannot take place except in limited circumstances, set out in Article 15(5) and (6) of that regulation respectively.", "58. It is common ground that the Supervisor was not compelled to vacate office pursuant to one of those provisions and, in particular, that the Supervisor did not officially resign.", "59. It follows that Hungary compelled the Supervisor to vacate office in contravention of the safeguards established by statute in order to protect his term of office, thereby compromising his independence for the purposes of the second subparagraph of Article 28(1) of Directive 95/46. The fact that it was because of institutional changes that he was compelled to vacate office before serving his full term cannot render that situation compatible with the requirement under that provision of independence for supervisory authorities ...", "60. It is true that Member States are free to adopt or amend the institutional model that they consider to be the most appropriate for their supervisory authorities. In doing so, however, they must ensure that the independence of the supervisory authority under the second subparagraph of Article 28(1) of Directive 95/46 is not compromised, which entails the obligation to allow that authority to serve its full term of office ...", "61. Moreover, even if – as Hungary maintains – the Supervisor and the Authority are fundamentally different in terms of their organisation and structure, those two bodies are, in essence, entrusted with identical tasks, that is to say, the tasks for which national supervisory authorities are responsible pursuant to Directive 95/46, as is apparent from the duties respectively entrusted to them and the continuity between their respective handling of files, as guaranteed under Article 75(1) and (2) of the Law of 2011. A mere change in institutional model cannot therefore objectively justify compelling the person entrusted with the duties of Supervisor to vacate office before expiry of his full term, without providing for transitional measures to ensure that he is allowed to serve his term of office in full.", "62. In the light of all the foregoing considerations, it must be held that, by prematurely bringing to an end the term served by the supervisory authority for the protection of personal data, Hungary has failed to fulfil its obligations under Directive 95/46.”", "3. The European Parliament", "71. The European Parliament, in its resolution of 16 February 2012 on recent political developments in Hungary (2012/2511(RSP)), expressed serious concern at the situation in Hungary in relation, among other things, to the exercise of democracy, the rule of law, respect for and protection of human and social rights, and the system of checks and balances. It explained that under the Fundamental Law and its Transitional Provisions, the Supreme Court had been renamed the Kúria, and the six-year mandate of the former President of the Supreme Court had ended prematurely after two years. The European Parliament called on the European Commission to monitor closely the possible amendments and the implementation of the criticised laws and their compliance with European treaties, and to conduct a thorough study to ensure", "“the full independence of the judiciary, in particular ensuring that the National Judicial Authority, the Prosecutor ’ s Office and the courts in general are governed free from political influence, and that the mandate of independently-appointed judges cannot be arbitrarily shortened”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "88. The applicant complained that he had been denied access to a tribunal to defend his rights in relation to his premature dismissal as President of the Supreme Court. He contended that his dismissal was the result of legislation at constitutional level, thereby depriving him of any possibility of seeking judicial review, even by the Constitutional Court. He relied on Article 6 § 1 of the Convention, which reads in its relevant parts as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. The Chamber judgment", "89. In its judgment of 27 May 2014, the Chamber found that there had been a violation of Article 6 § 1 of the Convention. It noted that the criterion introduced in Vilho Eskelinen and Others v. Finland ( [GC], no. 63235/00, ECHR 2007 ‑ II) in respect of the applicability of Article 6 to disputes concerning civil servants was indistinguishable from the merits of the applicant ’ s complaint under this provision (access to a court). It therefore joined the issue of its competence ratione materiae to the merits (see paragraph 71 of the Chamber judgment). In applying the test introduced in the above-mentioned judgment (hereafter “the Vilho Eskelinen test”), the Chamber observed that under Hungarian law judges of the Supreme Court, including their president, were not expressly excluded from the right of access to a court. In fact, domestic law expressly provided for the right to a court in the event of dismissal of a court executive (see paragraph 74 of the Chamber judgment). Rather than by express exclusion, the applicant ’ s access to a court had been impeded by the fact that the impugned measure – the premature termination of his mandate as President of the Supreme Court – had been written into the new Constitution itself and had therefore not been subject to any form of judicial review, including by the Constitutional Court. In those circumstances, the nature of the impugned measure itself rendered the applicant ’ s access to a court impossible “in practice” (see paragraph 75 of the Chamber judgment). Therefore, it could not be concluded that the national law had “expressly excluded access to a court” for the applicant ’ s claim. The first condition of the Vilho Eskelinen test had not been met and Article 6 applied under its civil head (see paragraph 76 of the Chamber judgment).", "90. Furthermore, even assuming that the national legislative framework had specifically denied the applicant the right of access to a court, the Chamber considered that the applicant ’ s exclusion from that right had not been justified. The mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In the applicant ’ s case, the Government had not adduced any arguments to show that the subject matter of the dispute had been linked to the exercise of State power in such a way that the exclusion of the Article 6 guarantees had been objectively justified. In this regard, the Chamber considered it significant that, unlike the applicant, the former Vice-President of the Supreme Court had been able to challenge the premature termination of his mandate before the Constitutional Court (see paragraph 77 of the Chamber judgment).", "91. In the light of the above considerations, the Chamber found that it was competent ratione materiae and that there had been a violation of the applicant ’ s right of access to a tribunal competent to examine the premature termination of his mandate as President of the Supreme Court, as guaranteed by Article 6 § 1 of the Convention. The Chamber accordingly dismissed the Government ’ s preliminary objection (see paragraph 79 of the Chamber judgment).", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant", "92. The applicant contended that the case raises a genuine and serious dispute over a “right” within the meaning of Article 6 § 1. As a result of the impugned interference, he had been de facto dismissed from the post of President of the Supreme Court. The legislative measures terminating his mandate had interfered with his explicit and unconditional right enshrined in the domestic law and, in particular, the Constitution, to fulfil his mandate. Given that he had been transferred to a post with a lower grade and had been subject to a reduction in his remuneration, the facts of the case boiled down to an employment dispute.", "93. According to the applicant, in order to determine the “civil” nature of his right, the relevant test was the Vilho Eskelinen test, which applies irrespective of which of the rights contained in Article 6 § 1 is considered to have been violated (access to a court or other guarantees). He considered that none of the conditions of the test that would render Article 6 inapplicable to his dispute had been met. As regards the first condition, an implied bar was not enough; the national law must expressly exclude access to a court for a certain post or category of staff, and that exclusion must be of an abstract nature, that is, it must concern all office holders and not a specified person. The impugned legislative act terminating his mandate concerned him alone. Hungarian law, rather than excluding access to a court for the post or category of staff in question, expressly ensured that a court executive had the right of access to a court in the event of his or her dismissal. Furthermore, the impugned measure terminating his mandate was unforeseeable and of an abusive nature. As regards the second condition of the Vilho Eskelinen test, the applicant ’ s legal status, far from being incomparable with that of the other court executives, did not involve any special exercise of discretionary powers intrinsic to State sovereignty to an extent that would justify the exclusion of his access to a court in relation to his dismissal. Although he performed some special tasks within the judiciary (coordination, guidance and advocacy, aimed at the continuous development of the judiciary), from the perspective of the separation of powers he did not have a stronger “bond of trust and loyalty” with the State than his colleagues. He shared the very same judicial independence. At the hearing the applicant submitted that judges, unlike other public officials, enjoy specific guarantees owing to the independence required of the judiciary.", "94. Therefore, in the applicant ’ s view, Article 6 § 1 was applicable and had been breached, since he had been deprived of his right of access to a tribunal to examine the premature termination of his mandate as President of the Supreme Court.", "2. The Government", "95. The Government submitted a preliminary objection as to the applicability of Article 6 § 1 of the Convention. They maintained that the Vilho Eskelinen test was intended for cases which did not concern the right of access to a court but rather the applicability of the procedural guarantees provided for by Article 6 § 1. In any event, they were of the opinion that the two cumulative conditions of the test had been met, rendering Article 6 inapplicable. Firstly, contrary to the conclusions of the Chamber judgment (see paragraph 75 of the Chamber judgment), the nature of the impugned measure itself had rendered the applicant ’ s access to a court impossible not “in practice”, but “in law”. It would be unreasonable to expect the legislature to enact a provision expressly excluding access to a court in respect of measures that are obviously and undisputedly not subject to any form of judicial review. As regards the second condition, the applicant ’ s post involved by its very nature the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State (the Government referred to Harabin v. Slovakia (dec.), no. 62584/00, 9 July 2002, concerning the President of the Supreme Court of the Slovak Republic; and Apay v. Turkey (dec.), no. 3964/05, 11 December 2007, and Nazsiz v. Turkey (dec.), no. 22412/05, 26 May 2009, both concerning public prosecutors). If public prosecutors had been found by the Court to fall within the category of public servants exercising discretionary powers intrinsic to State sovereignty, it was surprising that the President of the Supreme Court of Hungary, whose privileges were regulated among those of the highest-ranking public officials, had not been found by the Chamber to fall into that category. In the light of the constitutional status of the President of the Supreme Court, it seemed to be quite arbitrary to conclude that the termination of his mandate was not linked to the exercise of State power to at least the same extent as termination of the employment of public prosecutors.", "96. At the hearing the Government added that the second condition of the Vilho Eskelinen test is essentially a re-wording of the Pellegrin test ( Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII), under which disputes raised by public servants whose duties typify the specific activities of the public service, in so far as the latter is acting as a depositary of public authority responsible for protecting the general interests of the State, fall outside the scope of Article 6 § 1 of the Convention. They further submitted that no individual right of judges to independence can be derived from Article 6.", "97. In conclusion, in the Government ’ s view, since Article 6 was not applicable in the present case, there had been no violation of the applicant ’ s right of access to a court in respect of his civil rights and obligations.", "C. Submissions of third-party interveners", "98. The International Commission of Jurists observed that the special and fundamental role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law, is recognised within the Convention, both explicitly and implicitly. This special role must accordingly be given significant weight in assessing any restrictions imposed by the other branches of the State on Convention rights applicable to judges. In order to preserve the special role of the judiciary, the Convention should be interpreted in a manner that limits the scope for the executive or legislative branch to justify the imposition of restrictions on Article 6 rights of judges in employment disputes on grounds of legitimate interest. The power exercised by a judge, although quintessentially of a public nature, is both structurally and inherently distinct from that of public servants of the executive or legislature. The International Commission of Jurists submitted that under the second condition of the Vilho Eskelinen test it would rarely, if ever, be objectively justifiable in the public interest for the executive or legislative branches to impose measures excluding the application of Article 6 § 1 to employment disputes involving judges, particularly in those cases that affected judicial independence, and, therefore, the separation of powers and the rule of law. This would include cases relating to security of tenure and removal of judges.", "99. The International Commission of Jurists referred to the international standards concerning the security of tenure of judges, including those relating to procedural guarantees in cases of removal (see paragraphs 72-79, 81 and 84 above). It submitted that in the light of these principles, in cases concerning the employment of judges and their security of tenure, there should be a particularly strong presumption that Article 6 § 1 of the Convention applied. Effective access to justice and fair procedures in resolving disputes on the tenure, removal or conditions of service of judges are important safeguards for judicial independence. When assessing any justification advanced by the State for excluding judges ’ access to a court in respect of their career and security of tenure, consideration should be given to the strong public interest of upholding the role, independence and integrity of the judiciary in a democratic society under the rule of law. Although the individual judge may be the immediate beneficiary of the full protection of his or her Article 6 rights, the protection ultimately benefits all persons entitled under Article 6 § 1 to an “independent and impartial tribunal”.", "D. The Court ’ s assessment", "1. Principles established by the Court ’ s case-law", "100. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“ contestation ” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012, and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015 ).", "101. Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X, and Boulois, cited above, § 91).", "102. As to the “civil” nature of the right, the Court had held, before the judgment in Vilho Eskelinen and Others, that employment disputes between the authorities and public servants whose duties typified the specific activities of the public service, in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State, were not “civil” and were therefore excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin, cited above, § 66). Following the functional criterion adopted in Pellegrin, employment disputes involving posts in the judiciary were excluded from the scope of Article 6 § 1 because, although the judiciary was not part of the ordinary civil service, it was nonetheless considered part of typical public service (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001; as regards the president of a Supreme Court, see Harabin (dec.), cited above).", "103. By further defining the scope of the “civil” concept in Vilho Eskelinen and Others, the Court developed new criteria for the applicability of Article 6 § 1 to employment disputes concerning civil servants. According to these criteria, in order for the respondent State to be able to rely before the Court on the applicant ’ s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State ’ s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, to use the words of the Court in Pellegrin, a “special bond of trust and loyalty” between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (see Vilho Eskelinen and Others, cited above, § 62).", "104. Whilst the Court stated in the Vilho Eskelinen and Others judgment that its reasoning in that case was limited to the situation of civil servants (§ 61, ibid.), the Grand Chamber notes that the criteria established in that judgment have been applied by different Chambers of the Court to disputes regarding judges (see G. v. Finland, no. 33173/05, 27 January 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013; Di Giovanni v. Italy, no. 51160/06, 9 July 2013; and Tsanova-Gecheva v. Bulgaria, no. 43800/12, 15 September 2015), including presidents of Supreme Courts (see Olujić v. Croatia, no. 22330/05, 5 February 2009, and Harabin v. Slovakia, no. 58688/11, 20 November 2012 ). The Grand Chamber sees no reason to depart from this approach. Although the judiciary is not part of the ordinary civil service, it is considered part of typical public service (see Pitkevich, cited above).", "105. The Court also notes that the criteria set out in the Vilho Eskelinen and Others judgment have been applied to all types of disputes concerning civil servants and judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011 ), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012), transfer (see Ohneberg v. Austria, no. 10781/08, § 25, 18 September 2012) and termination of service (see Olujić, cited above, as regards the disciplinary dismissal of the President of the Supreme Court, and Nazsiz, cited above, concerning the disciplinary dismissal of a public prosecutor ). In G. v. Finland (cited above, §§ 31-34), where the Government had maintained that a judge ’ s right to remain in office was special and could not be equated with “ordinary labour disputes” within the meaning of the Vilho Eskelinen and Others judgment, the Court implicitly rejected that argument and applied the principles laid down in Vilho Eskelinen and Others. More explicitly, in Bayer v. Germany, no. 8453/04, § 38, 16 July 2009, concerning the removal from office of a publicly employed bailiff following disciplinary proceedings, the Court held that disputes relating to “salaries, allowances or similar entitlements” were no more than non-exhaustive examples of the “ordinary labour disputes” to which Article 6 should in principle apply under the Vilho Eskelinen test. In Olujić (cited above, § 34), the Court stated that the Vilho Eskelinen and Others judgment, which intended that a presumption of applicability of Article 6 should exist, also encompassed cases of dismissal.", "106. The Court would further emphasise that, contrary to what the Government suggested, the Vilho Eskelinen test concerning the applicability of Article 6 § 1 is pertinent to cases concerning the right of access to a court (see, for instance, Nedelcho Popov v. Bulgaria, no. 61360/00, 22 November 2007, and Suküt v. Turkey (dec.), no. 59773/00, 11 September 2007), just as much as it is for cases concerning the other guarantees embodied in this provision (as, for example, in Vilho Eskelinen and Others, cited above, which concerned the right to an oral hearing and the right to a decision within a reasonable time). The Grand Chamber, when deciding on the applicability of Article 6 § 1 in the light of the said test, sees no reason to make a distinction between the various guarantees.", "2. Application of the above principles to the present case", "(a) Applicability of Article 6 of the Convention", "(i) Existence of a right", "107. The Court notes that on 22 June 2009 the applicant was elected President of the Supreme Court for a period of six years by Parliamentary decision no. 55/2009, pursuant to Article 48 § 1 of the 1949 Constitution. The rules governing the tenure of the President of the Supreme Court were contained not in the 1949 Constitution but, during its term of validity until 31 December 2011, in Law no. LXVI of 1997 – the Organisation and Administration of the Courts Act (see paragraphs 40-43 above). Section 62 of that Act listed the president of a court among the so-called “court executives”, that is, judges responsible for the management and administration of courts. Since the applicant was elected President of the Supreme Court under Article 48 § 1 of the 1949 Constitution, he became a “court executive”. Under section 69 of the 1997 Organisation and Administration of the Courts Act, court executives were appointed for six years, with the undisputed consequence that the applicant ’ s term of office as President of the Supreme Court should in principle have been six years (from 22 June 2009 until 22 June 2015). Section 73 of the Act contained an exhaustive list of reasons for terminating the mandates of court executives (mutual agreement, resignation, dismissal, expiry of the period of the term of office and termination of the person ’ s judicial office). As this provision indicates, unless a term of office was terminated on the ground of its expiry or that the person ’ s judicial mandate had come to an end (sub-sections (d) and (e)), the only permissible grounds were mutual agreement, resignation or dismissal (sub-sections (a) to (c)). Furthermore, as regards the latter, pursuant to section 74/A(1), the only possible ground for dismissal was demonstrable incompetence in performing the managerial position, in which event the incumbent was entitled to seek judicial review of the dismissal before the Service Tribunal (see paragraph 43 above). It thus transpires from the terms of the said provisions that there existed a right for an office holder to serve a term of office until such time as it expired, or until his or her judicial mandate came to an end. This is further shown by the fact that, should the office be terminated at an earlier stage against that person ’ s consent, namely by way of dismissal, he or she would have standing to apply for judicial review of that decision (see, mutatis mutandis, Zander v. Sweden, 25 November 1993, § 24, Series A no. 279 ‑ B).", "108. Moreover, the protection of the applicant ’ s entitlement to serve his full term as President of the Supreme Court was supported by constitutional principles regarding the independence of the judiciary and the irremovability of judges. Article 48 § 3 of the 1949 Constitution established that judges could only be removed from office on the grounds and in accordance with the procedures specified by law. Article 50 § 3 of the Constitution guaranteed the independence of judges (see paragraph 38 above).", "109. Accordingly, in the light of the domestic legislative framework in force at the time of his election and during his mandate, the Court considers that the applicant could arguably claim to have had an entitlement under Hungarian law to protection against removal from his office as President of the Supreme Court during that period. In this connection, it attaches some weight to the fact that the Constitutional Court did not dismiss the former Vice-President of the Supreme Court ’ s constitutional complaint against the premature termination of his position as lacking a legal basis (see paragraph 55 above). Before rejecting the complaint, the Constitutional Court examined it on the merits and in so doing it determined the dispute over the former Vice-President ’ s equivalent right to serve his full term.", "110. Lastly, the Court considers that the fact that the applicant ’ s mandate was terminated ex lege by operation of the new legislation which came into force on 1 January 2012 (section 185 of Law no. CLXI of 2011 on the organisation and administration of the courts and section 11 of the Transitional Provisions of the Fundamental Law) under the new Fundamental Law, could not remove, retrospectively, the arguability of his right under the applicable rules in force at the time of his election. As noted above, these rules clearly established a presidential term of six years and the specific grounds on which it could be terminated. Since it was this new legislation which set aside the former rules, it constituted the object of that very “dispute” in regard to which the Article 6 § 1 fair-trial guarantees were arguably to apply. In the circumstances of the present case, the question of whether a right existed under domestic law cannot therefore be answered on the basis of the new legislation.", "111. In the light of the foregoing, the Court considers that in the present case there was a genuine and serious dispute over a “right” which the applicant could claim on arguable grounds under domestic law (see, mutatis mutandis, Vilho Eskelinen and Others, cited above, § 41, and Savino and Others v. Italy, nos. 17214/05 and 2 others, §§ 68-69, 28 April 2009).", "(ii) “Civil” nature of the right: the Vilho Eskelinen test", "112. The Court must now determine whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1, in the light of the criteria developed in the Vilho Eskelinen and Others judgment.", "113. As regards the first condition of the Vilho Eskelinen test, that is, whether national law “expressly excluded” access to a court for the post or category of staff in question, the Court notes that in the few cases in which it has found that that condition had been fulfilled, the exclusion from access to a court for the post in question was clear and “express”. For instance, in Suküt, cited above, concerning the early retirement of an army officer on disciplinary grounds, Turkish constitutional law clearly specified that the decisions of the Supreme Military Council were not subject to judicial review. The same was true for the decisions of the Supreme Council of Judges and Public Prosecutors (see Apay, and Nazsiz, both cited above, concerning respectively the appointment and the disciplinary dismissal of public prosecutors; see also Özpınar v. Turkey, no. 20999/04, § 30, 19 October 2010, concerning the removal from office of a judge on disciplinary grounds ). In Nedeltcho Popov, cited above, a provision of the Bulgarian Labour Code clearly provided that the domestic courts did not have jurisdiction to review disputes regarding dismissals from certain posts in the Council of Ministers, including the post held by the applicant (chief adviser). Although that restriction was later declared unconstitutional (with no retroactive effect), the Court noted that “at the time of the applicant ’ s dismissal” he did not have a right of access to a court under national law to bring an action for unfair dismissal (ibid., § 38).", "114. The Court considers that the present case should be distinguished from the above-mentioned cases in that the applicant, as the holder of the office in question in the period before the dispute arose, was not “expressly” excluded from the right of access to a court. On the contrary, domestic law expressly provided for the right to a court in those limited circumstances in which the dismissal of a court executive was permissible: the dismissed court executive was indeed entitled to contest his or her dismissal before the Service Tribunal (see paragraph 43 above). In this respect, judicial protection was available under domestic law for cases of dismissal, in line with the international and Council of Europe standards on the independence of the judiciary and the procedural safeguards applicable in cases of removal of judges (see, in particular, point 20 of the UN Basic Principles on the Independence of the Judiciary in paragraph 72 above; General Comment No. 32 of the UN Human Rights Committee in paragraph 73 above; the relevant case-law of the Human Rights Committee in paragraphs 74-76 above; paragraphs 1.3, 5.1 and 7.2 of the European Charter on the Statute for Judges in paragraph 77 above; paragraphs 59-60 of Opinion no. 1 (2001) of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges in paragraph 79 above; paragraph 6 of the Magna Carta of Judges of the CCJE in paragraph 81 above; and the case-law of the Inter-American Court of Human Rights in paragraph 84 above).", "115. Nonetheless, the applicant ’ s access to a court was impeded by the fact that the impugned measure, namely the premature termination of his mandate as President of the Supreme Court, was included in the transitional provisions of the Organisation and Administration of the Courts Act, which came into force on 1 January 2012. This precluded him from contesting that measure before the Service Tribunal, which he would have been able to do in the event of a dismissal on the basis of the existing legal framework (see paragraph 43 above). Moreover, and unlike the Vice-President of the Supreme Court, whose mandate was also terminated at the statutory level by the transitional provisions of the Organisation and Administration of the Courts Act, the termination of the applicant ’ s mandate was provided for in the Transitional Provisions of the Fundamental Law, which also came into force on 1 January 2012 (see paragraph 49 above). In those particular circumstances, the applicant, unlike the former Vice-President of the Supreme Court (see paragraph 55 above), did not file a constitutional complaint with the Constitutional Court against the statutory provision terminating his term of office.", "116. In the light of the above considerations the Court is of the view that, in the specific circumstances of the present case, it must determine whether access to a court had been excluded under domestic law before, rather than at the time when, the impugned measure concerning the applicant was adopted. To hold otherwise would mean that the impugned measure itself, which constituted the alleged interference with the applicant ’ s “right”, could at the same time be the legal basis for the exclusion of the applicant ’ s claim from access to a court. This would open the way to abuse, allowing Contracting States to bar access to a court in respect of individual measures concerning their public servants, by simply including those measures in an ad hoc statutory provision not subject to judicial review.", "117. Indeed, the Court would emphasise that, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is expressly mentioned in the Preamble to the Convention and is inherent in all the Articles of the Convention, requires, inter alia, that any interference must in principle be based on an instrument of general application (see, mutatis mutandis, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 99, 25 October 2012; see also, mutatis mutandis, concerning legislative interferences and the rule of law, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §§ 47-50, Series A no. 301 ‑ B). The Venice Commission has also held in relation to the applicant ’ s case that laws which are directed against a specific person are contrary to the rule of law (see paragraph 59 above).", "118. In the light of the foregoing, it cannot be concluded that national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the termination of the applicant ’ s mandate. The first condition of the Vilho Eskelinen test has not therefore been met and Article 6 applies under its civil head. Given that the two conditions for excluding the application of Article 6 must be fulfilled, the Court considers that it is not necessary to examine whether the second condition of the Vilho Eskelinen test would have been met (see, for instance, Karaduman and Tandoğan v. Turkey, nos. 41296/04 and 41298/04, § 9, 3 June 2008).", "119. It follows that the Government ’ s preliminary objection as to the applicability of Article 6 § 1 of the Convention must be dismissed.", "(b) Compliance with Article 6 § 1 of the Convention", "120. The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention, which lays down the guarantees as regards both the organisation and composition of the court, and the conduct of the proceedings. The whole makes up the right to a fair trial secured by Article 6 § 1 (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). However, the right of access to the courts is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006 ‑ XIV, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012 ).", "121. In the present case, the premature termination of the applicant ’ s mandate as President of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers. This lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law is doubtful (see paragraph 117 above). Although its above findings with regard to the issue of applicability do not prejudge its consideration of the question of compliance (see Vilho Eskelinen and Others, § 64, and Tsanova-Gecheva, § 87, both cited above), the Court cannot but note the growing importance which international and Council of Europe instruments, as well as the case-law of international courts and the practice of other international bodies, are attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge (see paragraphs 72-77, 79, 81 and 84 above). Bearing this in mind, the Court considers that the respondent State impaired the very essence of the applicant ’ s right of access to a court.", "122. There has accordingly been a violation of the applicant ’ s right of access to a court, as guaranteed by Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "123. The applicant complained that his mandate as President of the Supreme Court had been terminated as a result of the views he had expressed publicly in his capacity as President of the Supreme Court and the National Council of Justice, concerning legislative reforms affecting the judiciary. He alleged that there had been a breach of Article 10 of the Convention, which provides in its relevant parts as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "124. In its judgment the Chamber considered that the facts of the case and the sequence of events showed that the early termination of the applicant ’ s mandate as President of the Supreme Court was not the result of restructuring of the supreme judicial authority, as the Government had contended, but a consequence of the views and criticisms he had publicly expressed in his professional capacity. The proposals to terminate his mandate and the new eligibility criterion for the post of President of the Kúria had all been submitted to Parliament after the applicant had publicly expressed his views on a number of legislative reforms, and had been adopted within an extremely short time (see paragraph 94 of the Chamber judgment). The fact that the functions of the President of the National Council of Justice had been separated from those of the President of the new Kúria was not in itself sufficient to conclude that the functions to which the applicant had been elected had ceased to exist after the entry into force of the Fundamental Law. The early termination of his mandate thus constituted an interference with the exercise of his right to freedom of expression (see paragraph 97 of the judgment).", "125. The Chamber considered that the interference had not been “necessary in a democratic society” (see paragraph 98 of the judgment). The applicant ’ s impugned opinion concerned four legislative reforms affecting the judiciary. Issues concerning the functioning of the justice system constituted questions of public interest, the debate of which enjoyed the protection of Article 10 of the Convention. It had been not only the applicant ’ s right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary. As regards the proportionality of the interference, the applicant ’ s term of office as President of the Supreme Court had been terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. The Chamber reiterated that the fear of sanction had a “chilling effect” on the exercise of freedom of expression and, in particular, risked discouraging judges from making critical remarks about public institutions or policies (see paragraph 101 of the judgment). In addition, the impugned measure had not been subject to effective judicial review by the domestic courts. The Chamber therefore found that the interference with the applicant ’ s right to freedom of expression had not been necessary in a democratic society (see paragraph 103 of the judgment).", "B. The parties ’ submissions", "1. The applicant", "126. The applicant requested that the Grand Chamber confirm the Chamber judgment as far as Article 10 was concerned. There was a unanimous perception at both national and international level that a causal link existed between the expression of his opinion on the legislative reforms in question and the legislative measures entailing his premature removal. The chain of events and the very significant amount of evidence furnished by him all supported that causal link. The interviews given by the two members of the parliamentary majority and the Government ’ s assurances to the Venice Commission all pre-dated the applicant ’ s speech in Parliament on 3 November 2011, after which the proposals to terminate his mandate and to abolish his post-term allowances had been submitted. The alleged link between the changes affecting the Supreme Court on the one hand, and the termination of his mandate on the other, had merely been created subsequently by the Government as a pretext. The applicant noted in this regard that none of the proposals for the termination of his mandate were supported by an explanatory memorandum justifying the measure in question by the fundamental changes in the functions and tasks of the supreme judicial authority. They referred only to the entry into force of the new Fundamental Law, which could hardly be seen as a sufficient and acceptable reason in the circumstances of the case. In any event, both the functions of the new Kúria and the role of its president remained essentially the same. The fact that the managerial tasks attached to the position of the President of the National Council of Justice, which was accessorial to that of the President of the Supreme Court, had been taken away, affected in no way whatsoever the validity of his election to the presidency of the supreme judicial body.", "127. The Kúria ’ s new tasks (such as reviewing the legality of local government regulations) had not significantly modified the institution ’ s nature or the role of its head. Such a change could not justify in itself the termination of the fixed-term mandate of any court president. But even if the function of the Supreme Court had changed, transitional measures should have provided him with the possibility of serving his term of office in full (he referred, on this point, to the judgment of the CJEU of 8 April 2014 in Commission v. Hungary on the premature removal of the former Hungarian data-protection supervisor, see paragraph 70 above, which should apply a fortiori to a Supreme Court president). He pointed out that in a democratic society governed by the rule of law no reconsideration, either by the legislature or by the executive, of the suitability of any elected judicial official could be allowed before the expiry of the term of office (without prejudice to the legally provided grounds for dismissal or revocation). Furthermore, the only purpose of introducing the new eligibility criterion (five years of judicial service) had been to provide justification for his removal, albeit retroactively. To support his version of the events, the applicant referred to several statements in the Hungarian and international press, as well as to reports by international institutions (notably the Venice Commission).", "128. The applicant invited the Grand Chamber to confirm the Chamber ’ s approach and assess the facts and the sequence of events “in their entirety”. He referred to the Court ’ s case-law regarding the assessment of evidence, according to which proof may follow from the co-existence of sufficiently strong, clear and concordant inferences. In view of the prima facie evidence provided by the applicant and the fact that the reasons behind his removal lay within the exclusive knowledge of the Government, the burden of proof should shift onto the Government. The applicant was convinced that he had not only demonstrated that the Government ’ s ex post explanation was neither satisfactory nor convincing, but also proved beyond reasonable doubt the existence of a serious interference with his freedom of expression by an abundant number of sufficiently strong, clear and concordant inferences.", "129. The applicant further argued that such an interference was not “prescribed by law”, since the impugned legislative provisions were arbitrary, abusive, retrospective and incompatible with the principle of the rule of law. It was also difficult to conceive that there could be any “legitimate aim” at all pursued in imposing a punitive restriction on the proper fulfilment of legal duties incumbent on a State official such as the applicant, whose duty as head of the judiciary was to provide an opinion on the legislative reforms in question.", "130. Finally, the applicant considered that the interference was not “necessary in a democratic society”. The expression of his views had had the purpose of protecting the very basics of the rule of law, the independence and the proper functioning of the judiciary, which were questions of public interest. State measures that operated against such an activity could never be regarded as necessary in a democratic society. In response to his criticisms, not only had he been removed from his function but all of the benefits and allowances due to an outgoing president had also been discontinued, without any judicial review. He contended that the impugned interference had not only violated his freedom of expression but, in a broader perspective – through the violation of the security of tenure and the chilling effect that these events exerted on other judges –, had also compromised the independence of the judiciary.", "2. The Government", "131. The Government were of the opinion that this part of the application was manifestly ill-founded. There had been no interference with the applicant ’ s freedom of expression, since the termination of his mandate as President of the Supreme Court had no relation to the opinions expressed by him. The fact that the public expression of his opinions pre-dated the termination of his mandate was not sufficient to prove that there was a causal relationship between them. The applicant ’ s mandate had been terminated because of the fundamental changes in the functions of the supreme judicial authority in Hungary. The function to which he had been elected (comprising a mixture of administrative and judicial functions) had ceased to exist upon the entry into force of the new Fundamental Law of Hungary. His activities had been mostly connected with the functions of the President of the National Council of Justice, which had been separated from the functions of the President of the Kúria. In addition, the functions and competences of the Kúria itself had also been changed and broadened (it had been given a new power to supervise the legality of local-government regulations, and new tasks in securing the consistency of the case-law). Relying on the Constitutional Court ’ s judgment of 19 March 2013 concerning the termination of the mandate of the former Vice-President of the Supreme Court (see paragraph 55 above), the Government noted that the major changes in the functions of the President of the Kúria as compared to the President of the Supreme Court justified the reconsideration of the applicant ’ s suitability for the post of administrative head of the Kúria, having regard to his professional expertise and previous professional career.", "132. Furthermore, the Government contended that the new criterion for the election of the President of the Kúria (five years of judicial service in Hungary) had been introduced in order to guarantee the influence of the judiciary in the selection of candidates for that post, with the aim of de- politicising the selection process and enhancing the independence of the judiciary. At the hearing they submitted that judicial service at an international court could not be equated with national judicial service from the point of view of the independence of the judiciary.", "133. As regards the sequence of events (see paragraph 96 of the Chamber judgment), the Government pointed out that the interviews referred to were given after the applicant had publicly expressed his views on the legislative reforms concerned. At the same time, these interviews were given prior to the submission to Parliament of the final version of the bill on the organisational changes of the judicial system, in which the new functions of the Kúria were regulated in detail.", "134. As to the lack of judicial review, the Government submitted that the inclusion of a requirement of a judicial remedy in Article 10 cases would be contrary to the wording of Article 6 § 1 and the Court ’ s case-law on disputes regarding public officials. In accordance with the principle of subsidiarity and the doctrine of the margin of appreciation, the Government were of the opinion that it was for the national legislature to decide what eligibility criteria they found appropriate for the highest ranking judicial post in Hungary and no provision of the Convention could be interpreted to require that that decision be subjected to judicial review.", "135. Should the Court find that there had been an interference with the applicant ’ s right to freedom of expression, the Government considered that the measure complained of was necessary in a democratic society for maintaining the authority and impartiality of the judiciary within the meaning of Article 10 § 2. Having regard to the circumstances of his election and the fact that his functions were more administrative/managerial than judicial in nature, the applicant ’ s removal from his position should be assessed in the light of the rules governing the removal of political appointees rather than those governing the removal of judges. When it came to the selection of the most suitable candidate for a position of head of a given organisation with redefined functions, the views of the candidate concerning the newly reformed organisation were legitimately taken into account by any employer. Moreover, the measure was proportionate and could have had no chilling effect, since the applicant had been allowed to remain as a judge in the new Kúria.", "C. Submissions of third-party interveners", "136. The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute observed before the Chamber that the present case was an outstanding example of how violations of individual fundamental rights were intertwined with processes threatening the rule of law. In their view, this case was part of a general pattern of weakening of the system of checks and balances that had taken place in the past years in Hungary. They referred to other legislative steps aimed at the early removal of individual State officials, notably the Supreme Court ’ s Vice-President, whose constitutional complaint had been examined by the Constitutional Court. These third parties also referred to other examples of legislation targeting individuals, retrospective legislation and other legislative measures threatening the independence of the judiciary. They maintained that this case should be examined in the general context of events in Hungary and in the light of the importance of the rule of law and the independence of the judiciary. The widespread use of legislation targeting individuals could remove a wide range of significant issues from judicial scrutiny. The Court should therefore delve “behind the appearances” and examine the real purpose of such legislation and the effect that it might have on individuals ’ Convention rights.", "137. The Helsinki Foundation for Human Rights, based in Poland, submitted before the Grand Chamber that presidents of courts were also covered by the guarantees of judicial independence and occupational stability. A conclusion to the contrary would give political authorities the power to exert pressure on the judiciary through arbitrary removals of court presidents which would be unacceptable in democratic States. In their opinion, any case of removal of a president of one of the highest domestic courts, in circumstances which could raise justified concerns as to the actual reasons for removal, should be reviewed by the Court with utmost scrutiny and would require a particularly compelling justification for its lawfulness. The third party referred to the international and comparative-law standards on judicial independence and irremovability of judges, including presidents of courts. In this respect, for instance, the Constitutional Court of the Czech Republic had in a judgment of 11 July 2006 interpreted the principle of judicial irremovability as protecting against arbitrary removal from high judicial office and held that the Constitution required that court presidents and deputy court presidents could be removed only “on the grounds foreseen in the law and on the basis of a decision of a court”. The Constitutional Court had reiterated this principle in a judgment of 6 October 2010, in which it had stated that “[i]t is not possible to construct a duality in the legal position of the chairman of a court as an official of State administration, on one hand, and judge, on the other hand. This is still one and the same person, in whom the actions of both offices are joined”.", "138. In the view of the Helsinki Foundation for Human Rights, while States had the power to undertake far-reaching constitutional reforms, this power had to be limited by the requirements of the principles of the rule of law. To avoid violations of the principle of judicial independence, thorough constitutional reforms of justice systems should be accompanied by proper transitional rules protecting judges who already held their offices. Lastly, they noted that the possibility for the executive or the legislature to remove judges might not only violate the subjective rights of the judge removed, but also threaten the effectiveness of the guarantees contained in Article 6 of the Convention.", "139. The International Commission of Jurists took the view that the Convention should be interpreted to preclude restrictions on freedom of expression applicable to judges that would impair the right and the duty of the judiciary to speak out in protection of judicial independence. It referred in this connection to international standards that recognise that each judge is “responsible for promoting and protecting judicial independence” (see paragraph 81 above). The possible scope for limitations to the right to freedom of expression of civil servants, as established in Vogt v. Germany ( 26 September 1995, Series A no. 323), should, when applied to judges, be interpreted in the light of the specific role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law. Provided that the dignity of judicial office was upheld and the essence and appearance of independence and impartiality of the judiciary not undermined, the State should therefore respect and protect the right and duty of judges to express their opinions, particularly in matters concerning the administration of justice and respect for and protection of judicial independence and of the rule of law.", "D. The Court ’ s assessment", "1. Existence of an interference", "(a) The application of Article 10 of the Convention to measures against members of the judiciary", "140. The Court has recognised in its case-law the applicability of Article 10 to civil servants in general (see Vogt, cited above, § 53, and Guja v. Moldova [GC], no. 14277/04, § 52, ECHR 2008), and members of the judiciary (see Wille v. Liechtenstein [GC], no. 28396/95, §§ 41-42, ECHR 1999 ‑ VII, and Harabin v. Slovakia (dec.), no. 62584/00, ECHR 2004 ‑ VI (“ Harabin (dec.) 2004”), concerning the former President of the Supreme Court of the Slovak Republic). However, in cases concerning disciplinary proceedings against judges or their removal or appointment, the Court has had to ascertain first whether the measure complained of amounted to an interference with the exercise of the applicant ’ s freedom of expression – in the form of a “formality, condition, restriction or penalty” – or whether the impugned measure merely affected the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation. For a recapitulation of the relevant case-law, see Wille, cited above, §§ 42-43; Harabin (dec.) 2004, cited above; Kayasu v. Turkey, nos. 64119/00 and 76292/01, §§ 77-79, 13 November 2008; Kudeshkina v. Russia, no. 29492/05, § 79, 26 February 2009; Poyraz v. Turkey, no. 15966/06, §§ 55-57, 7 December 2010; and the judgment in Harabin, cited above, § 149.", "141. In Wille, cited above, the Court found that a letter sent to the applicant (the President of the Liechtenstein Administrative Court) by the Prince of Liechtenstein announcing the latter ’ s intention not to reappoint the applicant to a public post constituted a “reprimand for the previous exercise by the applicant of his right to freedom of expression” (ibid., § 50). The Court observed that, in that letter, the Prince had criticised the content of the applicant ’ s public lecture on the powers of the Constitutional Court and announced the intention to sanction him because of his opinion on certain questions of constitutional law. The Court therefore concluded that Article 10 was applicable and that there had been an interference with the applicant ’ s right to freedom of expression. Similarly, in Kudeshkina (cited above), the Court observed that the decision to bar the applicant from holding judicial office had been prompted by her statements to the media. Neither the applicant ’ s eligibility for public service nor her professional ability to exercise judicial functions formed part of the arguments before the domestic authorities. Accordingly, the measure complained of essentially related to freedom of expression, and not to the holding of a public post in the administration of justice, the right to which is not secured by the Convention (see Kudeshkina, §§ 79-80; see also, as regards the disciplinary dismissal of a public prosecutor, Kayasu, cited above, §§ 77 ‑ 81).", "142. On the contrary, in other cases the Court found that the measure complained of lay, as such, within the sphere of holding a public post within the administration of justice, and was unrelated to the exercise of freedom of expression. In Harabin (dec.) 2004, cited above, the Court considered that the Government ’ s proposal to dismiss the applicant as President of the Supreme Court (based on a report by the Minister of Justice) essentially related to the applicant ’ s ability to exercise his functions, that is, to the appraisal of his professional qualifications and personal qualities in the context of his activities and attitudes relating to State administration of the Supreme Court. The report submitted by the Minister of Justice referred, among other things, to the applicant ’ s failure to initiate the dismissal of a Supreme Court judge who had attacked an official of the Ministry of Justice and to his alleged failure to apply professional criteria when proposing candidates to fill the posts at the Supreme Court. Although it also referred to the views expressed by the applicant on a draft amendment to the Constitution (raising concerns about the separation of powers and the independence of the judiciary), the documents before the Court did not indicate that the proposal to remove the applicant was “exclusively or preponderantly prompted by those views”. Similarly, in the Harabin judgment (cited above), it was the applicant ’ s professional behaviour in the context of the administration of justice which represented the essential aspect of the case. The disciplinary proceedings against him (after refusing to allow an audit by Ministry of Finance staff that he considered should have been conducted by the Supreme Audit Office) related to the discharge of his duties as President of the Supreme Court, and therefore lay within the sphere of his employment in the civil service. Furthermore, the disciplinary offence of which he had been found guilty did not involve any statements or views expressed by him in the context of a public debate. The Court accordingly concluded that the disputed measure did not constitute an interference with Article 10 rights and declared the relevant complaint inadmissible as being manifestly ill-founded (ibid., §§ 150-53).", "(b) Whether there had been an interference in the present case", "143. As stated above, the Court must first ascertain whether the measure complained of amounted to an interference with the applicant ’ s exercise of freedom of expression. In order to answer that question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Wille, cited above, § 43). Having regard to the facts of the present case and the nature of the allegations made, the Court considers that this issue should be examined in the light of the general principles emerging from its case-law on the assessment of evidence. It reiterates in this connection that in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. The Court ’ s role is not to rule on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII). The Court adopts those conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts in their entirety and from the parties ’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid.). It has been the Court ’ s practice to allow flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. In certain instances, only the Government have access to information capable of corroborating or refuting the applicant ’ s allegations; consequently, a rigorous application of the principle affirmanti, non neganti, incumbit probatio is impossible (see Fadeyeva v. Russia, no. 55723/00, § 79, ECHR 2005 ‑ IV). Although these principles have mainly been applied in the context of Articles 2 and 3 of the Convention (see Aktaş v. Turkey, no. 24351/94, § 79, 24 April 2003, and El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151 ‑ 52, ECHR 2012 ), the Court observes that there are examples in which they have been applied in respect of other Convention rights (Article 5 in Creangă v. Romania [GC], no. 29226/03, §§ 88-90, 23 February 2012; Article 8 in Fadeyeva, cited above; Article 11 in Makhmudov v. Russia, no. 35082/04, §§ 68-73, 26 July 2007; and Article 14 in D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 177-79, ECHR 2007 ‑ IV ).", "144. These principles are particularly relevant in the present case, where no domestic court ever examined the applicant ’ s allegations and the reasons for the termination of his mandate as President of the Supreme Court. It is against this background that the Grand Chamber agrees with the Chamber ’ s approach according to which the facts of the case and the sequence of events have to be assessed and considered “in their entirety” (compare with Ivanova v. Bulgaria, no. 52435/99, §§ 83-84, 12 April 2007).", "145. The Court deems it necessary to note the sequence of events in the present case. It notes at the outset that the applicant, in his professional capacity as President of the Supreme Court and the National Council of Justice, publicly expressed his views on various legislative reforms affecting the judiciary. On 12 February 2011 the applicant ’ s spokesperson explained to a newspaper the concerns felt by the applicant in relation to the Nullification Bill ordering the annulment of final convictions (see paragraph 16 above). On 24 March 2011 he delivered a speech in Parliament on certain aspects of the draft version of the new Fundamental Law of Hungary (see paragraph 18 above). On 7 April 2011 the applicant, together with other court presidents, addressed a letter to the President of the Republic and the Prime Minister in which they criticised the proposal in the draft version of the Fundamental Law of Hungary to reduce the mandatory retirement age of judges (see paragraph 19 above). On 11 April 2011 the applicant addressed a letter to the Prime Minister in which he again criticised the proposal on the retirement age of judges, stressing that the proposal was humiliating and that it infringed the principles of the independence and irremovability of judges (see paragraph 20 above). On 14 April 2011 the applicant in his capacity as President of the National Council of Justice, together with the plenary of the Supreme Court and other court presidents, issued a public communiqué criticising again the new retirement age of judges, as well as the proposal to modify the National Council of Justice (see paragraph 21 above). In their communiqué, they expressed the view that the new retirement age had been regulated in the Fundamental Law to avoid any possibility of judicial review by the Constitutional Court, and suggested that there had been political motivation behind that approach. On 4 August 2011 the applicant challenged certain new legislation on judicial proceedings before the Constitutional Court (see paragraph 22 above). On 3 November 2011 the applicant delivered another speech before Parliament, in which he raised his concerns about the proposal to replace the National Council of Justice by an external administration (the National Judicial Office) entrusted with the management of the courts (see paragraph 23 above). In his speech, the applicant strongly criticised the proposal, and stated that the new body would have “excessive”, “unconstitutional” and “uncontrollable” powers. The applicant again criticised the new retirement age of judges, stating that it would have a severe effect on the Supreme Court.", "146. The Court further notes that two members of the parliamentary majority, one of whom was State Secretary of Justice, gave interviews on 14 April and 19 October 2011, declaring that the President of the Supreme Court would remain as President of the new Kúria and that only the name of the institution would change (see paragraph 25 above). On 6 July 2011 the Government had assured the Venice Commission that the drafting of the transitional provisions of the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime (see paragraph 26 above). The Court does not accept the Government ’ s argument that the fact that those two interviews were given after the applicant had expressed some of his criticisms proves that the contested measure was not ultimately a consequence of those criticisms. All of the proposals to terminate his mandate as President of the Supreme Court were made public and submitted to Parliament between 19 and 23 November 2011, shortly after his parliamentary speech of 3 November 2011, and were adopted within a strikingly short time. The termination of the applicant ’ s mandate came into effect on 1 January 2012, when the Fundamental Law came into force and the new Kúria became the legal successor to the Supreme Court.", "147. Moreover, the Court observes that on 9 November 2011 the Organisation and Administration of the Courts Bill was amended and a new criterion was introduced as regards eligibility for the post of President of the Kúria (see paragraphs 35 and 50 above). The candidates for that post had to be judges appointed for an indeterminate term, having served at least five years as a judge in Hungary. The time served as a judge in an international court was not covered, which resulted in the applicant ’ s ineligibility for the post of President of the new Kúria.", "148. In the Court ’ s view, having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, there is prima facie evidence of a causal link between the applicant ’ s exercise of his freedom of expression and the termination of his mandate. This is corroborated by the numerous documents submitted by the applicant which refer to the widespread perception that such a causal link existed. These include not only articles published in both the Hungarian and foreign press, but also texts adopted by Council of Europe institutions (see the position of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe in paragraph 62, and the position of the Venice Commission in paragraph 59 above).", "149. The Court is of the view that once there is prima facie evidence in favour of the applicant ’ s version of the events and the existence of a causal link, the burden of proof should shift to the Government. This is particularly important in the case at hand, since the reasons behind the termination of the applicant ’ s mandate lie within the knowledge of the Government and were never established or reviewed by an independent court or body, in contrast to the case of the former Vice-President of the Supreme Court. The Court notes that the explanations given at the relevant time in the bills introducing the amendments on the termination of the applicant ’ s mandate were not very detailed. The bills referred in general terms to the new Fundamental Law of Hungary, the succession of the Supreme Court and the modifications to the court system resulting from that Law, without explaining the changes that prompted the premature termination of the applicant ’ s mandate as President. This cannot be considered sufficient in the circumstances of the present case, in view of the fact that the previous bills submitted during the legislative process had not mentioned the termination of the applicant ’ s mandate (see paragraph 30 above, versions of 21 October and 17 November 2011), and that previous declarations by the Government and members of the parliamentary majority had indicated precisely the opposite, namely that the applicant ’ s mandate would not be terminated upon the entry into force of the Fundamental Law (see paragraphs 25-26 above). Furthermore, neither the applicant ’ s ability to exercise his functions as president of the supreme judicial body nor his professional conduct were called into question by the domestic authorities (see, conversely, Harabin (dec.) 2004, cited above, and the judgment in Harabin, cited above, § 151).", "150. As to the reasons put forward by the Government to justify the impugned measure before the Court, it is not apparent that the changes made to the functions of the supreme judicial authority or the tasks of its president were of such a fundamental nature that they could or should have prompted the premature termination of the applicant ’ s mandate. The Government pointed out that the function to which the applicant had been elected had ceased to exist, since his activities were mostly connected with the managerial functions of the President of the National Council of Justice, which – following the entry into force of the Fundamental Law – were separated from the functions of the President of the Kúria. In this respect, the Court would emphasise that the position of the President of the National Council of Justice seemed to be auxiliary to that of the President of the Supreme Court and not the other way round. Furthermore, if the applicant was deemed competent to exercise both functions at the time of his election, the fact that one of them was subsequently removed should not in principle affect his suitability to continue exercising the other function. With regard to the alleged changes in the competences of the supreme judicial body, they do not appear to be of such a fundamental nature. The main new competence attributed to the Kúria was the power to review the legality of local government regulations and to establish local governments ’ failure to comply with statutory legislative obligations. As to the role in safeguarding the consistency of the case-law, that had already existed previously (see Article 47 § 2 of the former Constitution, which mentioned uniformity resolutions), although new means to carry out this task were introduced under the new legislation, with more detailed regulations (creation of groups analysing the case-law, publication of guiding decisions from lower courts).", "151. Consequently, the Court considers that the Government have failed to show convincingly that the impugned measure was prompted by the elimination of the applicant ’ s post and functions in the context of the reform of the supreme judicial authority. Accordingly, it agrees with the applicant that the premature termination of his mandate was prompted by the views and criticisms that he had publicly expressed in his professional capacity.", "152. In view of the above, the Court concludes that the premature termination of the applicant ’ s mandate as President of the Supreme Court constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention (see, mutatis mutandis, Wille, cited above, § 51, and Kudeshkina, cited above, § 80). It remains therefore to be examined whether the interference was justified under Article 10 § 2.", "2. As to whether the interference was justified", "(a) “Prescribed by law”", "153. The Court notes that the termination of the applicant ’ s mandate as President of the Supreme Court was provided for by section 11(2) of the Transitional Provisions of the Fundamental Law of Hungary and section 185(1) of the Organisation and Administration of the Courts Act, which both came into force on 1 January 2012. The applicant contended that these provisions could not be regarded as “law” for the purposes of the Convention, given their individualised, retrospective and arbitrary nature.", "154. As to the individualised nature of the legislation in issue, the Court has already expressed some doubts in paragraphs 117 and 121 above as to whether the legislation in question was compliant with the requirements of the rule of law. However, the Court will proceed on the assumption that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10, as the impugned interference breaches Article 10 for other reasons (see paragraph 175 below).", "(b) Legitimate aim", "155. The Government argued that the termination of the applicant ’ s mandate as President of the Supreme Court was aimed at maintaining the authority and impartiality of the judiciary within the meaning of Article 10 § 2. They referred to the circumstances of the applicant ’ s election as President of the Supreme Court in 2009 and to the fact that his office was very much of an administrative and “governmental” nature, which justified the termination of his mandate with a view to increasing the independence of the judiciary.", "156. The Court accepts that changing the rules for electing the president of a country ’ s highest judicial body with a view to reinforcing the independence of the person holding that position can be linked to the legitimate aim of “maintaining the authority and impartiality of the judiciary” within the meaning of Article 10 § 2. The Court takes the view, however, that a State Party cannot legitimately invoke the independence of the judiciary in order to justify a measure such as the premature termination of the mandate of a court president for reasons that had not been established by law and which did not relate to any grounds of professional incompetence or misconduct. The Court considers that this measure could not serve the aim of increasing the independence of the judiciary, since it was simultaneously, and for the reasons set out above (see paragraphs 151 ‑ 52), a consequence of the previous exercise of the right to freedom of expression by the applicant, who was the highest office holder in the judiciary. As stated above in the context of Article 6, it was also a measure which interfered with his right to serve his full six-year term as President of the Supreme Court, as recognised under domestic law. In these circumstances, rather than serving the aim of maintaining the independence of the judiciary, the premature termination of the applicant ’ s mandate as President of the Supreme Court appeared to be incompatible with that aim.", "157. It follows that the Court cannot accept that the interference complained of pursued the legitimate aim relied on by the Government for the purposes of Article 10 § 2. Where it has been shown that the interference did not pursue a “legitimate aim”, it is not necessary to investigate whether it was “necessary in a democratic society” (see Khuzhin and Others v. Russia, no. 13470/02, § 117, 23 October 2008). However, in the particular circumstances of the present case and having regard to the parties ’ submissions, the Court considers it important also to examine whether the impugned interference was “necessary in a democratic society”.", "(c) “Necessary in a democratic society”", "(i) General principles on freedom of expression", "158. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court since its judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were restated more recently in Morice v. France [GC], no. 29369/10, § 124, ECHR 2015; Delfi AS v. Estonia [GC], no. 64569/09, § 131, ECHR 2015; and Perinçek v. Switzerland [GC], no. 27510/08, § 196, ECHR 2015, as follows.", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "159. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary (see Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010, and Morice, cited above, § 125 ).", "160. The Court reiterates that the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom (see Guja, cited above, § 95, and Morice, cited above, § 127).", "161. Lastly, in order to assess the justification of an impugned measure, it must be borne in mind that the fairness of proceedings and the procedural guarantees afforded to the applicant are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 (see, mutatis mutandis, Castells v. Spain, 23 April 1992, §§ 47-48, Series A no. 236; Association Ekin v. France, no. 39288/98, § 61, ECHR 2001 ‑ VIII; Colombani and Others v. France, no. 51279/99, § 66, ECHR 2002 ‑ V; Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Kyprianou v. Cyprus [GC], no. 73797/01, §§ 171 and 181, ECHR 2005 ‑ XIII; Mamère v. France, no. 12697/03, §§ 23-24, ECHR 2006 ‑ XIII; Kudeshkina, cited above, § 83; and Morice, cited above, § 155). The Court has already found that the absence of an effective judicial review may support the finding of a violation of Article 10 (see, in particular, Lombardi Vallauri v. Italy, no. 39128/05, §§ 45-56, 20 October 2009 ). Indeed, as the Court has previously held in the context of Article 10, “[t]he quality of ... judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation” (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08 § 108, ECHR 2013).", "(ii) General principles on freedom of expression of judges", "162. While the Court has admitted that it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention (see Vogt, cited above, § 53, and Guja, cited above, § 70). It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In carrying out this review, the Court will bear in mind that whenever a civil servant ’ s right to freedom of expression is in issue the “duties and responsibilities” referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim (see Vogt, cited above, § 53, and Albayrak v. Turkey, no. 38406/97, § 41, 31 January 2008).", "163. Given the prominent place among State organs that the judiciary occupies in a democratic society, the Court reiterates that this approach also applies in the event of restrictions on the freedom of expression of a judge in connection with the performance of his or her functions, albeit the judiciary is not part of the ordinary civil service (see Albayrak, cited above, § 42, and Pitkevich, cited above).", "164. The Court has recognised that it can be expected of public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question (see Wille, cited above, § 64; Kayasu, cited above, § 92; Kudeshkina, cited above, § 86; and Di Giovanni, cited above, § 71 ). The dissemination of even accurate information must be carried out with moderation and propriety (see Kudeshkina, cited above, § 93). The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties (ibid., § 86, and Morice, cited above, § 128). It is for this reason that judicial authorities, in so far as concerns the exercise of their adjudicatory function, are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges (see Olujić, cited above, § 59).", "165. At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant ’ s calls for close scrutiny on the part of the Court (see Harabin (dec.) 2004, cited above; see also Wille, cited above, § 64). Furthermore, questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10 (see Kudeshkina, § 86, and Morice, § 128, both cited above). Even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter (see Wille, cited above, § 67). Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate (see Guja, cited above, § 88).", "166. In the context of Article 10 of the Convention, the Court must take account of the circumstances and overall background against which the statements in question were made (see, mutatis mutandis, Morice, § 162). It must look at the impugned interference in the light of the case as a whole (see Wille, § 63, and Albayrak, § 40, both cited above), attaching particular importance to the office held by the applicant, his statements and the context in which they were made.", "167. Finally, the Court reiterates the “chilling effect” that the fear of sanction has on the exercise of freedom of expression, in particular on other judges wishing to participate in the public debate on issues related to the administration of justice and the judiciary (see Kudeshkina, cited above, §§ 99 ‑ 100). This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of the sanction or punitive measure imposed (ibid., § 99).", "(iii) Application of those principles in the present case", "168. The Court reiterates its finding (see paragraph 151 above) that the impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in the exercise of his right to freedom of expression. It observes in this regard that the applicant expressed his views on the legislative reforms in issue in his professional capacity as President of the Supreme Court and of the National Council of Justice. It was not only his right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary, after having gathered and summarised the opinions of lower courts (see paragraph 44 above). The applicant also used his power to challenge some of the relevant legislation before the Constitutional Court and used the possibility to express his opinion directly before Parliament on two occasions, in accordance with parliamentary rules (see paragraph 46 above). The Court therefore attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were likely to have an impact on the judiciary and its independence. It refers in this connection to the Council of Europe instruments, which recognise that each judge is responsible for promoting and protecting judicial independence (see paragraph 3 of the Magna Carta of Judges in paragraph 81 above) and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system (see paragraph 34 of Opinion no. 3 (2002) of the CCJE in paragraph 80 above; and paragraph 9 of the Magna Carta of Judges in paragraph 81 above).", "169. In this regard, the Court is not convinced by the Government ’ s argument that the applicant ’ s functions as President of the Supreme Court were more administrative than judicial in nature, and that the removal from his position “should be assessed in the light of the rules governing the removal of political appointees rather than those governing the removal of judges”, in which case the authorities could legitimately take into account the applicant ’ s views on the reform of the judiciary.", "170. The present case should also be distinguished from other cases in which the issue at stake was public confidence in the judiciary and the need to protect such confidence against destructive attacks (see Di Giovanni, § 81, and Kudeshkina, § 86, both cited above). Although the Government relied on the need to maintain the authority and impartiality of the judiciary, the views and statements publicly expressed by the applicant did not contain attacks against other members of the judiciary (compare with Di Giovanni and Poyraz, both cited above); nor did they concern criticisms with regard to the conduct of the judiciary dealing with pending proceedings (see Kudeshkina, cited above, § 94).", "171. On the contrary, the applicant expressed his views and criticisms on constitutional and legislative reforms affecting the judiciary, on issues related to the functioning and reform of the judicial system, the independence and irremovability of judges, and the lowering of the retirement age for judges, all of which are questions of public interest (see, mutatis mutandis, Kudeshkina, §§ 86 and 94). His statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the Court considers that the applicant ’ s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State.", "172. Furthermore, although the applicant remained in office as judge and president of a civil division of the new Kúria, he was removed from the office of President of the Supreme Court three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. This can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the irremovability of judges, which – according to the Court ’ s case-law and international and Council of Europe instruments – is a key element for the maintenance of judicial independence (see the principles on the irremovability of judges emerging from the Court ’ s case-law under Article 6 § 1 in Fruni v. Slovakia, no. 8014/07, § 145, 21 June 2011, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 53, 30 November 2010; see the international and Council of Europe materials in paragraphs 72-79 and 81-85 above; see also, mutatis mutandis, the judgment of 8 April 2014 of the CJEU in the case of Commission v. Hungary, concerning the premature removal from office of the former data-protection supervisor, in paragraph 70 above). Against this background, it appears that the premature removal of the applicant from his position as President of the Supreme Court defeated, rather than served, the very purpose of maintaining the independence of the judiciary, contrary to what has been argued by the Government.", "173. Furthermore, the premature termination of the applicant ’ s mandate undoubtedly had a “chilling effect” in that it must have discouraged not only him but also other judges and court presidents in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary.", "174. Finally, due account should be taken of the procedural aspect of Article 10 (see the case-law referred to in paragraph 161 above). In the light of the considerations that led it to find a violation of Article 6 § 1 of the Convention, the Court considers that the impugned restrictions on the applicant ’ s exercise of his right to freedom of expression under Article 10 of the Convention were not accompanied by effective and adequate safeguards against abuse.", "175. In sum, even assuming that the reasons relied on by the respondent State were relevant, they cannot be regarded as sufficient to show that the interference complained of was “necessary in a democratic society”, notwithstanding the margin of appreciation available to the national authorities.", "176. Accordingly, there has been a violation of Article 10 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10", "177. The applicant complained before the Chamber, under Article 13 of the Convention taken in conjunction with Article 10, that he had been deprived of an effective domestic remedy in relation to the premature termination of his mandate as President of the Supreme Court. The applicant did not explicitly raise this complaint before the Grand Chamber. Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "178. The Government contended that Article 13 was not applicable in the present case, since the applicant could not be considered to have an arguable claim under Article 10.", "179. The Chamber considered that, in view of its finding of a violation of Article 6 of the Convention, it was not necessary to rule on the applicant ’ s complaint under Article 13 taken in conjunction with Article 10 (see paragraph 113 of the Chamber judgment).", "180. The Court reiterates that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).", "181. The Court notes, however, that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Kuznetsov and Others v. Russia, no. 184/02, § 87, 11 January 2007, and Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007). Given the Court ’ s findings under Article 6 § 1 of the Convention (see paragraph 122 above), the present complaint does not give rise to any separate issue (see, for instance, Oleksandr Volkov, cited above, § 189).", "182. Consequently, the Court holds that it is not necessary to examine the complaint under Article 13 of the Convention taken in conjunction with Article 10 separately.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 6 § 1 AND 10", "183. The applicant complained before the Chamber that he had been treated differently from other office holders in analogous situations (other court executives, the President of the Constitutional Court), as a consequence of his having expressed politically controversial opinions. The measures directed against him therefore constituted unjustified differential treatment on the ground of “other opinion”. He relied on Article 14 of the Convention, taken in conjunction with Articles 6 § 1 and 10. The applicant did not explicitly raise this complaint before the Grand Chamber. Article 14 provides as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "184. The Government argued that since Article 6 was not applicable in the present case, Article 14, taken in conjunction with that provision, was not applicable either. As regards the applicant ’ s complaint under Article 14 read in conjunction with Article 10, they were of the opinion that this complaint was essentially the same as the one under Article 10. In any event, the Government noted that the applicant ’ s position as President of the Supreme Court differed from that of other judges and other holders of public office elected by Parliament. His public-law status was more comparable to that of the Prime Minister, the President of the Republic and the President of the Constitutional Court, none of whom had the right of access to a court in case of removal. The Government submitted that the tasks and functions of other judges of the Supreme Court or presidents of lower courts were not at all or not significantly affected by the organisational changes in the judicial system and that therefore they were not in a situation comparable to that of the applicant.", "185. The Chamber considered that, having regard to its findings under Article 6 § 1 and Article 10 of the Convention, there was no need to examine separately the applicant ’ s complaint under Article 14 taken in conjunction with these two provisions.", "186. The Grand Chamber considers that the applicant ’ s complaint under Article 14 of the Convention amounts essentially to the same complaints which the Court has already examined under Article 6 § 1 and Article 10. Having regard to its findings of violations in respect of these Articles (see paragraphs 122 and 176 above), the Grand Chamber finds, as did the Chamber, that no separate issue arises under Article 14 and accordingly makes no separate finding under that Article (see, for instance, Otegi Mondragon v. Spain, no. 2034/07, § 65, ECHR 2011).", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "187. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "188. The applicant claimed that as a result of the premature termination of his mandate as President of the Supreme Court and the entry into force of retrospective legislation concerning the remuneration of his post (see paragraph 52 above), he had lost his salary as President, other benefits attached to that position, as well as the post-term benefits (severance allowance for six months and pension supplement for life) to which he would have been entitled as former President of the Supreme Court. He provided a detailed calculation of his claim for pecuniary damage, which amounted to 742,520 euros (EUR). The applicant argued that there was a clear causal connection between the pecuniary damage claimed and the violation of Article 10 of the Convention.", "189. The applicant also claimed that as a consequence of the premature termination of his mandate, his professional career and reputation had been damaged and he had suffered considerable frustration. He sought an award of just satisfaction in respect of non-pecuniary damage in the amount of EUR 20,000.", "190. Although the Government did not dispute that the applicant ’ s loss of salary amounted to EUR 59,319, they contested the applicant ’ s total claims for just satisfaction as being excessive. In particular, the Government noted that the applicant ’ s claims mostly related to his complaint under Article 1 of Protocol No. 1, which had been declared inadmissible by the Chamber.", "191. Without speculating on the exact amount of the salary and the benefits which the applicant would have received if the violations of the Convention had not occurred and if he had been able to remain in the post of President of the Supreme Court until the end of his term, the Court observes that the applicant has incurred pecuniary loss. It also considers that the applicant must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Making an assessment on an equitable basis and in the light of all the information in its possession, the Court considers it reasonable to award the applicant an aggregate sum of EUR 70,000, all heads of damage combined, plus any tax that may be chargeable on that amount (see, mutatis mutandis, Kayasu, cited above, § 128).", "B. Costs and expenses", "192. The applicant claimed EUR 153,532 for the costs and expenses incurred in the proceedings before the Chamber and EUR 27,338.70 for the costs and expenses incurred in the proceedings before the Grand Chamber (including those of the public hearing before the Grand Chamber). He submitted detailed time sheets indicating the amount of hours spent by his lawyers for the preparation of the case before the Court: 669.5 hours of legal work, charged at an hourly rate of EUR 190.50, and 406.9 hours of paralegal work, including translations, charged at an hourly rate of EUR 63.50, in respect of the proceedings before the Chamber; and 135.6 hours of legal work and 13.4 hours of paralegal work in respect of the proceedings before the Grand Chamber, charged at the same hourly rates. The applicant ’ s total claim for costs and expenses came to EUR 180,870.70.", "193. The Government contested these claims. They considered that the costs incurred on account of claiming damages related to the applicant ’ s complaint under Article 1 of Protocol No. 1 could not be considered to have been necessarily incurred and reasonable. The Government also submitted that the applicant ’ s claims for costs and expenses related to the public hearing before the Grand Chamber were excessive and exaggerated.", "194. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "195. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses incurred before it.", "C. Default interest", "196. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. Circumstances of the case", "6. The applicant, Alexander Findlay, is a British citizen who was born in 1961 in Kilmarnock, Scotland, and now lives in Windsor, England.", "7. In 1980 he joined the British army and became a member of the Scots Guards. His service was due to terminate in October or November 1992 when he would have received a resettlement grant and, at the age of sixty, an army pension.", "8. In 1982 Mr Findlay took part in the Falklands campaign. During the battle of Mount Tumbledown he witnessed the death and mutilation of several of his friends and was himself injured in the wrist by a mortar-shell blast. According to the medical evidence prepared for his court martial (see paragraphs 11-13 below), as a result of these experiences he suffered from post-traumatic stress disorder (\"PTSD\"), which manifested itself by flashbacks, nightmares, feelings of anxiety, insomnia and outbursts of anger. This disorder was not diagnosed until after the events of 29 July 1990 (see paragraph 10 below).", "9. In 1987 he sustained an injury during training for service in Northern Ireland when a rope which he was climbing broke and he fell to the ground, severely damaging his back. This injury was extremely painful and affected his ability to perform his duties, which, again according to the medical evidence, led him to suffer from feelings of stress, guilt and depression.", "10. In 1990 the applicant, who had become a lance-sergeant, was sent with his regiment to Northern Ireland. On 29 July 1990, after a heavy drinking session, he held members of his own unit at pistol point and threatened to kill himself and some of his colleagues. He fired two shots, which were not aimed at anyone and hit a television set, and subsequently surrendered the pistol. He was then arrested.", "1. The medical evidence", "11. On 31 July 1990 an ex-naval psychiatrist, Dr McKinnon, examined Mr Findlay and found that he was responsible for his actions at the time of the incident. However, a combination of stresses (including his back injury and posting to Northern Ireland ) together with his heavy drinking on the day, had led to an \"almost inevitable\" event. Dr McKinnon recommended \"awarding the minimum appropriate punishment\".", "Following this report, the decision was taken to charge Mr Findlay with a number of offences arising out of the incident on 29 July (see paragraph 14 below).", "12. In order to establish that he was fit to stand trial, at the request of the army he was examined on two occasions by Dr Blunden, a civilian consultant psychiatrist who had been employed by the Ministry of Defence since 1980.", "In her report of January 1991, Dr Blunden confirmed that Mr Findlay was fit to plead and knew what he was doing at the time of the incident. However, his chronic back problem (which caused him to be frustrated and depressed at not being fit for duty in his Northern Ireland posting) together with \"his previous combat stresses and a very high level of alcohol ... combined to produce this dangerous behaviour\".", "In her second report, of March 1991, she explained that the applicant had reacted to the stress caused by his back problems in the way he did on 29 July 1990 because of his experiences in the Falklands war. Whilst she did not clearly state that he suffered from PTSD, she confirmed that similar patterns of behaviour frequently occurred at a late stage in those who experienced this disorder. She confirmed that the consumption of alcohol on the relevant day was a result of his condition and not a cause of it.", "13. Mr Findlay was also examined by Dr Reid, at the request of his (Mr Findlay ’ s) solicitor. Dr Reid diagnosed him as suffering from PTSD as a result of his service in the Falklands.", "2. The composition of the court martial", "14. The position of \"convening officer\" (see paragraphs 36-41 below) for the applicant ’ s court martial was assumed by the General Officer Commanding London District, Major General Corbett. He remanded Mr Findlay for trial on eight charges arising out of the incident of 29 July 1990 and decided that he should be tried by general court martial.", "15. By an order dated 31 October 1991, the convening officer convened the general court martial and appointed the military personnel who were to act as prosecuting officer, assistant prosecuting officer and assistant defending officer (to represent Mr Findlay in addition to his solicitor) and the members of the court martial (see paragraph 37 below).", "16. The court martial consisted of a president and four other members:", "(1) the president, Colonel Godbold, was a member of London District staff (under the command of the convening officer: see paragraph 14 above). He was appointed by name by the latter and was not a permanent president;", "(2) Lieutenant-Colonel Swallow was a permanent president of courts martial, sitting in the capacity of an ordinary member. He had his office in the London District Headquarters. He was appointed by name by the convening officer;", "(3) Captain Tubbs was from the Coldstream Guards, a unit stationed in London District. His reporting chain was to his officer commanding, his commanding officer and the Brigade Commander, after which his report could, in exceptional circumstances, go to the convening officer; he was a member of a footguard unit and the convening officer, as General Officer Commanding, was responsible for all footguard units. He was appointed to the court martial by his commanding officer;", "(4) Major Bolitho was from the Grenadier Guards, also a footguard unit stationed in London District. The convening officer was his second superior reporting officer. He was appointed to the court martial by his commanding officer;", "(5) Captain O ’ Connor was from the Postal and Courier Department, Royal Engineers (Women ’ s Royal Army Corps), which is under the direct command of the Ministry of Defence and is administered by the London District. She was appointed by her commanding officer.", "In summary, all of the members of the court martial were subordinate in rank to the convening officer and served in units stationed within London District. None of them had legal training.", "17. The assistant prosecuting and defending officers were both officers from the Second Scots Guards stationed in the London District and had the same reporting chain as Captain Tubbs (see paragraph 16 (3) above).", "18. The judge advocate for the general court martial was appointed by the Judge Advocate General (see paragraphs 42-45 below). He was a barrister and assistant judge advocate with the Judge Advocate General ’ s Office.", "3. The court martial hearing", "19. On 11 November 1991, Mr Findlay appeared before the general court martial, at Regent ’ s Park Barracks in London. He was represented by a solicitor.", "He pleaded guilty to three charges of common assault (a civilian offence), two charges of conduct to the prejudice of good order and military discipline (a military offence) and two charges of threatening to kill (a civilian offence).", "20. On 2 November 1991, his solicitor had made a written request to the prosecuting authorities to ensure the appearance of Dr Blunden at the court martial and on 5 November 1991 the prosecuting officer had issued a witness summons requiring her attendance. However, the defence was informed on the morning of the hearing that Dr Blunden would not be attending. Mr Findlay claims that her absence persuaded him to plead guilty to the above charges. However, his solicitor did not request an adjournment or object to the hearing proceeding.", "21. The defence put before the court martial the medical reports referred to above (paragraphs 11-13) and called Dr Reid to give evidence. The latter confirmed his view that the applicant suffered from PTSD, that this had been the principal cause of his behaviour, that he had not been responsible for his actions and that he was in need of counselling. During cross ‑ examination, Dr Reid stated that this was the first time he had dealt with battle-related PTSD.", "The prosecution did not call any medical evidence in rebuttal or adopt any of the evidence prepared by the army-instructed psychiatrists, Drs McKinnon and Blunden (see paragraphs 11-13 above).", "22. In the course of his speech in mitigation, Mr Findlay ’ s solicitor urged the court martial that, in view of the fact that his client had been suffering from PTSD at the time of the incident and was extremely unlikely to reoffend, he should be allowed to complete the few remaining months of his service and leave the army with his pension intact and a minimal endorsement on his record.", "23. Having heard the evidence and speeches, the court martial retired to consider their decision on sentence, accompanied by the judge advocate. On their return they sentenced the applicant to two years ’ imprisonment, reduction to the rank of guardsman and dismissal from the army (which caused him to suffer a reduction in his pension entitlement). No reasons were given for the sentence (see paragraph 46 below).", "4. The confirmation of sentence and review process", "24. Under the Army Act 1955, the decision of the court martial had no effect until it was confirmed by the \"confirming officer\" (see paragraph 48 below). In Mr Findlay ’ s case, as was usual practice, the confirming officer was the same person as the convening officer. Mr Findlay petitioned him for a reduction in sentence.", "Having received advice from the Judge Advocate General ’ s Office, the confirming officer informed the applicant on 16 December 1991 that the sentence had been upheld.", "25. The applicant, who had been under close arrest since the morning before the court martial hearing, was removed on 18 November 1991 to a military prison and thereafter to a civilian prison on 21 December 1991.", "26. He appealed by way of petition to the first of the \"reviewing authorities\" (see paragraph 49 below), the Deputy Director General of Personal Services, as delegate of the Army Board, a non-legally qualified officer who obtained advice from the Judge Advocate General ’ s Office. By a letter dated 22 January 1992, Mr Findlay was informed that this petition had been rejected.", "27. He then petitioned the second of the reviewing authorities, a member of the Defence Council who also was not legally qualified and who also received advice from the Judge Advocate General ’ s Office. This petition was rejected on 10 March 1992.", "28. The advice given by the Judge Advocate General ’ s Office at each of these three stages of review was not disclosed to the applicant, nor was he given reasons for the decisions confirming his sentence and rejecting his petitions.", "29. On 10 March 1992, the applicant applied to the Divisional Court for leave to challenge by judicial review the validity of the findings of the court martial. He claimed that the sentence imposed was excessive, the proceedings were contrary to the rules of natural justice and that the judge advocate had been hostile to him on two occasions during the hearing.", "On 14 December 1992 the Divisional Court refused leave on the basis that the court martial had been conducted fully in accordance with the Army Act 1955 and there was no evidence of improper conduct or hostility on the part of the judge advocate (R. v. General Court Martial (Regent ’ s Park Barracks), ex parte Alexander Findlay, CO/1092/92, unreported).", "5. Civil proceedings", "30. Mr Findlay commenced a civil claim in negligence against the military authorities, claiming damages in respect of his back injury and PTSD. In a report dated 16 January 1994 prepared for these purposes, Dr Blunden confirmed her previous opinion (see paragraph 12 above) and clearly diagnosed PTSD.", "31. In March 1994 the civil action was settled by the Secretary of State for Defence, who paid the applicant £100,000 and legal costs, without any admission of liability. The settlement did not differentiate between the claims in respect of PTSD and the back injury." ]

[ "II. Relevant domestic law and practice", "1. The law in force at the time of Mr Findlay ’ s court martial", "(a) General", "32. The law and procedures which applied to the applicant ’ s court martial were contained in the Army Act 1955 (\"the 1955 Act\"), the Rules of Procedure (Army) 1972 (\"the 1972 Rules\") and the Queen ’ s Regulations (1975). Since the Commission ’ s consideration of the case, certain provisions in the 1955 Act have been amended by the Armed Forces Act 1996 (\"the 1996 Act\"), which comes into force on 1 April 1997 (see paragraphs 52-57 below).", "33. Many civilian offences are also offences under the 1955 Act (section 70 (1)). Although the final decision on jurisdiction lies with the civilian authorities, army personnel who are accused of such offences are usually tried by the military authorities unless, for example, civilians are involved in some way.", "Depending on their gravity, charges against army law can be tried by district, field or general court martial. A court martial is not a standing court: it comes into existence in order to try a single offence or group of offences.", "34. At the time of the events in question, a general court martial consisted of a president (normally a brigadier or colonel in the army), appointed by name by the convening officer (see paragraphs 36-41 below), and at least four other army officers, either appointed by name by the convening officer or, at the latter ’ s request, by their commanding officer.", "35. Each member of the court martial had to swear the following oath:", "\"I swear by almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955, without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law.\"", "(b) The convening officer", "36. Before the coming into force of the 1996 Act, a convening officer (who had to be a field officer or of corresponding or superior rank, in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. He or she would decide upon the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial.", "37. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint (see paragraph 15 above). He ensured that a judge advocate (see paragraph 43 below) was appointed by the Judge Advocate General ’ s Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.", "38. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer ’ s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it.", "39. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses \"reasonably requested\" by the defence.", "40. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice (section 95 of the 1955 Act). In addition, he could comment on the \"proceedings of a court martial which require confirmation\". Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case \"where a more public instruction [was] required in the interests of discipline\", they could be made known in the orders of the command (Queen ’ s Regulations, paragraph 6.129).", "41. The convening officer usually acted as confirming officer also (see paragraph 48 below).", "(c) The Judge Advocate General and judge advocates", "42. The current Judge Advocate General was appointed by the Queen in February 1991 for five years. He is answerable to the Queen and is removable from office by her for inability or misbehaviour.", "At the time of the events in question, the Judge Advocate General had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on military law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court martial (see paragraph 49 below).", "43. Judge advocates are appointed to the Judge Advocate General ’ s Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister.", "44. At the time of the events in question, a judge advocate was appointed to each court martial, either by the Judge Advocate General ’ s Office or by the convening officer. He or she was responsible for advising the court martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the president, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. For example, if the latter pleaded guilty, the judge advocate had to ensure that he or she fully understood the implications of the plea and admitted all the elements of the charge. At the close of the hearing, the judge advocate would sum up the relevant law and evidence.", "45. Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court martial ’ s deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court martial and had no vote in the decision on conviction or sentence.", "(d) Procedure on a guilty plea", "46. At the time of the events in question, on a plea of guilty, the prosecuting officer outlined the facts and put in evidence any circumstance which might have made the accused more susceptible to the commission of the offence. The defence made a plea in mitigation and could call witnesses (rules 71 (3) (a) and 71 (5) (a) of the 1972 Rules). The members of the court martial then retired with the judge advocate to consider the sentence, which was pronounced in open court. There was no provision for the giving of reasons by the court martial for its decision.", "47. Certain types of sentence were not available to courts martial at the time of the applicant ’ s trial, even in respect of civilian offences. For example, a court martial could not suspend a prison sentence, issue a probation order or sentence to community service.", "(e) Confirmation and post-hearing reviews", "48. Until the amendments introduced by the 1996 Act, a court martial ’ s findings were not effective until confirmed by a \"confirming officer\". Prior to confirmation, the confirming officer used to seek the advice of the Judge Advocate General ’ s Office, where a judge advocate different to the one who acted at the hearing would be appointed. The confirming officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence.", "49. Once the sentence had been confirmed, the defendant could petition the \"reviewing authorities\". These were the Queen, the Defence Council (who could delegate to the Army Board), or any officer superior in command to the confirming officer (section 113 of the 1955 Act). The reviewing authorities could seek the advice of the Judge Advocate General ’ s Office. They had the power to quash a finding and to exercise the same powers as the confirming officer in relation to substituting, remitting or commuting the sentence.", "50. A petitioner was not informed of the identity of the confirming officer or of the reviewing authorities. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General ’ s Office nor the nature of that advice was disclosed.", "51. A courts martial appeal court (made up of civilian judges) could hear appeals against conviction from a court martial, but there was no provision for such an appeal against sentence when the accused pleaded guilty.", "2. The Armed Forces Act 1996", "52. Under the 1996 Act, the role of the convening officer will cease to exist and his functions will be split among three different bodies: the \"higher authorities\", the prosecuting authority and court administration officers (see 1996 Act, Schedule I).", "53. The higher authority, who will be a senior officer, will decide whether any case referred to him by the accused ’ s commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he or she will have no further involvement in the case.", "54. The prosecuting authority will be the Services ’ legal branches. Following the higher authority ’ s decision to refer a case to them, the prosecuting authority will have absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. They will then conduct the prosecution (1996 Act, Schedule I, Part II).", "55. Court administration officers will be appointed in each Service and will be independent of both the higher and the prosecuting authorities. They will be responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court martial (1996 Act, Schedule I, Part III, section 19).", "56. Each court martial will in future include a judge advocate as a member. His advice on points of law will become rulings binding on the court and he will have a vote on sentence (but not on conviction). The casting vote, if needed, will rest with the president of the court martial, who will also give reasons for the sentence in open court. The Judge Advocate General will no longer provide general legal advice to the Secretary of State for Defence (1996 Act, Schedule I, Part III, sections 19, 25 and 27).", "57. Findings by a court martial will no longer be subject to confirmation or revision by a confirming officer (whose role is to be abolished). A reviewing authority will be established in each Service to conduct a single review of each case. Reasons will be given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (who will be different from the one who officiated at the court-martial) will be disclosed to the accused. A right of appeal against sentence to the (civilian) courts martial appeal court will be added to the existing right of appeal against conviction (1996 Act, section 17 and Schedule V).", "PROCEEDINGS BEFORE THE COMMISSION", "58. In his application to the Commission (no. 22107/93) of 28 May 1993, Mr Findlay made a number of complaints under Article 6 para. 1 of the Convention (art. 6-1), inter alia that he had been denied a fair hearing before the court martial and that it was not an independent and impartial tribunal.", "59. The Commission declared the application admissible on 23 February 1995. In its report of 5 September 1995 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 6 para. 1 of the Convention (art. 6-1), in that the applicant was not given a fair hearing by an independent and impartial tribunal, and that it was unnecessary to examine the further specific complaints as to the fairness of the court-martial proceedings and the subsequent reviews or the reasonableness of the decisions taken against him and the available sentencing options. The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "60. At the hearing, the Government said that it did not contest the Commission ’ s conclusions but asked the Court to take note of the changes to the court-martial system to be effected by the Armed Forces Act 1996 which, they submitted, more than satisfactorily met the Commission ’ s concerns.", "On the same occasion, the applicant asked the Court to find a violation of Article 6 para. 1 (art. 6-1) and to award him just satisfaction under Article 50 of the Convention (art. 50).", "AS TO THE LAW", "I. SCOPE OF THE CASE", "A. The complaints concerning Article 6 para. 1 of the Convention (art. 6-1)", "61. In his written and oral pleadings before the Court, Mr Findlay complained that the court martial was not an \"independent and impartial tribunal\", that it did not give him a \"public hearing\" and that it was not a tribunal \"established by law\".", "62. The Government and the Commission ’ s Delegate both observed at the hearing that since the latter two complaints had not been expressly raised before the Commission, the Court should decline to entertain them.", "63. The Court recalls that the scope of its jurisdiction is determined by the Commission ’ s decision on admissibility and that it has no power to entertain new and separate complaints which were not raised before the Commission (see, inter alia, the Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 293, para. 44).", "However, while Mr Findlay in his application to the Commission may not expressly have invoked his rights under Article 6 para. 1 of the Convention (art. 6-1) to a \"public hearing\" and a \"tribunal established by law\", he does appear to have raised in substance most of the matters which form the basis of his complaints in relation to these two provisions. Thus, in the Commission ’ s decision on admissibility, he is reported as referring in particular to the facts that the members of the court martial were appointed ad hoc, that the judge advocate ’ s advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court-martial board and the confirming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private (see the Commission ’ s decision on admissibility, application no. 22107/93, pp. 32 ‑ 35).", "It follows that these are not new and separate complaints, and that the Court has jurisdiction to consider these matters (see, inter alia and mutatis mutandis, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, para. 80).", "B. The complaint concerning Article 25 of the Convention (art. 25) and Article 2 of the European Agreement", "64. In his additional memorial (see paragraph 4 above) the applicant asserted that, in correspondence with the Solicitors ’ Complaints Bureau (a professional disciplinary body) concerning a matter of no relevance to the present case, the Judge Advocate General had complained that, during the course of Mr Findlay ’ s application to the Commission, his solicitor had made allegations concerning a lack of impartiality in the advice given by the Judge Advocate General ’ s Office. The Judge Advocate General, Judge Rant, had commented: \"These are extremely serious allegations ...\".", "In a later letter, Judge Rant wrote:", "\"I wish to make it clear that, at this stage and without prejudice to any action which might have to be taken in the future, I am making no formal complaint about the passage [from the applicant ’ s submission to the Commission] quoted in that letter. The reason for this is that the case of Findlay is to be argued before the European Court of Human Rights in September 1996 and therefore it is only proper for me to defer action until the end of those proceedings.\"", "The applicant alleged that his solicitor felt constrained in presenting his arguments to the Court in the knowledge that they might subsequently form the basis of disciplinary proceedings and he invoked his rights under Article 25 of the Convention (art. 25) and Article 2 of the European Agreement relating to Persons Participating in Proceedings before the European Commission and Court of Human Rights.", "65. Since this issue was not pursued by the applicant at the hearing or referred to by the Government or the Delegate of the Commission at any time, the Court does not find it appropriate to examine it.", "C. The new legislation", "66. In their written and oral pleadings, the Government asked the Court to take note in its judgment of the changes to be effected in the court-martial system by the Armed Forces Act 1996 (see paragraphs 52-57 above).", "67. The Court recalls that this new statute does not come into force until April 1997, and thus did not apply at the time of Mr Findlay ’ s court martial. It is not the Court ’ s task to rule on legislation in abstracto and it cannot therefore express a view as to the compatibility of the provisions of the new legislation with the Convention (see, mutatis mutandis, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 31, para. 79). Nonetheless, it notes with satisfaction that the United Kingdom authorities have made changes to the court-martial system with a view to ensuring the observance of their Convention commitments.", "II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1)", "68. The applicant claimed that his trial by court martial failed to meet the requirements of Article 6 para. 1 of the Convention (art. 6-1), which provides (so far as is relevant):", "\"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ...\"", "The Commission found that there had been a violation, in that the applicant was not given a fair hearing by an independent and impartial tribunal, and the Government did not contest this conclusion.", "A. Applicability", "69. In the view of the Court, Article 6 para. 1 (art. 6-1) is clearly applicable to the court-martial proceedings, since they involved the determination of Mr Findlay ’ s sentence following his plea of guilty to criminal charges; indeed, this point was not disputed before it (see the Engel and Others v. the Netherlands judgment of 18 June 1976, Series A no. 22, pp. 33-36, paras. 80-85, and the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35, paras. 76-77).", "B. Compliance", "70. The applicant complained that the court martial was not an \"independent and impartial tribunal\" as required by Article 6 para. 1 (art. 6 ‑ 1), because, inter alia, all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority (see paragraphs 14-17 and 36-41 above). The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner.", "In addition, he asserted that he was not afforded a \"public hearing\" within the meaning of Article 6 para. 1 (art. 6-1), in that the judge advocate ’ s advice to the court-martial board, the confirming officer and the reviewing authorities was confidential; no reasons were given for the decisions made at any of these stages in the proceedings; and the process of confirming and reviewing the verdict and sentence by the confirming officer and reviewing authorities was carried out administratively, in private, with no apparent rules of procedure (see paragraphs 42-46 and 48-51 above).", "Finally, he claimed that his court martial was not a tribunal \"established by law\", because the statutory framework according to which it proceeded was too vague and imprecise; for example, it was silent on the question of how the convening officer, confirming officer and reviewing authorities were to be appointed.", "71. The Government had no observations to make upon the Commission ’ s conclusion that there had been a violation of Article 6 para. 1 of the Convention (art. 6-1) by reason of the width of the role of the convening officer and his command links with members of the tribunal. They asked the Court to take note of the changes to the court-martial system to be effected by the Armed Forces Act 1996 which, in their submission, more than satisfactorily met the Commission ’ s concerns.", "72. The Commission found that although the convening officer played a central role in the prosecution of the case, all of the members of the court ‑ martial board were subordinate in rank to him and under his overall command. He also acted as confirming officer, and the court martial ’ s findings had no effect until confirmed by him. These circumstances gave serious cause to doubt the independence of the tribunal from the prosecuting authority. The judge advocate ’ s involvement was not sufficient to dispel this doubt, since he was not a member of the court martial, did not take part in its deliberations and gave his advice on sentencing in private. In addition, it noted that Mr Findlay ’ s court-martial board contained no judicial members, no legally qualified members and no civilians, that it was set up on an ad hoc basis and that the convening officer had the power to dissolve it either before or during the trial. The requirement to take an oath was not a sufficient guarantee of independence.", "Accordingly, it considered that the applicant ’ s fears about the independence of the court martial could be regarded as objectively justified, particularly in view of the nature and extent of the convening officer ’ s roles, the composition of the court martial and its ad hoc nature. This defect was not, moreover, remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6 para. 1 (art. 6-1), since the confirming officer was the same person as the convening officer, and the reviewing authorities were army officers, the second of whom was superior in rank to the first. The ineffectiveness of the post-hearing reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr Findlay to participate in a meaningful way.", "73. The Court recalls that in order to establish whether a tribunal can be considered as \"independent\", regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37).", "As to the question of \"impartiality\", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 792, para. 30).", "The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case.", "74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay ’ s case. He decided which charges should be brought and which type of court martial was most appropriate. He convened the court martial and appointed its members and the prosecuting and defending officers (see paragraphs 14-15 and 36-37 above).", "Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those \"reasonably requested\" by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn (see paragraphs 38 and 39 above).", "For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay ’ s prosecution and closely linked to the prosecuting authorities.", "75. The question therefore arises whether the members of the court martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.", "In this respect also the Court shares the concerns of the Commission. It is noteworthy that all the members of the court martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the president, were directly or ultimately under his command (see paragraph 16 above). Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court martial either before or during the trial (see paragraph 40 above).", "76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court martial which decided Mr Findlay ’ s case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay ’ s doubts about the tribunal ’ s independence and impartiality could be objectively justified (see, mutatis mutandis, the Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20, para. 42).", "77. In addition, the Court finds it significant that the convening officer also acted as \"confirming officer\". Thus, the decision of the court martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit (see paragraph 48 above). This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of \"tribunal\" and can also be seen as a component of the \"independence\" required by Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 45).", "78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public (see paragraphs 45-46 above), or the oath taken by the members of the court-martial board (see paragraph 35 above).", "79. Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any subsequent review proceedings. Since the applicant ’ s hearing was concerned with serious charges classified as \"criminal\" under both domestic and Convention law, he was entitled to a first-instance tribunal which fully met the requirements of Article 6 para. 1 (art. 6-1) (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, paras. 31-32).", "80. For all these reasons, and in particular the central role played by the convening officer in the organisation of the court martial, the Court considers that Mr Findlay ’ s misgivings about the independence and impartiality of the tribunal which dealt with his case were objectively justified.", "In view of the above, it is not necessary for it to consider the applicant ’ s other complaints under Article 6 para. 1 (art. 6-1), namely that he was not afforded a \"public hearing\" by a tribunal \"established by law\".", "In conclusion, there has been a violation of Article 6 para. 1 of the Convention (art. 6-1).", "III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)", "81. The applicant claimed just satisfaction pursuant to Article 50 of the Convention (art. 50), which states:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Pecuniary damage", "82. The applicant claimed compensation for loss of income totalling 440,200 pounds sterling (GBP), on the basis that, had he not been convicted and sentenced as he was, he would have completed a twenty-two year engagement in the army, eventually attaining the rank of Colour Sergeant, with entitlement to a pension from the age of forty.", "83. The Government submitted that a finding of a violation would constitute sufficient satisfaction, or, in the alternative, that only a very modest amount should be awarded. First, there were no grounds for believing that the applicant would not have been convicted, sentenced to a term of imprisonment and dismissed from the army following his trial (at which he pleaded guilty), even if the court martial had been differently organised. Secondly, it was in any case unlikely that he would have enjoyed a long career in the army, in view of the post traumatic stress disorder and back injury from which he suffered (see paragraphs 8, 9 and 30 above); he had already received GBP 100,000 in settlement of his civil claim against the Ministry of Defence, a large part of which related to loss of earning capacity.", "84. At the hearing, the Commission ’ s Delegate observed that no causal link had been established between the breach of the Convention complained of by the applicant and the alleged pecuniary damage, and submitted that it was not possible to speculate as to whether the proceedings would have led to a different outcome had they fulfilled the requirements of Article 6 para. 1 (art. 6-1).", "85. The Court agrees; it cannot speculate as to what the outcome of the court-martial proceedings might have been had the violation of the Convention not occurred (see, for example, the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 16, para. 44). It is therefore inappropriate to award Mr Findlay compensation for pecuniary damage.", "B. Non-pecuniary damage", "86. The applicant claimed compensation of GBP 50,000 for the distress and suffering caused by the court-martial proceedings and for the eight months he spent in prison. He also asked that his conviction be quashed.", "87. The Government pointed out that it was beyond the power of the Court to quash the applicant ’ s conviction.", "88. The Court reiterates that it is impossible to speculate as to what might have occurred had there been no breach of the Convention. Furthermore, it has no jurisdiction to quash convictions pronounced by national courts (see the above-mentioned Schmautzer judgment, loc. cit.).", "In conclusion, the Court considers that a finding of violation in itself affords the applicant sufficient reparation for the alleged non-pecuniary damage.", "C. Costs and expenses 89.", "The applicant claimed GBP 23,956.25 legal costs and expenses, which included GBP 1,000 solicitor ’ s costs and GBP 250 counsel ’ s fees for the application before the Divisional Court.", "90. The Government expressed the view that the costs of the application to the Divisional Court should be disallowed, and submitted that a total of GBP 22,500 would be a reasonable sum.", "91. The Court considers that, in the circumstances of the present case, it was reasonable to make the application to the Divisional Court, in an attempt to seek redress for the violation of which Mr Findlay complains. It therefore decides to award in full the costs and expenses claimed, less the amounts received in legal aid from the Council of Europe which have not already been taken into account in the claim.", "D. Default interest", "92. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "9. Mr İbrahim Incal, a Turkish national born in 1953, lives in İzmir. A lawyer by profession, he was at the material time a member of the executive committee of the İzmir section of the People’s Labour Party (“the HEP”). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993.", "10. On 1 July 1992 the executive committee decided to distribute in the İzmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city.", "The title of the leaflet, of which ten thousand copies were printed, was “To all democratic patriots!”, and the text read as follows:", "“In the last few days a campaign aimed at ‘DRIVING THE KURDS OUT OF THE CITIES’ has been launched in İzmir against the Kurdish population by a combination of prefecture, security police and town hall. In this campaign İzmir has been designated a pilot-city. The first stage was the operation [against] street traders, stallkeepers and mussel sellers, whom they tried to hide away on the ground that it was necessary to smarten up the city and ease traffic congestion. The purpose of this operation was to impose an ‘economic blockade’ on our, mainly Kurdish, fellow citizens who make their living through these activities, condemning them to destitution and starvation. In this way the masses were to be frightened, oppressed and compelled to return to their province of origin.", "Before the ‘DRIVING THE KURDS OUT’ campaign began the organisational and psychological ground had already been prepared by leaflets signed by ‘Patriotic inhabitants of İzmir’ and handed out in large numbers for weeks by ‘obscure forces’. These leaflets incited hostility against the Kurdish population in particular and stirred up anti-Kurdish feelings. This led to racist and chauvinistic anti-Kurdish attitudes through propaganda saying: ‘Don’t give employment or housing to the Kurds. Don’t speak to them, don’t let your daughters marry them and don’t marry one yourself. Smash the Kurds.’ That is how the psychological foundations were laid down, the preparations for the future offensives. Although these leaflets were handed out in broad daylight, those responsible – and nobody knows why – were never arrested.", "But the campaign was by no means limited to the operation against street traders, stallkeepers and mussel sellers. The second prong was ‘Operation shantytown’. The same combination of prefecture, security police and town hall launched the demolition of the squatters’ camps. It began in Yamanlar and Şemikler and continued in Gaziemir, [all] shantytown districts inhabited mainly by Kurds, who, before the elections, were regarded by the parties in favour of the status quo as a source of votes. Those who had encouraged the mushrooming of the shantytowns by dishonestly promising freedom to build in exchange for votes and those who, with the local mafia, had appropriated public land this time set about the ferocious destruction of these huts to oppress and intimidate the Kurds and force them to go back home.", "The Kurdish and Turkish proletarian people suddenly and without any warning saw the huts they had run into debt to build, with so many sacrifices made by cutting down on their children’s food, collapsing about their ears. That is how they are trying to oppress the Kurdish and Turkish people and drive them into distress and despair.", "IT’S STATE TERROR AGAINST TURKISH AND KURDISH PROLETARIANS!", "It is certain that these demolitions, which began in Yamanlar and are still continuing in Gaziemir, will soon spread to İzmir’s other shantytowns. The State is testing the people’s reactions and will to resist by causing various kinds of destruction. Passivity as a form of defence against this devastation has encouraged the State to commit further kinds of destruction.", "In conclusion: The ‘Driving-the-Kurds-Out policy’ forms part of the SPECIAL WAR being conducted in the country at present against the Kurdish people. It is one of the mechanisms of that war, the way it impinges on the cities. Because the methods used are the same, namely enslavement, violence, terror and oppression through compulsion. It is a psychological war.", "While, in the country, they are trying to oppress and silence the people through counter-insurgency tactics, special patrols, village guards, the SS [3] decree and every [other] form of State terror, in İzmir they want to achieve the same aim by depriving our fellow citizens of their means of subsistence and in the end by knocking their houses down about their ears. The methods used, although different in form, are in the final analysis mechanisms serving the purposes of the special war. It is the urban form of the special war.", "TO ALL DEMOCRATIC PATRIOTS!", "The way to nullify these insults to the cities is to set up NEIGHBOURHOOD COMMITTEES BASED ON THE PEOPLE’S OWN STRENGTH.", "We call on all Kurdish and Turkish democratic patriots to assume their responsibilities and oppose this special war being waged against the proletarian people.", "LONG LIVE THE BROTHERHOOD OF NATIONS!", "STOP THE SPECIAL WAR BEING SPREAD INTO THE CITIES!”", "11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the İzmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it.", "12. The İzmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences.", "On 3 July 1992 they asked the Principal Public Prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) to state his opinion as to whether the contents of the leaflet contravened the law.", "13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution.", "The police searched the HEP’s premises in İzmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized.", "14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant.", "15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets.", "16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days.", "In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighbourhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based.", "With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed.", "17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine.", "18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment.", "19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing.", "20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months." ]

[ "ii. relevant domestic law and practice", "A. Criminal law", "1. The Criminal Code", "21. The relevant provisions of the Criminal Code read as follows:", "Article 311 § 2", "“Public incitement to commit an offence", "Where the incitement [to commit an offence] is done by means of mass communication, of whatever type, by tape recordings, gramophone records, newspapers, press publications or other published material, by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…”", "Article 312", "“Non-public incitement to commit an offence", "Whosoever expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be sentenced to between six months’ and two years’ imprisonment and a … fine of between six thousand and thirty thousand liras.", "Whosoever expressly arouses hatred and hostility in society on the basis of a distinction between social classes, races or religions, or one based on allegiance to a particular denomination or region, shall be sentenced to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement is done in a manner likely to endanger public safety, the sentence shall be increased [by one third to one half].", "The penalties to be imposed on those who have committed the above-mentioned offences by the means listed in Article 311 § 2 shall be doubled.”", "22. A conviction under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that section may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, provided that the offence has been committed intentionally (Law no. 657, section 48(5)).", "2. The Press Act (Law no. 5680)", "23. Additional section 4(1) of the Press Act (Law no. 5680) provides:", "“Where distribution [of the printed matter whose distribution constitutes the offence] is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor, to be confirmed by a court, … the penalty imposed shall be one-third of that laid down by law for the offence concerned.”", "3. The Prevention of Terrorism Act (Law no. 3713)", "24. Law no. 3713 of 12 April 1991, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. However, the act punishable pursuant to Article 312 of the Criminal Code (see paragraph 21 above) is not among them.", "4. The Code of Criminal Procedure", "25. Article 318 of the Code of Criminal Procedure provides for the holding of a public hearing in proceedings before the Court of Cassation only where the impugned judgment concerns offences classified as “serious”, such as those punishable by the death penalty or a term of imprisonment of more than ten years. The Court of Cassation’s jurisdiction, according to Article 307 of the Code, is limited to questions concerning the lawfulness and procedural regularity of the first-instance judgment.", "B. The National Security Courts", "26. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That Law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:", "“There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to [give judgment on] a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have [thus] been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”", "The composition and functioning of the National Security Courts are subject to the following rules.", "1. The Constitution", "27. The constitutional provisions governing judicial organisation are worded as follows:", "Article 138 §§ 1 and 2", "“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.", "No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”", "Article 139 § 1", "“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”", "Article 143 § 4", "“Presidents, regular members and substitute judges of the National Security Courts shall be appointed for a renewable period of four years.”", "Article 145 § 4", "“The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law...”", "2. Law no. 2845 on the creation and rules of procedure of the National Security Courts", "28. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:", "Section 1", "“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic – whose constituent qualities are enunciated in the Constitution – against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”", "Section 3", "“The National Security Courts shall be composed of a president and two other regular members. In addition, there shall sit at each National Security Court two substitute members.”", "Section 5", "“The president of a National Security Court, one of the other regular members and one of the substitutes shall be civilian … judges, the other members, whether full or substitute, military judges of the first rank…”", "Section 6(2), (3) and (6)", "“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the special legislation [concerning those posts].", "Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…", "…", "If, after an investigation concerning the presidents and regular or substitute members of the National Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] … may be changed in accordance with the procedure laid down in that legislation.”", "Section 9(1)(a)", "“The National Security Courts shall try persons accused of the offences defined in", "(a) [Article] 312 § 2 … of the Turkish Criminal Code…”", "Section 27(1)", "“The Court of Cassation shall hear appeals from the judgments of the National Security Courts.”", "Section 34(1) and (2)", "“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences … they may commit in the performance of their duties shall be as laid down in the relevant provisions of the laws governing their professions…", "The observations of the Court of Cassation and the assessment reports drawn up by Ministry of Justice assessors on judges of the Military Legal Service … and the files on any investigations conducted against them … shall be transmitted to the Ministry of Justice.”", "Section 38", "“A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”", "3. The Military Legal Service Act (Law no. 357)", "29. The relevant provisions of the Military Legal Service Act are worded as follows:", "Additional section 7", "“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Act and the Turkish Armed Forces Personnel Act (Law no. 926).", "(a) The immediate superior competent to carry out assessment and draw up assessment reports for military judges, whether full or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.", "…”", "Additional section 8", "“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”", "Section 16(1) and (3)", "“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…", "…", "The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the immediate superiors…”", "Section 18(1)", "“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”", "Section 29", "“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:", "A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.", "…", "B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.", "…", "The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”", "Section 38", "“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”", "4. Article 112 of the Military Criminal Code", "30. Article 112 of the Military Criminal Code of 22 May 1930 provides:", "“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a [public] official in order to influence the military courts.”", "5. Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court", "31. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their promotion and professional advancement.", "C. Case-law", "1. The Supreme Military Administrative Court", "32. The Government produced several judgments of the First Division of the Supreme Military Administrative Court setting aside decisions concerning the appointment and promotion of military judges or disciplinary sanctions applied to them. These were the judgments of 31 May 1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December 1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997 (no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62).", "It appears from these judgments that in setting aside the transfer decisions concerned, the First Division gave as its grounds either lack of consent on the part of the person concerned or abuse of the military authorities’ discretionary power. In connection with assessment reports, failure to state reasons or a lack of objectivity on the part of the immediate superior was taken into account. Lastly, in connection with a disciplinary sanction, against which in principle no appeal lies, the First Division held that the acts of which the person concerned stood accused had been incorrectly established and that the sanction was accordingly null and void.", "2. The National Security Courts", "33. The Government also submitted a number of judgments rendered by National Security Courts relevant to the impartiality of military judges sitting as members of such courts. These were the judgments of 12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38), 7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996 (no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141), 9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September 1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996 (no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996 (no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997 (no. 1997/393).", "Most of these decisions declared the accused guilty but also contained separate opinions by military judges adopting a dissenting opinion with regard to the establishment and classification of the facts, the way sentence was determined or the finding of guilt itself.", "PROCEEDINGS BEFORE THE COMMISSION", "34. Mr Incal applied to the Commission on 7 September 1993. He asserted that he had not had a fair trial in the National Security Court, firstly because it could not be regarded as an independent tribunal, and secondly because it had refused to commute his sentence of imprisonment into a fine on account of his political opinions (Article 6 § 1 of the Convention taken separately and in conjunction with Article 14). He also submitted that by rejecting his request for leave to appear and by omitting to send him a copy of the Principal Public Prosecutor’s opinion on his appeal on points of law the Court of Cassation had breached Article 6 §§ 1 and 3 (b). He further alleged that his conviction for helping to prepare a political leaflet constituted a breach of Articles 9 and 10 and that his temporary disqualification from driving was a degrading punishment contrary to Article 3.", "35. On 16 October 1995 the Commission declared inadmissible the complaint relating to the applicant’s disqualification from driving and declared the remainder of the application (no. 22678/93) admissible. In its report of 25 February 1997 (Article 31), it expressed the opinion", "(a) that there had been a violation of Article 10 (unanimously);", "(b) that, contrary to Article 6 § 1, the applicant had not had a fair hearing by an independent and impartial tribunal (unanimously);", "(c) that there had been no violation of Article 6 § 1 taken in conjunction with Article 14 (unanimously);", "(d) that the fact that the applicant had been unable to reply to the public prosecutor’s opinion had breached Article 6 § 1 (twenty-six votes to five); and", "(e) that there had been no violation of Article 6 § 1 on account of the fact that the applicant had not appeared in the Court of Cassation (twenty-six votes to five).", "The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "36. In their memorial, and later at the hearing, the Government asked the Court to hold that the proceedings complained of had not infringed the rights secured to the applicant by Articles 6, 10 and 14 of the Convention.", "37. The applicant asked the Court to hold that Article 6 § 1, Article 9 and Article 10 of the Convention had been breached and to award him just satisfaction under Article 50.", "as to the law", "I. Alleged violation of Article 10 of the Convention", "38. Mr Incal submitted that his criminal conviction on account of his contribution to preparation of the leaflet in issue had infringed his right to freedom of expression guaranteed by Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "The Commission accepted this argument, which the Government contested.", "A. Existence of an interference", "39. The participants in the proceedings agreed that the applicant’s conviction amounted to an interference with the exercise of his right to freedom of expression. That is also the Court’s opinion.", "B. Justification of the interference", "40. Such interference breaches Article 10 except where it is “prescribed by law”, is directed towards one or more of the legitimate aims set out in Article 10 § 2 and is “necessary in a democratic society” to achieve the aim or aims concerned.", "1. “Prescribed by law”", "41. The participants in the proceedings all accepted that the interference was “prescribed by law”, as the applicant’s conviction had been based on Article 312 §§ 2 and 3 of the Criminal Code and additional section 4(1) of the Press Act (Law no. 5680) (see paragraphs 21 and 23 above).", "2. Legitimate aim", "42. The Court notes that no argument was presented on this point by the parties to the case. The Commission took the view that in applying Article 312 of the Criminal Code the Turkish courts’ aim in the present case had been to prevent disorder.", "The Court considers that Mr Incal’s conviction pursued at least one of the legitimate aims set out in Article 10, namely “the prevention of disorder”.", "3. “Necessary in a democratic society”", "(a) Arguments of the participants", "( i ) The applicant", "43. The applicant submitted that in a pluralist democratic system political parties such as his ought to be able to express their views on the country’s social and political problems. The opinions expressed in the leaflet in issue were based on actual events and were limited to criticism of the discriminatory administrative and economic pressure brought to bear on citizens of Kurdish origin. The authors of the leaflet, of whom he was one, had never intended to advocate separatism and did not seek to foment disorder.", "Contrary to the findings of the judges at his trial, it was not a factual description of the situation in a country which provoked hatred and hostility but the fact that it was not possible for reactions to problems of general interest to be submitted to the public by the political parties.", "Mr Incal challenged the necessity of the interference and emphasised the fact that the leaflets in question had not been distributed. In any event, the penalty had been completely disproportionate, especially as his conviction had led to his being permanently debarred from the civil service and from certain activities within associations, trade unions or political organisations, in the latter case in the capacity of leader, founder member, parliamentary candidate, mayor or town councillor.", "(ii) The Government", "44. The Government asserted that, despite the anger expressed in the leaflet concerned, the operations aimed at closing down booths unlawfully erected on land belonging to others and driving out street traders met the requirements of the relevant legislation and regulations, which had no other purpose than the prevention of disorder and the protection of the rights of others. However, in the racial perspective of the leaflet prepared by the applicant, who was then a member of the HEP, a party working in favour of Kurdish separatism, the measures thus taken were presented as the destruction of Kurdish citizens’ houses with a view to depriving them of all means of subsistence.", "Through its aggressive and provocative language the leaflet in question had been likely to incite citizens of “Kurdish” origin to believe that they suffered from discrimination and that, as victims of a “special war”, they were justified in acting in self-defence against the authorities by setting up “neighbourhood committees”. In addition, the population of İzmir in general, and its shopkeepers in particular might have been tempted to think that those who were truly responsible for their social and economic troubles were their “Kurdish” fellow-citizens and that the street traders – all “Kurdish” according to the leaflet – might endanger their well-being. Such a message was not consistent with the calls to “brotherhood”, which were designed only to enable the leaflet’s authors to evade their criminal responsibility.", "With reference to the analysis of the situation in Turkey made by the Court in the Zana v. Turkey judgment of 25 November 1997 ( Reports of Judgments and Decisions 1997-VII), the Government observed that in the present case the National Security Court had noted a dangerous tendency in İzmir, which had the potential to create an explosive situation, as in south-eastern Turkey, where there had been an intolerable increase in terrorism in the years 1992 and 1993. In such a case the wide limits of criticism acceptable in political debate and the high level of protection enshrined by the Court’s case-law on the question were completely without relevance.", "In that context, Mr Incal, who was a lawyer by profession, had overstepped the normal limits of political controversy by disregarding his “duties” and “responsibilities”. He had tried to incite an ethnic group to rise against the officials and authorities of the State at a time when the PKK, a terrorist separatist organisation, had intensified its atrocities prompted by racial hatred. In such a social climate, which made it extremely easy to stir up internal dissent, or even civil strife, the Turkish authorities had had no other choice than to seize the leaflets in issue and to punish the applicant as one of those responsible.", "(iii) The Commission", "45. The Commission agreed for the most part with the applicant’s arguments. It emphasised that the leaflet in issue only drew attention in general terms to the existence of a “Kurdish problem” and did not contain any element of incitement to violence. Considering that an opponent of official ideas and positions must be able to find a place in the political arena, it expressed the opinion that Mr Incal’s conviction had not been necessary in a democratic society.", "(b) The Court’s assessment", "46. As the Court has often observed, the freedom of expression enshrined in Article 10 constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 22, § 42, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, § 52).", "While precious to all, freedom of expression is particularly important for political parties and their active members (see, mutatis mutandis, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports 1998-I, p. 22, § 46). They represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with the freedom of expression of a politician who is a member of an opposition party, like the applicant, call for the closest scrutiny on the Court’s part (see the Castells judgment cited above, ibid.)", "47. In the present case the İzmir National Security Court based its decision to convict Mr Incal on a leaflet which it held to make out the offence defined in Article 312 of the Criminal Code, namely non-public incitement to commit an offence (see paragraph 21 above).", "48. In the light of the above considerations, the Court must now consider the leaflet’s content in order to determine whether it justified Mr Incal’s conviction.", "In that connection, the Court reiterates that its task, in exercising its supervisory jurisdiction, is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. In so doing, it must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Vogt judgment cited above, p. 26, § 52).", "49. The National Security Court held that, by describing the State as terrorist, by drawing a distinction between citizens even though all of them were of Turkish nationality and by criticising certain municipal measures as operations in a special war, the authors of the leaflet had knowingly incited the people to hatred and hostility and, to that end, had urged them to have recourse to illegal methods.", "50. The Court notes that the relevant passages in the leaflet criticised certain administrative and municipal measures taken by the authorities, in particular against street traders. They thus reported actual events which were of some interest to the people of İzmir.", "The leaflet began by complaining of an atmosphere of hostility towards citizens of Kurdish origin in İzmir and suggested that the measures concerned were directed against them in particular, to force them to leave the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to “all democratic patriots”, it described the authorities’ actions as “terror” and as part of a “special war” being conducted “in the country” against “the Kurdish people”. It called on citizens to “oppose” this situation, in particular by means of “neighbourhood committees” (see paragraph 10 above).", "The Court certainly sees in these phrases appeals to, among others, the population of Kurdish origin, urging them to band together to raise certain political demands. Although the reference to “neighbourhood committees” appears unclear, those appeals cannot, however, if read in context, be taken as incitement to the use of violence, hostility or hatred between citizens.", "51. Admittedly, as the Court has already noted in other circumstances (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that such a text may conceal objectives and intentions different from the ones it proclaims. However, as there is no evidence of any concrete action which might belie the sincerity of the aim declared by the leaflet’s authors, the Court sees no reason to doubt it.", "52. There remains, therefore, the question whether, in the light of the foregoing considerations, the applicant’s criminal conviction can be regarded as necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued”.", "53. The freedom of political debate is undoubtedly not absolute in nature. A Contracting State may make it subject to certain “restrictions” or “penalties”, but it is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in the Convention (see the Castells judgment cited above, p. 23, § 46).", "In the present case the Government pleaded the “duties” and “responsibilities” with which Article 10 links exercise of the freedom of expression (see paragraph 44 above). However, these do not dispense with the obligation to ensure that an interference satisfies the requirements of paragraph 2 (see, mutatis mutandis, the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 64).", "54. The limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the Castells judgment cited above, p. 23, § 46).", "55. In the present case the İzmir executive committee of the HEP submitted one copy of the leaflet to the İzmir prefecture on 2 July 1992 with an application for permission to distribute it (see paragraph 11 above). The security police, who were then asked to study its content, considered that the leaflet could be regarded as separatist propaganda (see paragraph 12 above). At that stage the authorities were accordingly in a position to require changes to the text. However, the day after this application was lodged at the prefecture the leaflets were seized and prosecutions brought against its authors, including Mr Incal, under Article 312 of the Criminal Code, among other provisions (see paragraph 21 above).", "56. The Court notes the radical nature of the interference in question. Its preventive aspect by itself raises problems under Article 10 (see, among other authorities, the Vereniging Weekblad Bluf! v. the Netherlands judgment of 9 February 1995, Series A no. 306-A, p. 16, §§ 45 and 46, and, mutatis mutandis, the Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, pp. 18–19, § 40).", "In addition, the İzmir National Security Court sentenced the applicant to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras and disqualified him from driving for fifteen days (see paragraph 16 above).", "Furthermore, as a result of his conviction of a “public order” offence, Mr Incal was debarred from the civil service and forbidden to take part in a number of activities within political organisations, associations or trade unions (see paragraph 22 above).", "57. In order to demonstrate the existence of a “pressing social need” which would justify the finding that the interference complained of was “proportionate to the legitimate aim pursued”, the representative of the Government asserted at the hearing before the Court that “it was apparent from the wording of the leaflets … that they were intended to foment an insurrection by one ethnic group against the State authorities”. It had therefore been the State’s “duty to forestall any attempt to promote terrorist activities by means of incitement to hatred”, given that “the interest in combating and crushing terrorism takes precedence in a democratic society”. Certain armed groups such as the PKK increased their effectiveness by putting out propaganda cloaked by the freedom of expression.", "58. The Court is prepared to take into account the background to the cases submitted to it, particularly problems linked to the prevention of terrorism (see, among other authorities, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9 et seq., §§ 11 et seq.; the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2281 and 2284, §§ 70 and 84; the Zana judgment cited above, p. 2549, §§ 59 and 60; and, most recently, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). It observes, however, that the circumstances of the present case are not comparable to those found in the Zana case (ibid.). Here the Court does not discern anything which would warrant the conclusion that Mr Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in İzmir. It should be pointed out in that connection that not even the National Security Court upheld the public prosecutor’s submission that the Prevention of Terrorism Act (Law no. 3713) should be applied to the applicant (see paragraphs 15, 16 and 24 above).", "59. In conclusion, Mr Incal’s conviction was disproportionate to the aim pursued, and therefore unnecessary in a democratic society.", "There has accordingly been a breach of Article 10 of the Convention.", "60. The applicant further complained of an infringement of his right to freedom of thought, guaranteed by Article 9 of the Convention. Like the Commission, the Court considers that this complaint is subsumed by the complaint under Article 10 and that it is not necessary to examine it separately.", "II. Alleged violation of Article 6 § 1 of the Convention", "61. Mr Incal further argued that neither his trial in the İzmir National Security Court nor the proceedings before the Criminal Division of the Court of Cassation had satisfied the requirements of Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal…”", "He submitted that the National Security Court was not an “independent and impartial tribunal”; as to the Court of Cassation, it had not respected the principle of adversarial procedure or equality of arms and had not held a hearing.", "The Government rejected this argument, whereas the Commission accepted it, except for that part which related to the lack of a public hearing.", "A. The proceedings in the National Security Court", "1. Arguments of the participants", "(a) The applicant", "62. Mr Incal submitted that the İzmir National Security Court could not be regarded as an “independent and impartial tribunal” within the meaning of Article 6 § 1. The military judge who sat in it was dependent on the executive and, more specifically, on the military authorities, because while performing his judicial duties he remained an officer and maintained his links with the armed forces and his hierarchical superiors. The latter retained the power to influence his career by means of the assessment reports they drew up on him.", "Mr Incal maintained that the National Security Courts were special courts set up to protect the State’s interests rather than to do justice as such; in that respect their function was similar to that of the executive. The presence of a military judge in the court’s composition only served to confirm the army’s authority and its intimidating influence over both the defendant and public opinion in general. The fact that a military judge was able to pass judgment on a civilian, and a politician at that, in connection with an offence that had nothing to do with military justice, evidenced the armed forces’ influence over the handling of Turkey’s political problems.", "(b) The Government", "63. The Government submitted that the procedure for the appointment of the military judges sitting as members of the National Security Courts and the safeguards they enjoyed in the performance of their judicial duties perfectly satisfied the criteria laid down by the Court’s case-law on the subject.", "The arguments concerning these judges’ responsibility towards their commanding officers and the rules governing their professional assessment were overstated; their duties as officers were limited to obeying military regulations and observing military courtesies. They were safe from any pressure from their hierarchical superiors, as such an attempt was punishable under the Military Criminal Code. The assessment system applied only to military judges’ non-judicial duties. In addition, they had access to their assessment reports and could even challenge their content in the Supreme Military Administrative Court.", "In the present case, neither the colleagues or hierarchical or disciplinary superiors of the military judge in question nor the public authorities who had appointed him had any connection with the parties to Mr Incal’s trial or any interest whatsoever in the judgment to be delivered.", "(c) The Commission", "64. In the Commission’s submission, the legal rules governing the composition and functioning of the National Security Courts raised a number of questions about their independence, particularly as regards the system for the appointment and assessment of the military judges who sat in them. It took the view that the participation of a military judge in criminal proceedings against a civilian showed the exceptional nature of such proceedings and could be interpreted as an intervention by the armed forces in the field of civil justice. The applicant’s concerns about the National Security Court’s lack of impartiality could therefore be regarded as objectively justified.", "2. The Court’s assessment", "65. The Court reiterates that in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 281, § 73).", "As to the condition of “impartiality” within the meaning of that provision, there are two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. It was not contested before the Court that only the second of these tests was relevant in the instant case (see, mutatis mutandis, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030–31, § 58).", "In the instant case, however, the Court will consider both issues – independence and impartiality – together.", "66. Law no. 2845, promulgated on 16 June 1983, pursuant to Article 143 of the Constitution, governs the composition and functioning of the National Security Courts (see paragraph 28 above). Under the provisions of section 5, these courts are composed of three judges, one of whom is a regular officer and member of the Military Legal Service.", "As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge.", "67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges undergo the same professional training as their civilian counterparts, which gives them the status of career members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent (see paragraphs 27 and 28 above); as regular members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties (see paragraphs 27 and 30 above and, mutatis mutandis, the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 18, § 38).", "68. On the other hand, other aspects of these judges’ status make it questionable. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose (see paragraphs 28 and 29 above). Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 29 above). Lastly, their term of office as National Security Court judges is only four years and can be renewed.", "69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey’s territorial integrity and national unity, its democratic regime and its State security (see paragraphs 26 and 28 above). Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a member of the Military Legal Service.", "70. At the hearing before the Court the Government submitted that the only justification for the presence of military judges in the National Security Courts was their undoubted competence and experience in the battle against organised crime, including that committed by illegal armed groups. For years the armed forces and the military judges – in whom, moreover, the people placed great trust – had acted, partly under martial law, as the guarantors of the democratic and secular Republic of Turkey, while assuming their social, cultural and moral responsibilities. For as long as the terrorist threat persisted, military judges would have to continue to lend their full support to these special courts, whose task was extremely difficult.", "It is not for the Court – which is aware of the problems caused by terrorism (see, mutatis mutandis, the judgments cited in paragraph 58 above) – to pass judgment on these assertions. Its task is not to determine in abstracto whether it was necessary to set up such courts in a Contracting State or to review the relevant practice, but to ascertain whether the manner in which one of them functioned infringed the applicant’s right to a fair trial (see, among many other authorities, mutatis mutandis, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 27).", "71. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48, the Thorgeir Thorgeirson judgment cited above, p. 23, § 51, and the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 794, § 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see, mutatis mutandis, the Hauschildt judgment cited above, p. 21, § 48, and the Gautrin and Others judgment cited above, pp. 1030–31, § 58).", "72. Mr Incal was convicted of disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences, for participating in the decision to distribute the leaflet in issue, taken on 1 July 1992 by the executive committee of the İzmir section of the HEP (see paragraphs 15 and 16 above). As the acts which gave rise to the case were considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, they came ipso jure under the jurisdiction of the National Security Courts (see paragraph 28 above).", "The Court notes, however, that in considering the question of compliance with Article 10 it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens (see paragraph 50 above). Moreover, the National Security Court refused to apply the Prevention of Terrorism Act (Law no. 3713) (see paragraph 16 above). In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.", "It follows that the applicant could legitimately fear that because one of the judges of the İzmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. The Court of Cassation was not able to dispel these concerns, as it did not have full jurisdiction (see paragraph 25 above and, among other authorities, mutatis mutandis, the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2926, § 46).", "73. In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the İzmir National Security Court.", "There has accordingly been a breach of Article 6 § 1.", "B. The proceedings in the Court of Cassation", "74. Having regard to the above conclusion (see paragraph 73 above), the Court considers that it is not necessary to consider the other complaints under Article 6 relating to the proceedings in the Court of Cassation (see, mutatis mutandis, the Findlay judgment cited above, pp. 282–83, § 80).", "III. Alleged violation of Article 14 of the Convention", "75. In his application to the Commission Mr Incal also alleged a breach of Article 14 taken in conjunction with Article 6 § 1 in that in refusing his application for his prison sentence to be commuted to a fine the İzmir National Security Court had taken account of his political opinions only. He did not maintain this complaint during the proceedings before the Court, which sees no reason to examine it of its own motion (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 28, § 62).", "IV. application of Article 50 of the Convention", "76. Under Article 50 of the Convention,", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Elimination of the consequences of the conviction", "77. At the hearing Mr Incal asked to be reinstated in the rights he had lost, pursuant to Article 312 of the Criminal Code, on account of his conviction. He also asked the Court to order the Government to take steps to ensure that this provision would no longer be applied in domestic law.", "78. The Court notes that it has no jurisdiction under the Convention to order such measures (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 1 April 1998 ( Article 50 ), Reports 1998-II, pp. 723 ‑ 24, § 47).", "B. Damage and costs and expenses", "79. The applicant claimed 2,000,000 French francs (FRF) for pecuniary damage and FRF 5,000,000 for non-pecuniary damage.", "In support of his claims he asserted that at the material time he was in practice as a lawyer and was an associate director of five commercial undertakings. He asserted that he had sustained a considerable loss of income.", "Mr Incal further claimed reimbursement of his costs and expenses, which amounted to FRF 20,000 for preparing and communicating the documents produced in Strasbourg and FRF 80,000 for his representation before the Convention institutions, including his lawyers’ fees.", "80. The Government argued, as their principal submission, that no compensation was called for in the present case. In the alternative, they maintained that the sums claimed were excessive and unjustified.", "They emphasised that the applicant had had the advantage of a stay of execution of four months in which to organise his affairs and minimise any losses. If the Court were to find a violation of the Convention, that finding in itself would constitute sufficient just satisfaction, as no causal connection had been established between the facts complained of and the damage alleged.", "The Government also considered that the claim in respect of costs and expenses had not been duly documented.", "81. With regard to pecuniary damage, the Delegate of the Commission suggested that the Court should consider the question of the application of Article 50 in the light of the hypothetical character of the amount claimed. He left the question of non-pecuniary damage to the Court’s discretion. Lastly, with regard to the sum claimed for costs and expenses, he mentioned the problem raised by the lack of supporting documents.", "82. On the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. It further notes that there is insufficient proof of a causal connection between the breach of Article 10 it has found and the loss of professional and commercial income alleged by the applicant. Moreover, the applicant’s claims in respect of pecuniary damage are not supported by any evidence whatsoever. The Court can therefore not allow them.", "With regard to non-pecuniary damage, the Court considers that the applicant suffered a certain amount of distress on account of the facts of the case. Making an assessment on an equitable basis, as required by Article 50, the Court awards him compensation in the sum of FRF 30,000 under this head.", "83. With regard to costs and expenses, the Court awards Mr Incal, on an equitable basis and according to the criteria laid down by its case-law (see, among other authorities, the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, p. 20, § 49), the overall sum of FRF 15,000.", "D. Default interest", "84. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, which is 3.36% per annum." ]

[ "7. The applicants are Austrian farmers resident at Obritzberg in", "Lower Austria. They complain of consolidation proceedings", "(Zusammenlegungs-verfahren) in respect of their land in July 1973.", "I. The circumstances of the case", "1. The proceedings before the land reform boards", "8. On 30 July 1973, the Lower Austrian District Agricultural", "Authority (Agrarbezirksbehörde - \"the District Authority\") published a", "consolidation plan for Obritzberg which included the applicants' land.", "The applicants lodged an appeal with the Provincial Land Reform Board", "(Landesagrarsenat - \"the Provincial Board\"), claiming that they had", "not received land compensation as provided for in the Lower Austrian", "Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see", "paragraph 15 below). The grounds of appeal differed from one", "applicant to the other according to the way in which the consolidation", "plan affected each individual's property.", "9. The Provincial Board gave its decisions on 26 and 27 May 1975,", "after hearing the parties and several other landowners affected by the", "changes the applicants were seeking. It determined the appeal on the", "basis of the case-file and after some of the members had inspected the", "site, and it made a number of variations in the land compensation", "awarded to the applicants.", "In accordance with section 5(2) of the Federal Agricultural", "Authorities Act (Agrarbehördengesetz 1950, as amended in 1974 - see", "paragraph 15 below), the Provincial Board was composed of three judges", "- all three from the Court of Appeal on 26 May 1975, two from the", "Court of Appeal and one from the Regional Court on 27 May 1975 - and", "five civil servants from the Office of the Lower Austrian Provincial", "Government (Amt der Landesregierung). The chairman was the head of", "Division VI 4 of the Office, and the rapporteur was a civil servant in", "that Division; a third member of the Board belonged to Division VI 11.", "The remaining two members do not appear in the Office's organisational", "chart for 1975/76, which was filed by the Government, but do appear in", "the one for 1976/77 (i.e. of later date than the Provincial Board's", "decision in the case); at that time, together with the chairman and", "the rapporteur, they were in Division VI 3, which, according to the", "Government, was set up in 1976 following a reorganisation of the", "Office's administrative departments. In its report (paragraph 97) the", "Commission relied not on the 1975/76 chart but on the 1976/77 one; it", "noted that at the time the Provincial Board took its decision, four of", "its ordinary members and their substitutes came from Division VI 3 and", "the chairman, the rapporteur and two other members worked in", "Division VI 4.", "10. The applicants then appealed to the Supreme Land Reform Board", "(Oberster Agrarsenat - \"the Supreme Board\"). On 6 October 1976, the", "Supreme Board allowed the appeals of the Ettls and the Schalhases to", "the extent that they were complaining of a danger that some of the", "parcels of land allotted to them in compensation for their original", "land might be eroded by water, and it consequently ordered that a", "number of drainage measures should be taken; for the rest, their", "appeals were dismissed, as were those of the Gunackers and the Haases", "in their entirety.", "The Supreme Board was composed of three judges - members of the", "Supreme Court (Oberster Gerichthof) - and five civil servants from the", "Federal Ministry of Agriculture and Forestry (Bundesministerium für", "Land- und Forstwirtschaft) (section 6(2) of the Federal Agricultural", "Authorities Act - see paragraph 18 below). Two of the civil servants", "- the chairman and the rapporteur - belonged to Division I 7, which", "was responsible among other things for providing the Board's", "secretariat; the other three belonged to Divisions II C 7, II C 8 and", "V A 3 respectively.", "2. The proceedings in the Constitutional Court and the Administrative", "Court", "11. The applicants then lodged complaints with the Constitutional", "Court (Verfassungsgerichtshof). In particular they claimed that they", "had been deprived of their right to a decision by the lawful judge", "(gesetzlicher Richter - Article 83(2) of the Federal Constitution", "(Bundes-Verfassungsgesetz)), because under the legislation on the", "organisation of the agricultural authorities several experts had to", "sit on the Provincial Board and the Supreme Board. The applicants", "found it unreasonable that these members should have voting rights in", "cases where the issue under consideration was outside their field of", "expertise or where they had themselves prepared the relevant expert", "opinion. In addition, they claimed that there had been an", "infringement of their right of property, secured in the Constitution.", "They also referred in a general way to the relevant provisions of the", "Human Rights Convention.", "In judgments on 1 February (in the case of Mr. and Mrs. Haas),", "28 February (in the case of Mr. and Mrs. Gunacker) and 19 March 1980", "(in the case of Mr. and Mrs. Ettl and Mr. and Mrs. Schalhas), the", "Constitutional Court rejected the complaints as unfounded. It pointed", "out inter alia that Article 12(2) of the Federal Constitution", "expressly provided for the participation of experts. At the", "applicant's request, the court referred the cases to the", "Administrative Court (Verwaltungsgerichtshof) for the latter to", "determine whether any non-constitutional rights had been infringed.", "12. In the Administrative Court the applicants challenged the", "lawfulness of the land compensation awarded them. They claimed that", "the requirements of the Lower Austrian Agricultural Land Planning Act", "had not been complied with and also that there had been an", "infringement of the provisions of the General Administrative Procedure", "Act (Allgemeines Verwaltungsverfahrensgesetz) concerning the", "impartiality of the administrative authorities and the right to a fair", "trial - the experts had voted on a matter outside their professional", "competence; there had been no written expert opinion; and none of the", "boards had informed the parties of the findings of the investigation", "(Ermittlungsverfahren).", "On 11 November (in the case of Mr. and Mrs. Ettl and Mr. and", "Mrs. Gunacker) and 25 November 1980 (in the case of Mr. and", "Mrs. Schalhas and Mr. and Mrs. Haas), the Administrative Court held", "that there had been a breach of the applicants' procedural rights; it", "dismissed the other complaints.", "The judgments, which were worded in similar terms, may be summarised", "as follows (paragraph 52 of the Commission's report):", "- Inasmuch as the applicants were accusing the expert members of the", "Supreme Board of bias, their submissions were without foundation, as", "the composition of the Board had been in accordance with the law.", "- In so far as they were complaining that there had been no written", "expert opinion on certain points, they had not indicated what relevant", "facts had not been brought to the Supreme Board's knowledge for want", "of such an opinion. Accordingly, there had not been any material", "procedural irregularity (wesentlicher Verfahrensmangel).", "- As to the investigation, they should have been informed both of the", "findings of fact (Befund) and of the expert opinion itself", "(Gutachten). However, as they did not specify what additional", "evidence they would have adduced had they known the outcome of the", "investigation, they again did not succeed in establishing that there", "had been any material procedural irregularity.", "- Lastly, the complaints that the Agricultural Land Planning Act had", "not been complied with were without foundation. The Supreme Board", "had, however, ordered a number of measures to be taken - drainage of", "the land allocated to the Ettls, the Schalhases and the Haases, and", "construction of an access way in the case of the Gunackers - without", "specifying all the works that were necessary, without giving", "sufficient reasons for its decisions and without having established", "all the material facts. In the case of the Ettls, the Board had", "obtained an opinion (Stellungnahme) from its agronomist member on the", "problem of the erosion of certain land but had not communicated it to", "the applicants, who had accordingly not been able to comment on it.", "The Administrative Court consequently quashed the impugned decisions", "on these points on grounds of procedural irregularity and remitted the", "cases to the Supreme Board.", "13. The Supreme Board allowed the applicants' appeals on", "3 March 1982. The District Authority subsequently published a new", "consolidation plan, which the applicants challenged before the", "Provincial Board in the autumn of 1985.", "The Court has not been informed of the progress of these proceedings." ]

[ "II. The relevant legislation", "1. In general", "14. Powers in respect of land reform in Austria are divided", "between the Federation and the Länder. Legislation establishing", "general principles is the responsibility of the Federation, while", "implementing legislation and law enforcement is the responsibility of", "the Länder (Article 12(1)(3) of the Federal Constitution). By", "Article 12(2) of the Federal Constitution, decisions at final instance", "and at Land level are taken by boards consisting of a \"chairman,", "judges, civil servants and experts\"; \"the board which decides at final", "instance shall be set up within the appropriate Federal Ministry\".", "\"Provision shall be made in a Federal Act for the organisation,", "functions and procedure of the boards and for the principles for", "organising the other authorities concerned with land reform\". This", "Act must provide that the executive shall not be able to set aside or", "vary the boards' decisions; it cannot exclude appeals to the", "provincial board against decisions by the authority of first instance.", "15. Within this constitutional framework the Federal Parliament", "has passed three Acts dealing with the following matters:", "(i) the legal principles applicable to land reform (Federal", "Agricultural Land Planning (General Principles) Act", "(Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977);", "(ii) the organisation of the land reform boards and the principles for", "organising the authorities of first instance (Federal Agricultural", "Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);", "(iii) proceedings before agricultural authorities (Federal", "Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which", "refers to the General Administrative Procedure Act).", "The Länder have regulated the matters for which they are made", "responsible under the Federal legislation in provincial agricultural", "land planning Acts (Flurverfassungs-Landesgesetze). In Lower Austria,", "consolidation is governed by the Agricultural Land Planning Act 1975.", "This replaced an Act of 1934 and was itself amended in certain", "respects by an Act of 23 February 1979.", "2. The agricultural authorities", "16. The first-instance authority in Lower Austria is the District", "Agricultural Authority, which is a purely administrative body. The", "higher authorities are the Provincial Board, established at the Office", "of the Provincial Government, and the Supreme Board, set up within the", "Federal Ministry of Agriculture and Forestry.", "Decisions (Bescheide) of the District Authority can be challenged by", "way of appeal (Berufung) to the Provincial Board, whose decision is", "final except where it has varied the decision in question and where", "the dispute concerns one of the issues listed in section 7(2) of the", "Federal Agricultural Authorities Act, such as the lawfulness of the", "compensation in the event of land consolidation; in such cases an", "appeal lies to the Supreme Board.", "In Austrian law the land reform boards are classified as boards whose", "members include judges (Kollegialbehörden mit richterlichem Einschlag)", "and which constitute a kind of \"specialised administrative tribunal\".", "17. The Provincial Board has eight members, all appointed by the", "Government of the Land (section 5(2) and (4) of the Federal", "Agricultural Authorities Act), viz.:", "- one Land civil servant, who is legally qualified (rechtskundig), and", "acts as chairman;", "- three judges;", "- a legally qualified Land civil servant with experience in land", "reform, who acts as rapporteur;", "- a senior Land civil servant (Landesbeamter des höheren Dienstes)", "with experience in agronomic matters;", "- a senior Land civil servant with experience in forestry matters; and", "- an agricultural expert within the meaning of section 52 of the", "General Administrative Procedure Act.", "18. The Supreme Board likewise has eight members (section 6(2) and", "(4) of the Federal Agricultural Authorities Act), viz.:", "- one legally qualified senior civil servant from the Federal Ministry", "of Agriculture and Forestry, who acts as chairman;", "- three members of the Supreme Court;", "- a legally qualified senior civil servant from the Federal Ministry", "of Agriculture and Forestry with experience in land reform, who acts", "as rapporteur;", "- a senior civil servant from the Federal Ministry of Agriculture and", "Forestry with experience in agronomic matters;", "- a senior civil servant from the Federal Ministry of Agriculture and", "Forestry with experience in forestry matters; and", "- an agricultural expert within the meaning of section 52 of the", "General Administrative Procedure Act.", "The judicial members are appointed by the Federal Minister of Justice,", "and the others by the Federal Minister of Agriculture and Forestry.", "19. Section 52 of the General Administrative Procedure Act, which", "is referred to in sections 5(2) and 6(2) of the Federal Agricultural", "Authorities Act, provides:", "\"1. If it becomes necessary to take expert evidence, the authority", "shall rely on the services of the official experts", "(Amtssachverständige) attached to it or put at its disposal.", "2. However, by way of exception, the authority may also consult other", "suitable persons sworn as experts if no official experts are available", "or if it becomes necessary having regard to the particular", "circumstances of the case. ...\"", "20. Members of land reform boards are appointed for five years and", "may be re-appointed (section 9(1) of the Federal Agricultural", "Authorities Act). They cease to hold office before the expiry of", "their term if, inter alia, they no longer satisfy the conditions of", "appointment (section 9(2)). Any member may, at his own request, be", "relieved of his office on health grounds or for professional reasons", "which prevent him from properly discharging his duties (section 9(3)).", "If a judicial or civil-servant member is suspended from duty by", "decision of a disciplinary tribunal, he shall automatically also be", "suspended from duty as a member of a land reform board (section 9(4)).", "21. The members of these boards discharge their duties", "independently and are not subject to any instructions (section 8 of", "the Federal Agricultural Authorities Act and Article 20(2) of the", "Federal Constitution). The executive can neither set aside nor vary", "their decisions (section 8 of the Federal Act and Article 12(2) of the", "Federal Constitution - see paragraph 14 above). The decisions can be", "challenged in the Administrative Court (section 8 of the Federal Act).", "22. The pattern of organisation described above was the outcome of", "a legislative change in 1974 following a judgment of the", "Constitutional Court in the same year.", "In the Constitutional Court's view, the land reform boards as", "constituted under the 1950 Act could not be regarded as being", "independent and impartial tribunals within the meaning of", "Article 6 § 1 (art. 6-1) of the Convention - their members included at", "that time a Minister from the Federal Government (in the case of the", "Supreme Board) or the relevant provincial government (in the case of", "the provincial boards), and the other members could be dismissed at", "any time by the relevant authorities (judgment of 19 March 1974,", "Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974,", "vol. 39, no. 7284, pp. 148-161).", "The new legislation excluded from the boards anyone who was a member", "of either the Federal Government or a provincial government,", "introduced provisions governing the term of office and the dismissal", "of members and provided for appeal to the Administrative Court", "(sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities", "Act 1974).", "3. Procedure before land reform boards", "23. Procedure before the land reform boards is governed by the", "Federal Agricultural Proceedings Act (see paragraph 15 above),", "section 1 of which stipulates that the General Administrative", "Procedure Act shall apply - except for one section of no relevance in", "the instant case - subject to the variations and additional provisions", "made in the Federal Act.", "The boards are responsible for the conduct of the proceedings", "(section 39 of the General Administrative Procedure Act). By", "section 9(1) and (2) of the Federal Act, the boards take their", "decisions after a private hearing. This is normally attended by the", "parties, who may consult the file (section 17 of the General", "Administrative Procedure Act). The parties may appear in person or be", "represented (section 9(3) of the Federal Act). The chairman may call", "witnesses and, in order to obtain information, civil servants who", "contributed to the decision at first instance and to the preparation", "of the decision (section 9(5)).", "Hearings begin with a report by the rapporteur; the board then", "clarifies the subject-matter of the dispute by hearing evidence from", "the parties and the witnesses and by looking at the legal and economic", "situation in detail (eingehend) (section 10(2)). It proceeds on the", "basis of the facts found by the authority below, but can also order", "further investigations to be made by that authority or by one or more", "of its own members (section 10(1)). The parties must be able to", "acquaint themselves with the findings made as a result of the taking", "of evidence (Beweisaufnahme) and to submit their comments", "(section 45(3) of the General Administrative Procedure Act).", "The boards deliberate and vote without the parties being present.", "After discussing the outcome of the hearing, the rapporteur submits", "conclusions (Antrag); anyone wishing to submit different conclusions", "(Gegen- und Abänderungsanträge) must give reasons for them", "(section 11(1) of the Federal Act). The chairman determines the order", "in which the conclusions are put to the vote (ibid). The rapporteur", "votes first, followed by the judges and then the other members,", "including the chairman, who votes last and has a casting vote if the", "votes are divided equally (section 11(2)).", "If an appeal is brought - within the prescribed two weeks", "(section 7(3)) - and is held to be admissible, the appropriate board", "will, if the findings of fact are so defective that a new hearing", "appears to be unavoidable, quash the disputed decision and remit the", "case to the authority below; otherwise it will determine the merits of", "the case itself (section 66(2) and (4) of the General Administrative", "Procedure Act). It may vary either the operative part of the impugned", "decision or the reasons given for the decision (section 66(4)).", "Boards must determine cases without undue delay (ohne unnötigen", "Aufschub) and in any event not later than six months after an", "application has been made to them (section 73(1)). If the board's", "decision (Erkenntnis) is not notified to the parties concerned within", "that time, the parties may apply to the higher authority, which will", "thereupon acquire jurisdiction to determine the merits", "(section 73(2)). If the latter authority fails to give a decision,", "jurisdiction passes - on an application by the interested party - to", "the Administrative Court (Article 132 of the Federal Constitution and", "section 27 of the Administrative Court Act).", "Reasons must be given for the boards' decisions, which must summarise", "clearly (klar und übersichtlich) the findings of the investigation,", "the assessment of the evidence, and the ruling - on the basis of that", "material - on the legal issues arising in the case (sections 58(2) and", "60 of the General Administrative Procedure Act). Decisions are sent to", "the parties; a board may, however, choose to give its decision", "forthwith (section 13 of the Federal Act).", "4. Appeals to the Constitutional Court and the Administrative Court", "24. The decisions of land reform boards can be challenged in the", "Constitutional Court. The latter reviews whether there has been any", "infringement of an applicant's rights under the Constitution and", "whether any decree (Verordnung) unauthorised by statute law or any", "unconstitutional statute or international treaty unlawful", "(rechtswidrig) under Austrian law has been applied (Article 144 of the", "Federal Constitution).", "25. As an exception to the general rule laid down in", "Article 133(4) of the Federal Constitution, section 8 of the Federal", "Agricultural Authorities Act provides for an appeal to the", "Administrative Court against the decisions of land reform boards.", "Application may be made to the Administrative Court before or after an", "application to the Constitutional Court, which, if it rules that there", "has been no infringement of the right relied on in the application to", "it, will refer the case to the Administrative Court if the applicant", "so requests (Article 144(3) of the Federal Constitution).", "26. Under Article 130 of the Federal Constitution, the", "Administrative Court hears applications alleging the unlawfulness of", "an administrative act (Bescheid) or coercion (Befehls- und", "Zwangsgewalt) against an individual or the breach by a competent", "authority of its duty to take a decision. It also hears appeals", "against decisions by boards whose members include judges - such as the", "land reform boards - where such jurisdiction is conferred on it by", "statute (see paragraphs 16, 22 and 25 above).", "If the Administrative Court does not dismiss the application as", "unfounded, it will quash the decision appealed against; it determines", "the merits itself only where the relevant authority has failed in its", "duty to give a decision (section 42(1) of the Administrative Court Act", "(Verwaltungsgerichtshofgesetz)).", "When reviewing the lawfulness of an administrative act or of a", "decision by a board whose members include judges, the Court does so on", "the basis of the facts found by the authority concerned and solely in", "the light of the complaints made, unless the authority has acted ultra", "vires or procedural requirements have not been complied with", "(section 41 of the Administrative Court Act). In this connection the", "Act specifically provides that the Court shall quash the act appealed", "against - on grounds of procedural irregularity - where the facts the", "administrative authority held to have been established are", "contradicted in a vital respect by the file, or where they are", "incomplete in such a respect or where there has been a failure to", "comply with rules which, if they had been correctly applied, might", "have resulted in a different decision (section 42(2)(3) of the", "aforementioned Act).", "If, during the consideration of a case, grounds emerge which were", "previously unknown to the parties, the latter must be given an", "opportunity to be heard by the court, which must adjourn the", "proceedings if necessary (section 41(1) of the Act).", "27. Procedure consists mainly in an exchange of pleadings", "(section 36), followed (except in certain cases specified in the Act)", "by a hearing inter partes, which will normally be held in public", "(sections 39 and 40).", "PROCEEDINGS BEFORE THE COMMISSION", "28. The applicants applied to the Commission on 27 October 1980", "(application no. 9273/81). They claimed that they had not had a", "hearing by an independent and impartial tribunal as required by", "Article 6 § 1 (art. 6-1) of the Convention.", "29. The Commission declared the application admissible on", "9 March 1984. In its report of 3 July 1985 (made under Article 31)", "(art. 31), it reached the conclusion that there had been a breach of", "Article 6 § 1 (art. 6-1) (ten votes to two).", "The full text of the Commission's opinion and of the separate opinions", "contained in the report is annexed to this judgment.", "FINAL SUBMISSIONS TO THE COURT", "30. At the hearing on 20 October 1986, the Court was asked", "- by the Government \"to hold that in the present case the provisions", "of Article 6 § 1 (art. 6-1) of the European Convention on Human Rights", "have not been violated and that therefore the facts underlying the", "dispute do not indicate any breach by the Republic of Austria under", "the Convention\";", "- by the Commission's Delegate to uphold the Commission's opinion; and", "- by the applicants to find in their favour.", "AS TO THE LAW", "31. The applicants claimed that they had not had a \"public\"", "hearing by an \"independent and impartial tribunal\". In their", "submission, the Provincial and Supreme Land Reform Boards were not", "sufficiently independent of the executive; at least some of their", "members could not be considered to be impartial; and proceedings did", "not take place in public. Subsequent review by the Administrative", "Court had not, they contended, provided a remedy: it was available", "only after lengthy administrative proceedings and had not been", "sufficiently wide in scope, since it was in principle confined to", "consideration of points of law. They argued that there had", "consequently been a breach of Article 6 § 1 (art. 6-1) of the", "Convention, which provides:", "\"In the determination of his civil rights and obligations ...,", "everyone is entitled to a ... public hearing ... by an independent and", "impartial tribunal established by law. ...\"", "The Government disputed these contentions; the Commission agreed with", "the applicants that their right to a hearing by an \"independent and", "impartial tribunal\" had not been respected.", "1. Applicability of Article 6 § 1 (art. 6-1)", "32. The Obritzberg agricultural consolidation plan concerned,", "inter alia, land belonging to the Ettl, Schalhas, Gunacker and Haas", "families, which was taken from them in exchange for land previously", "belonging to other owners. The applicants contested - and continue to", "contest - the lawfulness of the compensation obtained. Any decision", "- whether favourable or unfavourable - by the authorities dealing with", "the matter consequently affected, affects or will in the future affect", "their property rights. The outcome of the proceedings complained of", "is accordingly \"decisive for private rights and obligations\" (see the", "Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94, and", "the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 34),", "so that Article 6 § 1 (art. 6-1) applies in the instant case; the", "Government, moreover, conceded this.", "2. Compliance with Article 6 § 1 (art. 6-1)", "33. The dispute (\"contestation\") related to the consolidation plan", "adopted and then published in July 1973 by the Lower Austrian District", "Agricultural Authority. The dispute was submitted to the Provincial", "Board, the Supreme Board, the Constitutional Court and the", "Administrative Court in turn. It must therefore be determined whether", "recourse to those authorities satisfied the requirements of", "Article 6 § 1 (art. 6-1).", "(a) \"Independent and impartial tribunal\"", "34. The Provincial and Supreme Boards, the Administrative Court", "and the Constitutional Court are clearly tribunals established by law", "(see, mutatis mutandis, the above-mentioned Sramek judgment, p. 17,", "§ 36). It is further necessary that they should have been independent", "and impartial.", "35. The Administrative Court and the Constitutional Court", "undoubtedly satisfied that requirement, but, in the applicants'", "submission, the same was not true of the Provincial and Supreme", "Boards, mainly on account of their membership: the Provincial and", "Supreme Boards comprised a majority of civil servants in a", "hierarchical relationship with one another and three of whom sat as", "experts, while the other two occupied the key positions of chairman", "and rapporteur. The applicants also contended that the members' term", "of office was too short. In their view, members should be appointed", "for life, in order to ensure that they were not subject to any", "pressure.", "The Government saw these boards as \"specialised administrative", "tribunals\" (see paragraph 16 above) such as have existed in Austria", "since the last century. They maintained that the boards' members had", "the necessary independence - in 1974, the legislature had adjusted the", "organisation of the boards to comply with the requirements of", "Article 6 (art. 6) as the Court had interpreted it in its judgment of", "16 July 1971 in the Ringeisen case.", "In the view of the Commission, on the other hand, the Provincial and", "Supreme Boards did not have sufficient independence in the instant", "case, as they contained a majority of officials some or all of whom", "were from the same civil-service departments and in a position of", "hierarchical subordination in respect of their other duties (see", "paragraphs 97 and 98 of the Commission's report and paragraphs 9 and", "10 above).", "36. The Court notes that, at the time in question, the Provincial", "Board included three judges; the head of Division VI 4 of the Office", "of the Lower Austrian Provincial Government, who acted as chairman; a", "member of the same division, as rapporteur; a member of Division VI", "11; and two other civil servants from the Office of the Provincial", "Government, one of them sitting as an agricultural expert (see", "paragraph 9 above).", "The Supreme Board consisted of three Supreme Court judges and five", "civil servants from the Federal Ministry of Agriculture and Forestry", "- the chairman and the rapporteur came from Division I 7, the other", "three from Divisions II C 7, II C 8 and V A 3 (see paragraph 10", "above).", "37. The independence and impartiality of the judge members is not", "in issue.", "There remain the civil servants whom the Provincial Board and the", "Supreme Board included as members pursuant to the Federal Agricultural", "Authorities Act (see paragraphs 17 and 18 above).", "38. It should be noted first of all that the fact that these civil", "servants sat, and even constituted a majority, on the bodies concerned", "does not in itself contravene Article 6 § 1 (art. 6-1) of the", "Convention. The Federal Constitution and the Federal Agricultural", "Authorities Act make provision for their independence and prohibit", "public authorities from giving them any instructions concerning their", "judicial duties (see paragraph 21 above; and the above-mentioned", "Ringeisen judgment, Series A no. 13, pp. 39-40, §§ 95-97, and the", "above-mentioned Sramek judgment, Series A no. 84, p. 19, § 41). Nor", "did the applicants claim that the civil servants who heard their case", "had received any such instructions as to the matters in dispute.", "The boards were independent not only of the executive but also, inter", "alia, of the parties to the case, namely the owners of the land", "concerned (see the above-mentioned Ringeisen judgment, p. 39, § 95,", "and the Campbell and Fell judgment of 28 June 1984, Series A no. 80,", "p. 39, § 78). It should be emphasised that neither the Provincial", "Government nor the Federal Government was a party to the case; in this", "respect the present case is similar to the Ringeisen case and differs", "from the Sramek case (see the above-mentioned Sramek judgment, ibid.).", "39. Given the situation in law and in fact as found in the present", "case, the hierarchical links which existed in other contexts between", "civil servants from the same division are of no consequence from the", "point of view of Article 6 (art. 6) either. It would appear,", "moreover, that such links existed only between the chairman and the", "rapporteur in each of the two boards.", "40. As to the three civil servants who, pursuant to the Act, sat", "on account of their experience of agronomy, forestry and agriculture,", "their membership cannot give rise to doubts about the independence and", "impartiality of the boards. They were experts in their fields; such", "experts are needed in cases concerning land consolidation, which is an", "operation that raises issues of great complexity and affects not only", "the owners directly concerned but the community as a whole. The", "boards' composition enables them to reach balanced decisions, having", "regard to the various interests at stake. Besides, the domestic", "legislation of the Council of Europe's member States affords many", "examples of tribunals in which professional judges sit alongside", "specialists in a particular sphere whose knowledge is desirable and", "even essential in settling the disputes within the tribunals'", "jurisdiction.", "Where these civil servants prepare a written opinion on a given issue,", "section 45(3) of the General Administrative Procedure Act requires", "that it be communicated to the parties, who must be given an", "opportunity to submit their comments (see paragraph 23 above). The", "adversarial nature of the proceedings before the boards under the", "Federal Agricultural Authorities Act and the General Administrative", "Procedure Act (see the above-mentioned Sramek judgment, p. 18, § 38)", "is accordingly quite unaffected by the participation of the", "\"civil-servant experts\". In the case of the Ettls, the Administrative", "Court in fact quashed the Supreme Board's decision, precisely on the", "ground that the opinion of the member who was an agronomy expert had", "not been brought to the applicants' knowledge (see paragraph 12", "above).", "41. As regards the length of the term of office of members of the", "boards, the Federal Agricultural Authorities Act likewise satisfies", "the conditions laid down in Article 6 § 1 (art. 6-1): the five-year", "term, coupled with virtual irremovability during that period (see", "paragraph 20 above), does not put the independence and impartiality of", "these boards in doubt (see the above-mentioned Sramek judgment,", "ibid.).", "(b) \"Public hearing\"", "42. In accordance with the Act, the sittings of the boards which", "heard the instant case were attended by the parties but were not held", "in public (see paragraph 23 above).", "This lack of any public hearing, which is normally contrary to", "Article 6 § 1 (art. 6-1), is covered, however, by the reservation", "Austria made when ratifying the Convention. On this point, the Court", "refers to its above-mentioned judgment in the Ringeisen case; it sees", "no reason to depart from that judgment (pp. 40-41, § 98).", "43. Accordingly, there was no breach of Article 6 § 1 (art. 6-1)", "in respect of the Provincial and Supreme Boards. It is consequently", "unnecessary to determine whether the Administrative Court's review", "- taken by itself or in conjunction with the Constitutional Court's", "review - complied, as regards its scope, with the requirements of", "Article 6 § 1 (art. 6-1)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The planning background", "7. The applicant bought the Calais Vinery, Calais Lane, St Martin’s in 1982. A number of planning applications were made to permit residential use of the land in the ensuing years. The applications were all refused, an appeal being dismissed by the Royal Court in July 1984. In 1986 or 1987 the applicant moved into a converted packing shed on his land.", "8. In 1988 the applicant, through an advocate, made representations to a planning inquiry which was considering the draft Detailed Development Plan no. 6 (DDP6). In his report to the President of the Island Development Committee (IDC), the inspector set out the arguments led by the applicant’s advocate and by the advocate for the IDC, and concluded that a dwelling on the applicant’s site would be an intrusion into the agricultural/horticultural hinterland. He supported the IDC’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited.", "9. The President of the IDC submitted DDP6, in draft, to the President of the States of Deliberation on 22 May 1990.", "10. The States of Deliberation, presided over by Mr Graham Dorey, the Deputy Bailiff, debated and adopted DDP6 on 27 and 28 June 1990. The zoning of the applicant’s land was not changed.", "11. A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the IDC on 11 July 1991 as the IDC was bound to take into account DDP6, according to which the site was zoned as a Developed Glasshouse Area where residential development was not allowed.", "12. On 27 March 1992 the applicant was convicted by the Magistrates’ Court on his guilty plea of changing the use of the shed without permission, contrary to section 14(1)(a) of the Island Development (Guernsey) Law 1966 (“the 1966 Law”). He was fined 100 pounds sterling, with ten days’ imprisonment in default.", "13. On 15 February 1993 the IDC applied for permission under Section 37(1)(h) of the 1966 Law itself to carry out the necessary works to remedy the breach of the planning legislation. The application was adjourned in Ordinary Court by the Deputy Bailiff on 25 February 1993 for a date to be fixed. The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty’s Procureur.", "14. A further application on the applicant’s behalf for permission to continue living in the shed was dismissed by the IDC on 18 May 1993, and a request for the section 37(1)(h) proceedings to be adjourned was dismissed by the Bailiff on 20 May 1993. On 25 June 1993 the Royal Court comprising the Bailiff and three Jurats granted the IDC’s application under Section 37(1)(h).", "B. The particular facts of the case", "15. On 10 August 1993 the applicant’s current representative made a formal application for change of use on behalf of the applicant, together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal. The application was rejected by the IDC on 26 October 1994 in the following terms:", "“I have to inform you that ... the Committee decided to reject your proposal for the following reason which is based on the considerations which the Committee is bound to take into account under the provisions of section 17 of the Island Development (Guernsey) Laws 1966-1990:–", "(a) Detailed Development Plan no. 6, as approved by the States.", "The site is located within a Developed Glasshouse Area and the Committee’s written statement of policy makes no provision for the form of development proposed. I enclose for your information a copy of the written statement of policy. ...”", "16. On 6 June 1995 the Royal Court, comprising the Bailiff, by then Sir Graham Dorey, and seven Jurats, heard the applicant’s appeal. The applicant’s representative accepted that the written statement provided for no development other than “Developed Glasshouse” in the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP. The Bailiff then summed up the applicant’s complaints to the Jurats, instructing them that the ultimate burden of proof was on the IDC to satisfy the Jurats that the IDC’s decision was reasonable. The appeal was dismissed unanimously. The decision recites the grounds of appeal, but gives no reasons." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "17. The Court has been referred to one recent official document relating to the Constitution of Guernsey generally. It is the States of Guernsey Administrative and Accounting Guidelines, issued in 1991 as a manual of reference and best practice for the information and guidance of civil servants. It has forewords by the then Bailiff and President of the States, Sir Charles Frossard, and by the States Supervisor, Mr F.N. Le Cheminant. The section dealing with the Constitution and law of Guernsey is taken from a pamphlet by a former Bailiff, and the part dealing specifically with the position of the Bailiff reads as follows:", "“The Bailiff is the Island’s chief citizen and representative.", "The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her Majesty’s Pleasure subject to a retiring age of seventy years. He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration.", "The Bailiff, as President of the States of Deliberation, is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided. In general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt. He places measures before the States at the request of the States Committees but he can also on his own initiative place any matter before the assembly.", "He is, with the Lieutenant-Governor, a channel of communication between the Privy Council and the Secretary of State for the Home Department on the one hand and on the other, the Island authorities; and in a number of questions, as the head of the Administration of the Island, he would be expected to guide the Island authorities.", "He has been relieved of some of his administrative responsibilities by the appointment of the States Advisory and Finance Committee which is in the nature of a co-ordinating committee with advisory powers but the Bailiff may, in his own discretion, lay before the States any matter which he has previously referred to the Committee providing that he gives the Committee an opportunity to acquaint the States with its views.", "While the Bailiff is responsible for arranging the business to come before the States, he is not in a position to refuse to place before the States any question of business if so requested by Members or Committees of the States. The assembly looks to the Bailiff for advice on matters affecting the Constitution of the Island.", "In the course of insular legislation or in discussions arising from communications from the Privy Council or the Home Department, it is the duty of the Bailiff to represent the views of the Island in constitutional matters.", "In the event of differences between the Crown and the States it is the historical duty of the Bailiff to represent the views of the people of the Island.”", "18. The Bailiff is the senior judge of the Royal Court. In the modern era, he has usually occupied the offices of Her Majesty’s Comptroller, Her Majesty’s Procureur (Solicitor-General and Attorney-General respectively) and, since 1970, Deputy Bailiff, before finally becoming Bailiff. In his judicial capacity, the Bailiff is the professional judge (with the lay Jurats) in the Royal Court, and is ex officio President of the Guernsey Court of Appeal. In his non-judicial capacity, the Bailiff is President of the States of Election, of the States of Deliberation, of four States committees (the Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee), and he plays a role in communications between the island authorities and the government of the United Kingdom and the Privy Council. Where the Bailiff presides in his non-judicial capacity, he has a casting, but not an original, vote.", "19. The States of Election elects people to fill the vacancies which occur amongst the twelve Jurats. Jurats sit as lay members of the Royal Court. It is their function to determine the issues of fact referred to them, and to decide whether or not to allow an appeal. They also sit on certain of the States committees, either because a committee mandate requires the election of a Jurat or by reason of abilities or interests personal to them. Jurats are not, however, eligible to sit on the States Committee for Home Affairs, the Gambling Control Committee or any States committee which administers legislation the provisions of which include a right of appeal to the Royal Court against a decision of that committee.", "20. The States of Deliberation exercises its legislative power in Guernsey in the form of Laws and Ordinances. In practice, a “Billet d’Etat” is laid before the States, generally by one or other of the States committees. Having passed through the States of Deliberation, Projets de Loi (draft laws) are scrutinised by the Home Office and other relevant departments of the United Kingdom government before being submitted to the Privy Council in London for royal assent. Ordinances do not need royal assent and are made under the States of Deliberation’s limited common-law powers, or under powers delegated to the States by Guernsey laws or Acts of the United Kingdom parliament applicable to Guernsey.", "21. The States of Deliberation is not divided on party political lines; members of the States are elected as individuals, and vote in all matters according to their consciences. All members are of equal importance, and there are no time-limits on the length of speeches or debates generally. The States is scheduled to meet twelve times each calendar year. Sittings usually last one or two days.", "22. The States committees conduct the government of Guernsey. There are some fifty States committees, to which specific administrative tasks are given by statute or delegated by the States of Deliberation. Each committee is directly accountable to the States of Deliberation.", "23. None of the States committees has legal supremacy over the others, although the Advisory and Finance Committee is the most important. It oversees Treasury matters and examines all proposals and reports which are to be placed before the States of Deliberation. The committees, each of which has a Chief Officer or Chief Executive, are supported by a professional civil service of some 1,800 staff.", "24. The Appointments Board, one of the States committees, appoints officials to fill certain offices in the States’ service when those offices become vacant. With limited exceptions, it appoints at the level of Senior Officer Grade 8 or above. The offices include the States Supervisor and other senior civil servants such as senior medical personnel, the Prison Governor and the Chief Officer of Police. It has never appointed a Chief Executive of the IDC. The Appointments Board met twenty-four times in the ten years prior to 31 December 1998.", "25. The Emergency Council has the power to declare a state of emergency, to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life, and to make other essential arrangements in the case of hostile attack by a foreign power. It has met three times in the last ten years. On none of those occasions was a state of emergency declared.", "26. The Legislation Committee, which meets about once a month, reviews and revises the Projets de Loi, reviews and drafts Ordinances and, in certain cases, orders that an Ordinance shall come into force pending consideration by the States of Deliberation. The latter function has been used on sixteen occasions in the last ten years.", "27. The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of the States of Deliberation, receives representations from the States and makes representations to the States for amendments to the Rules. It has met twenty-five times in the last fifteen years.", "28. The Bailiff’s role in communications between the island authorities and the government of the United Kingdom and Privy Council arises from his historical function of representing the views of the islanders to the Crown. The Bailiff represents a States committee’s views outside the island when specifically requested to do so, and in accordance with a clear mandate. Representations are generally on behalf of the smaller committees. Examples of this function are the Bailiff’s involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the government to ensure that Heathrow Airport should have slots for aircraft from regional airports such as Guernsey.", "29. The States Supervisor, the Chief Officer of the Advisory and Finance Committee, is the committee’s senior adviser on policy, and is also head of the Guernsey civil service. He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to the States of Deliberation and comments on them for the benefit of the Advisory and Finance Committee’s deliberations on them. He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate.", "30. Section 14(1)(a) of the Island Development (Guernsey) Law 1966 provides:", "“A person shall not, without the permission in writing in that behalf of the Committee, carry out development of any land.”", "Section 17(a) provides:", "“In exercising its powers under the provisions of the last preceding section the Committee shall take into account the Strategic and Corporate Plan when approved by the States and any relevant Detailed Development Plans when so approved.”", "31. In the case of Bordeaux Vineries Ltd v. States Board of Administration (4 August 1993), a challenge was made to the participation of the Bailiff as a judge in the Royal Court in an action against the States Board of Administration, one of the major States committees. The Court of Appeal noted that the then Bailiff, at first instance, had held:", "“Insofar as the constitutional position is concerned ... my first duty is to the Crown in all matters, and I do not espouse causes of the States. ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally. The way I defined that was to vote against any proposition before the States and only if that vote impinged on my conscience would I contemplate any other course.”", "In connection with the existence of an appeal to it, the Court of Appeal noted:", "“... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this Court.”", "As to the participation of the Bailiff, the Court of Appeal found that:", "“... the Bailiff is invested by law with duties in the Royal Court and in the States. The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the States. I do not think that on these occasions his responsibility in the States disqualifies him from discharging his responsibility in this Court. He can properly discharge both responsibilities because although he is a member of the States his special position there means he is not responsible for the decisions of the States or the acts of its agencies ...”", "PROCEEDINGS BEFORE THE COMMISSION", "32. Mr McGonnell applied to the Commission on 29 June 1995.", "33. The Commission declared the application (no. 28488/95) partly admissible on 22 January 1998. In its report of 20 October 1998 (former Article 31 of the Convention) [1], it expressed, by twenty-five votes to five, the opinion that there had been a violation of Article 6 § 1 of the Convention.", "FINAL SUBMISSIONS TO THE COURT by the government", "34. The Government’s principal written submission was that the application should be declared inadmissible pursuant to Article 35 of the Convention. In the alternative, they submitted that there was no violation of Article 6 § 1 of the Convention.", "35. In their oral submissions, the Government contended that the complaint under Article 6 did not give rise to a violation of the Convention. In their final observations, they maintained that an appeal was available in respect of the constitutional position of the Bailiff, and was not taken.", "THE LAW", "I. alleged violation of article 6 § 1 of the convention", "36. The applicant claimed that he did not have the benefit of the guarantees of Article 6 § 1 of the Convention at the hearing of his case before the Royal Court of Guernsey on 6 June 1995. The relevant part of Article 6 provides:", "“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”", "37. The Government contested the claim. The Commission upheld it.", "A. The Government’s preliminary objection", "Alleged non-exhaustion of domestic remedies", "38. The Government contended that the complaint concerning the alleged lack of independence and impartiality of the Royal Court in the applicant’s case should be declared inadmissible for failure to exhaust domestic remedies, pursuant to Article 35 of the Convention, which states:", "“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”", "In the Government’s submission, it would have been open to the applicant to appeal to the Guernsey Court of Appeal in respect of any alleged lack of independence and impartiality on the part of the Royal Court. They pointed to the case of Bordeaux Vineries Ltd v. States Board of Administration (see paragraph 31 above) in which the Court of Appeal found that an appeal lay to it against a decision by the Bailiff on whether he was disqualified by interest from hearing any matter. They noted that the jurisdiction of the European Court to declare an application inadmissible for failure to exhaust domestic remedies, even when such arguments were rejected by the Commission, was not in doubt. They claimed that there was no reason why the exercise of the jurisdiction should depend on the Commission having given detailed consideration to the point.", "39. The applicant contended that the Government were estopped from raising an objection of non-exhaustion, among other reasons because they had stated before the Commission’s admissibility decision that “the Government concedes that it was not reasonably practicable for the applicant to have addressed any of his complaints to another authority”. He considered that in any event no domestic remedy had been available to him, as the Bordeaux Vineries case had decided that the Bailiff’s functions as President of the States did not preclude him from sitting as a judge in actions against the States.", "40. The Court notes that the Government’s submissions were not raised before the Commission. The Government are therefore estopped from relying on them (see, among many other authorities, the Vasilescu v. Romania judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1074, § 34).", "B. Applicability of Article 6", "41. The parties agreed that Article 6 § 1 of the Convention was applicable to the proceedings in the present case, and the Court so finds.", "C. Waiver", "42. The Government claimed that where a legally represented applicant had failed to raise an objection to the tribunal when it was open to him to do so, he must – even if the application was admissible – be deemed to have waived his right to object to the independence and impartiality of that tribunal.", "43. The applicant submitted that the Government’s submissions were a mere repetition of their submissions as to non-exhaustion of domestic remedies, and that they should be dismissed for the same reason. He considered that the Government had not, in any event, established a waiver.", "44. The Court recalls that in the context of a complaint concerning the absence of a public hearing in civil proceedings, it has held that “a waiver must be made in an unequivocal manner and must not run counter to any important public interest” (see the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66). No express waiver was made in the present case. The question, as in the Håkansson and Sturesson case, is whether there was a tacit one. The answer to the question whether the applicant ought to have taken up his complaint with either the Bailiff at the hearing on 6 June 1995, or on appeal with the Court of Appeal, depends on what was reasonable in the circumstances of the case. In assessing that reasonableness, the Court notes first that in the Bordeaux Vineries case referred to by the Government, the Court of Appeal found that there was no structural conflict between the Bailiff’s duties in the Royal Court and in the States of Deliberation.", "Secondly, the Court notes that the argument of waiver was made for the first time before the Court: it was not raised before the Commission either prior or subsequent to the Commission’s decision on admissibility.", "45. Given the clear statement of the Court of Appeal in the Bordeaux Vineries case that the Bailiff’s constitutional functions in connection with the States do not impinge on his judicial independence, and the fact that a domestic challenge was not only not pursued by the applicant in the domestic proceedings, but was not raised by the Government until a late stage of the Convention proceedings, the Court finds that the applicant’s failure to challenge the Bailiff in Guernsey cannot be said to have been unreasonable, and cannot amount to a tacit waiver of his right to an independent and impartial tribunal.", "D. Compliance with Article 6 § 1", "46. The applicant pointed to the non-judicial functions of the Bailiff, contending that they gave rise to such close connections between the Bailiff as a judicial officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6. As specific examples, the applicant pointed to three matters which were not referred to before the Commission. They are the facts that the Bailiff is invariably appointed from the office of the Attorney-General, that he acts as Lieutenant-Governor of the island when that office is vacant, and that the Bailiff who sat in the present case had also presided over the States of Deliberation when DDP6, the very act which was at issue in the applicant’s later case, was adopted. He also claimed that the Royal Court gave inadequate reasons for its judgment.", "47. The Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers. They maintained that whilst the Bailiff has a number of positions on the island, they cannot give rise to any legitimate fear in a reasonably well-informed inhabitant of Guernsey of a lack of independence or impartiality because the positions do not involve any real participation in legislative or executive functions. In particular, they underlined that when the Bailiff presides over the States of Deliberation or one of the four States committees in which he is involved, his participation is not that of an active member, but rather he is an independent umpire, who ensures that the proceedings run smoothly without taking part in or expressing approval or disapproval of the matters under discussion. In connection with the reasons for the Royal Court’s judgment, the Government considered that the Bailiff’s summing-up, taken together with the decision of the Jurats, gave sufficient reasons to comply with Article 6 of the Convention.", "48. The Court recalls that in its Findlay v. the United Kingdom judgment (25 February 1997, Reports 1997-I, p. 281, § 73) it found that:", "“in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence ...", "As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect ...", "The concepts of independence and objective impartiality are closely linked ...”", "49. In the present case, too, the concepts of independence and objective impartiality are closely linked, and the Court will consider them together.", "50. The Court first observes that there is no suggestion in the present case that the Bailiff was subjectively prejudiced or biased when he heard the applicant’s planning appeal in June 1995. It has not been alleged that the Bailiff’s participation as Deputy Bailiff in the adoption of DDP6 in 1990 gives rise to actual bias on his part: the applicant stated that it was not possible to ascertain whether there was actual bias because of the Bailiff’s various functions, but he did not contend that the Bailiff was subjectively biased or prejudiced.", "51. The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the Bailiff had the required “appearance” of independence, or the required “objective” impartiality.", "52. In this connection, the Court notes that the Bailiff’s functions are not limited to judicial matters, but that he is also actively involved in non-judicial functions on the island. The Court does not accept the Government’s analysis that when the Bailiff acts in a non-judicial capacity he merely occupies positions rather than exercising functions: even a purely ceremonial constitutional role must be classified as a “function”. The Court must determine whether the Bailiff’s functions in his non-judicial capacity were, or were not, compatible with the requirements of Article 6 as to independence and impartiality.", "53. The Court observes that the Bailiff in the present case had personal involvement with the planning matters at the heart of the applicant’s case on two occasions. The first occasion was in 1990, when, as Deputy Bailiff, he presided over the States of Deliberation at the adoption of DDP6. The second occasion was on 6 June 1995, when he presided over the Royal Court in the determination of the applicant’s planning appeal.", "54. The Court recalls that in the case of Procola v. Luxembourg, four of the five members of the Conseil d’Etat had carried out both advisory and judicial functions in the same case (judgment of 28 September 1995, Series A no. 326, p. 16, § 45).", "55. The participation of the Bailiff in the present case shows certain similarities with the position of the members of the Conseil d’Etat in the Procola case. First, in neither case was any doubt expressed in the domestic proceedings as to the role of the impugned organ. Secondly, and more particularly, in both cases a member, or members, of the deciding tribunal had been actively and formally involved in the preparatory stages of the regulation at issue. As the Court has noted above, the Bailiff’s non-judicial constitutional functions cannot be accepted as being merely ceremonial. With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue. In the present case, in addition to the chairing role as such, the Deputy Bailiff could exercise a casting vote in the event of even voting and, as the Bailiff stated in the Bordeaux Vineries case, there was no obligation on him to exercise his casting vote against a proposition before the States where that vote impinged on his conscience (see paragraph 31 above). Moreover, the States of Deliberation in Guernsey was the body which passed the regulations at issue. It can thus be seen to have had a more direct involvement with them than had the advisory panel of the Conseil d’Etat with the regulations at issue in the Procola case (judgment cited above, p. 12, § 25).", "56. The Court also notes that in the De Haan case, the judge who presided over the Appeals Tribunal was called upon to decide on an objection for which he himself was responsible. In that case, notwithstanding an absence of prejudice or bias on the part of the judge, the Court found that the applicant’s fears as to the judge’s participation were objectively justified (see the De Haan v. the Netherlands judgment of 26 August 1997, Reports 1997-IV, pp. 1392-93, §§ 50-51).", "57. The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint.", "58. It follows that there has been a breach of Article 6 § 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "59. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "60. The applicant requested the Court to award a “just and appropriate sum in compensation”. In early correspondence he referred to the sum of 50,000 pounds sterling (GBP). The Government considered that there was no reason to award any sum in respect of pecuniary or non-pecuniary damage.", "61. The Court finds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered. No specific claim for pecuniary damage has been made, and the Court finds none.", "B. Costs and expenses", "62. The applicant has submitted bills totalling GBP 20,913.90 (exclusive of value-added tax – “VAT”). The Government have not commented on them.", "63. The Court awards the applicant the sum of GBP 20,913.90, together with any VAT which may be payable.", "C. Default interest", "64. According to the information available to the Court, the statutory rate of interest applicable in England and Wales at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant formed five construction companies to build catering and accommodation facilities at the request of the Olympic Games Organisation Committee ( “the OGOC”). He was the manager of the companies. He held 99% of the shares in one of the companies, which was the sole shareholder in the other four. He also acted as guarantor of virtually all the companies' debts.", "10. As the works were not completed within the agreed period, the OGOC suspended payment for them. On 24 February 1992 the applicant lodged a declaration of insolvency on behalf of the companies with the registry of the Nanterre Commercial Court.", "11. On 25 February 1992 the Nanterre Commercial Court made an order for the judicial reorganisation of the applicant's five companies. It named Mr A. as the insolvency judge, and also appointed a deputy insolvency judge, a judicial administrator and a creditors' representative. It ordered a six-month observation period during which the judicial administrator was to draw up a report on the companies' finances and labour force with his recommendations as to whether the companies should continue or cease trading. The observation period was renewed twice.", "12. During the observation period, the insolvency judge made various orders, namely: orders for the appointment of an expert on management supervision (11 March 1992), a valuer (6 April 1992) and an accountant (22 April 1992); orders declaring claims time-barred (two orders were made on 13 October 1992 and others on 16 November 1992, 17 February 1993, 10 and 30 March 1993, 5 May 1993, 1 June 1993 and 25 March 1994); orders for the restitution of equipment (on 8 September, 14 December 1992 and 30 March 1993); an order authorising the applicant's intervention in the management of the hotels (on 15 September 1992); an order dismissing applications for the restitution of equipment (16 November 1992); orders for an action to be brought against one of the other contracting parties and for other measures (on the same date) and for the restitution of equipment (30 March 1993); orders dismissing thirteen members of staff (7 April 1992) and a further member of staff (8 September 1992); and lastly an order for the freezing of accounts (8 September 1992).", "13. On 23 September 1993 the judicial administrator asked the Commercial Court to decide whether to accept the applicant's proposals for its recovery through continued trade.", "14. The applicant appeared at the hearing and gave evidence as the manager of the companies concerned. The judicial administrator and the creditors' representative also made oral submissions. The judicial administrator presented a report in which he explained to the Commercial Court the history of the dealings which had led to the applicant's filing in insolvency. He then related to the court events during the observation period. He stressed that the applicant's recovery plan had been accepted by a majority of the creditors. He raised doubts over certain issues and said that it was for the applicant to dispel those doubts by putting up financial and professional guarantees.", "15. The Commercial Court decided (on application by State Counsel's Office) that before approving the applicant's proposed recovery plan, it needed to be satisfied that the companies' continued economic activity would be permanent. For that purpose, it needed financial and professional guarantees from the applicant. It therefore asked him to produce certain additional documents so that it could be sure that the guarantees existed. The applicant lodged an additional file in response to that request. In the light of the new file lodged by the applicant, the administrator filed a supplemental report.", "16. On 26 October 1993 the Commercial Court terminated the observation period and put the five companies into compulsory liquidation. It held that the proposed recovery plan was not accompanied by sufficiently reliable guarantees to ensure that the companies could continue as a going concern. The judgment contained, inter alia, the following passages:", "“Consequently the Court must find that the proposed plan is not accompanied by the guarantees required to ensure its future economic activity in a difficult sector.", "Pursuant to the provisions of sections 1, 36 and 146 of Law no. 85-98 of 25 January 1985, it therefore orders the compulsory liquidation of the aforementioned companies in accordance with the provisions of Chapter III of that statute and holds as follows.", "FOR THESE REASONS", "The Court, sitting in public and as a court of first instance,", "Having examined the insolvency judge's report,", "Having examined the judicial administrator's report ...", "Terminates the observation period ...”", "17. The Commercial Court reassigned the case to the insolvency judge, decreed that the administrator's mission had been completed and appointed the creditors' representative as liquidator of the companies. The insolvency judge sat on the bench that delivered that judgment in his capacity as President of the Chamber. He was assisted by the Vice-President of the Commercial Court and another judge.", "18. In a judgment of 31 January 1994, the Versailles Court of Appeal upheld the Commercial Court 's judgment in its entirety. It delivered its decision after examining the applicant's recovery plan, the judicial administrator's report and the liquidator's submissions. The applicant attended the hearing and made oral observations.", "On 7 April 1994 the applicant appealed to the Court of Cassation. He put forward two grounds of appeal based on Article 6 of the Convention. On 23 January 1996 the Court of Cassation dismissed the appeal. The applicant had argued that the Commercial Court had not been impartial because the insolvency judge had sat on the bench of the Commercial Court that had ordered the companies' liquidation after playing an active role in the period of observation of the companies. The Court of Cassation met the argument as follows:", "“... the fact that, in accordance with Article 24 of the decree of 27 December 1985, the insolvency judge sat on the bench that made the order for compulsory liquidation is not contrary to the provisions of Article 6 § 1 of the European Convention on Human Rights; that ground of appeal is unfounded; ...”", "The applicant's second ground of appeal read as follows:", "“... the insolvency judge's report and accompanying documents were not communicated to the appellants. In that regard the hearing was not fair for the purposes of Article 6 § 1 of the Convention and the rights of the defence were not respected within the meaning of Article 16 of the New Code of Civil Procedure. A hearing can only be said to be fair – again for the purposes of the European Convention – if equality of arms is ensured, in other words, if each party is aware of all the matters on which the court will rely in coming to its decision. Among those matters, the insolvency judge's report plays a paramount role in helping the court to reach its decision. However, it is deemed privileged information to which the debtor is unable to have access (it is not communicated, does not appear in the official case file which may be communicated and is not read out at the hearing). Nor, consequently, may he contest it. The principle of a fair hearing is thus infringed for the purposes of the Convention and the rights of the defence under the New Code of Civil Procedure denied.", "The Court of Cassation answered that argument as follows:", "“... Article 111 of the decree of 27 December 1985 provides that the insolvency judge's report may be presented orally; that provision is not contrary to Article 6 of the European Convention on Human Rights. Accordingly, since the applicant has not submitted that the insolvency judge did not present his report orally, this ground of appeal cannot succeed ...”", "The applicant also raised a ground of appeal based on the fact that the Court of Appeal had failed either to summons the other party to a contract to appear or to take evidence from it. The Court of Cassation dismissed that ground of appeal, holding:", "“... other contracting parties are only required to be summonsed to appear before the court of appeal when assignment of the contract as part of a plan for the sale of the undertaking is envisaged. There is no provision requiring other contracting parties to be summonsed to appear when an order for compulsory liquidation is made. This ground of appeal is therefore unfounded ...”", "Concurrently, on 27 February 1995 the applicant lodged an application with the President of the Commercial Court for an order for the communication of the insolvency judge's report. On 15 March 1995 the President of the Nanterre Commercial Court dismissed the application, holding:", "“... the insolvency judge's report is clothed in the secrecy of the deliberations and cannot be communicated to anyone.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "19. Law no. 85-98 of 25 January 1985 on the judicial reorganisation and liquidation of undertakings and its implementing Decree no. 85-1388 of 27 December 1985 [2]", "Purpose of judicial reorganisation and liquidation proceedings", "Section 1 – “This Act institutes a new procedure of judicial reorganisation proceedings with the aim of preserving undertakings, maintaining their activities and employment and clearing their debts.”", "Judicial reorganisation shall take place in accordance with a plan approved in a judicial decision at the end of an observation period. The plan shall provide for the continuation or the sale of the activity of the undertaking. When neither alternative appears possible, the undertaking shall be put into compulsory liquidation.”", "Section 8 – “When an order for judicial reorganisation is made an observation period shall commence so that a report can be prepared on the company's finances and labour force and proposals made for the continuation or sale of the undertaking. If neither alternative appears possible, the court shall make an order for compulsory liquidation.”", "Section 10 – “In the insolvency order the court shall designate the insolvency judge [from a list compiled by the president of judges with at least two years' experience] and two court officers, namely the administrator and the creditors' representative. It shall invite the works council or, if none, the staff delegates or, if none, the members of staff to appoint a staff representative from the undertaking ...”", "Functions of the insolvency judge during the observation period", "Section 14 – “The insolvency judge shall be responsible for ensuring that the case proceeds expeditiously and that all relevant interests are protected.”", "Section 20 – “The administrator shall receive from the insolvency judge all information and documents that are relevant to the performance of his or her and the experts' duties.”", "Powers of the insolvency judge during the observation period", "Power to supervise the company's situation", "Section 13 – “The administrator and the creditors' representative shall keep the insolvency judge and State Counsel's Office informed of the progress of proceedings. The insolvency judge and State Counsel's Office may at any time require communication of any pleading or document related to the procedure.", "Notwithstanding any statutory provision to the contrary, State Counsel's Office shall communicate to the insolvency judge at the latter's request or on its own initiative all information he holds that may be of relevance to the proceedings.”", "Section 19 – “Notwithstanding any statutory or regulatory provision to the contrary, the insolvency judge may procure communication to him by the auditors, staff members and representatives, public authorities and bodies, pension and social-security funds, lending institutions and the departments responsible for centralising banking risks and defaults in payment information apt to give him precise details of the undertaking's economic and financial circumstances.”", "Section 29 – “During the observation period the insolvency judge may order that letters addressed to the debtor shall be remitted to the administrator ...”", "Power to intervene in the management of the undertaking", "Article 25 of the decree – “The insolvency judge shall make an order when deciding applications, challenges and claims within his jurisdiction or grievances concerning acts of the administrator, the creditors' representative, the commissioner responsible for the execution of the plan, the liquidator or the staff representative.", "Should the insolvency judge fail to make an order within a reasonable time, the court may hear the case on its own initiative or at the request of a party.", "Orders of the insolvency judge shall be lodged with the registry forthwith and communicated to the court officers. An appeal shall lie against them [to the court].", "The court may on its own initiative quash or vary an order within the same period.”", "Section 27 – “The insolvency judge may order an inventory of the assets of the undertaking and the affixation of seals.”", "Article 28 of the decree – “The insolvency judge shall give authority to the administrator or the debtor to pay over to the creditors' representative the sums which the latter requires to discharge his obligations.”", "Section 30 – “The insolvency judge shall fix the remuneration for the duties performed by the head of the undertaking or the company management ...”", "Section 33 – “The judgment setting the proceedings in motion shall automatically entail a ban on the payment of any debts that arose before the insolvency judgment.", "The insolvency judge may authorise the head of the undertaking or the administrator to dispose of property other than in the ordinary course of the business of the undertaking, to grant a mortgage or a pledge, or to compromise or settle.", "The insolvency judge may also authorise such persons to pay debts that arose before the judgment or to release a lien or property that is the subject of a valid retention of title clause provided such release is justified in that it permits the company to continue to trade.", "Any document entered into or payment made in breach of the provisions of this section shall be set aside on application by any interested party lodged within three years from the execution of the document or payment of the debt. For registrable documents, time shall start to run from the date of registration.”", "Section 34 – “In the absence of agreement, the insolvency judge shall decide by order whether proposals by the debtor or administrator to the creditors for substituting security with equivalent security shall be implemented.”", "Section 39 in fine – “The insolvency judge may authorise the debtor or, as the case may be, the administrator, to sell movable assets in rented property that is liable to deteriorate rapidly or depreciate imminently, whose upkeep would be costly or realisation will not jeopardise the existence of the business or the preservation of sufficient security for the landlord.”", "Section 45 – “Where during the period of observation redundancies are urgent, inevitable and essential, the insolvency judge may authorise the administrator to effect the dismissals ...”", "Section 53 – “Creditors failing to lodge a proof within the periods laid down by decree of the Conseil d'Etat shall not be entitled to any share or dividend unless the insolvency judge grants them an extension of time after they have satisfied him that they were not responsible for the failure ...”", "Decision-making power", "Section 101 – “In the light of proposals by the creditors' representative, the insolvency judge shall decide to accept or reject proofs or shall note that proceedings are under way or that the dispute is not within his jurisdiction ...”", "Section 156 – “The insolvency judge shall order the sale by auction or by private agreement of the remaining property belonging to the undertaking ...”", "Section 173 – “No application to set aside, whether by the other party to a contract or a third party, and no ordinary appeal or appeal on points of law shall lie against:", "...", "2. Judgments delivered by the Commercial Court on appeal against an order of the insolvency judge ...”", "Sundry prerogatives", "Section 12 – “The court may, on its own initiative, on a proposal by the insolvency judge or at the request of State Counsel's Office, replace the administrator, an expert or the creditors' representative ...”", "Section 15 – “Either one or two supervisors chosen from among the creditors may be appointed by order of the insolvency judge ...”", "Court's decision on the plan for the continuation or sale of the undertaking", "Judgment deciding on the plan", "Section 61 – “After hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or duly summonsing them to appear, the court shall deliver its judgment in the light of the administrator's plan and shall order either reorganisation or liquidation ...”", "Section 36 is contained in the part of the Act relating to the pursuit of the undertaking's activity. The Act provides that the activity of the undertaking shall continue during the observation period subject to the provisions of Section 36, which reads as follows:", "“At any stage, the court may, at the request of the administrator, the creditor's representative, the debtor, State Counsel's Office or on its own initiative and in the light of the insolvency judge's report, order the cessation of all or part of the activity or compulsory liquidation.”", "The court shall deliver its judgment in private after hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or after duly summonsing them to appear.”", "20. Judgment of 11 September 1997 of the Grenoble Court of Appeal, Hapian v. Hidoux, Recueil Dalloz 1998, J. 128", "The Court of Appeal said:", "“The insolvency judge has the role of supervising the administration and compulsory liquidation while also exercising an investigative role; his presence in the trial Chamber is an exception to the principle that the investigation and trial stages should be kept separate.”", "The facts, however, were concerned with another aspect of the procedure, namely the making of a personal bankruptcy order against the manager of a company that had been put into liquidation. The same judge had sat as president and insolvency judge in two sets of proceedings in which first the company's judicial reorganisation and then its compulsory liquidation had been ordered. He had subsequently served a summons on the manager of the company to appear before the commercial court (the summons contained a recommendation that the manager should be declared personally bankrupt) and presided over that court, which made an order declaring the manager personally bankrupt. The Court of Appeal quashed the judgment of the commercial court on the ground that there had been a violation of Article 6 § 1 of the Convention. It found that the fact that the insolvency judge had sat on the bench that heard the case was inconsistent with the principle that the investigation and trial stages should be kept separate and could legitimise the appellant's concerns regarding the objective impartiality of the court that had delivered the impugned decision ( Recueil Dalloz 1998, jurisprudence, pp. 128 et seq.). The Court of Appeal relied essentially on the role of appearances and expressly followed the judgments in Delcourt v. Belgium of 17 January 1970, Series A no. 11, p. 17, § 31, and De Cubber v. Belgium of 26 October 1984, Series A no. 86, p. 14, § 26.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "21. With regard to the proceedings before the Commercial Court the applicant alleged a violation of Article 6 § 1 of the Convention in so far as it guaranteed the right to a fair hearing by an impartial tribunal. The Government contested that argument.", "22. Article 6 § 1 provides, inter alia :", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. Alleged unfairness of the proceedings before the Commercial Court", "1. Arguments of the parties", "23. In his written observations, the applicant noted that in its judgment the Commercial Court had included the insolvency judge's report in the list of documents it had seen. He concluded that the report in question, which section 36 of the Law of 25 January 1985 made mandatory, was in written form, as otherwise the Commercial Court would have used the term “heard”. The Court of Cassation had not established that the report did not exist. The applicant also referred to the order dated 15 March 1993 of the President of the Nanterre Commercial Court, who was familiar with the procedure in that court and could not have confused the report which the insolvency judge had submitted at the hearing with the remarks he had exchanged with his colleagues at that hearing. The applicant therefore maintained that the insolvency judge had in the instant case submitted a written report to the Commercial Court.", "He complained that the document which had been lodged with the judges had not been communicated to the parties, in breach of the right to adversarial proceedings in accordance with the principle of equality of arms. Adversarial proceedings implied that a court should not base its decision on evidence that had not been made available to each of the parties and equality of arms required each party to be afforded an opportunity to present his case under conditions that guaranteed a balance between the parties to the cause (see, among other authorities, the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33, and the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 22, § 56).", "In his pleadings at the hearing, the applicant's lawyer said that since a recovery plan had been put before the court, section 61 of the Law of 25 January 1985 was applicable.", "24. The Government pointed out that the insolvency judge might have to draw up two very different types of reports in compulsory liquidation proceedings. The first type was a report under section 36 of the Law of 25 January 1985 that was required if it was at the insolvency judge's request that the commercial court had to decide whether to make an order for the undertaking to cease trading or to be liquidated. In such cases, the report was a procedural document that was communicated to the parties. That type of report was not relevant in the instant case as the application to the court had been made by the judicial administrator pursuant to section 61 of the Law of 1985 cited above. The applicant had not alleged that that report had not been communicated to him for comment.", "25. Where – as in the instant case – the court was exercising jurisdiction on an application by the judicial administrator, the insolvency judge explained to the other members of the court all the measures he had taken during the observation period and gave them his opinion on the final decision which the court should take. There was no formal procedure for making that report and in practice it was usually done orally. Although in the present case the Commercial Court had expressly used the term “seen” in its judgment when referring to the report, that did not necessarily mean that a written document had been read.", "In the Government's submission, the insolvency judge's report in the latter type of case could be regarded as privileged from disclosure as forming part of the deliberations, since the insolvency judge's role in deliberations with his colleagues was similar to that of a judge rapporteur in a collegiate court. In its Reinhardt and Slimane-Kaïd v. France judgment (31 March 1998, Reports of Judgments and Decisions 1998-II, pp. 665-66, § 105), the Court had already ruled that the legal analysis of a case and the opinion of the advocate-general on the merits of an appeal to the Court of Cassation were “legitimately privileged from disclosure as forming part of the deliberations”. Moreover, since the report had not been communicated to any of the parties to the proceedings in the instant case, there had been no failure to maintain equality of arms between them.", "26. The Government indicated for the first time at the hearing in answer to a question put by the Court that the judgment of 26 October 1993 contained a typographical error, a fact which the applicant's lawyer did not contest. The references to section 36 of the Law of 25 January 1985 were incorrect, the applicable provision in fact being section 61 of the Law as, the Government maintained, became apparent when the judgment was read as a whole, since it stated that the Commercial Court had obtained jurisdiction at the end of the observation period when the judicial administrator had asked it to adjudicate on the proposed recovery plan, a procedure prescribed by section 61, not section 36.", "2. The Court's assessment", "27. The Court reiterates that the right to adversarial proceedings “means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court's decision” (see the Lobo Machado v. Portugal judgment of 20 February 1996, Reports 1996-I, pp. 206-07, § 31).", "The principle of equality of arms “– one of the elements of the broader concept of fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent” (see the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 107, § 23).", "28. The Court notes that for the first time at the hearing before it both the Government and the applicant said that, contrary to what was stated in the judgment, the Commercial Court had followed the procedure governed by section 61 of the Law of 25 January 1985, and not the section 36 procedure (see paragraph 16 above). That could be seen from the reasoning of the judgment taken as a whole.", "29. The Court notes that the reasoning set out in the judgment shows that the cause before the Commercial Court proceeded as follows: an application was made by the judicial administrator for the court to rule on the applicant's proposed recovery plan; the Commercial Court examined the recovery plan, heard submissions from the judicial administrator and the creditors' representative and reached its decision in the light of the administrator's report. Those facts were not contested by the parties.", "30. The Court notes that those events support the submission made at the hearing that the judgment was delivered pursuant to section 61 of the Law of 25 January 1985. It is thus satisfied that the reference in the judgment to section 36 of the Law of 1985 is a typographical error made when the document was drawn up (see, mutatis mutandis, Douiyeb v. the Netherlands [GC], no. 31464/96, § 52, 4 August 1999, unreported), a fact which the parties do not contest.", "31. The procedure under section 61 does not provide for a written report to be lodged by the insolvency judge (see paragraph 19 above), unlike the procedure under section 36. The Court concludes from that that the reference in the judgment to the Commercial Court having seen the report was also an error.", "The case file shows that the applicant's complaint of a violation of Article 6 was based on those references in the judgment.", "32. From the information available to the Court, it is therefore apparent that the applicant's complaint is based on erroneous references in the Commercial Court 's judgment.", "33. In those special circumstances, the Court holds that there are no grounds for finding a violation of Article 6 § 1 in so far as it guarantees the right to a fair hearing and to equality of arms.", "B. Alleged lack of impartiality by the insolvency judge in the Commercial Court", "1. The parties' submissions", "34. The applicant questioned the subjective impartiality of the insolvency judge. In doing so, he pointed to matters set out in the Commercial Court 's judgment.", "He relied on the failure to communicate the insolvency judge's report, errors in the facts in the judgment and omissions in the reasoning regarding certain matters relating to the companies, difficulties encountered during the course of the observation period and the substantial indebtedness of the companies concerned. He added that relations between one of the companies and the insolvency judge had been conflictual.", "The applicant said that the Commercial Court had failed to rectify errors in the administrator's report and to hear adversarial argument about the criticism that had been made of candidates wishing to pursue the companies' activity and about the erroneous assessment of their professional capabilities.", "He added that no action had been taken against third parties guilty of criminal acts committed to the detriment of his companies.", "35. In the applicant's submission, his concerns were justified by the following objective factors.", "Article 26 of the decree of 27 December 1985 laid down that, on pain of the judgment being declared null and void, the insolvency judge could not sit when the court was acting on its own initiative or was hearing an appeal against one of its own orders. The applicant maintained that it was inconsistent for the insolvency judge to be allowed to sit in certain cases but not in others, since the case file in insolvency proceedings was indivisible.", "Under the Law of 25 January 1985 (see paragraph 19 above), the insolvency judge had very wide powers during the period when the companies were under observation. Thus, during that stage of the proceedings, he played an active role in the companies' management and had powers of information and investigation enabling him to run the companies.", "In the instant case, the insolvency judge had made thirty orders in spheres ranging from dismissal to the attachment of accounts and the sale of movable and immovable property. On a number of points the applicant had disagreed with the insolvency judge and may therefore have formed the impression that he was appearing before an opponent. Further, a number of the insolvency judge's decisions indicated the position he would take in the trial court.", "That suggested to the applicant that an insolvency judge subsequently exerted a decisive influence over a commercial court's decision on a company's future.", "That influence was increased by his reports to his colleagues, on which no adversarial argument from the parties was heard. Nor did his colleagues take any active part in the commercial court's decision. It was for that reason that certain French commercial courts refused to allow the insolvency judge to take part in the deliberations of the trial court.", "The Court of Cassation, sitting as a full court, had in a decision of 5 February 1999 confirmed the necessity of separating the functions of the rapporteur from those of members of the Stock Exchange Regulatory Authority ( Commission des opérations de bourse ). One of the findings in that judgment was that the rapporteur was responsible for conducting an investigation into the facts with the assistance of the administrative services and for making any relevant inquiries. Moreover, the Grenoble Court of Appeal had held in a judgment of 11 September 1997 ( Dalloz 1998, J. 128) that the fact that an insolvency judge had sat on a trial bench infringed the principle that the investigation and trial stages should be kept separate.", "36. The Government noted that individual judges were presumed to be impartial unless there was evidence to the contrary. Unlike the applicant, they considered that the judgment was couched in neutral terms and did not suggest any bias against the applicant. They therefore submitted that the applicant's concerns were not objectively justified.", "37. Furthermore, the Government said that the manner in which the proceedings had been conducted had guaranteed the insolvency judge's neutrality, as the case had come before the Commercial Court at the request of the judicial administrator, not the insolvency judge, under section 61 of the Law of 1985 cited above. The Commercial Court was asked to rule on the applicant's proposed recovery plan. It was only because the plan did not appear viable that the court had decided to order the companies' liquidation. The court had been careful to request additional information from the applicant before reaching its decision.", "38. When performing their duties during the observation period, insolvency judges did not have any preconceived ideas on the issues they would have to decide before the commercial court.", "That was because during the observation period insolvency judges were responsible for managing and supervising the activities of companies in difficulty. Their aim was to manage the various conflicting interests without jeopardising the direct functioning of the company. For that purpose they were empowered to make orders, against which an appeal lay to the commercial court.", "In the instant case, most of the orders made by the insolvency judge had concerned procedural issues. Only two orders (authorising redundancies) had directly concerned the economic exploitation of the applicant's companies.", "However, the Government considered that those orders had had no effect on the insolvency judge's capacity at the hearing before the Commercial Court to consider the issue at hand without prejudging it.", "39. When sitting in the commercial court the insolvency judge's role was to account to his colleagues for the tasks which he had performed during the observation period. His opinion did not bind the other two judges called upon to decide whether the undertaking was viable. Thus, the commercial court was the sole judge and its judgment was unconnected with the various steps taken by the insolvency judge during the observation period.", "In the instant case, it had been the judicial administrator who had questioned the viability of the undertaking. He had pointed out that the applicant's proposed recovery plan contained areas of uncertainty which the applicant had to resolve. The Commercial Court had given the applicant time to produce all the guarantees necessary for his plan to be approved. In subsequently deciding to order the companies' liquidation, the Commercial Court had relied on objective factors relating to the lack of financial guarantees, the recent balance sheets of the companies and further information about their financial means.", "The Government submitted in conclusion that there was no evidence of any lack of impartiality on the part of the insolvency judge.", "2. The Court's assessment", "40. There are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case; the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030-31, § 58).", "41. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26).", "However, despite the applicant's submissions (see paragraph 34 above), the Court is not satisfied that there is evidence establishing that the insolvency judge acted with any personal prejudice.", "42. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see the Gautrin and Others judgment cited above, ibid.).", "43. In the instant case, the concerns regarding the insolvency judge's impartiality stemmed from the fact that he had taken various measures concerning the companies during the observation period and subsequently presided over the court that had decided the companies' fate.", "44. The Court accepts that that situation could raise doubts in the applicant's mind about the impartiality of the Commercial Court. However, it has to decide whether those doubts were objectively justified.", "45. In that connection, the Court notes that the answer to that question depends on the circumstances of the case. For that reason, it cannot be bound by the decisions cited by the applicant; moreover, one of those decisions concerned a different sphere (see paragraph 35 above) while the other dealt with an aspect of insolvency proceedings that was different from that under consideration in the present case (see paragraph 20 above).", "Furthermore, the mere fact that a judge has already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his impartiality. What matters is the scope and nature of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his part that would prevent his being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final analysis has been prejudged. What is important is for that analysis to be carried out when judgment is delivered and to be based on the evidence produced and argument heard at the hearing (see, among other authorities, mutatis mutandis, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 22, § 50; the Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, § 33; and the Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, p. 38, § 35).", "46. In the light of those principles, the Court considers that the applicant's concerns cannot be justified in themselves by the fact that the insolvency judge took certain decisions during the observation period (orders concerning the management of the companies, dismissals and interim measures). His knowledge of the case file was not in itself decisive either. As regards the influence which the applicant alleged the insolvency judge had on the bench, it is not in issue here.", "47. All the Court has to decide is whether, having regard to the nature and extent of his functions during the observation period and of the measures adopted, the insolvency judge displayed any bias regarding the decision to be taken by the Commercial Court. Such would have been the case if the issues dealt with by the insolvency judge during the observation period were analogous to those on which he ruled as a member of the trial court (see the Saraiva de Carvalho judgment cited above, p. 39, § 38).", "48. There is nothing in the case file to suggest that that was the case here. The case file shows that the insolvency judge made orders dealing with questions relating to the companies' economic and financial survival and staff management during the observation period. Under the applicable domestic law, his role was to ensure that the proceedings advanced rapidly and that relevant interests were protected.", "When the Commercial Court presided over by the insolvency judge subsequently acquired jurisdiction under section 61 of the Law of 25 January 1985 (that is to say, contrary to the applicant's submission, without a written report from him), it was required to assess the mid- to long-term viability of the applicant's plan for the companies' continued trading at the end of the observation period. In that connection, the Commercial Court had to examine the financial guarantees and other evidence produced by the applicant at the hearing and the circumstances of the companies at that time (as regards such matters as staff and immovable property, and the fact that they were trading in a difficult sector). It also relied on information supplied by the administrator.", "The Commercial Court 's assessment was based on evidence that was produced and was the subject of argument at the hearing. That is attested by the fact that the Commercial Court did not finally decide the case until it had requested and obtained from the applicant additional documents proving the credibility of the guarantees he had produced.", "The Court notes, therefore, that the insolvency judge had to deal with two quite separate issues. Although, as a result of his role during the observation period, he had acquired special knowledge of the companies' circumstances (one of the factors to which the Commercial Court had regard in its decision), nonetheless he could not have formed a view at that juncture on the plan proposed by the applicant at the hearing before the court for the continuation of the activity, while the viability of that plan was assessed by the Commercial Court in the light of the guarantees furnished and examined at the hearing (see, mutatis mutandis, the judgments cited above: Saraiva de Carvalho, p. 39, § 38 in fine, and, a contrario, Hauschildt).", "49. The Court, therefore, does not find in the present case any objective grounds for believing that the nature and extent of the insolvency judge's duties during the observation period (which were intended to ensure the day to day management of the companies) gave rise to any prejudice on the – separate – issue which the Commercial Court had to decide regarding the viability of the applicant's plan for the companies continued trading at the end of the observation period and of the financial guarantees produced at the hearing.", "50. In the light of the special circumstances of the present case, the Court finds that the applicant's concerns were not objectively justified.", "Consequently, there has been no violation of Article 6 § 1 to the extent that it guarantees the right to an impartial tribunal." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant, born in 1930, is a businessman living in Pfäffikon ( Switzerland ).", "A. Background", "9. The applicant is the owner of two properties, of 115 sq. m. and 51 sq. m. respectively,  in the municipality of Kloten. Half of the second property is tied up with a joint ownership of part of a path. In the 1950s an area zoning plan was prepared, although no general settlement regarding the applicant's properties was achieved. The applicant also unsuccessfully requested the Kloten municipality on a number of occasions to take over the two properties and to compensate him accordingly.", "10. The applicant was also involved in other building proceedings in the Kloten municipality in which the opposing party, a cantonal insurance pension office, was represented by a lawyer, Mr W.", "11. The applicant was furthermore involved in building proceedings against the Küsnacht municipality in which that municipality was represented by a lawyer, Mrs R. These proceedings were conducted before the Administrative Court of the Canton of Zürich and in last resort before the Federal Court, its decision having been given on 24 October 1995.", "12. Mrs R. and Mr W. are practising lawyers ( Rechtsanwälte ) who at that time shared office premises in Zürich together with Mr L. Lawyers R. and L. also acted as part-time administrative court judges at the Administrative Court of the Canton of Zürich.", "B. Proceedings instituted by the applicant", "13. In the proceedings concerning the applicant's properties in Kloten (see paragraph 9 above), the applicant filed on 15 February 1995 an action with the Administrative Court of the Canton of Zürich, requesting an order that the Kloten municipality take over the two properties, including the joint ownership, for the sum of 368,200 Swiss francs.", "14. In the applicant's case, the bench of the Administrative Court was then composed of five judges, namely the Vice-President, three administrative court judges and one substitute judge. Among the administrative court judges were R. and L., who were part-time judges.", "15. On 15 December 1995 the court rejected the applicant's action. The Court found that it was not competent to deal with the matter which appertained to the jurisdiction of the Assessment Commission ( Schätzungskommission ). However, the court declined to transmit the case to the Assessment Commission as the applicant had forfeited his right to claim compensation. Thus, if he had disagreed with the area zoning plan, in particular with the settlement of accounts of 1957, he should have requested the institution of assessment proceedings at the relevant time. The Court found that the claim for compensation would in any event be unfounded as it had to be directed against other proprietors in the area covered by the zoning plan, rather than the municipality.", "16. The applicant filed a public-law appeal with the Federal Court in which he complained, on the one hand, about the outcome of the proceedings, on the other, that judge R. had shortly before acted in separate appeal proceedings, instituted by the applicant, as the legal representative of the opposing party, namely the Küsnacht municipality. Moreover, judge R. shared office premises with judge L., and also with W. who, in separate proceedings instituted by the applicant, had represented the opposing party.", "17. The public-law appeal was dismissed by the Federal Court on 29 April 1996, the decision being served on 9 May 1996. In its decision, the court dealt with the applicant's complaint that certain judges of the Administrative Court had not been impartial as follows:", "“The interrelations mentioned may raise certain doubts in view of Article 58 § 1 of the Federal Constitution which requires the impartiality of judges. However, the applicant does not claim that R. or another member of the Administrative Court was in fact biased when giving the contested decision. The Federal Court has already previously held that the fact that legal representatives in the Canton of Zürich also acted as part-time administrative court judges could under certain circumstances result in an interrelation of interests. The Court found, however, that it could be expected from a part-time judge that he could distinguish between his official function and his private professional activities. A part-time judge was not, therefore, obliged to stand down merely because he had represented legal interests in other proceedings which were opposed to those of the applicant ... In view of these principles it can equally not be assumed in the present case that the Administrative Court was composed of judges who could be regarded as biased when giving the contested decision.”", "18. The Federal Court furthermore did not consider it arbitrary that the Administrative Court had found that the applicant's claims were forfeited as he had failed duly to raise them.", "19. On 20 August 1996 the Federal Court dismissed the applicant's request to reopen the proceedings." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Administrative Court of the Canton of Zürich", "20. The Administrative Court of the Canton of Zürich consists of both full-time and part-time judges, the latter also acting as practising lawyers on a part-time basis.", "21. Section 34 of the Administrative Judiciary Procedure Act ( Verwaltungsrechtspflegegesetz ) of the Canton of Zürich of 1959 concerns “incompatibility” ( Unvereinbarkeit ) and stated in the version in force at the relevant time:", "“1. The office of a full-time judge of the Administrative Court is incompatible with any other full-time professional activity [ hauptberufliche Tätigkeit ]. Full-time judges may not be members of the Federal Assembly nor members or registrars of a municipal or district council. They are not allowed legally to represent third persons before courts and administrative bodies. An authorisation of the cantonal parliament is required if they wish to belong to the administration or management of a commercial company or cooperative acting for commercial purposes.", "2. Part-time judges may not be employed full-time by an administrative authority or a court, and may not be members or registrars of a municipal or district council.”", "22. The Administrative Judiciary Procedure Act was revised in 1997 and section 34 now states:", "“1. The office of a full-time member of the Administrative Court is incompatible both with any other full-time professional activity and with the professional representation of third persons before courts or administrative authorities.", "2. The office of a part-time member of the Administrative Court is incompatible with the professional representation of third persons before the Administrative Court ...”", "B. Situation in Switzerland", "23. In Switzerland no particular magistrate's training is required to enter the judicial profession. This explains, inter alia, the comparatively high number of practising lawyers (legal representatives) acting as part-time or substitute judges.", "1. Federal level", "24. The Federal Court consists of thirty full-time and fifteen part-time judges, and the Federal Insurance Court consists of nine full-time and nine part-time judges. Part-time judges may exercise the profession of practising lawyer. According to section 22 of the Federal Judiciary Act ( Organisationsgesetz ), judges shall stand down if, in a particular case, they have participated in another capacity, inter alia as legal adviser or as practising lawyer. The First Public Law Division of the Federal Court furthermore avoids appointing as part-time judges persons resident in the canton in which the case originates.", "25. In various federal appeals commissions ( Rekurskommissionen ) provision is made for full-time and part-time judges. Whatever other functions the latter exercise, these functions may not compromise the accomplishment of their tasks or the independence and reputation of the appeals commission.", "2. Situation in the cantons", "26. In various cantons, no particular regulations exist as to part-time judges acting as practising lawyers, for example for certain judges of the Cantons of Appenzell Inner Rhodes, Graubünden and Valais. Other cantons have specific legislation on the matter.", "27. For instance, certain cantonal courts are composed exclusively of full-time judges who exercise no other legal profession, for instance the Cantonal and Administrative Courts of the Cantons of Berne and of Lucerne; the Administrative Court of the Cantons of Fribourg and Ticino; the Cantonal Court of the Canton of Thurgau; and the Cantonal Court and the Court of Appeal of the Canton of Schaffhausen. In the Canton of Graubünden, as from 2001, eight of the eleven presidents of the first-instance courts will act as full-time judges.", "28. In some cantons, certain part-time judges are prohibited from acting as practising lawyers, for instance in the Canton of Basle Rural (part-time judges of the Court of Appeal in criminal cases) and in the Canton of Aargau (part-time judges of the Cantonal Court and the specialised administrative courts and the presidents of the district courts). In the Canton of Berne a new law has been proposed which, as from 2001, intends to prohibit part-time judges from acting as practising lawyers, although this function will continue to be possible for substitute judges. In the Canton of St Gall, part-time district court judges may not act as practising lawyers in the district in question.", "29. In various cantons part-time judges of a court may not appear before that court as practising lawyers, for instance in the Cantons of Schwyz, Obwalden, Zug, Aargau (in respect of the Administrative Tribunal), Basle Urban (in respect of the regular judge at the Court of Appeal in administrative matters), St Gall (in respect of part-time judges who are otherwise employed for more than 40% of their time), Graubünden (in respect of judges of the administrative courts and their respective divisions and, as from 2001, in respect of district and regional court presidents and their deputies). The Canton of Basle Rural is currently revising its relevant legal norms along these lines.", "30. Certain cantonal courts envisage the possibility for substitute judges to act as practising lawyers, for instance in the Cantons of Aargau (labour courts), Berne (Cantonal and Administrative Court), Basle Urban, Geneva, Fribourg (Administrative Court), Ticino, Solothurn and Schaffhausen (Court of Appeal and Cantonal Court).", "C. Case-law of the Federal Court", "31. The Federal Court has pronounced on various occasions on the question of the impartiality of lawyers acting as judges, in particular the danger of a link of dependency between the judge and one of the parties. For instance, a lawyer may not act as judge in a case where he or she is representing one of the parties to the case, or where in separate pending proceedings he or she is representing the opposing party. On the other hand, as a rule no issue will arise where the lawyer once represented a party and the mandate has been completed. The mere fact that the lawyer generally advises in building matters does not imply that as a judge he will necessarily favour a plaintiff who is involved in the construction of a house (see judgment of 15 May 1992, Schweizerisches Zentralblatt für Staats - und Verwaltungsrecht 94, 1993, 87; and the judgment of 20 December 1990, Arrêts du Tribunal fédéral suisse (ATF), vol. 116 Ia, p. 485).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention", "32. The applicant complained of the lack of impartiality of the two administrative court judges R. and L. These judges had themselves, or through their office partner W., acted against the applicant in other proceedings. The applicant relied on Article 6 § 1 of the Convention which provides, in its relevant parts:", "“1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...”", "33. The Government submitted that the proceedings complied with Article 6 § 1 of the Convention.", "A. The parties' submissions", "1. The applicant", "34. The applicant submitted that in some areas of administration in Switzerland there were particularly close links between practising lawyers and the judiciary. In view of the problems which have arisen, the Canton of Zürich has revised its legislation which now excludes for part-time judges the professional representation of third parties. As a result of these changes, the office in which lawyers R., L. and W. worked no longer exists.", "35. The applicant referred to everyday legal practice where a conflict of interests experienced by an individual lawyer in a partnership consisting of several lawyers implied that not only this lawyer but all other staff were equally excluded from taking on the same work. The applicant referred to the strict standards applying to lawyers, for instance that a lawyer may not act for two opposing parties and may not accept a request from a third party to represent him or her against a previous client. These standards also applied to courts with a mixed composition. In the present case, it was not therefore important which of the three lawyers were affected by the conflict of interests.", "36. The applicant contended that the lawyers should not have been allowed to act as judges. There was always a danger of at least a potential conflict of interests for administrative court judges: either they considered the possibility of obtaining future work from the public authorities concerned and did not want to annoy them by voting against them; or they did not want to lose their goodwill when taking future decisions on granting planning permission, on which they were dependent for their private clients who wanted to carry out construction projects. The interrelated interests of a total of two out of five judges in the instant case amounted to an appearance of lack of impartiality.", "2. The Government", "37. The Government submitted, with reference to the Federal Court's case-law, that in the present case there was no link of dependency between judge R. and the party opposing the applicant in the administrative court proceedings. R. had represented another municipality – Küsnacht and not Kloten – and in proceedings concerning a matter completely unrelated to the present case. R.'s representation of the Küsnacht municipality had been terminated when the Administrative Tribunal gave its decision. One could not therefore say that judge R. in any way appeared to favour the Kloten municipality. Lawyer W., on the other hand, acted in a completely different case and did not represent Kloten. The applicant had not submitted that the three lawyers R., L. and W. undertook a concerted action in order to favour Kloten. Indeed, it could be expected from a part-time judge that he distinguished between his different professional activities.", "38. In the Government's opinion, Article 6 of the Convention did not exclude “mixed” courts where, as for instance in the Sramek v. Austria case, practising lawyers acted as judges (see the judgment of 22 October 1984, Series A no. 84, p. 19, § 40). In the present case, there were no grounds to doubt the impartiality of judges R. and L. on subjective grounds. As regards the objective grounds, appearances could be of a certain importance for the accused person, although they could not be decisive. What was decisive was whether the fear of lack of impartiality could be objectively justified. Doubts alone could not suffice. The Government pointed out that judge R. never represented the Kloten municipality as a lawyer before the Administrative Court. In the light of the Sramek case, her impartiality would not even be called in question if she had represented Kloten in other proceedings.", "39. The Government contended that there was no link ratione loci, materiae or personae between the different proceedings in which R. and L. were involved as judges, on the one hand, and W. as a lawyer, on the other. In any event, W. had not represented the Kloten municipality.", "40. The Government emphasised that the part-time judiciary was of central importance for the cantons. Most courts were composed of part-time judges who had additional professional activities, among them that of practising lawyer. Those cantons which did not have part-time judges had often made provisions for substitute judges who acted as practising lawyers.", "B. The Court's assessment", "41. The Court recalls at the outset that in proceedings originating in an individual application it has to confine itself, as far as possible, to a examination of the concrete case before it (see the Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p. 17, § 35). Accordingly, in the present case there is no reason to doubt that legislation and practice on the part-time judiciary in general can be framed so as to be compatible with Article 6. What is at stake is solely the manner in which the proceedings were conducted in the applicant's case.", "42. According to the Court's constant case-law, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had to the personal conviction and behaviour of a particular judge in a given case – the subjective approach – as well as to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect – the objective approach (see the Thomann v. Switzerland judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 815, § 30).", "43. As regards the subjective aspect of such impartiality, the Court notes that there was nothing to indicate in the present case any prejudice or bias on the part of judges R. and L.", "44. There thus remains the objective test. Here, it must be determined whether, quite apart from the judge's conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see the Castillo Algar v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45). This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see the Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III, pp. 951 - 52, § 58).", "45. Turning to the present case, the Court notes that judge R. acted against the applicant in separate building proceedings as the legal representative of the Küsnacht municipality. Judges R. and L. both shared office premises with lawyer W. who had previously acted as legal representative in other building proceedings in the Kloten municipality. This situation arose in the Canton of Zürich where, as with the courts of many other cantons, the Administrative Court is composed of both full-time and part-time judges. The latter may practise as legal representatives. The Administrative Judiciary Procedure Act in force at the relevant time contained no provisions as to the incompatibility of such legal representation with judicial activities. Section 34(2) of the Act currently in force provides that part-time judges may not act as legal representatives before the Administrative Court.", "46. It is true that there was no material link between the applicant's case before the Administrative Court and the separate proceedings in which R. and W. acted as legal representatives. Furthermore, R. and W. had been acting as trained lawyers who were called upon to represent the interests of constantly varying parties.", "47. Nevertheless, the Court notes that, when on 15 February 1995 the applicant instituted the present proceedings before the Administrative Court with R. as a judge on the bench, the parallel proceedings in which R. acted as legal representative for the Küsnacht municipality against the applicant were pending before the Federal Court, which gave its decision eight months later on 24 October 1995 (see paragraph 11 above). Less than two months after these proceedings had been terminated the Administrative Court gave its judgment on 15 December 1995. There was, therefore, an overlapping in time of the two proceedings with R. in the two functions of judge, on the one hand, and of legal representative of the opposing party, on the other. As a result, in the proceedings before the Administrative Court, the applicant could have had reason for concern that judge R. would continue to see in him the opposing party. In the Court's opinion this situation could have raised legitimate fears in the applicant that judge R. was not approaching his case with the requisite impartiality.", "48. The fact that W., an office colleague of judges R. and L., had in other proceedings represented the party opposing the applicant, while only of minor relevance, could be seen as further confirming the applicant's fear that judge R. was opposed to his case.", "49. In the Court's view, these circumstances serve objectively to justify the applicant's apprehension that judge R. of the Administrative Court of the Canton of Zürich lacked the necessary impartiality.", "50. Consequently, in the present case there has been a violation of Article 6 § 1 of the Convention as regards the requirement of an impartial tribunal.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "52. The applicant claimed 368,200 Swiss francs (CHF) for pecuniary damage resulting from the fact that the Kloten municipality had used his property without compensation during forty-two years. The Government saw no connection between the pecuniary damage alleged and the conduct of the Swiss authorities.", "53. The Court notes that the applicant is in fact requesting damages of the same amount as in the action which he introduced before the Administrative Court of the Canton of Zürich on 15 February 1995 (see paragraph 13 above). However, the Court cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 of the Convention would have been (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1575, § 82). In the present case it perceives no causal link between the breach of Article 6 § 1 of the Convention and the alleged pecuniary damage. There is, therefore, no ground for an award under this head.", "B. Costs and expenses", "54. Under this head the applicant claimed a total of CHF 65,120.05, namely CHF 29,486.50 for lawyer's costs in the domestic proceedings; CHF 20,133.55 for lawyer's costs in the Strasbourg proceedings; and CHF 15,500 for procedural costs incurred in the domestic proceedings.", "55. The Government contended that only the public-law appeal proceedings before the Federal Court could have served to redress the alleged violation of Article 6 § 1 of the Convention, although these proceedings also concerned other complaints raised by the applicant. In respect of the Strasbourg proceedings the Government submitted that only one of the applicant's complaints had been declared admissible and that this particular complaint concerned only a minor part of the observations submitted by the applicant during the admissibility proceedings. The Government considered as adequate the sum of CHF 2,000 for the lawyer's costs in the domestic proceedings; CHF 3,000 for the lawyer's costs in the Strasbourg proceedings; and CHF 3,000 for the procedural costs incurred in the domestic proceedings; namely a total of CHF 8,000.", "56. The Court, in accordance with its case-law, will consider whether the costs and expenses claimed were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).", "57. The Court finds the applicant's claims excessive. Making an assessment on an equitable basis, the Court awards him CHF 2,000 for the lawyer's costs in the domestic proceedings; CHF 4,000 for the lawyer's costs in the Strasbourg proceedings; and CHF 3,000 for the procedural costs incurred in the domestic proceedings; namely the total sum of CHF 9,000.", "C. Default interest", "58. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1963 and lives in Ankara.", "6. In 1993 the applicant, who was a court registrar ( zabıt kâtibi ) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar ( yazı işleri müdürü ) at the Ankara State Security Court. However, since his ranking ( 15 th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court.", "7. On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court.", "8. The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court ( “ the Administrative Court ” ).", "9. By a judgment of 17 September 1998 the Administrative Court upheld the applicant ’ s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities ’ refusal had had no basis in law.", "10. The Ministry of Justice appealed on points of law against that judgment.", "6. As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment.", "7. On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court ( “ the Fifth Division ” ) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field.", "8. The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç.", "9. On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met.", "10. On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court ( ısrar kararı ).", "11. Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court ( Danıştay İdari Dava Daireleri Genel Kurulu; “ the General Assembly ” ) owing to the resistance of the court of first instance.", "12. On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty - two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice- President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division ’ s judgment of 20 December 2000.", "13. On an unspecified date the applicant submitted a request for rectification of the General Assembly ’ s judgment.", "14. On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case." ]

[ "THE LAW", "I. COMPLAINTS ALLEGING A LACK OF IMPARTIALITY ON THE PART OF THE SUPREME ADMINISTRATIVE COURT", "15. The applicant alleged that the Supreme Administrative Court benches hearing and determining his case had not been impartial and had therefore infringed his right to a fair hearing as secured by Article 6 of the Convention, the relevant parts of which read as follows :", "“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... ”", "16. The Government contested that argument.", "17 2. The Court observes that this complaint breaks down into three branches. The first branch concerns the alleged lack of impartiality on the part of the General Assembly bench which determined the second appeal on points of law, owing to the participation of Ms T.Ç., Mr E.Ç. and Mr M.R.Ü. The second branch relates to the alleged lack of impartiality of the same bench owing to the participation of judges who had sat in the Fifth Division of the Supreme Administrative Court during its consideration of the request for rectification of the judgment. The third branch concerns the alleged lack of impartiality of the General Assembly bench which had determined the request for rectification of the 17 January 2003 judgment owing to the participation of several judges who had already heard and determined the case.", "23. The Court considers it necessary to examine the first branch of the complaint separately from the other two.", "A. The first branch of the complaint", "...", "2. Merits", "( a) The parties ’ submissions", "25. The applicant complained that some of the judges who had sat on the bench of the Fifth Division of the Supreme Administrative Court which had delivered the judgment on 20 December 2000 had also sat in the General Assembly. He submitted that those judges could not have been impartial because they had already given their opinion on the merits of the case.", "26. The Government contested the applicant ’ s arguments. They submitted that the first and second appeals on points of law had not concerned the same subjects, even though they had referred to the same case. The Government claimed that the first appeal on points of law had been geared to determining the lawfulness of the Administrative Court ’ s first judgment, while the second had been intended to verify the lawfulness of the Administrative Court judgment overriding the judgment of the Supreme Administrative Court.", "27. The Government added that the judges whose impartiality had been challenged could not have been considered parties to the proceedings because it was not the judgment which these judges had handed down that had been referred to the General Assembly for review, but rather the Administrative Court judgment. The Government added that the General Assembly had not been required to choose between the judgments of the Fifth Division and the Administrative Court and that it had been free to reach a completely different finding, which it had done on many occasions in the past.", "28. Lastly, the Government explained that under circumstances similar to those of the present case, the judges who had sat in a division of the Supreme Administrative Court had on occasion changed their minds when sitting in the General Assembly to examine a second appeal on points of law, and that they had joined the position adopted and subsequently upheld by the Administrative Court.", "29. Consequently, the Government submitted that the composition of the General Assembly had not infringed the impartiality principle set forth in Article 6 of the Convention.", "( b) The Court ’ s assessment", "30. The Court notes that the applicant ’ s fears regarding a lack of objective impartiality on the part of the General Assembly arise from the fact that three of the judges who sat on the bench in question had previously been involved in examining the first appeal on points of law.", "31. The Court reiterates that objective impartiality must be assessed using an approach which, when applied to a body sitting as a bench, involves determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII). It adds that in this context even appearances may be of some importance. It follows that when deciding whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those alleging such bias is important but not decisive. What is decisive is whether such fear can be held to be objectively justified ( see Gautrin and Others v. France, 20 May 1998, § 58, Reports of Judgments and Decisions 1998 ‑ III). In this connection, the mere fact that a judge has already taken pre-trial decisions cannot in itself be regarded as justifying doubts as to his or her impartiality (see Ökten v. Turkey ( dec. ), no. 22347/07, 3 November 2011); what matters is the scope of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his or her part that would prevent him or her from being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final assessment has been prejudged ( see, for example, Morel v. France, no. 34130/96, § 45, ECHR 2000-VI).", "32. In this case, therefore, in the light of all these principles, the Court must decide whether, having regard to the nature and extent of the judicial review required of the General Assembly, the three judges in question displayed, or could legitimately be considered to have displayed, bias with regard to the decision on the merits of the case ( see D.P. v. France, no. 53971/00, § 36, ECHR 2004 ‑ I). This would be the case, for instance, where the questions with which they had successively had to deal were similar, or at least if the difference between them was negligible ( see, among many other authorities, Kleyn and Others v. Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 201, ECHR 2003 ‑ VI; Indra v. Slovakia, no. 46845/99, §§ 51 to 55, 1 February 2005; Toziczka v. Poland, no. 29995/08, §§ 36 and 42 to 46, 24 July 2012; and Hauschildt v. Denmark, 24 May 1989, § 52, Series A no. 154).", "33. In the instant case the Court observes that in the first appeal on points of law, the question considered by the Fifth Division of the Supreme Administrative Court involved reviewing the lawfulness of the judgment of the Administrative Court of 17 September 1998 by determining whether, in the procedures for appointing candidates to positions of head registrar in a judicial district other than the one to which the competitive examination related, the authorities ought to have adhered to the ranking order of the candidates included on the relevant reserve list.", "34. The Court notes that following the decision of the Administrative Court to maintain its initial position and therefore to disregard that adopted by the Fifth Division of the Supreme Administrative Court, the case was referred to the General Assembly by means of an appeal on points of law lodged by the authorities. At that stage the question to be determined was not whether the Administrative Court had the right to resist, given that that right had in no way been challenged : the point on which the General Assembly was called upon to adjudicate was the lawfulness not of the second judgment of 1 July 2002 but of the first judgment, which the Administrative Court wished to maintain. In other words, the question to be decided once again concerned the lawfulness of the Administrative Court ’ s judgment to the effect that the authorities were bound by the ranking order of candidates in the competitive examination, even in respect of appointments in other judicial districts.", "35. The Court notes, however, that three of the thirty-one judges who sat in the General Assembly had previously been on the bench of the Fifth Division, and that those three judges had therefore already participated in taking a decision in the same case on the question which they now had to consider. Consequently, they could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits of the second appeal on points of law.", "36. Nevertheless, the Court considers that the fact that some judges had previously adopted a particular position is not sufficient in itself to demonstrate that the impartiality of the General Assembly was undermined in the present case.", "37. In this kind of situation, as the Court has previously held, it is necessary also to take into account such other factors as the number of judges involved in adopting the aforementioned position and their role on the bench in question.", "38. In this connection, the Convention institutions have already dismissed similar complaints on the grounds of the small proportion of judges concerned on benches which take majority decisions ( see Ferragut Pallach v. Spain ( dec. ), no. 1182/03, 28 February 2006; Garrido Guerrero v. Spain ( dec. ), no. 43715/98, ECHR 2000 -III; OOO ‘ Vesti ’ and Ukhov v. Russia, no. 21724/03, § 83, 30 May 2013; Diennet v. France, 26 September 1995, § 38, Series A no. 325 ‑ A; and Guisset v. France, no. 33933/96, ( Plenary ) Commission decision of 9 March 1998, Decisions and Reports 92- B p. 138).", "39. Furthermore, the Court reiterates that it has already found violations of the right to an impartial tribunal in a number of cases, taking into consideration both the large proportion of judges concerned and their duties as president or rapporteur on the bench ( see Cardona Serrat v. Spain, no. 38715/06, § 37, 26 October 2010; Castillo Algar v. Spain, 28 October 1998, §§ 41 - 53, Reports 1998 ‑ VIII; Perote Pellon v. Spain, no. 45238/99, § 50 in fine, 25 July 2002; and Olujić v. Croatia, no. 22330/05, § 67, 5 February 2009).", "40. In the present case the Court holds that the number or proportion of judges concerned by the issue of objective impartiality is not decisive and that considerations of a quantitative nature do not affect the assessment of the question because there were no compelling reasons making it absolutely necessary for the three judges in question to sit on the bench with entitlement to vote.", "41. Moreover, the Court observes that Ms T.Ç., one of the three judges in question, in her capacity as Vice-President of the Supreme Administrative Court, presided over the General Assembly and that she therefore led the discussions during the proceedings, which constitutes an additional circumstance incompatible with the appearance of impartiality.", "42. These two factors are such as to objectively justify the applicant ’ s concerns regarding the objective impartiality of the General Assembly as it was composed in the instant case.", "43. There has accordingly been a violation of Article 6 of the Convention under this head.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Procola is a dairy constituted as an agricultural association under Luxembourg law. Its registered office is at Ingeldorf.", "A. The origins of the case", "8. Following the introduction of the \"milk quota\" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984, Luxembourg adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law. A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981.", "9. The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities. In accordance with Article 177 of the Treaty establishing the European Economic Community (\"the EEC treaty\"), that court referred a number of questions to the Court of Justice of the European Communities (\"the Court of Justice\") for a preliminary ruling, which was given in a judgment of 25 November 1986.", "10. In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty. The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in Luxembourg by means of a grand-ducal regulation.", "11. On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983. In order to meet Luxembourg 's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984. The draft regulation was submitted to the Conseil d'Etat for an opinion.", "12. In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation.", "13. At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries.", "14. With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to \"the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986\". For these periods, paragraph 2 of the single section of the Act provided: \"Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation.\"", "15. On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988.", "B. The applications for judicial review lodged with the Conseil d'Etat", "16. On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low. In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987. In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application.", "17. In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms:", "\"While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution. Luxembourg was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome.", "Under Article 189 of that treaty, Community regulations are directly applicable. Consequently, Luxembourg was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so.", "At all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation. The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it.", "A plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ...\"", "Four of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue." ]

[ "II. RELEVANT LAW", "A. The EEC rules and their implementation in Luxembourg", "18. In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984. These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the \"reference quantity\".", "Each member State was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B. The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity.", "The additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity. Where a member State chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota.", "19. Luxembourg opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above).", "B. The Conseil d'Etat", "20. At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided:", "\"In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision. The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute.\"", "1. Membership", "21. The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat. Section 1 provides:", "\"The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee.", "The latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat .\"", "The Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4). The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself.", "The members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5).", "22. Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat. The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title.", "The duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament. Section 22 (2) provides: \"Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat .\" It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee.", "23. In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72.", "2. Functions", "24. The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8).", "25. With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties.", "26. As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings. Its judicial powers are restricted in two respects. Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31).", "3. Proposed reform", "27. In 1989 Article 76 of the Constitution was amended. A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions.", "PROCEEDINGS BEFORE THE COMMISSION", "28. Procola and sixty-three of its members, all farmers, applied to the Commission on 22 November 1988. They complained of an infringement of their right to an independent and impartial tribunal, secured in Article 6 para. 1 (art. 6-1) of the Convention, on the ground that some of the members of the Judicial Committee who ruled on Procola's application for judicial review had previously given their opinion on the lawfulness of the impugned provisions. They also argued that retrospective application of the decisions fixing the milk quantities was in breach of Article 7 (art. 7) of the Convention. Lastly, they contended that the additional levies infringed their right to the peaceful enjoyment of their possessions contrary to Article 1 of Protocol No. 1 (P1-1).", "29. On 1 July 1993 the Commission declared Procola's application (no. 14570/89) admissible as regards the first complaint and inadmissible as to the remainder. It declared the complaints submitted by Procola's members inadmissible, on the ground that they had not exhausted domestic remedies.", "In its report of 6 July 1994 (Article 31) (art. 31), it expressed the opinion by nine votes to six that there had been no violation of Article 6 (art. 6) of the Convention. The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "30. In their memorial the Government asked the Court", "\"to hold that Article 6 para. 1 (art. 6-1) of the Convention is not applicable to the case before the Court or, in the alternative, that this provision (art. 6-1) was not violated\".", "31. The applicant's lawyer asked the Court", "\"to hold, as regards the merits of the case, that there has been a violation of the European Convention for the Protection of Human Rights as regards Article 6 para. 1 (art. 6-1);", "to hold that the applicant's loss amounts to 4,456,453 [ Luxembourg francs (LUF)], together with interest of [LUF] 568,290, i.e. a total of [LUF] 5,024,743\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION", "32. The applicant association complained that the Judicial Committee of the Conseil d'Etat was not independent and impartial. It alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides:", "\"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...\"", "A. Applicability of Article 6 para. 1 (art. 6-1)", "33. Procola argued that this provision (art. 6-1) was applicable in the case. The Government and the Commission took the opposite view.", "1. Whether there was a dispute concerning a right", "34. The Government maintained that the application for judicial review made to the Judicial Committee of the Conseil d'Etat was an \"objective\" one ( recours objectif ) - that is to say that it did not relate to a private right - directed against a decision applying Community rules; it did not, therefore, concern a \"contestation\" (dispute) between the parties to an action. If the Judicial Committee had upheld the application, it could only have set aside the impugned orders and remitted the case to the Minister of State, so that he could take a fresh decision. It could not have ordered repayment of sums paid without legal cause as, under Article 84 of the Constitution, only the ordinary courts were empowered to determine civil rights. Moreover, the Government continued, even if an application to the ordinary courts had been possible, no decision could have been given in Procola's favour, since the association as such had never had a legally enforceable claim. The application could not have led to either repayment of the additional levies to Procola or the award of any compensation as, under the system adopted by Luxembourg, the levy, although imposed on the purchaser, was passed on by the latter only to those producers who had exceeded their quota (see paragraph 18 above). In short, the proceedings could not have had any result affecting the applicant's financial position.", "35. The applicant association argued that unless the ministerial orders were quashed it could not seek damages in the civil courts; and only the Conseil d'Etat could quash them. The proceedings in the Conseil d'Etat were thus decisive for a civil right, namely the right to repayment of the fine for overproduction. Procola asserted that under the Formula B system chosen by Luxembourg it was the party with which the State had to have legal relations and conduct financial dealings in the event of overproduction. This was evidenced by the fact that the State had brought proceedings against the association to secure payment of the fine each time the reference quantity had been exceeded.", "36. The Commission took the view that the application to the Conseil d'Etat had been lodged in connection with a public-law dispute which did not concern a private right of the applicant association. Its real purpose was to secure a review in the abstract of the lawfulness of measures taken by the public authorities.", "37. The Court notes that before the Judicial Committee the parties took opposite views on the question whether the ministerial orders fixing milk quantities could be given retrospective effect. Procola maintained that for the years from 1984 to 1987 no levy was payable, since the previous rules had been set aside and it was impossible to make the orders retrospective, whereas the Delegate of the State maintained that the orders were lawful. The applicant association's case was sufficiently tenable, since the Conseil d'Etat conducted a detailed examination of the conflicting arguments (see the Neves e Silva v. Portugal judgment of 27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 65, para. 38).", "Within the meaning of Article 6 (art. 6) of the Convention there was without any doubt a dispute concerning the determination of a right.", "2. As to the civil nature of the right in issue", "38. The Court reiterates that Article 6 para. 1 (art. 6-1) is applicable where an action is \"pecuniary\" in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute and the fact that the administrative courts have jurisdiction (see, among other authorities, the Editions Périscope judgment, previously cited, p. 66, para. 40, and the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 60-61, para. 28).", "39. In order to satisfy itself that the proceedings were decisive for a civil right, the Court considers it necessary to look at the proceedings as a whole. Procola sought repayment of the fine for overproduction of 4.5 million Luxembourg francs (LUF); the association argued that it had paid this sum wrongly, on the ground that its members had produced the milk during a period when there was a legal vacuum and the Luxembourg Government were not entitled to hold them to account for overproduction.", "Admittedly, the application to the Conseil d'Etat could only result in the annulment of the impugned orders, but that annulment would have enabled the applicant association to bring proceedings in the civil courts to recover the sum it considered to have been wrongly paid. By lodging the application, Procola were using the only means at their disposal - an indirect one - of attempting to obtain reimbursement of the additional levies.", "Having regard to the close connection between the proceedings brought by Procola and the consequences that their outcome might have had for one of its pecuniary rights, and for its economic activities in general, the right in question was a civil one (see the Editions Périscope judgment, previously cited, p. 66, para. 40; the Beaumartin judgment, previously cited, pp. 60-61, para. 28; the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, para. 28; and, by implication, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 43).", "In any event, as the applicant pointed out, the Commission took the view in its decision on admissibility that the payment of an additional levy to the national authorities could be construed as a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1 1), and the right to peaceful enjoyment of one's possessions is undoubtedly a civil right.", "40. It follows that Article 6 para. 1 (art. 6-1) is applicable in the case.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "41. The applicant association pointed out that four of the five members sitting on the Judicial Committee when it ruled on Procola's application had previously sat on the advisory panel of the Conseil d'Etat which had given its opinion on the draft Grand-Ducal Regulation of 7 July 1987 and drafted a bill making that regulation retrospective. In view of the opinions they had previously expressed, particularly in the letter sent by the President of the Conseil d'Etat to the Prime Minister on 24 June 1987 (see paragraph 12 above), the members of the Judicial Committee could not have approached the question submitted to them, namely whether it was lawful to apply the ministerial orders of 21 September 1987 retrospectively, with a completely open mind. In the instant case there was neither objective nor subjective impartiality.", "42. The Government observed that before the Commission Procola had cast doubt only on the Judicial Committee's objective impartiality. The complaint now raised about subjective impartiality, in support of which no fresh evidence had been adduced, should therefore be rejected as being new. In the instant case, they continued, it was quite true that some members of the Judicial Committee had performed first an advisory function - having given an opinion on the Grand-Ducal Regulation of 7 July 1987 and suggested that the Government have the Act of 27 August 1987 enacted - and then a judicial function. Nevertheless, it would be incorrect to infer that the Conseil d'Etat was not in a position to give an impartial ruling on the application. In the Luxembourg legal system the Judicial Committee was bound to dismiss an application directed against a statute, not because it had earlier given its opinion on the draft but because in such a situation it had no discretion to do otherwise.", "43. The Court considers that in the instant case it is not necessary to determine whether the Judicial Committee was an independent tribunal. The applicant association did not put in doubt the method of appointing the Conseil d'Etat's members and the length of their terms of office or question that there were safeguards against extraneous pressure.", "44. The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity.", "45. The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg 's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint.", "46. It follows that there has been a breach of Article 6 para. 1 (art. 6-1).", "II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "47. Under Article 50 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Pecuniary damage", "48. Procola requested reimbursement of the LUF 4,456,453 fine for overproduction, increased by LUF 568,290 interest, that had been imposed on the association as a result of the retrospective application of the Regulation of 7 July 1987. They argued that, logically, the association should not have had to pay any fine in respect of the years preceding the regulation's entry into force.", "49. The Government said that only Procola's individual members could claim to have sustained damage. They further submitted that the amount in issue should be LUF 4,456,453, since the sum representing interest had not been collected.", "50. The Delegate of the Commission expressed the view that it was difficult to speculate as to what the outcome of the dispute would have been if the Judicial Committee had been constituted so as to afford all the safeguards of an independent and impartial tribunal.", "51. The Court likewise does not perceive any causal link between the breach of Article 6 para. 1 (art. 6-1) and the dismissal of Procola's application by the Conseil d'Etat. It therefore disallows the claim.", "B. Costs and expenses", "52. The applicant association, the Government and the Delegate of the Commission left this matter to the Court's discretion. However, the applicant association suggested that, in view of the complexity of the case, the costs could be assessed at between 5 and 10% of the sum at stake in the proceedings, that is to say between LUF 250,000 and LUF 500,000.", "53. Making an assessment on an equitable basis, as required by Article 50 (art. 50), and in the light of the relevant criteria, the Court awards Procola LUF 350,000." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital.", "12. On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision.", "13. On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error.", "14. On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court.", "15. In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion.", "16. In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing.", "17. The hearing was eventually listed for 19 April 1990.", "18. In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts.", "19. On 23 October 1990 the experts filed the following findings:", "“As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.”", "20. The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained.", "21. At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991.", "22. In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages.", "23. The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department.", "24. On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage.", "25. Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995.", "26. The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations ( note en délibéré ) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986.", "27. In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds:", "“It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault.", "On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Origins and development of the administrative courts", "28. The history of France’s administrative courts is essentially that of the Conseil d’Etat. In 1790 the Constituent Assembly implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary. It preserved the ancien régime principle that administrative authorities should be tried by a special court, in accordance with the idea that judging the administrative authorities was “also an administrative act”. Such a special court was set up by the Consulate in 1799. This was the Conseil d’Etat, which was instituted by Article 52 of the Constitution of 22 Frimaire Year VIII (13 December 1799). It was given responsibilities in two areas: administrative (contributing to the drafting of major enactments ) and judicial (settling disputes connected with the administrative authorities).", "29. In 1849 an Act vested it with the administration of “delegated” justice ( la justice déléguée ), and thereafter it accordingly gave its rulings “in the name of the French people”. During the Third Republic the Conseil d’Etat acquired an organisational pattern that it still largely has today. Its function was laid down in the Act of 24 May 1872, which amended the 1849 Act and established delegated justice permanently.", "30. The main feature of the post-war period was the organisation of the administrative jurisdiction. In 1953 the administrative courts (of first instance) succeeded the prefectural councils, which had existed since 1799. The 1958 Constitution, which contains only three Articles – 64, 65 and 66 – relating to the judiciary, in particular, to provide that judges (but not members of State Counsel’s offices) are irremovable, does not mention the Conseil d’Etat or the other administrative courts under this head. The Act of 31 December 1987, which came into force in 1989, added to the courts vested with administrative jurisdiction the administrative courts of appeal, to which the bulk of the appellate jurisdiction was transferred. From these new courts and various specialised courts, such as the Court of Audit, an appeal on points of law lies to the Conseil d’Etat as the supreme administrative court.", "B. Status of judges of the administrative courts", "31. The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of State Counsel’s Office at those courts. They are governed by the general rules on the civil service; however, they are in practice both independent and irremovable (see paragraph 35 below). In 1980 a decision of the Constitutional Council (22 July 1980, Official Gazette of 24 July, p. 1868) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the Republic having constitutional rank.", "32. The Conseil d’Etat has about 300 members, two-thirds of whom work within the Conseil and one-third outside it. Its nominal President is the Prime Minister and in practice the Vice-President of the Conseil d’Etat presides. By Article 13, third paragraph, of the Constitution, concerning the powers of appointment of the President of the Republic, all the senior members of the Conseil d’Etat ( conseillers d’Etat ) are appointed by decree of the President of the Republic adopted in Cabinet, while the junior legal assistants ( auditeurs ) and the middle-ranking maîtres des requêtes are appointed by an ordinary presidential decree, under section 2 of the Ordinance of 28 November 1958 on civil and military appointments.", "1. Recruitment of members of the Conseil d’Etat", "33. The members of the Conseil d’Etat are recruited in one of two ways: through competitive examination or directly from other parts of the civil service. Legal assistants, recruited through competitive examination, are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat about twelve years later. External appointments are subject to approval by the Vice-President of the Conseil d’Etat.", "2. Guarantees of independence", "34. The status of the members of the Conseil d’Etat is not so much laid down in writing as guaranteed in practice. As regards written rules, mention must be made of the decree of 30 July 1963 laying down the rights and duties of members of the Conseil d’Etat. These rights and duties are very similar to those applying to the civil service (and, in particular, no provision is made for irremovability ), with a number of exceptions: no provision is made for assessment, no promotions table is drawn up and an advisory committee replaces both the Joint Administrative Committee and the Joint Technical Committee.", "35. It is thus, rather, practice which provides the guarantees enjoyed by the members of the Conseil d’Etat. Three traditional practices are both very long-standing and decisive: firstly, the Conseil d’Etat and its members are managed internally by the Executive Committee ( bureau ) of the Conseil d’Etat, consisting of the Vice-President, the six division presidents and the Secretary-General of the Conseil d’Etat, without any outside interference. In particular, there is no distinction in the Conseil d’Etat between judges and members of State Counsel’s Office as there is in the ordinary courts, where the members of State Counsel’s Office are subordinated to the Minister of Justice.", "Secondly, even though there is no written provision guaranteeing the irremovability of members of the Conseil, that guarantee exists in practice. Lastly, while promotion is theoretically by selection, it is in practice – by a custom which goes back to the middle of the nineteenth century – strictly by seniority, and this guarantees the members of the Conseil d’Etat great independence, vis-à-vis both the political authorities and the authorities of the Conseil d’Etat themselves.", "36. Most duties within the Conseil d’Etat can be performed by members of any grade. Thus the duties of Government Commissioner, although generally given to maîtres des requêtes, can also be carried out by auditeurs or conseillers d’Etat.", "37. The Act of 31 December 1987 instituted a National Council of Administrative Courts and Administrative Courts of Appeal, whose membership ensures that it is independent and representative. The Council has a general advisory role in relation to matters concerning the staff of all the administrative courts (individual measures affecting judges’ careers, promotion and discipline).", "C. Judicial work", "38. Procedure in the administrative courts has developed essentially under the influence of the courts themselves. It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities – and the interests of individuals, who must be effectively protected from misuse of public authority. The procedure is inquisitorial, written and inexpensive, and its distinctive feature is that one of the parties is a public body.", "39. The Conseil d’Etat consists of five administrative divisions (Interior, Finance, Public Works, Social, and Report and Research) and a Judicial Division, itself subdivided into ten sections ( sous -sections ).", "D. The course of proceedings in the Conseil d’Etat", "1. The role of the reporting judge", "40. Where a case has been assigned to a section, the president of the section appoints one of its members as reporting judge to examine the case. After careful study of the file the reporting judge draws up a draft decision. The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft. The memorandum includes a consideration of admissibility issues (including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy) and must answer each ground raised in the application, with reference either to the evidence or to legal provisions or to case-law. The reporting judge appends to the memorandum a copy of the provisions and case-law relied on in the draft decision.", "The file subsequently goes to the reviser, an office assumed in each section by the president or one of the other two assesseurs constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the Government Commissioner, who does not, however, take part in the vote on the draft. Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court.", "2. The role of the Government Commissioner", "41. The institution of Government Commissioner dates from an ordinance of 12 March 1831. Originally, as its name indicates, it was designed to represent the government’s point of view, but that function very rapidly disappeared (at the latest in 1852). The title has remained but is now a misnomer. Since then the institution has become, to the outside observer, one of the most distinctive features of French administrative justice, in particular because Government Commissioners rapidly established themselves as judicial officers totally independent of the parties.", "The Government Commissioner plays a traditionally very important role in the creation of administrative case-law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner. Furthermore, given that the judgments of the Conseil d’Etat are always drafted very elliptically, it is often only by reading the submissions of the Government Commissioner, where published, that one can discern the ratio decidendi of the judgments.", "(a) Appointment", "42. By the terms of Decree no. 63-766 of 30 July 1963 on the organisation and functioning of the Conseil d’Etat, Government Commissioners are taken from among the maîtres des requêtes and auditeurs at the Conseil d’Etat or, exceptionally, from among the conseillers. By Article R 122-5 of the Administrative Courts Code, they are appointed by a decree of the Prime Minister, adopted on a proposal by the Minister of Justice, after being put forward by the Vice-President of the Conseil d’Etat in consultation with the division presidents. In practice, the Conseil d’Etat ’s proposals are always endorsed. Appointment as Government Commissioner – which is not a rank – is for an unlimited duration but a Government Commissioner cannot remain in post for more than ten years and in practice does not generally do so for more than two or three years.", "There are two Government Commissioners for each of the ten sections that make up the Judicial Division but there is no hierarchy of Government Commissioners, who do not constitute a separate “corps”.", "(b) Role of the Government Commissioner during the preparation of the case for trial", "43. The Government Commissioner is a member of the Conseil d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial, when the cases are presented by the reporting judges, and he receives a copy of the draft judgment adopted by the section and revised by the reviser. When his view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly (Article 39 of the decree of 30 July 1963 on the organisation and functioning of the Conseil d’Etat ). Only after that will he prepare his submissions for the actual trial, which is open to the public. These submissions, which are generally exclusively oral ones, are not communicated either to the parties or to the reporting judge or to the members of the trial bench.", "(c) Role of the Government Commissioner at the hearing", "44. It has become an established practice to communicate to lawyers who so request, before the hearing, the general tenor of the submissions which the Government Commissioner will make at the hearing. In view of the number of cases to be tried (about 500 a year for each Government Commissioner), the Government Commissioner’s submissions, which remain his exclusive property, are often solely oral. He has complete freedom as to whether or not to place those he has decided to put in writing in the Conseil d’Etat ’s archives or to publish them in important cases as an annex to Conseil d’Etat judgments reported in the official reports or in legal periodicals.", "45. At the hearing the Government Commissioner is under an obligation to make his submissions, which must be reasoned, since he is not allowed to say that he wishes to leave matters to the court’s discretion.", "46. The Government Commissioner’s role at the hearing was described as follows by a former member of the Conseil d’Etat, T. Sauvel, in 1949:", "“Once the case has reached the public hearing, and the reporting judge has read his report, which is merely a summary of the evidence and makes no mention of the section’s opinion, and the lawyers have made oral submissions if they considered it appropriate, the Commissioner stands up and is the one who speaks last, even after counsel for the defence. He sets out the whole case, making a critical analysis of all the grounds and of all the case-law that could be relied on; often he will indicate how the case-law has developed, highlighting the stages it has already gone through and hinting at possible future developments. Lastly, he will submit that the application should be dismissed or allowed. He does so in his own name, without any obligation to share the section’s opinion or to take instructions either from Principal State Counsel (for there is none) or from any superior, presiding judge or minister. He is answerable only to his own conscience. He is a vital cog in the machinery of administrative procedure, which perhaps owes its real distinctiveness to him. The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises, to which litigants and commentators will long refer.”", "47. In the terms used by the Conseil d’Etat itself (10 July 1957, Gervaise, Recueil Lebon, p. 466, reiterated on 29 July 1998 in Esclatine ) the Government Commissioner’s function is", "“to set out for the Conseil the issues which each application raises for decision and to make known, by making his submissions completely independently, his own assessment, which must be impartial, of the facts of the case and the applicable rules of law, together with his opinion as to whether the manner in which, according to his conscience, the case submitted to the Court to which he belongs should be disposed of.”", "48. At the hearing, therefore, the parties to the case cannot speak after the Government Commissioner, since he speaks after counsel for the opposing parties have addressed the court. Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner’s submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins.", "49. Furthermore, it is settled case-law of the Conseil d’Etat that if the Government Commissioner were to raise a ground – even one involving an issue of public policy – that had not been relied on by the parties during the proceedings, the presiding judge would stay the proceedings, communicate the ground to the parties so that they could present argument on it, and relist the case for a fresh hearing some weeks later, since grounds raised of the court’s own motion have to be notified to the parties.", "(d) The role of the Government Commissioner during the deliberations", "50. After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote. As a general rule, he intervenes orally only to answer any specific questions that are put to him. He is, after all, the member of the Court who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it.", "51. Cases in the Conseil d’Etat may be tried either by a single section (and in that event all the members of the trial bench already know the case) or by combined sections (in that event, four members, representing the section which prepared the case for trial, out of the nine judges who have to deliberate on it know the case) or by the Judicial Division or the Judicial Assembly (so-called solemn constitutions of the court for hearing the most important cases), in which only the President and the reporting judge, out of the seventeen or twelve judges who will have to deliberate on it, know the case.", "52. Lastly, it should be pointed out that there are Government Commissioners not only at the Conseil d’Etat but also at the other administrative courts (of first instance and appeal) and at the Jurisdiction Disputes Court. Furthermore, the function of Advocate General at the Court of Justice of the European Communities was closely modelled on the institution of Government Commissioner, with the difference that under Article 27 § 2 of the Rules of Procedure of the Court of Justice, only the judges who sat at the hearing may take part in the deliberations – to the exclusion, therefore, of the Advocate General.", "E. The case-law of the Court of Justice of the European Communities", "53. In connection with the hearing of a reference for a preliminary ruling made to the Court of Justice at the European Communities by a Dutch court (the Arrondissementsrechtbank te ‘s- Gravenhage ), Emesa Sugar (Free Zone) N.V. (a company), relying on Article 6 § 1 of the Convention, applied on 11 June 1999 to submit written observations after the Advocate General had delivered his opinion at the hearing on 1 June.", "54. In an order of 4 February 2000 the Court of Justice refused that application on the following grounds:", "“...", "11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.", "12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.", "13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed.", "14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général ’s department ...’ ( judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.", "15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment.", "16. Having regard to both the organic and the functional link between the Advocate General and the Court ..., the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General.", "17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.", "18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties ...", "19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE FAIRNESS OF THE PROCEEDINGS", "55. Mrs Kress alleged a violation of Article 6 § 1 of the Convention, which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Submissions of the parties", "1. The applicant", "56. Referring to Borgers v. Belgium ( judgment of 30 October 1991, Series A no. 214-B), Lobo Machado v. Portugal ( judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I) and Reinhardt and Slimane-Kaïd v. France ( judgment of 31 March 1998, Reports 1998-II), the applicant firstly complained that the Government Commissioner’s submissions had not been communicated to her before the hearing and that she had not been able to reply to him at the hearing or speak last; secondly, she complained that the fact that the Government Commissioner had been present at the trial bench’s deliberations – which were held in private – when he had earlier submitted that her appeal should be dismissed, offended against the principle of equality of arms and cast doubt on the court’s impartiality.", "She pointed out that at each stage of the proceedings – firstly in the Administrative Court, then in the Administrative Court of Appeal and, lastly, in her appeal on points of law to the Conseil d’Etat – a Government Commissioner had intervened at the end of each hearing to express his view of the case without that view having been known to the parties beforehand and without it being possible to reply.", "The fact that the Government Commissioner was not a party to the administrative proceedings did not exclude the application to him of the adversarial principle, according to which, in the applicant’s submission, no document could be lawfully submitted to the court without the parties having previously been able to study it. Under the case-law of the European Court, the same was true of observations by a third party intervening in the proceedings, even if that person was an independent judicial officer.", "The applicant submitted that the Government Commissioner could not be equated with a member of the trial court since, although he did not vote at the deliberations, the fact that he intervened at the hearing, after the parties and without their having any opportunity to reply, made him, objectively speaking, an ally or an opponent of one of the parties to the proceedings, seeing that at the deliberations he might defend his point of view again in the absence of the parties. The applicant considered that the Government Commissioner’s intervention in the proceedings was comparable to that of the Advocate-General in the French Court of Cassation – and in Reinhardt and Slimane-Kaïd, cited above, the Court had held that the imbalance created between the parties and the Advocate-General by the disclosure before the hearing to the Advocate-General, but not to the parties, of the report and draft judgment of the reporting judge was not reconcilable with the requirements of a fair trial.", "Lastly, the practice of the memorandum for the deliberations did not enable a party to put forward all his arguments again and was therefore not sufficient to ensure that the adversarial principle was respected. It was also clear from the Conseil d’Etat ’s case-law that memoranda for the deliberations did not form part of the case file.", "2. The Government", "(a) General observations", "57. The Government maintained, firstly, that the judgments relied on by the applicant, which related to an institution – State Counsel’s Office at certain supreme courts in Europe – which had nothing to do with the Government Commissioner, were irrelevant authorities in the instant case. The only precedent in which the issue had been directly determined was the decision of the European Commission of Human Rights in Bazerque v. France (no. 13672/88, decision of 3 September 1991, unreported). In that decision the plenary Commission had rejected the complaint as manifestly ill-founded, taking the view that the Government Commissioner was a judicial officer who played a totally independent role vis-à-vis the parties and that his observations were in the nature solely of an internal working paper of the court, not communicated to the parties but made available to the judges who had to decide the case.", "The Government observed that when the Commission delivered the decision in Bazerque, cited above, the hearing in Borgers, during which the Commission had asked the Court to find that there had been a violation of Article 6 § 1 of the Convention, had already taken place. It was therefore clear that, in the Commission’s view, there had been no contradiction between the finding it had recommended – and which was adopted – in Borgers and the one it adopted at the same time, with the force of a unanimous decision, in Bazerque.", "58. The judgments delivered by the Court since Borgers, cited above, in which it had been held that where it was impossible for the parties to reply to submissions by Crown Counsel’s Office at the Belgian Court of Cassation and by similar offices at a number of supreme courts, the adversarial principle and therefore also Article 6 of the Convention were contravened related to institutions that were radically different in nature from that of Government Commissioner.", "(b) Institutional difference between advocates-general at supreme courts and the Government Commissioner", "59. The Government maintained that there was a fundamental difference between the Government Commissioner and a State counsel’s office of the type that existed at the Court of Cassation in Belgium or in France in that the Commissioner was quite simply a member of the court, being himself a judge. It was well known that this Commissioner, despite his misleading title, in no way represented the Government or the administrative authorities, who were the defendant in proceedings in the administrative courts. He set out his personal opinion of cases wholly independently and wholly impartially, in the light of the parties’ submissions and without being prejudiced in favour of either party.", "The Government admitted that that was not sufficient to distinguish him from Principal State Counsel’s Office – Principal State Counsel and the advocates-general – at the Court of Cassation, which was likewise independent and impartial, a factor that the European Court had not regarded as a sufficient reason for exempting his submissions from adversarial argument by the parties.", "But the Government Commissioner’s status was unambiguous in this respect: it was not merely identical with that of the judges but it was that of the judges, since the Commissioner was one of them, vested with a particular function in the course of the proceedings. That explained why the Commissioner was chosen from among the members of the court by its President, a procedure that was inconceivable in the case of a State counsel’s office, however independent, whose role could not be conferred on it by the presiding judge of a court since there was an inbuilt structural separation between State Counsel’s Office and the court itself.", "The Commissioner was part of the court before being appointed to his duties for a limited period of time; he would continue to be part of it when he had ceased to perform those duties and, most important of all, he continued to be part of it throughout the period during which he performed them, just like a reporting judge, neither more nor less.", "(c) Functional difference between advocates-general and the Government Commissioner", "60. Unlike the function of a State counsel’s office, which represented society or the public interest or whose function was to ensure the consistency of case-law, that of the Government Commissioner was, after the parties had finished making their submissions in accordance with the adversarial principle, and once the hearing had ended, to put his personal opinion to his colleagues, inviting them to decide the case in a particular way. In other words, his function was indistinguishable from that of a reporting judge.", "At the Conseil d’Etat each Government Commissioner belonged to one of the subdivisions (sections) and worked under the operational authority of the section president, while enjoying complete freedom of opinion, like all the judges.", "Once the written stage of the proceedings was over, when the case file was complete, the judges of the section met for an initial consideration of the case, after which they adopted a draft judgment, which was purely provisional. The Commissioner took part in that working session, during which the judge who had the title of reporting judge and was in fact the initial rapporteur for the case – the Commissioner being the second one – set out his view. The file was then sent to the Commissioner for him to study thoroughly.", "Subsequently, the case would be listed for a public hearing on a date chosen by the Commissioner himself. At that hearing the parties, if they were represented, would be able to address the court through their counsel. Once the oral submissions had been made, the Commissioner would address the court in order to express his personal opinion on the case; these submissions ( conclusions ) were made in public and were not necessarily drawn up in writing in advance.", "After that, generally immediately afterwards, the deliberations took place, in which the Commissioner participated as a member of the court, that is to say as naturally as one might expect. It went without saying that if in his submissions the Commissioner raised a fresh issue, on which the parties had not had an opportunity to present argument, and the trial bench considered the issue relevant to the determination of the case, the oral proceedings would be reopened and the case set down for a later hearing. It was also open to the parties to file a memorandum for the deliberations ( note en délibéré ).", "The Government therefore considered that the Commissioner was intimately bound up with the collegial work of the court, of which he was an essential component; his sphere of activity was entirely within the court and his place was among the judges. His submissions were an internal working paper of the court, not because they would not be made public – they were – but because they emanated from a member of the court, who was addressing his colleagues and who, in the wording of Esclatine (see paragraph 47 above) “[took] part in the judicial function devolving on the court of which he [was] a member”.", "The Government pointed out that distinguished authors had stated that the Commissioner was merely a “functional duplication of the reporting judge”, that his submissions were a “public report” and, furthermore, that they in actual fact represented the first stage of the deliberations, a distinctive feature of which was that it was public whereas the remaining stage of the deliberations was secret.", "It was apparent from Vermeulen v. Belgium ( judgment of 20 February 1996, Reports 1996-I, p. 234, § 33), that the right to observance of the adversarial principle covered only “evidence adduced or observations filed” by a person or body outside the court and not those which came from a judge and were intended for the other members of the bench. More generally, the principle in Vermeulen did not apply to the court’s internal work, the acts which contributed to the very process of reaching the collegial decision. Thus in Reinhardt and Slimane-Kaïd (cited above, pp. 665-66, § 105) the Court had accepted that the reporting judge’s report to the Court of Cassation and the draft judgment he had prepared were “legitimately privileged from disclosure as forming part of the deliberations” and that they could therefore not be communicated to the parties or be the subject of argument by them. The fact that such a report was presented in public – an advantage to parties – did not in any way alter the rule.", "(d) The Government Commissioner’s participation in the deliberations", "61. The Government pointed out that it was customary for the Commissioner not to take part in the vote at the end of the deliberations in which he had sat. It should not, however, be inferred that he was not a judge and was to be regarded as an intervener, with the attendant consequences. From the point of view of his status and his position in the proceedings, there was no reason why the Commissioner should not take part in the vote at the deliberations, and his abstention was formal and symbolic rather than real.", "The origin of the practice lay in the very demanding and formalistic conception of the secrecy of the deliberations adopted in French law, a conception according to which no one outside the court was to know the view of any individual judge whose vote had contributed to the collegial decision. That being so, the Commissioner’s abstention when the vote was taken made it possible to keep up appearances and to leave intact, at least formally, the principle that the deliberations were secret: since the Commissioner made known his opinion publicly, he did not vote and in that way the principles were preserved. Nevertheless, the Commissioner was definitely a member of the trial bench and took part from start to finish in the collegial consideration of a case that ended in the decision.", "So much so, that the judgments in which the Conseil d’Etat ’s decision corresponded to the Commissioner’s submissions were often interpreted in the light of those submissions, which, in a manner of speaking, formed additional reasoning for the judgment. Where the decision went against the submissions, the latter amounted to something that in theory had no place in French law and was even excluded by it, but which was in practice accepted in the administrative courts, namely the opinion of a judge who dissented from the opinion of the majority of his colleagues.", "(e) Final remarks", "62. The Government accepted that a judge such as the Government Commissioner might, in the eyes of lawyers accustomed to legal systems that had no equivalent, appear to have rather curious features, and perhaps even disconcerting ones. But they considered that the Court’s role was not to impose a single judicial pattern but to ensure compliance with the vital principles of a fair system of justice, while respecting the differences between legal systems so long as the differences were consistent with observance of those principles.", "The Government Commissioner belonged to the best traditions of French law, and his role in administrative proceedings had been the subject of innumerable studies, each more laudatory than the one before it. The institution had commanded the respect and admiration of generations of French and non-French lawyers.", "Firstly, if the manner in which the Commissioner contributed to proceedings infringed the rights of the parties and the fundamental principle of adversarial procedure, the members of the Conseil d’Etat Bar, who represented parties in the highest administrative court, would have been the best placed to notice the fact and the first to have complained of it, whereas in fact the Council of the Conseil d’Etat and Court of Cassation Bar had intervened in the instant case to support the system in question; not only did the Council not criticise it, but it even considered it to be excellent and wished to retain it.", "Secondly, some importance should also be attached to the recent ruling of the Court of Justice of the European Communities concerning the fact that it was impossible for parties to present argument on the submissions made to that court by the Advocate General.", "In an order of 4 February 2000 ( Emesa Sugar) the Court of Justice had interpreted Vermeulen, to which it referred, in much the same manner as the French Conseil d’Etat had done in Esclatine, cited earlier. The fact that the parties had no opportunity to reply to the Advocate General did not infringe the principles of a fair trial, the Court of Justice had said, since his submissions did not constitute “an opinion ... which stem[ med ] from an authority outside the Court” – like the procureur général ’s department referred to in Vermeulen – but the individual reasoned opinion, expressed in open court, of a member of the Court of Justice itself.", "That being so, if in the instant case the Court were to hold that there had been a violation of Article 6, it would – admittedly by implication, but necessarily – be condemning, as being contrary to the requirements of a fair trial, the system applied by the Court of Justice at Luxembourg from its inception. That Court, however, had been dispensing justice for nearly half a century, respected and even admired by all, and likewise projected a very good image of European justice, and no one had ever challenged the integrity of its procedure.", "The Government therefore submitted that there had been no violation of Article 6 § 1 of the Convention.", "B. The Court’s assessment", "63. The applicant complained, under Article 6 § 1 of the Convention, that she had not had a fair trial in the administrative courts. That complaint had two limbs: firstly, the applicant or her lawyer had not been able to study the Government Commissioner’s submissions before the hearing or reply to them after it as the Government Commissioner always spoke last; and secondly, the Commissioner attended the deliberations, even if he did not vote, and that made worse the infringement of the right to a fair trial resulting from the failure to respect the principle of equality of arms and the right to adversarial procedure.", "1. Recapitulation of the relevant case-law", "64. The Court notes that on the points mentioned above the application raises, mutatis mutandis, issues similar to those examined by the Court in several cases concerning the role of the Advocate-General or similar officers at the Court of Cassation or Supreme Court in Belgium, Portugal, the Netherlands and France (see the following judgments : Borgers, Vermeulen, and Lobo Machado, cited above; Van Orshoven v. Belgium, 25 June 1997, Reports 1997-III; and J.J. v. the Netherlands and K.D.B. v. the Netherlands, 27 March 1998, Reports 1998-II; see also Reinhardt and Slimane-Kaïd, cited above).", "65. In all these cases the Court held that there had been a violation of Article 6 § 1 of the Convention on account of the failure to disclose in advance either the submissions of the officer concerned or those contained in the reporting judge’s report and the impossibility of replying to them. The Court also points out that in Borgers, which concerned the role of the Advocate-General at the Court of Cassation in criminal proceedings, it held that there had been a breach of Article 6 § 1 of the Convention, principally because of the Advocate-General’s participation in the Court of Cassation’s deliberations, which had infringed the principle of equality of arms. Subsequently, the aggravating factor of the relevant officer’s participation in the deliberations was taken into account only in Vermeulen and Lobo Machado (cited above, p. 234, § 34, and p. 207, § 32, respectively), in which it had been raised by the applicants; in all the other cases, the Court has emphasised the need to respect the right to adversarial procedure, noting that this entails the parties’ right to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service.", "Lastly, the Court points out that Borgers, J.J. v. the Netherlands and Reinhardt and Slimane-Kaïd concerned criminal proceedings or ones with a criminal connotation. Vermeulen, Lobo Machado and K.D.B. v. the Netherlands were concerned with civil proceedings or ones with a civil connotation, while Van Orshoven concerned disciplinary procedures against a doctor.", "2. As to the alleged special character of the administrative courts", "66. None of those cases concerned a dispute brought before the administrative courts, and the Court must therefore consider whether the principles identified in its case-law as recapitulated above apply in the instant case.", "67. It observes that since Borgers, cited above, all the governments have endeavoured to show before the Court that in their legal systems their advocates-general or principal State counsel were different from the Belgian procureur général, from the point of view both of organisation and of function. Their role was said, for instance, to differ according to the nature of the proceedings (criminal, civil or even disciplinary); they were said not to be parties to the proceedings or the adversaries of anyone; their independence was said to be guaranteed and their role limited to that of an amicus curiae acting in the public interest or to ensure that case-law was consistent.", "68. The Government are no exception. They too maintained that the institution of Government Commissioner in French administrative proceedings differed from the other institutions criticised in the judgments cited above, because there was no distinction between the bench and State Counsel’s Office within the administrative courts; because the Government Commissioner, from the point of view of his status, was a judge in the same way as all the other members of the Conseil d’Etat; and because, from the point of view of his function, he was in exactly the same position as the reporting judge, except that he expressed his opinion publicly but did not vote.", "69. The Court accepts that, in comparison with the ordinary courts, the administrative courts in France display a number of special features, for historical reasons.", "Admittedly, the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle. Even today, the way in which administrative judges are recruited, their special status, distinct from that of the ordinary judiciary, and the special features of the way in which the system of administrative justice works (see paragraphs 33-52 above) show how difficult it was for the executive to accept that its acts should be subject to review by the courts.", "As to the Government Commissioner, the Court equally accepts that it is undisputed that his role is not that of a State counsel’s office and that it is a sui generis institution peculiar to the organisation of administrative-court proceedings in France.", "70. However, the mere fact that the administrative courts, and the Government Commissioner in particular, have existed for more than a century and, according to the Government, function to everyone’s satisfaction cannot justify a failure to comply with the present requirements of European law (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 19, § 36). The Court reiterates in this connection that the Convention is a living instrument to be interpreted in the light of current conditions and of the ideas prevailing in democratic States today (see, among other authorities, Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 28).", "71. No one has ever cast doubt on the independence or impartiality of the Government Commissioner, and the Court considers that his existence and institutional status are not in question under the Convention. However, the Court is of the view that the Commissioner’s independence and the fact that he is not responsible to any hierarchical superior, which is not disputed, are not in themselves sufficient to justify the assertion that the non-disclosure of his submissions to the parties and the fact that it is impossible for the parties to reply to them are not capable of offending against the principle of a fair trial.", "Indeed, great importance must be attached to the part actually played in the proceedings by the Government Commissioner, and more particularly to the content and effects of his submissions (see, by analogy, among many other authorities, Van Orshoven, cited above, p. 1051, § 39).", "3. As regards the non-disclosure of the Government Commissioner’s submissions in advance and the impossibility of replying to them at the hearing", "72. The Court reiterates that the principle of equality of arms – one of the elements of the broader concept of a fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst -Huber v. Switzerland, judgment of 18 February 1997, Reports 1997-I, pp. 107-08, § 23).", "73. Irrespective of the fact that in most cases the Government Commissioner’s submissions are not committed to writing, the Court notes that it is clear from the description of the course of proceedings in the Conseil d’Etat (see paragraphs 40-52 above) that the Government Commissioner makes his submissions for the first time orally at the public hearing of the case and that the parties to the proceedings, the judges and the public all learn of their content and the recommendation made in them on that occasion.", "The applicant cannot derive from the right to equality of arms that is conferred by Article 6 § 1 of the Convention a right to have disclosed to her, before the hearing, submissions which have not been disclosed to the other party to the proceedings or to the reporting judge or to the judges of the trial bench (see Nideröst -Huber, cited above, ibid.). No breach of equality of arms has therefore been made out.", "74. However, the concept of a fair trial also means in principle the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see the following judgments, cited above: Vermeulen, p. 234, § 33; Lobo Machado, pp. 206-07, § 31; Van Orshoven, p. 1051, § 41; K.D.B., p. 631, § 44; and Nideröst -Huber, p. 108, § 24).", "75. As regards the fact that it is not possible for parties to reply to the Government Commissioner’s submissions at the end of the hearing, the Court refers to Reinhardt and Slimane-Kaïd, cited above. In that case the Court found a breach of Article 6 § 1 because the reporting judge’s report, which had been disclosed to the Advocate-General, had not been communicated to the parties (ibid., pp. 665-66, § 105). On the other hand, with respect to the Advocate-General’s submissions, the Court stated:", "“The fact that the Advocate-General’s submissions were not communicated to the applicants is likewise questionable.", "Admittedly, current practice is for the Advocate-General to inform the parties’ lawyers no later than the day preceding the hearing of the tenor of his submissions and in cases where, at the request of the lawyers, there is an oral hearing, they are entitled to reply to his submissions orally and by a note sent to the court in deliberations ... In the light of the fact that only questions of pure law are argued before the Court of Cassation and that the parties are represented in that court by highly specialised lawyers, that practice affords parties an opportunity of apprising themselves of the Advocate-General’s submissions and commenting on them in a satisfactory manner. It has not, however, been shown that such a practice existed at the material time.” (p. 666, § 106)", "76. Contrary to the position in Reinhardt and Slimane-Kaïd, it is not disputed that in proceedings in the Conseil d’Etat lawyers who so wish can ask the Government Commissioner, before the hearing, to indicate the general tenor of his submissions. Nor is it contested that the parties may reply to the Government Commissioner’s submissions by means of a memorandum for the deliberations, a practice which – and this is vital in the Court’s view – helps to ensure compliance with the adversarial principle. That was in fact what the applicant’s lawyer did in the instant case (see paragraph 26 above).", "Lastly, in the event of the Government Commissioner’s raising orally at the hearing a ground not raised by the parties, the presiding judge would adjourn the case to enable the parties to present argument on the point (see paragraph 49 above).", "That being so, the Court considers that the procedure followed in the Conseil d’Etat affords litigants sufficient safeguards and that no problem arises from the point of view of the right to a fair trial as regards compliance with the principle that proceedings should be adversarial.", "There has consequently been no violation of Article 6 § 1 of the Convention in this respect.", "4. As regards the presence of the Government Commissioner at the Conseil d’Etat ’s deliberations", "77. The Court notes that the Government’s approach to this question is to say that since the Government Commissioner is a full member of the trial bench, on which he functions, in a manner of speaking, like a second reporting judge, there should be no objection to his attending the deliberations or even to his voting.", "78. The fact that a member of the trial bench has publicly expressed his view of a case could then be regarded as contributing to the transparency of the decision-making process. This transparency is likely to promote a more willing acceptance of the decision by litigants and the public inasmuch as the Government Commissioner’s submissions, if they are accepted by the trial bench, constitute a kind of commentary on the judgment. Where they are not so accepted and the Government Commissioner’s submissions are not reflected in the decision adopted in the judgment, they constitute a kind of dissenting opinion which will provide food for thought for future litigants and legal writers.", "Furthermore, this public presentation of a judge’s opinion would not breach the duty of impartiality inasmuch as the Government Commissioner, during the deliberations, is only one judge among others and his view cannot affect the decision of the other judges where he is in a minority, whatever type of bench is considering the case (section, combined sections, Division or Assembly). It should also be noted that in the instant case the applicant did not in any way call in question the Government Commissioner’s subjective impartiality or independence.", "79. However, the Court observes that this approach is not consistent with the fact that although the Government Commissioner attends the deliberations, he has no right to vote. The Court considers that by forbidding him to vote, on the ground that the secrecy of the deliberations must be preserved, domestic law considerably weakens the Government’s argument that the Government Commissioner is truly a judge, as a judge cannot abstain from voting unless he stands down. Moreover, it is hard to accept the idea that some judges may express their views in public while the others may do so only during secret deliberations.", "80. Furthermore, in examining, above, the applicant’s complaint concerning the failure to disclose the Government Commissioner’s submissions in advance and the impossibility of replying to him, the Court accepted that the role played by the Commissioner during administrative proceedings requires procedural safeguards to be applied with a view to ensuring that the adversarial principle is observed (see paragraph 76 above). The reason why the Court concluded that there had been no violation of Article 6 on this point was not the Commissioner’s neutrality vis-à-vis the parties but the fact that the applicant enjoyed sufficient safeguards to counterbalance the Commissioner’s power. The Court considers that that finding is also relevant to the complaint concerning the Government Commissioner’s participation in the deliberations.", "81. Lastly, the doctrine of appearances must also come into play. In publicly expressing his opinion on the rejection or acceptance of the grounds submitted by one of the parties, the Government Commissioner could legitimately be regarded by the parties as taking sides with one or other of them.", "In the Court’s view, a litigant not familiar with the mysteries of administrative proceedings may quite naturally be inclined to view as an adversary a Government Commissioner who submits that his appeal on points of law should be dismissed. Conversely, a litigant whose case is supported by the Commissioner would see him as his ally.", "The Court can also imagine that a party may have a feeling of inequality if, after hearing the Commissioner make submissions unfavourable to his case at the end of the public hearing, he sees him withdraw with the judges of the trial bench to attend the deliberations held in the privacy of chambers (see, mutatis mutandis, Delcourt, cited above, pp. 16-17, § 30).", "82. Since Delcourt, the Court has noted on numerous occasions that while the independence and impartiality of the Advocate-General or similar officer at certain supreme courts were not open to criticism, the public’s increased sensitivity to the fair administration of justice justified the growing importance attached to appearances (see Borgers, cited above, p. 31, § 24).", "It is for this reason that the Court has held that regardless of the acknowledged objectivity of the Advocate-General or his equivalent, that officer, in recommending that an appeal on points of law should be allowed or dismissed, became objectively speaking the ally or opponent of one of the parties and that his presence at the deliberations afforded him, if only to outward appearances, an additional opportunity to bolster his submissions in private, without fear of contradiction (see Borgers, Vermeulen and Lobo Machado, cited above, pp. 31-32, § 26, p. 234, § 34, and p. 207, § 32, respectively).", "83. The Court sees no reason to depart from the settled case-law referred to above, even though it is the Government Commissioner who is in issue, whose opinion does not derive its authority from that of a State counsel’s office (see, mutatis mutandis, J.J. and K.D.B., cited above, pp. 612-13, § 42, and p. 631, § 43, respectively).", "84. The Court also observes that it was not argued, as in Vermeulen and Lobo Machado, that the Government Commissioner’s presence was necessary to help ensure the consistency of case-law or to assist in the final drafting of the judgment (see, mutatis mutandis, Borgers, cited above, p. 32, § 28). It is clear from the Government’s explanations that the presence of the Government Commissioner is justified by the fact that, having been the last person to have seen and studied the file, he will be in a position during the deliberations to answer any question which might be put to him about the case.", "85. In the Court’s opinion, the benefit for the trial bench of this purely technical assistance is to be weighed against the higher interest of the litigant, who must have a guarantee that the Government Commissioner will not be able, through his presence at the deliberations, to influence their outcome. That guarantee is not afforded by the current French system.", "86. The Court is confirmed in this approach by the fact that at the Court of Justice of the European Communities the Advocate General, whose role is closely modelled on that of the Government Commissioner, does not attend the deliberations (Article 27 of the Rules of Procedure of the Court of Justice).", "87. In conclusion, there has been a violation of Article 6 § 1 of the Convention on account of the Government Commissioner’s participation in the deliberations of the trial bench.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LENGTH OF THE PROCEEDINGS", "88. The applicant complained of the length of the medical-liability proceedings in the administrative courts. She alleged a violation of Article 6 § 1 of the Convention, which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "89. In the Government’s submission, the case did not lend itself to a rapid disposal of the proceedings. The Government admitted, however, that the courts of first instance and appeal on points of law had probably been unable to show all the desirable diligence and they stated that they wished to leave the matter to the Court’s discretion.", "A. Period to be taken into consideration", "90. The period to be taken into consideration began on 22 June 1987, when the preliminary compensation claim made to Strasbourg Hospital was refused (see X v. France, judgment of 31 March 1992, Series A no. 234 ‑ C, p. 90, § 31). It ended on 30 July 1997, with the delivery of the Conseil d’Etat ’s judgment. It therefore lasted ten years, one month and eight days.", "B. Reasonableness of the length of the proceedings", "91. The Administrative Court ruled on this case – which, in the Court’s opinion, was not especially complex – on 5 September 1991; the Nancy Administrative Court of Appeal ruled on the applicant’s appeal on 8 April 1993; lastly, the Conseil d’Etat gave its judgment on the appeal on points of law on 30 July 1997. The Court considers that both at first instance and in the appeal on points of law there were substantial delays in the proceedings. The Conseil d’Etat ’s examination of the applicant’s appeal on points of law, in particular, took four years and a little over one month.", "92. Having regard to its case-law on the subject, the Court holds that the length of the proceedings in issue did not satisfy the “reasonable time” requirement.", "There has consequently been a violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "93. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "94. The applicant sought 200,000 French francs (FRF) in respect of non-pecuniary damage, on account, firstly, of the considerable anxiety she had suffered because of the excessive length of the proceedings and, secondly, of the frustration she had felt at not being able to reply to the Government Commissioner’s submissions, which were unfavourable to her.", "95. The Government did not express a view.", "96. As regards the applicant’s complaint concerning the fairness of the proceedings in the Conseil d’Etat, the Court considers, in keeping with its case-law (see Vermeulen, cited above, p. 235, § 37), that the non-pecuniary damage alleged by the applicant is sufficiently compensated by the finding of a violation in paragraph 85 above.", "The applicant has, on the other hand, indisputably sustained non ‑ pecuniary damage on account of the excessive length of the proceedings. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her FRF 80,000 under this head.", "B. Costs and expenses", "97. The applicant sought, firstly, reimbursement of that part of the costs of FRF 72,625 incurred in the proceedings in the French courts which was related to the alleged violations (the need to lodge an ordinary appeal and an appeal on points of law).", "98. The Government did not express a view.", "99. If the Court finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before the Convention institutions but also those incurred in the national courts for the prevention or redress of the violation (see, in particular, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63). In the instant case the Court finds that the applicant did not incur such costs and expenses during the proceedings in issue. It notes, in particular, that at no time did the applicant make any criticism of the Government Commissioner in the three courts that dealt with her case. This part of the claim must consequently be dismissed.", "100. The applicant also sought compensation of FRF 20,000 in respect of the costs and expenses she had incurred before the Convention institutions.", "101. The Government did not express a view.", "102. According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, for example, Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the instant case, having regard to the information before it and the aforementioned criteria, the Court considers the sum of FRF 20,000 reasonable for the proceedings before it and awards the applicant that sum.", "C. Default interest", "103. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4.26% per annum." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "7. Mrs Elisabeta Vasilescu, a Romanian national born in 1897, lives at Potgoli (county of Dâmboviţa).", "8. On 23 June 1966, police officers from the Argeş miliţia searched the applicant’s house without a warrant, in connection with a police investigation that had been started in respect of her husband for unlawful possession of valuables, an offence under the legislation then in force (Decree no. 210/1960).", "They seized 327 gold coins, most of which were pierced for use in jewellery, two of them having been made into ear-rings.", "9. On 4 July 1966 these items were deposited at the Argeş branch of the National Bank of Romania and that fact was officially recorded.", "10. On 8 July 1966 Argeş miliţia headquarters decided not to press charges against the applicant’s husband and discontinued the investigation of the case in accordance with Article 261 of the former Code of Criminal Procedure (see paragraph 25 below). The police concluded that the offence committed in the case was not likely to constitute a threat to society, but they nevertheless decided to keep the items in question.", "11. On 24 May 1990 State Counsel for the county of Argeş, of whom the applicant had enquired what had happened to her property, informed her that there was nothing in the archives of State Counsel’s office at the Argeş Court of First Instance which made it possible to establish that an investigative measure of that kind had been ordered in the case.", "12. The applicant subsequently lodged an application for restitution with the Procurator-General of Romania (“the Procurator-General”). On 11 October 1990 the Procurator-General replied that no seizure order or search warrant had been issued in respect of her or her husband, either in 1966 or thereafter.", "13. At an unspecified date in 1991 the Ministry of the Interior confirmed to the applicant that an investigative measure had indeed been ordered in 1966 in respect of the property she was claiming and that subsequently charges against her husband had been dropped. According to the Ministry, the seizure had, however, been kept in force by State Counsel at the Argeş Court of First Instance.", "14. In 1991 the applicant brought an action for recovery of possession of forty gold coins that had been made into a necklace and a pair of ear-rings against the National Bank, with which they had been deposited.", "In the Găeşti Court of First Instance she argued that these items had been unlawfully confiscated by the police without any order from a competent judicial authority. In support of her claim, she relied on the Procurator-General’s reply of 11 October 1990 (see paragraph 12 above).", "15. On 21 February 1992 the court, basing its decision on the witness evidence gathered and documents in the case file, found for the applicant and ordered the National Bank to return the items claimed. The court also found that the Argeş police had seized, in all, 327 gold coins belonging to the applicant.", "16. The National Bank appealed to the Dâmboviţa County Court ( tribunalul judeţean ), which dismissed the appeal on 7 October 1992. The court found that at the end of the police investigation in respect of the applicant’s husband, a decision had been taken on 8 July 1966 not to prosecute and that, at all events, there was no statutory provision prohibiting the applicant from recovering possession of the items in issue.", "17. In 1993, since the applicant considered that she was entitled to have returned to her all the items kept by the miliţia, she requested the Procurator-General to lodge with the Supreme Court of Justice ( curtea supremă de justiţie ) a special appeal against the judgment of 21 February 1992 (see paragraph 15 above and paragraph 27 below).", "18. On 10 June 1993 the Procurator-General informed the applicant that he did not intend to grant that request. In his view, the judgment of 21 February 1992 was lawful and well-founded.", "19. On 19 August 1993 the Procurator-General informed the applicant that if she was not satisfied with the decisions in her case, she could avail herself of the new appeal created by Law no. 59 of 1993 amending the Code of Civil Procedure.", "20. As a consequence both the applicant and the National Bank appealed to the Ploieşti Court of Appeal ( curtea de apel ) against the judgment of 21 February 1992.", "The applicant sought the return of all the coins in issue, while the bank sought to have the earlier decisions quashed. The bank argued that the courts had no jurisdiction to rule in the case as all complaints about investigative measures came within the exclusive competence of State Counsel, as provided in Articles 275 to 278 of the Code of Criminal Procedure (“the CCP” – see paragraph 26 below).", "21. In a judgment of 22 February 1994 the Court of Appeal dismissed both appeals. As regards the applicant, it pointed out that she had initially claimed only the forty coins and the pair of gold ear-rings and that she was consequently not entitled to amend the claim on appeal.", "With respect to the defendant bank, the court laid emphasis on the decision not to prosecute that had been taken during the criminal investigation in respect of the applicant’s husband. It noted, further, that the Procurator-General had taken no action on Mrs Vasilescu’s application for restitution and that he had done no more than persuade her to take legal proceedings. As to the charge of unlawful possession of gold objects, the court said that there had been no basis in law for their retention by the police and that consequently the courts below had been right to order that they should be returned. That judgment became final.", "22. In 1994 the Procurator-General made an application to the Supreme Court of Justice under Article 330 of the Code of Civil Procedure (see paragraph 27 below) to have the judgments of 21 February and 7 October 1992 and 22 February 1994 quashed.", "In his pleading he reiterated the argument that in trying the case in question, the civil courts had exceeded their jurisdiction ratione materiae and encroached on State Counsel’s exclusive competence in the matter (see paragraph 26 below). He consequently applied for the case to be transferred to the appropriate authority.", "The applicant complained of a breach of Article 21 of the Constitution, which guaranteed free access to the courts (see paragraph 24 below) and submitted that the appeal should be dismissed.", "23. On 20 October 1994 the Supreme Court of Justice allowed the Procurator-General’s application and quashed all the judgments concerned, holding that under Article 275 of the CCP, State Counsel for the county of Argeş had sole jurisdiction to entertain Mrs Vasilescu’s application for return of the items in issue." ]

[ "relevant domestic law", "A. The Constitution", "24. Article 21 of the Constitution provides:", "“Everyone shall be entitled to apply to the courts for the protection of his rights, liberties and legitimate interests.", "The exercise of this right shall not be restricted by any statute.", "…”", "The Code of Criminal Procedure", "25. The relevant provisions of the Code of Criminal Procedure before the revision of 1 January 1969 provided:", "Article 115 § 4", "“Metal objects and precious stones … shall be deposited with the nearest branch of the National Bank within forty-eight hours…”", "Article 187", "“The bodies responsible for criminal investigation shall seek permission from State Counsel to carry out the following:", "(a) house searches, other than in cases of offences discovered while they are being committed or immediately thereafter;", "…", "Permission shall be given in writing on the basis of a reasoned order issued by the body in charge of the investigation.", "…”", "Article 261", "“If, during the course of inquiries, a factor supervenes which prevents the institution or continuation of criminal proceedings, the body responsible for the investigation may drop the proceedings.", "…", "Termination of criminal proceedings shall be effected by means of a reasoned order…”", "26. As amended by the Law of 12 November 1968, which came into force on 1 January 1969, the relevant provisions of the Code of Criminal Procedure are worded as follows:", "Article 168", "“An indicted or charged person … may complain about a preventive measure to the criminal investigation body which ordered it or to State Counsel in charge of the investigation, until the case is brought to court; thereafter, the complaint shall be addressed to the court.", "…", "If the person concerned has not disputed the enforcement of the preventive measure before the criminal proceedings have ended and become final, they may be challenged in accordance with the civil law.”", "Article 169", "“… Any other person who maintains that he has a right over the seized property may apply, in accordance with Article 168, for a ruling on the existence of that right and for an order for the return of the property…”", "Article 220", "“Where State Counsel finds that a procedural step or measure taken by the body responsible for the criminal investigation is not in conformity with the provisions of law, he shall revoke it in a reasoned order.”", "Article 275", "“Any person whose legitimate interests have been infringed may lodge a complaint against any measures and decisions taken during a criminal investigation.", "…", "The complaint must be made to State Counsel supervising the work of the body responsible for the criminal investigation and may be lodged either directly with State Counsel or with the said criminal investigation body.", "…”", "C. The Code of Civil Procedure", "27. The relevant Articles of the Code of Civil Procedure, as amended by Law no. 59/1993, provide:", "Article 330", "“The Procurator-General may, either of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice to quash any final judicial decision on any of the following grounds:", "(1) where the judicial authority has exceeded its jurisdiction;", "…”", "Article 399", "“Any enforcement may be challenged by any aggrieved person or other person concerned…”", "Article 400", "“Interlocutory applications and any disputes arising between the parties … over the meaning, scope or application of the operative provisions of a judicial decision which is being executed shall be made to the judicial authority which issued the authority to execute…”", "PROCEEDINGS BEFORE THE COMMISSION", "28. Mrs Elisabeta Vasilescu applied to the Commission on 10 February 1995, alleging that the search of her home and the seizure of her property there had infringed Article 8 of the Convention. She also asserted that, contrary to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Supreme Court of Justice had deprived her of a tribunal that could have enabled her to recover possession of her property.", "29. On 7 March 1996 the Commission declared the application (no. 27053/95) admissible in respect of forty coins and a pair of gold ear-rings. In its report of 17 April 1997 (Article 31), it expressed the opinion that there had been a violation of Article 6 § 1 of the Convention (unanimously) and Article 1 of Protocol No. 1 (twenty-eight votes to one) and that it was unnecessary to consider the complaint based on Article 8 of the Convention (twenty-eight votes to one). The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "30. The applicant asked the Court to hold that there had been a violation of Article 6 § 1, taken alone or together with Article 13, and Article 8 of the Convention and of Article 1 of Protocol No. 1. She sought an order requiring the Romanian State to return the forty gold coins and the pair of gold ear-rings or, failing such an order, an award of just satisfaction under Article 50.", "31. The Government requested the Court to hold that the impugned judgment of the Supreme Court of Justice had not infringed the rights guaranteed by the Articles relied on.", "as to the law", "I. alleged violation of article 6 § 1 of the convention", "32. Mrs Vasilescu complained of an interference with her right of access to a tribunal that could rule on her action to recover possession of the gold coins in dispute. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal…”", "The Government disputed that contention, but the Commission accepted it.", "A. The Government’s preliminary objection", "33. The Government maintained that besides the action to recover possession that she had brought in the civil courts, Mrs Vasilescu had available to her three remedies for challenging the actions of the criminal investigation body that were now complained of before the Court.", "In their submission, the applicant could, firstly, have lodged a complaint with State Counsel responsible for supervising the criminal investigation body, under Articles 275 to 278 of the CCP, and, secondly, have applied to State Counsel on the basis of Articles 218 to 220 of that code. Lastly, it had been open to Mrs Vasilescu to seek the return of her property under Articles 168 and 169 of the same code (see paragraph 26 above).", "34. The Court considers that those observations amount to an objection of failure to exhaust domestic remedies which was not raised before the Commission and on which the Government are accordingly estopped from relying (see, among many other authorities, the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997 ‑ VII, p. 2624, § 48).", "B. Merits of the complaint", "35. Mrs Vasilescu maintained that on account of the subject matter alone, her application for return of the property seized from her by the Argeş miliţia had fallen to be determined by the civil courts.", "Her claims had, she said, been acknowledged as being well-founded, firstly in the decision of 21 February 1992 of the Găeşti Court of First Instance whereby it ordered return of the property, then in the decision of the Dâmboviţa County Court and lastly in the Ploieşti Court of Appeal’s decision.", "In quashing those judgments on the ground that the civil courts had encroached on the exclusive competence of State Counsel, the Supreme Court of Justice had deprived her of the right to a hearing by a tribunal.", "36. The Government did not dispute Mrs Vasilescu’s ownership of the gold coins in question. In their submission, the Supreme Court of Justice’s judgment of 20 October 1994 was based on an erroneous interpretation of Romanian law as, in the instant case, the civil courts had had jurisdiction to rule on the applicant’s application.", "Although the Supreme Court of Justice’s decision could be interpreted as a restriction of the right of access to a tribunal, the restriction did not impair the essence of that right, inasmuch as it remained open to the applicant to avail herself of three remedies, including the one provided in Articles 168 and 169 of the CCP (see paragraph 33 above).", "37. The Commission disputed the Government’s argument and considered, in particular, that the Romanian rules of procedure, as interpreted and applied by the Supreme Court of Justice, had had the consequence that no court in fact had jurisdiction to rule on the applicant’s claim.", "38. The Court observes that on a special application to set aside, which the Procurator-General of Romania (“the Procurator-General”) is given exclusive power to make by Article 330 of the Code of Civil Procedure, the Supreme Court of Justice on 20 October 1994 quashed all the decisions of the civil courts which had tried Mrs Vasilescu’s action for recovery of possession (see paragraph 23 above). In its judgment, in which it relied on Article 275 of the CCP (see paragraph 26 above), the Supreme Court of Justice noted that in ruling on the case, the civil courts had exceeded their jurisdiction ratione materiae. In seeking the return of the gold coins seized by the miliţia, the applicant had in fact been disputing a criminal investigation measure. That being so, only State Counsel for the county of Argeş, who was responsible for the case and for supervising the body that had conducted the investigation, could entertain such a claim, not the civil courts.", "The Government argued that the Supreme Court of Justice had wrongly interpreted the rules of procedure (see paragraph 36 above).", "39. The Court does not consider that it must determine this question of Romanian law (see, among other authorities and mutatis mutandis, the Sakık and Others judgment cited above, p. 2625, § 53). Its function is confined to ascertaining whether in the present case Mrs Vasilescu had access to a tribunal. Consequently, the Court will base its examination on the provisions of Romanian law as they were applied to the applicant, in this instance by the Supreme Court of Justice.", "In its judgment of 20 October 1994 that court took the view that the applicant’s claim was tantamount to an appeal against a criminal investigation measure. It consequently held that the civil courts had no jurisdiction in the case and that only State Counsel for the county of Argeş could entertain the claim. There is no doubt, however (and none of those appearing before the Court disagreed), that the applicant’s action was covered by the civil limb of Article 6, seeing that it was designed to secure the return of property of which the applicant had been dispossessed (see paragraph 14 above).", "The Court observes that Mrs Vasilescu had already applied to Argeş State Counsel and then to the Procurator-General. Whatever the outcome of those approaches (see paragraphs 11 and 12 above) and of any new proceedings which, in accordance with the Supreme Court of Justice’s judgment, the applicant might bring before Argeş State Counsel, the authorities applied to must, if Article 6 is to be complied with, be able to be regarded as a “tribunal” within the meaning of that provision. The Court will therefore ascertain whether this is in fact so.", "40. The Court notes that the Procurator-General’s department, which, pursuant to Law no. 92 of 4 August 1992, replaced the former procuratura, consists of officials who carry out all their duties under the authority of the Procurator-General. The Minister of Justice supervises all the members of the Procurator-General’s department, including the Procurator-General.", "Even where, as in the instant case, State Counsel for a county exercises powers of a judicial nature, he acts as a member of the Procurator-General’s department, subordinated firstly to the Procurator-General and then to the Minister of Justice.", "41. The Court reiterates that only an institution that has full jurisdiction and satisfies a number of requirements, such as independence of the executive and also of the parties, merits the description “tribunal” within the meaning of Article 6 § 1 (see, among other authorities, the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, p. 63, § 38). Neither State Counsel for the county of Argeş nor the Procurator-General meets those requirements.", "There has therefore been a violation of Article 6 § 1.", "ii. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "42. In the applicant’s submission, the alleged lack of access to a tribunal had also violated Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "43. Having regard to its finding of a violation of Article 6 § 1, the Court does not consider it necessary to rule on this complaint, which was moreover unsupported by any argument. Where the right claimed is a civil one, the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, mutatis mutandis, the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2957, § 41).", "III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "44. In her complaints of the consequences of the Supreme Court of Justice’s judgment of 20 October 1994 Mrs Vasilescu asserted that she was also the victim of a violation of Article 1 of Protocol No. 1 (see paragraphs 29–30 above), which provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "The Commission accepted that contention but the Government rejected it.", "45. Mrs Vasilescu maintained that the judgment of the Supreme Court of Justice had had the effect of preventing her from regaining possession of her property. She pointed out that the civil courts had allowed her initial application for restitution of forty of the 327 gold coins and the pair of ear-rings that had been seized in 1966, acknowledging that she was the owner of those items and holding that there had been no basis in law for their retention.", "46. In the Government’s submission, the sequence of events showed that the members of the miliţia had acted without the knowledge of the relevant State Counsel’s office and that the criminal investigation in question had, for that reason in particular, contravened the legislation in force at the time. The Government conceded that the seizure, likewise illegal, had deprived the applicant of property of which she nevertheless remained the owner. They also explained that, in accordance with the case-law of the Strasbourg institutions, the decision delivered on 21 February 1992 by the Găeşti Court of First Instance, which had subsequently become final, in itself constituted an “entitlement” for the purposes of Article 1 of Protocol No. 1. While the setting aside of that decision had therefore certainly entailed a deprivation of that “entitlement”, the latter had, however, been acquired at the end of proceedings that had been vitiated by the infringement of the rules on jurisdiction. That being so, the Supreme Court of Justice had done no more than declare the unlawfulness of the entitlement thus acquired, while at the same time indicating to the applicant the procedure to be followed in order to acquire it lawfully.", "However, the Government continued, the Supreme Court of Justice had ruled solely on the application of the rules on jurisdiction without thereby impairing the very essence of Mrs Vasilescu’s right of property. Its judgment had therefore pursued an aim of public interest and had not permanently or completely deprived her of the property in question. As the applicant could still exercise her rights in the manner indicated by that court, the necessary fair balance between her interests and the general interest had been maintained.", "47. The Commission emphasised that the Supreme Court of Justice’s judgment had deprived Mrs Vasilescu of any procedural means of protecting her right of property. It considered that the de facto deprivation of the enjoyment of that right had not been justified and concluded that a fair balance had not been struck between the aim pursued by the judgment – compliance with domestic rules on jurisdiction – and the resulting individual burden on the applicant.", "48. The Court notes that on 23 June 1966, members of the miliţia searched the applicant’s house without a warrant and seized 327 gold coins in connection with a police investigation in respect of her husband. That investigation was discontinued on 8 July 1966 but the seized items were kept by Argeş miliţia headquarters. It was common ground before the Court that this measure was unlawful and – as was indeed recognised by the civil courts (see paragraphs 15–16 and 21 above) – that she was the owner of the property in question. The Court accordingly takes the view that for the purposes of Article 1 of Protocol No. 1 the applicant, who has been deprived of the use and enjoyment of the relevant property since 1966, has nonetheless remained the owner of it up to the present day.", "49. Admittedly, Romania did not recognise the right of individual petition (Article 25) and the Court’s jurisdiction (Article 46) until 20 June 1994. However, the Court notes that the applicant’s complaint relates to a continuing situation, which still obtains at the present time (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece judgment of 24 June 1993, Series A no. 260-B, p. 69, § 40, and the Loizidou v. Turkey judgment of 18 December 1996 ( merits ), Reports 1996-VI, p. 2230, § 41). In any event, the Supreme Court of Justice delivered its judgment on 20 October 1994, that is to say after 20 June 1994.", "50. In view of the lack of any basis in law, as recognised both by the domestic courts (see paragraph 48 above) and by the Government (see paragraph 46 above), the continuing retention of the items in question cannot be interpreted as a deprivation of possessions or control of the use of property allowed by the first and second paragraphs of Article 1 of Protocol No. 1.", "51. The Court reiterates that hindrance can amount to a violation of the Convention just like a legal impediment (see, mutatis mutandis, the Loizidou judgment cited above, p. 2237, § 63).", "Since the Convention is intended to safeguard rights that are “practical and effective”, it has to be ascertained whether the situation complained of amounted to a de facto confiscation (see, among other authorities and mutatis mutandis, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 24, § 63, and the Papamichalopoulos and Others judgment cited above, p. 69, § 42).", "52. The established unlawfulness of the seizure of the applicant’s property is a decisive factor for determining that issue. Furthermore, the applicant had obtained a court decision ordering the National Bank of Romania to return to her the forty gold coins and the ear-rings she had claimed (see paragraph 15 above). However, that decision, together with the one upholding it, was quashed by the Supreme Court of Justice on the ground that the civil courts had encroached on the exclusive competence of State Counsel for the county of Argeş (see paragraph 23 above). Yet Mrs Vasilescu had already made approaches to State Counsel and to the Procurator-General, in 1990, but had had no greater success (see paragraphs 11 and 12 above).", "53. The Court considers that the loss of all ability to dispose of the property in issue, taken together with the failure of the attempts made so far to have the situation remedied by the national authorities and courts, has entailed sufficiently serious consequences for it to be held that the applicant has been the victim of a de facto confiscation incompatible with her right to the peaceful enjoyment of her possessions (see, mutatis mutandis, the Papamichalopoulos and Others judgment cited above, p. 70, § 45).", "54. In conclusion, there is a violation of Article 1 of Protocol No. 1.", "IV. ALLEGED VIOLATION OF arTICLE 8 OF THE CONVENTION", "55. The applicant said, lastly, that the search of her home by the miliţia without a warrant and the seizure of her gold coins, which had been transformed for her personal use, also violated Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "56. The Government argued that the Court had no jurisdiction ratione temporis to take cognisance of that complaint. They maintained that the incident complained of by the applicant had taken place on 23 June 1966, that is to say long before Romania’s recognition of the Court’s jurisdiction (Article 46) on 20 June 1994.", "57. Whether or not the Court has jurisdiction in respect of this complaint, it does not consider it necessary, in view of its finding in respect of Article 1 of Protocol No. 1 (see paragraphs 48–54 above), to examine the case under Article 8 of the Convention also.", "V. application of article 50 of the convention", "58. Article 50 of the Convention provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "As her main claim, Mrs Vasilescu asked the Court to order the return of the property in issue or, failing that, to award compensation for the pecuniary loss. She wished to leave it to the Court’s discretion to assess her non-pecuniary damage and her costs and expenses.", "A. Pecuniary damage", "59. The applicant sought, firstly, return of the forty gold coins that had been made into a necklace and the pair of gold ear-rings or, failing that, compensation for pecuniary damage. She disputed the Government’s valuation and the findings of the expert reports on which it was based (see paragraph 60 below) and assessed her loss at 30,000 US dollars (USD), but wished to leave the matter to the Court’s discretion.", "60. The Government said that there was no possibility of returning the property, as the items in question were not to be found in the custody of any authority.", "They also maintained that if the Court were to find a violation of Article 6 § 1, that finding in itself would constitute sufficient just satisfaction, since no causal link had been established between the alleged violation of that Article and the pecuniary damage pleaded.", "In respect of any damage under Article 1 of Protocol No. 1, the Government stated that the applicant’s method of calculation had no scientific or technical basis. In their observations on the application of Article 50 they referred to a valuation of the items by the National Bank of Romania and submitted that 31,856,648 Romanian lei, that is to say approximately USD 3,750, would constitute sufficient compensation for the damage sustained by the applicant. Subsequently the Government produced in support of their submissions a report drawn up by the Romanian National History Museum, in which the alleged loss was looked at from a numismatic point of view.", "61. The Court reiterates that if reparation cannot be made for the consequences of a breach of the Convention, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see the Papamichalopoulos and Others v. Greece judgment of 31 October 1995 ( Article 50 ), Series A no. 330-B, p. 59, § 34).", "In the instant case the return of the items in issue would put the applicant as far as possible in a situation equivalent to the one in which she would have been if there had not been a breach of Article 1 of Protocol No. 1 (ibid., p. 60, § 38). The Government, however, stated that they were unable to return the property (see paragraph 60 above).", "That being so, the Court, making its assessment on an equitable basis in the light of the information it has been given, awards the applicant 60,000 French francs (FRF) for pecuniary damage, to be converted into Romanian lei at the rate applicable at the date of settlement.", "Non-pecuniary damage", "62. The applicant also claimed unquantified compensation for the non-pecuniary damage that she alleged had been caused her by the conduct of the national authorities and courts.", "63. The Government made no observations on this question.", "64. The Court cannot exclude that the applicant, who has been deprived of her property for more than thirty years, has experienced some distress on this account. Mrs Vasilescu has therefore sustained non-pecuniary damage, for which the Court, making its assessment on an equitable basis as required by Article 50, awards her compensation in the amount of FRF 30,000. That amount is to be converted into Romanian lei at the rate applicable at the date of settlement.", "C. Costs and expenses", "65. The applicant also sought reimbursement of her costs and expenses, whose amount she left to be assessed at the Court’s discretion. The Government did not oppose that claim.", "66. According to its case-law, the Court may order the reimbursement of legal costs that have been actually and necessarily incurred in order to prevent or rectify, through the domestic legal system, a violation of the Convention and to have the same established by the Commission and later by the Court and to obtain redress therefor; such costs must also be reasonable as to quantum (see, among other authorities, the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, p. 20, § 49).", "Making its assessment on an equitable basis, the Court awards the applicant FRF 10,000 under this head (value-added tax included), less the sum of FRF 4,815 received by way of legal aid from the Council of Europe. The resultant amount is likewise to be converted into Romanian lei at the rate applicable at the date of settlement.", "D. Default interest", "67. The Court deems it appropriate to adopt the statutory rate applicable in France at the date of adoption of the present judgment, which is 3.36% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants were crew members on a merchant ship named the Winner, registered in Cambodia. The ship had attracted the attention of the American, Spanish and Greek anti-drug services when the Central Office Against Illegal Drug Trafficking (l’Office Central de Répression du Trafic Illicite des Stupéfiants – “the OCRTIS”), a ministerial body attached to the Central Police Directorate of the French Ministry of the Interior, requested authorisation to intercept it. The OCRTIS suspected the ship of carrying large quantities of drugs, with the intention of transferring them to speedboats off the Canary Islands for subsequent delivery to the coasts of Europe.", "10. In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government’s agreement for the French authorities to take action, in the following terms:", "“The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands.", "The Ministry of Foreign Affairs and International Cooperation takes this opportunity to renew its assurance of its high esteem.”", "11. In a diplomatic telegram dated the same day, the French embassy in Phnom Penh passed on the information to the Ministry of Defence in Paris.", "12. The commander of the French frigate Lieutenant de vaisseau Le Hénaff, which lay at anchor in Brest harbour and had been assigned a mission off the coast of Africa, was instructed by the French naval authorities to locate and intercept the Winner. The frigate left Brest harbour the same day to search for and intercept the Winner, with the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea, on board for the duration of the mission. On 10 June 2002, during a technical stopover in Spain, three experts from the OCRTIS also boarded the frigate.", "13. On 13 June 2002, at 6 a.m., the French frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde, several thousand kilometres from France. It was not flying a flag, but was identified as the Winner. The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat. While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact, its crew jettisoned a number of packages into the sea; one of the packages, containing about 100 kilos of cocaine, was recovered by the French seamen. After several warnings and warning shots fired under orders from France’s maritime prefect for the Atlantic went unheeded, the French frigate fired a shot directly at the Winner. The merchant ship then answered by radio and agreed to stop. When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a “warning shot” was fired at the ground, but the bullet ricocheted and the crew member was wounded. He was immediately evacuated onto the French frigate, then transferred to Dakar hospital, where he died a week later.", "14. Under orders from the maritime prefect and at the request of the public prosecutor in Brest, a tug with a military doctor on board was sent from Brest to tow the Winner back to Brest harbour, escorted by the frigate Commandant Bouan. Because of its poor state of repair and the weather conditions, the ship was incapable of speeds faster than 5 knots.", "15. The crew of the Winner were confined to their quarters under military guard. The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the French forces. According to the applicants, the coercive measures were maintained throughout the voyage, until they arrived in Brest.", "16. On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking involving Greek nationals.", "17. On 24 June 2002 the Brest public prosecutor’s office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed.", "18. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew were handed over to the police, acting under instructions dated 25 June 2002 from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights.", "19. On the same day, the applicants were presented to an investigating judge at the police station in Brest, to determine whether or not their police custody should be extended. The reports submitted to the Grand Chamber by the Government show that certain applicants met one of the investigating judges (R. André) at 5.05 p.m. (Mr Cabrera Leon), 5.10 p.m. (Mr Sage Martínez), 5.16 p.m. (Mr Balaban), 5.25 p.m. (Mr Manolache), 5.34 p.m. (Mr Petcu) and 5.40 p.m. (Mr Dodica), and the other applicants (Mr Medvedyev, Mr Bilenikin and Mr Boreas) were heard by the second investigating judge (B. Simier) at an unspecified time. The applicants were presented to the same investigating judges again the following day, 27 June 2002 (Mr Sage Martínez at 5.05 p.m., Mr Cabrera Leon at 5.10 p.m., Mr Manolache at 5.20 p.m., Mr Balaban at 5.28 p.m., Mr Dodica at 5.35 p.m. and Mr Petcu at 5.40 p.m.; the times for the other three applicants are not known).", "20. On 28 and 29 June 2002 the applicants were charged and remanded in custody pending trial (Mr Petcu, Mr Dodica, Mr Balaban and Mr Manolache on 28 June, and Mr Medvedyev, Mr Bilenikin, Mr Boreas, Mr Cabrera Leon, Mr Sage Martínez and two other crew members – Mr Litetski and Mr Theophanous – on 29 June).", "21. The applicants applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed, submitting that the French authorities had acted ultra vires in boarding the Winner, as the ship had been under Cambodian jurisdiction and Cambodia was not party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, and also that they had not been brought “promptly” before a judge, as required under Article 5 § 3 of the Convention, when the Winner was intercepted.", "22. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. After retracing the details of the operations, including the fact that “on 13 June at 6 a.m. the French frigate spotted a merchant ship – first on its radar, then visually – travelling at slow speed and flying no flag, and identified it as the Winner ”, it pronounced judgment in the following terms:", "“Considering that the international effort to combat drug trafficking is governed by three conventions: the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on [10] December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988; while France has signed and ratified all three conventions, Cambodia has not signed the Vienna Convention, Article 17 § 3 of which provides for derogations from the traditional principle of the ‘law of the flag State’.", "Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in Article 92 of the Montego Bay Convention, the authority of a State on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the State’s own law are respected as Article 108 of that Convention, on ‘Illicit traffic in narcotic drugs or psychotropic substances’, stipulates:", "1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.", "2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.", "Considering that, based on that text and ‘with reference’ to the earlier United Nations Convention of 30 March 1961 against international drug trafficking, the French authorities were within their rights to request Cambodia’s cooperation with a view to obtaining that country’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved; that as the provisions of the Vienna Convention do not apply to Cambodia, it was for that State to ask the French authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion; that the diplomatic telegram sent by the French embassy on 7 June 2002, which actually mentions the reasoned request submitted by the OCRTIS, suffices to establish the existence of an agreement given without restrictions or reservations by the government of Cambodia for the planned interception and all its consequences, and is authoritative until proven otherwise; that on this point the applicants cannot contend that the document does not meet the formal requirements of Article 17 § 3 of the Vienna Convention concerning bilateral agreements between parties, when they are also arguing that the Vienna Convention is not applicable to Cambodia because it has not signed it; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the Cambodian government’s agreement to the French embassy.", "Considering, on the other hand, that in proceeding to intercept the Winner it was the duty of the French authorities to comply with the procedures provided for both in the Vienna Convention signed by France – in particular to ‘take due account of the need not to endanger the safety of life at sea, the security of the vessel and its cargo’ – and in the Law of 15 July 1994, as amended by the Law of 29 April 1996 adapting French law to Article 17 of the Vienna Convention, Articles 12 et seq. of which define the sphere of competence of commanders of naval vessels and the procedures for the search, reporting, prosecution and judgment in the French courts of drug trafficking offences committed at sea.", "Considering that the reports drawn up by the commander of the Lieutenant de vaisseau Le Hénaff, duly authorised by the maritime prefect for the Atlantic, which are authoritative until proven otherwise, state that when the frigate drew within sight of the Winner, off the Cape Verde islands, the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship, in breach of the rules of international law, and to stop his ship, but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on board the speedboat; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard, one of which was recovered and found to contain a large quantity of cocaine; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship, the commander of the frigate acted in strict compliance with:", "– the provisions of Article 17 § 4 of the Vienna Convention under which, if evidence of involvement in illicit traffic is found after a ship has been boarded and searched, appropriate action may be taken with respect to the vessel and the persons and cargo on board,", "– the provisions of the Law of 15 July 1994 as supplemented by the Law of 29 April 1996, which, in its general provisions (Articles 1 to 10) regulates recourse to coercive measures comprising, if necessary, the use of force in the event of refusal by a ship to submit to control and also, in the particular case of the fight against drug trafficking (Articles 12 to 14), makes provision for the implementation of the control and coercion measures provided for under international law.", "Considering that, regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the French naval authorities, and to the attitude of the crew members, who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard, the members of the commando unit who boarded the ship found themselves in the presence of large-scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission; that they were obliged to use their weapons in response to the resistance put up by one of the ship’s crew; that it cannot be claimed that Article 13 of the Law of 15 July 1994 as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘the inspection and coercion measures provided for in international law’, and Article 17 § 4 (c) of the Vienna Convention against Illicit Traffic in Narcotic Drugs [and Psychotropic Substances] expressly mentions taking ‘appropriate action with respect to the persons on board’; that although the nature of these measures is not specified, the text at least provides for the possibility for the competent naval authorities to limit, if necessary, the freedom of the boarded ship’s crew to come and go, otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised; that it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force; that consequently, confining the members of the crew of the Winner – all but the wounded man, who was transferred to the frigate – to their cabins under the guard of the commando unit, so that the ship could be safely taken over and rerouted, fell within the appropriate measures provided for in Article 17 § 4 (c) of the Vienna Convention.", "Considering that the Law of 15 July 1994 necessarily requires some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it is impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge; and, that being so, that the restrictions placed on the movements of the boarded ship’s crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the European Convention on Human Rights and did not amount to unlawful detention; and that it should be noted that as soon as the Winner docked in Brest, its crew were handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge.", "Considering also that the French courts have jurisdiction under the Law of 15 July 1994 as amended.", "... the grounds of nullity must accordingly be rejected [and] there is no reason to disallow any other documents from the proceedings, which are lawful.”", "23. In a judgment of 15 January 2003, the Court of Cassation dismissed an appeal lodged by the applicants in the following terms:", "“... in so far as Cambodia, the flag State, expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action was taken against the persons on board, who were lawfully taken into police custody as soon as they landed on French soil, the Investigation Division has justified its decision.”", "24. On 28 May 2005, the Ille-et-Vilaine Special Assize Court found three applicants – Mr Boreas, Mr Sage Martínez and Mr Cabrera Leon – and one other crew member, S.T., guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years’, ten years’, three years’ and eighteen years’ imprisonment. However, Mr Boreas and S.T. were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking. The Assize Court acquitted the other six applicants and O.L., another crew member, of the charges against them.", "25. In a judgment of 6 July 2007, the Loire-Atlantique Assize Court, examining an appeal lodged by Mr Boreas, Mr Sage Martínez and S.T., upheld the conviction and sentenced them respectively to twenty, twelve and seventeen years’ imprisonment. On 9 April 2008 the Court of Cassation dismissed an appeal on points of law lodged by S.T. and Mr Boreas.", "26. In a note of 9 September 2008, in reply to a request submitted by the French embassy in Phnom Penh on 3 September 2008, the Ministry of Foreign Affairs and International Cooperation of Cambodia confirmed that its diplomatic note of 7 June 2002 had “indeed authorised the French authorities to intercept and carry out all necessary operations for the inspection, seizure and legal proceedings against the ship Winner, flying the Cambodian flag, but also against all the members of its crew”.", "i.", "a. stop and board the vessel;", "b. establish effective control of the vessel and over any person thereon;", "c. take any action provided for in sub-paragraph ii of this Article which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof;", "d. require the vessel and any persons thereon to be taken into the territory of the intervening State and detain the vessel there for the purpose of carrying out further investigations;", "ii. and, having established effective control of the vessel:", "a. search the vessel, anyone on it and anything in it, including its cargo;", "b. open or require the opening of any containers, and test or take samples of anything on the vessel;", "c. require any person on the vessel to give information concerning himself or anything on the vessel;", "d. require the production of documents, books or records relating to the vessel or any persons or objects on it, and make photographs or copies of anything the production of which the competent authorities have the power to require;", "e. seize, secure and protect any evidence or material discovered on the vessel.", "2. Any action taken under paragraph 1 of this Article shall be without prejudice to any right existing under the law of the intervening State of suspected persons not to incriminate themselves.", "Article 10 – Enforcement measures", "1. Where, as a result of action taken under Article 9, the intervening State has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel, or both, it may so proceed.", "...", "Article 11 – Execution of action", "1. Actions taken under Articles 9 and 10 shall be governed by the law of the intervening State ...”", "E. Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, signed at San José on 10 April 2003", "31. This agreement between continental and island States of the Caribbean area (Costa Rica, the Dominican Republic, France, Guatemala, Haiti, Honduras, the Netherlands, Nicaragua and the United States of America) in respect of the Vienna Convention, lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for States to be able to consent in advance to intervention by the other States Parties on ships flying their flags.", "32. It allows a State Party to take coercive action, even in the territorial waters of another State Party, by delegation of the latter State. There are three possibilities:", "– systematic authorisation;", "– authorisation if no answer is received from the flag State within four hours of another Party submitting a request for intervention;", "– express authorisation for the intervention, which corresponds to the current legal situation under the Vienna Convention.", "33. The draft law thus allows the States to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters.", "F. Domestic legislation", "Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea", "34. The relevant provisions of Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea, as amended by Law no. 96-359 of 29 April 1996 on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, read as follows (version applicable at the material time):", "“Part II: Special provisions adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988.", "Section 12", "The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part I of the present Law and by the following provisions. These provisions shall apply not only to ships flying the French flag, but also:", "– to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State;", "– to ships displaying no flag or having no nationality.", "Section 13", "Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the maritime prefect, who shall inform the public prosecutor’s office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this Law.”", "35. In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention:", "Section 12", "“The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of the Defence Code and by the provisions of the present Part of this Law. These provisions shall apply not only to the ships mentioned in Article L. 1521-1 of the Defence Code, but also:", "– to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention;", "– to ships displaying no flag or having no nationality.”", "36. In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on “Exercise of the State’s law enforcement powers at sea”, by adding the following final sentence:", "Article L. 1521-5", "“During transit subsequent to rerouting, the officers mentioned in Article L. 1521-2 may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”", "37. In its report on the draft of this Law, the Foreign Affairs Committee stated (extract from Report no. 280 (2004-05), dated 6 April 2005):", "“B. THE DRAFT LAW", "1. Secure the procedures", "(a) Delete the reference to the Vienna Convention on drug trafficking", "In the case involving the Winner, a ship flying the Cambodian flag that was stopped by the French navy off the coast of West Africa, the Court of Cassation did not deem it necessary to rely on the Vienna Convention, to which Cambodia was not party, to find that the stopping of the ship with the consent of the flag State in the particular case of drug trafficking had been lawful. It found it sufficient to rely on Article 108 of the Montego Bay Convention, which provides: ‘Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.’ On the other hand, when carrying out the interception, a State Party to the Vienna Convention which stops such a ship – in this case, France – must comply with the rules laid down therein and may thus rely on the provisions of Article 17 of the Vienna Convention, concerning coercion measures. In this case the Court found that the jurisdiction of the flag State was not exclusive when it assented to a request to intervene.", "It appears preferable, however, to delete the reference to the Vienna Convention, in so far as inspection and coercion measures may be carried out on the strength of other international instruments, including the regional cooperation agreements concluded on the basis of the Vienna Convention, such as the San José Agreement of 10 April 2003 when it enters into force.", "(b) State exactly what the coercion measures involve", "The draft law also says that during transit subsequent to rerouting, the duly authorised officers of the State may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. The United Nations Single Convention on Narcotic Drugs, 1961", "27. The relevant provisions of the United Nations Single Convention on Narcotic Drugs of 30 March 1961, to which France is a party, read as follows:", "Article 35 – Action against the Illicit Traffic", "“Having due regard to their constitutional, legal and administrative systems, the Parties shall:", "(a) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination;", "(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;", "(c) Cooperate closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic;", "(d) Ensure that international cooperation between the appropriate agencies be conducted in an expeditious manner; and", "(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;", "(f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by Article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and", "(g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.”", "B. The United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982", "28. The relevant provisions of the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) (to which Cambodia is not a party) read as follows:", "Article 108: Illicit traffic in narcotic drugs or psychotropic substances", "“1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.", "2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.”", "Article 110: Right of visit", "“1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:", "(a) the ship is engaged in piracy;", "(b) the ship is engaged in the slave trade;", "(c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under Article 109;", "(d) the ship is without nationality; or", "(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.", "2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.", "3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.", "4. These provisions apply mutatis mutandis to military aircraft.", "5. These provisions also apply to any other duly authorised ships or aircraft clearly marked and identifiable as being on government service.”", "C. The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988", "29. The relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”) (to which France is a party but not Cambodia) read as follows:", "Article 17 – Illicit traffic by sea", "“1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.", "2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.", "3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel.", "4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia :", "(a) Board the vessel;", "(b) Search the vessel;", "(c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.", "5. Where action is taken pursuant to this Article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.", "6. The flag State may, consistent with its obligations in paragraph 1 of this Article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.", "7. For the purposes of paragraphs 3 and 4 of this Article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.", "8. A Party which has taken any action in accordance with this Article shall promptly inform the flag State concerned of the results of that action.", "9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this Article.", "10. Action pursuant to paragraph 4 of this Article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.", "11. Any action taken in accordance with this Article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.”", "D. Council of Europe Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995 and which entered into force on 1 May 2000 (“the Council of Europe Agreement of 31 January 1995”)", "30. The relevant provisions of this agreement, signed by twenty-two member States of the Council of Europe (but not by France) and ratified by thirteen, read as follows:", "“The member States of the Council of Europe, having expressed their consent to be bound by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, hereinafter referred to as ‘the Vienna Convention’,", "Considering that the aim of the Council of Europe is to bring about a closer union between its members;", "Convinced of the need to pursue a common criminal policy aimed at the protection of society;", "Considering that the fight against serious crime, which has become an increasingly international problem, calls for close cooperation on an international scale;", "Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea, in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation;", "Considering, therefore, that Article 17 of the Vienna Convention should be supplemented by a regional agreement to carry out, and to enhance the effectiveness of the provisions of that Article,", "Have agreed as follows:", "...", "Section 3 – Rules governing action", "Article 9 – Authorised actions", "1. Having received the authorisation of the flag State, and subject to the conditions or limitations, if any, made under Article 8, paragraph 1, the intervening State may take the following actions:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "38. The applicants claimed that they had been arbitrarily deprived of their liberty after the ship was boarded by the French authorities. They relied on Article 5 § 1 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "...”", "A. The Chamber judgment", "39. The Chamber disagreed with the French courts’ approach in so far as they referred to international conventions to which Cambodia was not party and relied on legal provisions which, at the material time, provided for extraterritorial intervention by the French authorities only on French ships, “ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 [which Cambodia has not ratified, as mentioned previously] ... or lawfully registered in such a State, at the request or with the agreement of the flag State”, and on ships flying no flag or having no nationality. In addition to the fact that the Winner did not fit into any of those categories, it noted that the Law of 15 July 1994 had been amended, inter alia, so that it no longer referred only to States Parties to the Vienna Convention. It also considered that the Government’s argument concerning the applicability of and compliance with the legal provisions concerned was based on a contradiction, as they had submitted that at the time of the interception the Winner had been flying no flag, while at the same time asserting that the French authorities had previously sought confirmation from the Cambodian authorities that the ship was registered in their country and that the ship had been identified as the Winner before the operations commenced.", "40. The Chamber nevertheless agreed that, regard being had to Article 108 of the Montego Bay Convention, the Cambodian authorities’ diplomatic note of 7 June 2002 could be considered to have provided a legal basis for the interception and boarding of the Winner by the French authorities, although this did not apply to the thirteen days’ deprivation of liberty imposed on the crew on board the ship. It further found that neither French law nor Article 17 of the Vienna Convention made any more specific provision for deprivation of liberty of the type and duration of that to which the applicants were subjected.", "41. In the Chamber’s opinion, the legal provisions relied on by the Government did not afford sufficient protection against arbitrary violations of the right to liberty: firstly, none of those provisions referred specifically to depriving the crew of the intercepted ship of their liberty or regulated the conditions of deprivation of liberty on board the ship; secondly, they neglected to place the detention under the supervision of a judicial authority. On this last point the Chamber noted that although measures taken under the Law of 15 July 1994 were taken under the supervision of the public prosecutor, the public prosecutor was not a “competent legal authority” within the meaning the Court’s case-law gave to that notion (see Schiesser v. Switzerland, 4 December 1979, §§ 29-30, Series A no. 34).", "42. It accordingly found that the applicants had not been deprived of their liberty “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1.", "B. The parties’ submissions before the Grand Chamber", "1. The applicants", "43. The applicants, who shared the analysis followed by the Chamber in its judgment, considered that the action taken by the French authorities on the high seas and their detention on board the Winner had no legal basis. They submitted that there was no legal basis for the boarding of the Winner either in international conventions to which Cambodia was not a party, be it the Montego Bay Convention or the Vienna Convention, or in the diplomatic note of the Ministry of Foreign Affairs of 7 June 2002.", "44. They argued that Article 108 of the Montego Bay Convention was not applicable in this case because, in their submission, it was not Cambodia, the flag State, that had requested the cooperation of France, but France that had taken the initiative of requesting authorisation to stop a ship flying the Cambodian flag. The fact that Cambodia granted that request could not be likened to a request for cooperation within the meaning of Article 108 of the Montego Bay Convention. As to Article 110 of that Convention, they submitted that the Government were proposing an interpretation which distorted its meaning, as the Winner had not been without nationality and had not had the same nationality as the French warship.", "45. The applicants also considered that Law no. 94-589 of 15 July 1994 was not applicable, particularly because it referred to international conventions to which Cambodia was not a party.", "46. They considered it established that domestic and international law failed to afford effective protection against arbitrary interference when it did not provide for the possibility of contacting a lawyer or family member but did, according to the Government, authorise thirteen days’ detention.", "47. Concerning the diplomatic note of 7 June 2002, the applicants also challenged the Government’s legal interpretation. They maintained that it could not be considered as a delegation of jurisdiction to France. Even assuming, for argument’s sake, that such an ad hoc agreement did justify French intervention in keeping with the principle of public international law that a State could relinquish part of its sovereignty other than by a convention, they alleged that the limits of such an exceptional transfer of power had been considerably exceeded in the present case. According to the Government’s own submissions, the agreement had merely concerned a “request to intercept”, while the Cambodian government had only authorised the “stopping” of the ship (“ arraisonnement ” in French). Strictly speaking, this consisted solely in stopping the ship at sea or on arrival in port to make certain verifications (concerning its identity and its nationality, for example): it did not extend to searches or arrests on board the ship. Yet that was what had happened in this case: the applicants had been arrested and confined to their cabins for thirteen days. Their detention on board the Winner and their judgment in another country had not been authorised by Cambodia. The applicants thus challenged the existence of any ad hoc agreement justifying the stopping of the Winner and considered that even if there had been such an agreement, it did not justify the detention of the crew following the French military operation.", "48. The applicants further submitted that the production before the Grand Chamber of a diplomatic note dated 9 September 2008, sent by the Cambodian authorities at the request of the French Government seven years after the events and two months after the Fifth Section of the Court had pronounced judgment in their favour, was “very late and quite astounding”. They requested that the note, which had never been produced in the proceedings before the domestic courts and the Fifth Section of the Court, as it had not existed at the time and amounted to a reinterpretation of the facts after the event, be disallowed as evidence.", "2. The Government", "49. In their preliminary observations the Government stressed that the events in this case had taken place on the high seas, so that it was necessary to take into account the specificities of the maritime environment and of navigation at sea. In the Government’s submissions this had two specific consequences. First of all, the Convention was completely silent about maritime matters and the Government argued that it was possible to draw a parallel with the solution adopted by the Court in cases concerning the handing over of persons by one State to another in the context of extradition (see Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV; Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 254; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 230; and Sánchez Ramirez v. France, no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155). The Government considered that “the same reasoning, mutatis mutandis, could be applied in this case” for want of any provision in the Convention concerning arrangements for rerouting ships, or specific provisions concerning maritime matters, which made the Convention inapplicable ratione materiae.", "50. Secondly, they submitted that freedom to come and go on board a ship had more restrictive limits, which were the confines of the ship itself: the lawful rerouting of a ship therefore necessarily authorised restrictions on the movements of the people on board; the specificities and the risks of navigation at sea justified the extensive powers enjoyed by ships’ captains. The Government inferred that the applicants had not been deprived of their liberty within the meaning of Article 5 but had been subjected to restrictions of liberty that were justified, restrictions they were challenging on a purely formalistic and litigious basis. The Government submitted that Article 5 of the Convention was not applicable in the present case.", "51. In the alternative, on the merits, the Government submitted that the deprivation of liberty imposed on the applicants for the thirteen days during which the Winner had been rerouted had been lawful, and disputed the findings of the Chamber.", "52. The lawfulness of the measure had to be examined from two points of view, that of public international law and that of domestic law.", "53. With regard to public international law, the Government pointed out that the Winner had been flying no flag and had refused to identify itself. The ship’s crew had therefore deliberately placed itself in the situation provided for in Article 110 of the Montego Bay Convention, which provided expressly for a warship to be able to stop a ship that is “refusing to show its flag”, a principle unanimously accepted under the law of the sea.", "54. The Government considered in any event that the agreement given by Cambodia to the French authorities by diplomatic note had made the intervention of the French navy perfectly lawful from the international law perspective. The Montego Bay Convention well illustrated the signatory States’ aim of “cohabitation” in what belonged to all and yet to none, by strictly defining the conditions in which a State could interfere with another State’s sovereignty by having a naval vessel inspect a ship flying a foreign flag. And although Cambodia was not a party to the Vienna Convention, the agreement which that sovereign State had given by diplomatic note had been self-sufficient with regard to the principles of public international law and the law of the sea. The diplomatic note of 7 June 2002 had authorised the stopping of the ship and all “its consequences”, as confirmed by the Cambodian authorities in their note of 9 September 2008. In such circumstances the agreement concerned had provided a legal basis for the rerouting of the Winner and its crew.", "55. The Government submitted in addition that the agreement concerned had been fully in compliance with the requirements of public international law. The damage caused by drug trafficking in democratic societies explained why Article 108 of the Montego Bay Convention of 1982, the Vienna Convention of 1988 and the Council of Europe Agreement of 31 January 1995 all provided for the requisite cooperation between States to put a stop to the traffic. As the sea could be a “safe haven” (see Öcalan, cited above, § 88) for traffickers, international law had provided for the flag State to be able to delegate its power to combat this type of crime. The Government further noted that in Rigopoulos v. Spain ((dec.), no. 37388/97, ECHR 1999-II), the Court had found that the verbal agreement given to Spain by Panama had been sufficient to make the operations lawful under public international law.", "56. With regard to domestic law, the Government contested the Chamber’s analysis, pointing out that according to the Court’s case-law it was first and foremost for the domestic authorities to interpret and apply their country’s law, especially when, as in this case, what was in question was not the substance of the law but its scope. They submitted that in any event the Investigation Division had not based its findings solely on Article 17 of the Vienna Convention, but also on the general provisions of Law no. 94-589 of 15 July 1994, which empowered commanders of naval vessels responsible for surveillance at sea to carry out, or have carried out “inspection and coercion measures”. They accordingly considered that that part of the law had provided a legal basis for the measures complained of, because the ship was suspected of drug trafficking and because it had been flying no flag, had refused to identify itself and had responded aggressively by making dangerous manoeuvres.", "57. The Government set great store by two factors. First, a State not party to a convention could, by special agreement, in given circumstances, consent to the application of provisions of the convention concerned, and the French courts had thus been able to find that French law should apply. Secondly, French law applied because the Winner had been flying no flag and had refused to identify itself.", "58. As to the quality of the legal basis, which the Chamber had questioned, the Government maintained that the specificity of the law of the sea had to be taken into consideration to appreciate the precise meaning of the legal standards; the French Law of 15 July 1994, in conjunction with Cambodia’s agreement in conformity with the provisions of Article 17 § 4 of the Vienna Convention and the Montego Bay Convention, had authorised the rerouting of the ship. So, as the law provided for the ship to be rerouted, it also provided for restriction of the freedom of movement of those on board, as the two were inseparable. According to the Government, the rerouting was nevertheless to be considered as a preliminary to the suspects being brought before the judicial authorities.", "59. In any event, the unpredictability of navigation and the vastness of the oceans made it impossible to provide in detail for every eventuality when ships were rerouted. The Government considered that the allegation that it had not been possible for the applicants to contact a relative or a lawyer was unfounded, as the technical conditions for such contact were not always available; besides, as the applicants had not established that they had been in contact with their families or their lawyers prior to the interception by the French navy, their practical situation had not been altered by the rerouting of their ship. The Government also pointed out that the length of the voyage had merely been a material contingency and that the applicants had not been questioned during the thirteen days spent on board, naval personnel having no power to take such action. Accordingly, the Government considered that the right to contact a lawyer or a family member would have been theoretical and illusory.", "60. The Government then broached the matter of supervision by the public prosecutor. They argued that the Chamber judgment confused the notions referred to in Article 5 §§ 1 (c) and 3 of the Convention, while noting that the applicants were to be presented, when they arrived in Brest, not to the public prosecutor but to an investigating judge.", "61. They saw the fact that the rerouting of the ship had been carried out under the supervision of the public prosecutor as a guarantee against arbitrary treatment, arguing that in view of the guarantees of independence public prosecutors offered, they should be considered judicial authorities. On this last point the Government developed arguments demonstrating the guarantees of the independence of public prosecutors in terms of their status, the way they were recruited, their powers and their institutional role. They pointed out, in particular, that Article 64 of the French Constitution enshrined the independence of the “judicial authority” and that the Constitutional Council had found that the said judicial authority included both judges and public prosecutors.", "C. The Court’s assessment", "1. Article 1 of the Convention", "62. The Court considers that the first question to be decided in this case is whether the events in dispute, from the stopping of the Winner on the high seas and throughout the thirteen days of alleged deprivation of liberty until the ship reached Brest, brought the applicants within the jurisdiction of France for the purposes of Article 1 of the Convention, which reads as follows:", "“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”", "63. Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction”. Further, the Convention does not govern the actions of States not parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001-XII).", "64. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of Article 1 of the Convention (see Banković and Others, cited above, § 67, and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 314, ECHR 2004 ‑ VII). In its first Loizidou judgment (preliminary objections), for example, the Court found that bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party might also arise when as a consequence of military action – whether lawful or unlawful – it exercised effective control of an area outside its national territory (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310). This excluded situations, however, where – as in the Banković and Others case – what was at issue was an instantaneous extraterritorial act, as the provisions of Article 1 did not admit of a “cause and effect” notion of “jurisdiction” (cited above, § 75).", "65. Additionally, the Court notes that other recognised instances of the extraterritorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have clearly recognised and defined the extraterritorial exercise of jurisdiction by the relevant State (ibid., § 73).", "66. In the instant case, the Court notes that a French warship, the frigate Lieutenant de vaisseau Le Hénaff, was specially instructed by the French naval authorities to intercept the Winner, and that the frigate sailed out of Brest harbour on that mission carrying on board the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea. When the Winner was spotted off Cape Verde on 13 June 2002, the frigate issued several warnings and fired warning shots, before firing directly at the merchant ship, under orders from France’s maritime prefect for the Atlantic. When they boarded the Winner, the French commando team were obliged to use their weapons to defend themselves, and subsequently kept the crew members under their exclusive guard and confined them to their cabins during the journey to France, where they arrived on 26 June 2002. The rerouting of the Winner to France, by a decision of the French authorities, was made possible by sending a tug out of Brest harbour to tow the ship back to the French port, escorted by another warship, the frigate Commandant Bouan, all under orders from the maritime prefect and at the request of the Brest public prosecutor.", "67. That being so, the Court considers that, as this was a case of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France’s jurisdiction for the purposes of Article 1 of the Convention (contrast Banković and Others, cited above).", "2. The Government’s preliminary observations", "68. The Court notes at the outset that the Government contended for the first time before the Grand Chamber, in their preliminary observations, that the applicants’ complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, their observations on the merits being submitted only “in the alternative”.", "69. The Grand Chamber reiterates that it is not precluded from deciding in appropriate cases questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings” (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 72, ECHR 2008; and Mooren v. Germany [GC], no. 11364/03, § 57, 9 July 2009). Under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Azinas, cited above, §§ 32 and 37; Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II; and Mooren, cited above). Only exceptional circumstances, such as the fact that the grounds for the objection of inadmissibility came to light late in the day, can dispense a government from the obligation to raise their objection in their observations on the admissibility of the application before the adoption of the Chamber’s admissibility decision (see N.C. v. Italy, cited above, § 44; Sejdovic, cited above, § 41; and Mooren, cited above).", "70. In the instant case, the Court notes that, in the written observations on admissibility which they submitted to the Chamber, the Government did not argue that the complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, and the Court can discern no exceptional circumstance capable of dispensing the Government from raising that objection in their observations to the Chamber on admissibility.", "71. The Government are accordingly estopped from raising a preliminary objection of incompatibility ratione materiae at this stage in the proceedings. In spite of this estoppel, however, the Court must examine this question, which goes to its jurisdiction, the extent of which is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case (see Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008).", "72. First of all, referring also to its finding that the applicants were within the jurisdiction of France for the purposes of Article 1 of the Convention, the Court considers that the preliminary observations on the applicability of Article 5 actually concern the merits of the application.", "73. As to the observations concerning the existence or otherwise of the deprivation of liberty, the Court reiterates that Article 5 – paragraph 1 of which proclaims the “right to liberty” – is concerned with a person’s physical liberty. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III). The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see Guzzardi v. Italy, 6 November 1980, Series A no. 39, and Amuur, cited above).", "74. In the Court’s opinion, while it is true that the applicants’ movements prior to the boarding of the Winner were already confined to the physical boundaries of the ship, so that there was a de facto restriction on their freedom to come and go, it cannot be said, as the Government submitted, that the measures taken after the ship was boarded merely placed a restriction on their freedom of movement. The crew members were placed under the control of the French special forces and confined to their cabins during the voyage. True, the Government maintained that during the voyage the restrictions were relaxed. In the Court’s view that does not alter the fact that the applicants were deprived of their liberty throughout the voyage as the ship’s course was imposed by the French forces.", "75. Accordingly, the Court concludes that the applicants’ situation on board the Winner after it was boarded, because of the restrictions endured, amounted in practice to a deprivation of liberty, and that Article 5 § 1 applies to their case.", "3. Article 5 § 1 of the Convention", "(a) The general principles", "76. The Court reiterates that Article 5 of the Convention protects the right to liberty and security. This right is of the highest importance “in a democratic society” within the meaning of the Convention (see, among many other authorities, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33).", "77. All persons are entitled to the protection of this right, that is to say, not to be deprived, or continue to be deprived, of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5.", "78. The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one (see Quinn v. France, 22 March 1995, § 42, Series A no. 311, and Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22, and Amuur, cited above, § 42).", "79. The Court further reiterates that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness (see, among many other authorities, Bozano v. France, 18 December 1986, § 54, Series A no. 111; Amuur, cited above, § 50; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II; Ilaşcu and Others, cited above, § 461; McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X; and Mooren, cited above, § 76).", "80. The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail (see, among other authorities, Amuur, cited above; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998 ‑ VII; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Jėčius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX ).", "81. Lastly, the Grand Chamber shares the view of the Government and the Chamber that it must be borne in mind that the measures taken by the French authorities against the Winner and its crew were taken in the context of France’s participation in the effort to combat international trafficking in drugs. As it has pointed out on numerous occasions, in view of the ravages drugs cause it can see in particular why the authorities of the Contracting States are so firm towards those who contribute to the spread of this scourge, and it is fully aware of the need to combat drug trafficking and, accordingly, to secure fruitful cooperation between States in this area. Nevertheless, the special nature of the maritime environment relied upon by the Government in the instant case cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction, any more than it can provide offenders with a “safe haven”.", "(b) Application of the above principles", "82. The Court notes first of all that it is not disputed that the purpose of the deprivation of liberty to which the applicants were subjected on board the Winner while it was being escorted to France was to bring them “before the competent legal authority” within the meaning of Article 5 § 1 (c) of the Convention. In this case, the Court notes that the parties disagree as to whether the facts of the case had a “legal basis” under public international law and domestic law.", "83. The Court notes at the outset that in cases concerning drug trafficking on the high seas public international law upholds the principle that the flag State – in this case Cambodia – has jurisdiction. It also notes that Cambodia is party neither to the Montego Bay Convention nor to the Vienna Convention.", "84. The Government subscribe to the Court of Cassation’s view that the intervention of the French authorities found justification in Article 108 § 2 of the Montego Bay Convention. However, Article 108 § 2 specifically authorises “a State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in drugs” to request the cooperation of other States. It does not provide in general for States to request cooperation whenever they suspect a ship not flying their flag of such trafficking. The Court considers that Article 108 does not provide any legal basis for the action taken by the French authorities in this case. As Cambodia is not party to the Montego Bay Convention, it cannot have been acting under that Convention when it sent its diplomatic note of 7 June 2002. Nor did France’s request for cooperation from the Cambodian authorities fall within the scope of Article 108, as it was not based on France’s suspicion that a ship flying the French flag was engaged in drug trafficking.", "85. This lacuna in Article 108 of the Montego Bay Convention vis-à-vis the fight against illicit trafficking in drugs is also reflected in the rest of the text: not only are the provisions concerning the fight against drug trafficking minimal – in comparison with those concerning piracy, for example, on which there are eight Articles, which lay down, inter alia, the principle of universal jurisdiction as an exception to the rule of the exclusive jurisdiction of the flag State – but fighting drug trafficking is not among the offences, listed in Article 110, suspicion of which gives rise to the right to board and inspect foreign vessels. Lastly, while the provisions of the Montego Bay Convention concerning illegal drug trafficking on the high seas appear to suggest that the issue was not a part of customary law when that Convention was signed, the Government have not shown that there has since been any constant practice on the part of the States capable of establishing the existence of a principle of customary international law generally authorising the intervention of any State which has reasonable grounds for believing that a ship flying the flag of another State is engaged in illicit traffic in drugs.", "86. According to the Government, Article 110 of the Montego Bay Convention, which provides for a warship to be able to board a ship which refuses to fly its flag, is applicable in the instant case.", "87. The Court notes that if at all, Article 110 would only be relevant to the present case in so far as paragraph 1 (d) refers to a ship “without nationality”. The case of a ship “refusing to show its flag” provided for in paragraph 1 (e) refers only to a ship that “is, in reality, of the same nationality as the warship”, which is not the case here.", "88. Furthermore, as regards the nationality of the ship, the Court shares the view of the Chamber and the applicants that the Government’s arguments are based on a contradiction. It is an undisputed fact that the meeting of the frigate Lieutenant de vaisseau Le Hénaff and the Winner owed nothing to chance. The Winner was under the observation of the American, Spanish and Greek drug control agencies when the Central Office Against Illegal Drug Trafficking (“the OCRTIS”), which suspected it of transporting a large quantity of drugs for the European market, requested authorisation to intercept it. The ship’s nationality being known in fact as early as 7 June 2002, the French embassy requested Cambodia’s consent to the French authorities’ intervention; that agreement was given in a diplomatic note of 7 June 2002 and the Ministry of Defence in Paris was immediately informed. Thus, by 7 June 2002 at the latest the Winner had been precisely identified as a ship flying the Cambodian flag, as expressly stated in the diplomatic note sent by the Cambodian authorities. As to the frigate Lieutenant de vaisseau Le Hénaff, it had been at anchor in Brest harbour, and had already been assigned another mission off the African coast when, instead, it was specially instructed to set sail immediately to intercept the Winner. In order to carry out this clearly defined mission it took on board a French navy special forces team specialised in boarding vessels at sea, as well as three experts from the OCRTIS.", "89. In view of these elements, the Government cannot reasonably argue that the situation provided for in Article 110 of the Montego Bay Convention, concerning the possibility for a warship to board a ship if it has reasonable grounds to suspect that that ship is without nationality (see paragraph 28 above), applies to the present case. The circumstances of the case do not support such an assertion. Moreover, the judgment of the Investigation Division of the Rennes Court of Appeal states quite plainly that the merchant ship spotted on 13 June 2002 at 6 a.m. was identified as the Winner (see paragraph 22 above).", "90. Concerning the relevant French law, apart from the fact that its main purpose was to transpose the international treaties, and in particular the Vienna Convention, into domestic law, it cannot override the treaties concerned, or the principle of the exclusive jurisdiction of the flag State. Thus, as Cambodia was not a party to the conventions transposed into domestic law, and as the Winner was not flying the French flag and none of its crew members were French nationals – even assuming that the nationality of the crew members could be pleaded as an alternative to the principle of the flag State –, there were no grounds for French law to be applied.", "91. The Court further notes that French law has since been amended: the reference limiting its scope to States Parties to the Vienna Convention has been deleted – in spite of the position of the Court of Cassation in the Medvedyev case – and the content of the coercion measures has been specified (see paragraphs 34-37 above).", "92. Nor could it be argued that French law satisfied the general principle of legal certainty, as it failed to meet the requisite conditions of foreseeability and accessibility: it is unreasonable to contend that the crew of a ship on the high seas flying the Cambodian flag could have foreseen – even with appropriate advice – that they might fall under French jurisdiction in the circumstances of the case. Furthermore, although the purpose of the Montego Bay Convention was, inter alia, to codify or consolidate the customary law of the sea, its provisions concerning illicit traffic in narcotic drugs on the high seas – like those of the complementary Vienna Convention, organising international cooperation without making it mandatory – reflect a lack of consensus and of clear, agreed rules and practices in the matter at the international level.", "93. The Court notes, however, that independently of the Montego Bay and Vienna Conventions, and of French law, Cambodia consented in a diplomatic note to the intervention of the French authorities, a fact which, according to the Government, attested to the existence of an ad hoc agreement between the two countries on the interception of the Winner and the subsequent events.", "94. The question is therefore whether the diplomatic note of the Ministry of Foreign Affairs of Cambodia dated 7 June 2002 provided a legal basis for the impugned measures.", "95. In the Court’s opinion, although the provisions of Article 108 § 2 of the Montego Bay Convention do not apply to the present case, as Cambodia has not ratified that instrument, they do not prevent States from envisaging other forms of collaboration to combat drug trafficking at sea. The United Nations Single Convention on Narcotic Drugs, 1961 (see paragraph 27 above, Article 35 (c)) and the Montego Bay and Vienna Conventions (see paragraphs 28-29 above, Article 108 § 1 and Article 17 § 1 respectively) all provide expressly for cooperation between States on this matter. Such cooperation may take various forms, particularly in view of the vague wording of the provisions of Article 17 § 4 (c), which merely refers to “appropriate action”, and give rise, for example, to regional agreements, like the Council of Europe Agreement of 31 January 1995 implementing Article 17 of the Vienna Convention (see paragraph 30 above) and the San José Agreement of 10 April 2003 on regional cooperation in the Caribbean (see paragraphs 31-33 above), or to the bilateral treaties referred to in Article 17 § 9 of the Vienna Convention.", "96. Moreover, diplomatic notes are a source of international law comparable to a treaty or an agreement when they formalise an agreement between the authorities concerned, a common stance on a given matter or even, for example, the expression of a unilateral wish or commitment.", "97. The Court accordingly considers, like the Government, that the diplomatic note issued by the Cambodian authorities on 7 June 2002 officialised Cambodia’s agreement to the interception of the Winner, Cambodia having the right to engage in cooperation with other countries outside the framework of the Montego Bay and Vienna Conventions.", "98. However, the existence of an ad hoc agreement does not solve the problem of its scope, which it is for the Court to appreciate in order to determine whether or not the diplomatic note authorised the arrest and detention of the crew members on board the ship and their transfer to France.", "99. On this point the Court observes first of all that the text of the diplomatic note mentions “the ship Winner, flying the Cambodian flag”, the sole object of the agreement, confirming the authorisation to intercept, inspect and take legal action against it (see paragraph 10 above). Evidently, therefore, the fate of the crew was not covered sufficiently clearly by the note and so it is not established that their deprivation of liberty was the subject of an agreement between the two States that could be considered to represent a “clearly defined law” within the meaning of the Court’s case ‑ law. As to the explanatory diplomatic note produced by the Cambodian authorities on 9 September 2008 in response to a request from the French authorities of 3 September 2008 and submitted by the respondent Government for the first time to the Grand Chamber, after the Chamber pronounced its finding of a violation of Article 5 § 1 of the Convention and more than six years after the events, the applicants having had no opportunity at the material time to familiarise themselves with the explanations given, the Court does not consider it decisive.", "100. Secondly, the Court considers that the diplomatic note did not meet the “foreseeability” requirement either. Nor have the Government demonstrated the existence of any current and long-standing practice between Cambodia and France in the battle against drug trafficking at sea in respect of ships flying the Cambodian flag; on the contrary, the use of an ad hoc agreement by diplomatic note, in the absence of any permanent bilateral or multilateral treaty or agreement between the two States, attests to the exceptional, one-off nature of the cooperation measure adopted in this case. Added to the fact that Cambodia had not ratified the relevant conventions, this shows that the intervention of the French authorities on the basis of an ad hoc agreement cannot reasonably be said to have been “foreseeable” within the meaning of the Court’s case-law, even with the help of appropriate advice. In any event, the Court considers that the foreseeability, for an offender, of prosecution for drug trafficking should not be confused with the foreseeability of the law pleaded as the basis for the intervention. Otherwise, any activity considered criminal under domestic law would release the States from their obligation to pass laws having the requisite qualities, particularly with regard to Article 5 § 1 of the Convention and, in so doing, deprive that provision of its substance.", "101. It is regrettable, in the Court’s view, that the international effort to combat drug trafficking on the high seas is not better coordinated bearing in mind the increasingly global dimension of the problem. The fact remains that when a flag State, like Cambodia in this case, is not a party to the Montego Bay or Vienna Conventions, the insufficiency of such legal instruments, for want of regional or bilateral initiatives, is of no real consequence. In fact, such initiatives are not always supported by the States in spite of the fact that they afford the possibility of acting within a clearly defined legal framework. In any event, for States that are not parties to the Montego Bay and Vienna Conventions one solution might be to conclude bilateral or multilateral agreements, like the San José Agreement of 2003, with other States. Having regard to the gravity and enormity of the problem posed by illegal drug trafficking, developments in public international law which embraced the principle that all States have jurisdiction as an exception to the law of the flag State would be a significant step in the fight against illegal trade in narcotics. This would bring international law on drug trafficking into line with what has already existed for many years now in respect of piracy.", "102. In view of the above and of the fact that only a narrow interpretation is consistent with the aim of Article 5 § 1 of the Convention (see paragraph 78 above), the Court accordingly finds that the deprivation of liberty to which the applicants were subjected between the boarding of their ship and its arrival in Brest was not “lawful” within the meaning of Article 5 § 1, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty.", "103. There has, therefore, been a violation of Article 5 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION", "104. The applicants also complained that they had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power after their ship was intercepted. They relied on Article 5 § 3 of the Convention, which provides:", "“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”", "A. The Chamber judgment", "105. The Chamber found no violation of Article 5 § 3 of the Convention, considering that the instant case had a lot in common with the Rigopoulos case (cited above) and that, here too, it had not been materially possible to bring the applicants “physically” before a “legal authority” any sooner. Having regard to the evidence in its possession, the Government having produced no information concerning the exact details of the police custody in Brest and the relevant reports (see paragraph 64 of the judgment), it also found that two or three days in police custody after thirteen days at sea were justified under the circumstances. The Chamber considered that the duration of the deprivation of liberty suffered by the applicants was justified by “wholly exceptional circumstances”, in particular the time it inevitably took to get the Winner to France.", "B. The parties’ submissions before the Grand Chamber", "1. The applicants", "106. The applicants argued that the case-law of the Court has always emphasised the importance of the provisions of Article 5 § 3 of the Convention and the need for the Contracting States to have a legal framework that offers sufficient guarantees against arbitrary deprivation of liberty. They submitted that the “exceptional circumstances” found in the Rigopoulos case (cited above) had not been established in their case: inevitable duration of the sea voyage, deprivation of liberty under the supervision of a “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention and immediate presentation before a judge upon landing.", "107. They contended that exceptional circumstances could justify failure to bring a person promptly before a judge only if the detention was supervised and controlled by a legal authority, which was not the case here. The applicants considered that the reasons given by the Chamber in its judgment (paragraph 68) were insufficient and left some important questions unanswered. They objected to the argument concerning “the time it inevitably took the Winner to reach France” in so far as they could have been repatriated on the French frigate instead of the Winner, which was in a deplorable state of repair.", "108. The applicants further complained that after thirteen days of detention at sea they had been held in police custody for two or three days before being presented before a judge or other officer authorised by law to exercise judicial power, and finally all placed under investigation and remanded in custody, regardless of their degree of involvement in the traffic.", "109. As well as disputing the fact that police custody helped to protect individual freedoms and the rights of the defence, because they had had no access to the case file and had been unable to consult a lawyer before the seventy-second hour, they complained that they had not been brought before the liberties and detention judge as soon as they arrived in Brest. On this point they noted that the interception had been planned for several weeks and the investigation opened no later than 24 June 2002: the two or three extra days in police custody had therefore been unnecessary. In view of the thirteen days’ deprivation of liberty on board the Winner, those two or three extra days were not in compliance with the requirement of promptness enshrined in Article 5 § 3.", "110. In any event, the circumstances of the present case differed from the “exceptional circumstances” that justified the Rigopoulos decision. While noting that the Spanish authorities had acted legally in boarding a ship flying a Panamanian flag, Spain and Panama being Parties to the Vienna Convention of 1988, the applicants objected to the fact that their detention on the ship had not been under the supervision of a “judge or other officer authorised by law to exercise judicial power” but under that of the public prosecutor, who was not such an officer according to the Court’s case-law (see Schiesser, cited above; Huber v. Switzerland, 23 October 1990, Series A no. 188; and Brincat v. Italy, 26 November 1992, Series A no. 249-A), in particular because of his lack of independence vis ‑ à ‑ vis the executive. They maintained that the purely formal criterion relied on by the Government was ineffective in the light of the functional criterion developed by the Court in its case-law, as confirmed in the Chamber judgment. Thus, unlike the Spanish authorities in the Rigopoulos case, where the deprivation of liberty had been decided by the Central Investigating Court, an officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention, by means of a promptly issued, duly reasoned detention order, the French authorities had made no attempt to regularise the applicants’ situation. Yet their ship was not an “area outside the law”, especially considering that an investigating judge could have been contacted by radio, and the crew could have been informed of their rights and allowed to contact a lawyer and alert a family member. In addition to the resulting alleged violation of Article 5 § 3, the applicants, referring to the partially dissenting opinion expressed by three of the Chamber judges, pointed out that they had had to wait another two or three days to be brought before the liberties and detention judge.", "2. The Government", "111. The Government denied that the applicants had had to wait two or three days after arriving in Brest before they were brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3. They contended – producing the official reports for the first time before the Grand Chamber – that the applicants had in fact all been presented that very day, only hours after their arrival in Brest, to an investigating judge who had the power to order their release. They further argued that in any event the initial application to the Court concerned only the period of thirteen days it took to reroute the ship to France.", "112. The Government reiterated that the notion of promptness had been clarified in the case of Brogan and Others v. the United Kingdom (29 November 1988, Series A no. 145-B), and confirmed recently in McKay (cited above, § 30). They contended, inter alia, that in the Rigopoulos case the Court had found that it was necessary to examine each case with reference to its particular characteristics in order to determine whether the authorities had complied with the requirement of promptness, while pointing out that it had been materially impossible to bring the applicant before the investigating judge any sooner and that the applicant had been presented to the investigating judge the day after his arrival on Spanish soil.", "113. The Government also considered that in its McKay judgment the Court had accepted derogations from the principle of the automatic nature of the review.", "114. Concerning the characteristics and powers of the officer concerned, the Government maintained that although the Court had found that a public prosecutor or other judicial officer appearing for the prosecution could not be considered a “judge” for the purposes of Article 5 § 3 (see Huber, cited above), the same could not be said of an investigating judge. Investigating judges were fully independent judges whose job was to seek evidence both for and against the accused party, without participating in the prosecution or the judgment of the cases they investigated. In France the investigating judge supervised all custodial measures taken in the cases under his responsibility – be it police custody or detention pending trial – and could terminate them at any time. Although he had to apply to the liberties and detention judge when contemplating remanding a suspect in custody, he had full power to release people or place them under court supervision. The Government pointed out that the Court had already ruled that the investigating judge fulfilled the conditions laid down in Article 5 § 3 (see A.C. v. France (dec.), no. 37547/97, 14 December 1999).", "115. The Government affirmed that the applicants had been brought before the investigating judges, without having had to ask, the same day they arrived in Brest, as soon as had been possible.", "116. Lastly, the Government considered that the public prosecutor was a legal authority independent of the executive, and that his supervision while the Winner was rerouted to Brest had provided the protection against arbitrariness which Article 5 of the Convention was meant to guarantee.", "C. The Court’s assessment", "1. General principles", "117. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30).", "118. The Court also notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brogan and Others, cited above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993, §§ 62-63, Series A no. 258-B; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999-III; Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000 ‑ VIII; and Öcalan, cited above, § 103).", "119. Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the suspect may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999).", "120. Taking the initial stage under the first limb, which is the only one at issue here, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained on suspicion of having committed a criminal offence. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the following requirements (see McKay, cited above, § 32):", "(a) Promptness", "121. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others, cited above, § 62, where periods of four days and six hours in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations).", "(b) Automatic nature of the review", "122. The review must be automatic and not depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4, which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of that paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (see Aquilina, cited above).", "(c) The characteristics and powers of the judicial officer", "123. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” in paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3, and Schiesser, cited above, § 29).", "124. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149, Reports 1998-VIII). As regards the scope of that review, the formulation which has been at the basis of the Court’s long-established case-law dates back to the early Schiesser case (cited above, § 31):", "“In addition, under Article 5 para. 3 (art. 5-3), there is both a procedural and a substantive requirement. The procedural requirement places the ‘officer’ under the obligation of hearing himself the individual brought before him (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 24, para. 60); the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons (above-mentioned Ireland v. the United Kingdom judgment, p. 76, para. 199).”", "Or, in other words, “Article 5 § 3 requires the judicial officer to consider the merits of the detention” (see T.W. v. Malta, and Aquilina, both cited above, § 41 and § 47 respectively).", "125. The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence; in other words, whether detention falls within the permitted exceptions set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release (see McKay, cited above, § 40).", "126. The Court has noted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61; Murray v. the United Kingdom, 28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey, 18 December 1996, § 78, Reports 1996-VI). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Öcalan, cited above, § 104). The same approach applies to the fight against drug trafficking on the high seas, the importance of which the Court has acknowledged in paragraph 81 above and which also undoubtedly presents special problems.", "2. Application of the above principles", "127. The Court notes that the arrest and detention of the applicants began with the interception of the ship on the high seas on 13 June 2002. The applicants were not placed in police custody until 26 June 2002, after arriving in Brest. Before the Grand Chamber, and for the first time since the proceedings began – which the Court can only find regrettable – the Government submitted substantiated information concerning the presentation of the applicants, at the end of the day, to the investigating judges in charge of the case (see paragraph 19 above).", "128. The fact remains that the applicants were not brought before the investigating judges – who may certainly be described as “judge[s] or other officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention – until thirteen days after their arrest.", "129. The Court points out that in the Brogan and Others case it held that a period of detention in police custody amounting to four days and six hours without judicial review fell outside the strict constraints permitted by Article 5 § 3, even though it was designed to protect the community as a whole from terrorism (see Brogan and Others, cited above, § 62). It also found a period of seven days without being brought before a judge incompatible with Article 5 § 3 (see Öcalan, cited above, §§ 104-05).", "130. The Court observes, however, that it did accept, in the Rigopoulos decision (cited above), which concerned the interception on the high seas by the Spanish customs authorities, in the context of an international drug trafficking investigation, of a ship flying the Panamanian flag and the detention of its crew for as long as it took to escort their ship to a Spanish port, that a period of sixteen days was not incompatible with the notion of “promptness” required under Article 5 § 3 of the Convention, in view of the existence of “wholly exceptional circumstances” that justified such a delay. In its decision, the Court noted that the distance to be covered was “considerable” (the ship was 5,500 km from Spanish territory when it was intercepted), and that a forty-three-hour delay caused by resistance put up by the ship’s crew “could not be attributed to the Spanish authorities”. It concluded that it had been “materially impossible to bring the applicant physically before the investigating judge any sooner”, while taking into account the fact that once he had arrived on Spanish soil the applicant had been immediately transferred to Madrid by air and brought before the judicial authority on the following day. Lastly, the Court considered “unrealistic” the applicant’s suggestion that, under an agreement between Spain and the United Kingdom to prevent illicit traffic in narcotic drugs, instead of being diverted to Spain the ship could have been taken to Ascension Island, which was approximately 1,600 km from where it was intercepted.", "131. In the present case, the Court notes that at the time of its interception the Winner was also on the high seas, off the coast of the Cape Verde islands, and therefore a long way from the French coast, comparable to the distance in the Rigopoulos case. There was nothing to indicate that it took any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the Winner, which made it impossible for it to travel any faster. In addition, the applicants did not claim that they could have been handed over to the authorities of a country nearer than France, where they could have been brought promptly before a judicial authority. As to the idea of transferring them to a French naval vessel to make the journey faster, it is not for the Court to assess the feasibility of such an operation in the circumstances of the case, particularly as it has not been established that the frigate was capable of accommodating all the crew members in sufficiently safe conditions.", "132. The Court notes, lastly, that the applicants were placed in police custody at 8.45 a.m. on 26 June 2002 and effectively brought before an investigating judge at the police station in Brest, according to the reports produced by the Government, between 5.05 and 5.45 p.m. in the case of the first judge and at undocumented times in the case of the second judge (see paragraph 19 above), it being understood that the applicants do not dispute the fact that the meetings with the second judge took place at about the same time. This means that after arriving in France the applicants spent only about eight or nine hours in police custody before they were brought before a judge.", "133. That period of eight or nine hours was perfectly compatible with the concept of “brought promptly” enshrined in Article 5 § 3 of the Convention and in the Court’s case-law.", "134. Accordingly, there has been no violation of Article 5 § 3 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "135. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "136. The applicants claimed 10,000 euros (EUR) each in respect of non ‑ pecuniary damage.", "137. The Government did not express an opinion on this matter.", "138. Ruling on an equitable basis as required by Article 41 of the Convention, the Court awards each of the applicants EUR 5,000 under this head.", "B. Costs and expenses", "139. The applicants claimed EUR 10,000 for the costs and expenses incurred before the Court. They submitted two requests for payment on account, dated 24 April and 6 December 2008, each for EUR 5,000, concerning the successive proceedings before the Chamber and the Grand Chamber of the Court.", "140. The Government did not comment.", "141. The Court notes that the applicants have produced vouchers in support of their claim. It considers reasonable the sum of EUR 10,000 claimed by the applicants and awards it to them jointly.", "C. Default interest", "142. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "7. The applicant is a Belgian citizen born in 1926. He lives in Brussels and is a sales manager.", "8. On 4 April 1977, he was arrested by the police at his home and taken to Oudenaarde where he was questioned in connection with a car theft.", "Warrants of arrest for forgery and uttering forged documents were issued against the applicant on the following day, on 6 May and on 23 September 1977. The first warrant - notice no. 10.971/76 - was issued by Mr. Pilate, an investigating judge at the Oudenaarde criminal court (tribunal correctionnel ), and the second and third - notices nos. 3136/77 and 6622/77 - by Mr. Van Kerkhoven, the other investigating judge at the same court.", "9. Prior to that, in the capacity of judge ( juge assesseur ) of the same court sitting either on appeal (judgment of 3 May 1968) or at first instance (judgments of 17 January, 7 March and 28 November 1969), Mr. Pilate had already dealt with criminal proceedings brought against Mr. De Cubber in connection with a number of offences; those proceedings had led variously to an unconditional or conditional discharge (relaxe) (17 January and 7 March 1969, respectively) or to conviction.", "More recently, Mr. Pilate had had to examine, in his capacity of investigating judge, a criminal complaint filed by Mr. De Cubber ( 16 November 1973 ) and, in his capacity of judge dealing with the attachment of property ( juge des saisies ), certain civil cases concerning him (1974-1976). In regard to each of these cases, the applicant had applied to the Court of Cassation to have the case removed, on the ground of bias (suspicion légitime; Article 648 of the Judicial Code), from Mr. Pilate or from the Oudenaarde court as a whole; each of these requests had been held inadmissible or unfounded.", "10. At the outset Mr. Van Kerkhoven dealt with cases nos. 3136/77 and 6622/77 but he was on several occasions prevented by illness from attending his chambers. He was replaced, initially on an occasional and temporary basis and, as from October 1977, on a permanent basis, by Mr. Pilate, who retained responsibility for case no. 10.971/76.", "11. In case no. 6622/77, a single-judge chamber of the Oudenaarde court (Mr. De Wynter ) sentenced Mr. De Cubber on 11 May 1978 to one year ’ s imprisonment and a fine of 4,000 BF. He did not appeal against this decision.", "12. After preliminary investigations lasting more than two years, a chamber of the court (the chambre du conseil ) ordered the joinder of cases nos. 10.971/76 and 3136/77 and on 11 May 1979 committed Mr. De Cubber for trial. These cases related to several hundred alleged offences committed by fifteen accused, headed by the applicant; there were no less than nineteen persons intervening to claim damages (parties civiles ).", "For the purpose of the trial, the court, which over the years had nine or ten titular judges, sat as a chamber composed of a president and two judges, including Mr. Pilate. Mr. De Cubber stated that he protested orally against the latter ’ s presence, but he did not have recourse to any of the legal remedies open to him for this purpose, such as a formal challenge ( procédure de récusation; Article 828 of the Judicial Code).", "After a hearing which lasted two half-days on 8 and 22 June 1979, the court gave judgment on 29 June 1979. Mr. De Cubber was acquitted on two counts and convicted on the remainder, note being taken of the fact that he was a recidivist. He was accordingly sentenced, in respect of one matter, to five years ’ imprisonment and a fine of 60,000 BF and, in respect of another, to one year ’ s imprisonment and a fine of 8,000 BF; his immediate arrest was ordered.", "13. Both the applicant and the public prosecutor ’ s department appealed. On 4 February 1980, the Ghent Court of Appeal reduced the first sentence to three years ’ imprisonment and a fine of 20,000 BF and upheld the second. In addition, it unanimously imposed a third sentence, namely one month ’ s imprisonment and a fiscal fine ( amende fiscale ), for offences which the Oudenaarde court had - wrongly, in the Court of Appeal ’ s view - treated as being linked with others by reason of a single criminal intent.", "14. Mr. De Cubber appealed to the Court of Cassation, raising some ten different points of law. One of his grounds, based on Article 292 of the Judicial Code (see paragraph 19 below) and Article 6 para. 1 (art. 6-1) of the Convention, was that Mr. Pilate had been both judge and party in the case since after conducting the preliminary investigation he had acted as one of the trial judges.", "The Court of Cassation gave judgment on 15 April 1980 ( Pasicrisie 1980, I, pp. 1006-1011). It held that this combination of functions violated neither Article 292 of the Judicial Code nor any other legal provision - such as Article 6 para. 1 (art. 6-1) of the Convention - nor the rights of the defence. On the other hand, the Court of Cassation upheld a plea concerning the confiscation of certain items of evidence and, to this extent, referred the case back to the Antwerp Court of Appeal; the latter court has in the meantime (on 4 November 1981) directed that the items in question be returned. The Court of Cassation also quashed, of its own motion and without referring the case back, the decision under appeal in so far as the appellant had been sentenced to a fiscal fine. The remainder of the appeal was dismissed." ]

[ "II. THE RELEVANT LEGISLATION", "A. Status and powers of investigating judges", "15. Investigating judges, who are appointed by the Crown \"from among the judges of the court of first instance\" (Article 79 of the Judicial Code), conduct the preparatory judicial investigation (Articles 61 et seq. of the Code of Criminal Procedure). The object of this procedure is to assemble the evidence and to establish any proof against the accused as well as any circumstances that may tell in his favour, so as to provide the chambre du conseil or the chambre des mises en accusation, as the case may be, with the material which it needs to decide whether the accused should be committed for trial. The procedure is secret; it is not conducted in the presence of both parties (non contradictoire ) nor is there any legal representation.", "The investigating judge also has the status of officer of the criminal investigation police (police judiciaire ). In this capacity, he is empowered to inquire into serious and lesser offences (crimes et délits ), to assemble evidence and to receive complaints from any person claiming to have been prejudiced by such offences (Articles 8, 9 in fine and 63 of the Code of Criminal Procedure). When so acting, he is placed under the \"supervision of the procureur général (State prosecutor)\" (Article 279 of the Code of Criminal Procedure and Article 148 of the Judicial Code), although this does not include a power to give directions. \"In all cases where the suspected offender is deemed to have been caught in the act\", the investigating judge may take \"directly\" and in person \"any action which the procureur du Roi (public prosecutor) is empowered to take\" (Article 59 of the Code of Criminal Procedure).", "16. Save in the latter category of case, the investigating judge can take action only after the matter has been referred to him either by means of a formal request from the procureur du Roi for the opening of an inquiry (Articles 47, 54, 60, 61, 64 and 138 of the Code of Criminal Procedure) or by means of a criminal complaint coupled with a claim for damages (constitution de partie civile; Articles 63 and 70).", "If a court includes several investigating judges, it is for the presiding judge to allocate cases amongst them. In principle, cases are assigned to them in turn, from week to week; however, this is not an inflexible rule and the presiding judge may depart therefrom, for example if the matter is urgent or if a new case has some connection with one that has already been allocated.", "17. In order to facilitate the ascertainment of the truth, the investigating judge is invested with wide powers; according to the case-law of the Court of Cassation, he may \"take any steps which are not forbidden by law or incompatible with the standing of his office\" (judgment of 2 May 1960, Pasicrisie 1960, I, p. 1020). He can, inter alia, summon the accused to appear or issue a warrant for his detention, production before a court or arrest (Articles 91 et seq. of the Code of Criminal Procedure); question the accused, hear witnesses (Articles 71 to 86 and 92 of the same Code), confront witnesses with each other (Article 942 of the Judicial Code), visit the scene of the crime (Article 62 of the Code of Criminal Procedure), visit and search premises (Articles 87 and 88 of the same Code), take possession of evidence (Article 89), and so on. The investigating judge has to report to the chambre du conseil on the cases with which he is dealing (Article 127); he takes, by means of an order, decisions on the expediency of measures requested by the public prosecutor ’ s department, such orders being subject to an appeal to the chambre des mises en accusation of the Court of Appeal.", "18. When the investigation is completed, the investigating judge transmits the case-file to the procureur du Roi, who will return it to him with his submissions (Article 61, first paragraph).", "It is then for the chambre du conseil, which is composed of a single judge belonging to the court of first instance (Acts of 25 October 1919, 26 July 1927 and 18 August 1928), to decide - unless it considers it should order further inquiries - whether to discharge the accused (non-lieu; Article 128 of the Code of Criminal Procedure), to commit him for trial before a district court (tribunal de police; Article 129) or a criminal court (tribunal correctionnel; Article 130) or to send the papers to the procureur général attached to the Court of Appeal (Article 133), depending upon the circumstances.", "Unlike his French counterpart, the Belgian investigating judge is thus never empowered to refer a case to the trial court himself. Before taking its decision, the chambre du conseil - which sits in camera - will hear the investigating judge ’ s report. This report will take the form of an oral account of the state of the investigations; the investigating judge will express no opinion therein as to the accused ’ s guilt, it being for the public prosecutor ’ s department to deliver concluding submissions calling for one decision or another.", "B. Investigating judges and incompatibilities", "19. Article 292 of the 1967 Judicial Code prohibits \"the concurrent exercise of different judicial functions ... except where otherwise provided by law\"; it lays down that \"any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function\" shall be null and void.", "This rule applies to investigating judges, amongst others. Article 127 specifies that \"proceedings before an assize court shall be null and void if the presiding judge or another judge sitting is a judicial officer who has acted in the case as investigating judge ...\".", "Neither can an investigating judge sit as an appeal-court judge, for otherwise he would have \"to review on appeal, and thus as last-instance trial judge, the legality of investigation measures ... which [he] had taken or ordered at first instance\" (Court of Cassation, 18 March 1981, Pasicrisie 1981, I, p. 770, and Revue de droit pénal et de criminologie, 1981, pp. 703-719).", "20. On the other hand, under the third paragraph of Article 79 of the Judicial Code, as amended by an Act of 30 June 1976, \"investigating judges may continue to sit, in accordance with their seniority, to try cases brought before a court of first instance\". According to the drafting history and decided case-law on this provision, it is immaterial that the cases are ones previously investigated by the judges in question: they would in that event be exercising, not \"some other judicial function\" within the meaning of Article 292, but rather the same function of judge on the court of first instance; it would be only their assignment that had changed (Parliamentary Documents, House of Representatives, no. 59/49 of 1 June 1967; Court of Cassation, 8 February 1977, Pasicrisie 1977, I, p. 622-623; Court of Cassation judgment of 15 April 1980 in the present case, see paragraph 14 above).", "In the case of Blaise, the Court of Cassation confirmed this line of authority in its judgment of 4 April 1984, which followed the submissions presented by the public prosecutor ’ s department. After dismissing various arguments grounded on general principles of law, the Court of Cassation rejected the argument put forward by the appellant on the basis of Article 6 para. 1 (art. 6-1) of the Convention:", "\"However, as regards the application of Article 6 para. 1 (art. 6-1) ..., when a case requires a determination of civil rights and obligations or of a criminal charge, the authority hearing the case at first instance and the procedure followed by that authority do not necessarily have to satisfy the conditions laid down by the above-mentioned provision, provided that the party concerned or the accused is able to lodge an appeal against the decision affecting him taken by that authority with a court which does offer all the guarantees stipulated by Article 6 para. 1 (art. 6-1) and has competence to review all questions of fact and of law. In the present case, the appellant does not maintain that the court of appeal which convicted him did not offer those guarantees ...", "In any event, the principles and the rule relied on in the ground of appeal do not have the scope therein suggested;", "From the sole fact that a trial judge inquired into the case as an investigating judge it cannot be inferred that the accused ’ s right to an impartial court has been violated. It cannot legitimately be feared that the said judge does not offer the guarantees of impartiality to which every accused is entitled.", "The investigating judge is not a party adverse to the accused, but a judge of the court of first instance with the responsibility of assembling in an impartial manner evidence in favour of as well as against the accused.", "... .\"", "PROCEEDINGS BEFORE THE COMMISSION", "21. In his application of 10 October 1980 to the Commission (no. 9186/80), Mr. De Cubber raised again several of the pleas which he had unsuccessfully made to the Belgian Court of Cassation. He alleged, inter alia, that the Oudenaarde criminal court had not constituted an impartial tribunal, within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, since one of the judges, Mr. Pilate, had previously acted as investigating judge in the same case.", "22. On 9 March 1982, the Commission declared the application admissible as regards this complaint and inadmissible as regards the remainder. In its report of 5 July 1983 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 6 para. 1 (art. 6-1) on the point in question. The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)", "23. Under Article 6 para. 1 (art. 6-1),", "\"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ... .\"", "One of the three judges of the Oudenaarde criminal court who, on 29 June 1979, had given judgment on the charges against the applicant had previously acted as investigating judge in the two cases in question: in one case he had done so from the outset and in the other he had replaced a colleague, at first on a temporary and then on a permanent basis (see paragraphs 8, 10 and 12 above). On the strength of this, Mr. De Cubber contended that he had not received a hearing by an \"impartial tribunal\"; his argument was, in substance, upheld by the Commission.", "The Government disagreed. They submitted:", "- as their principal plea, that Mr. Pilate ’ s inclusion amongst the members of the trial court had not adversely affected the impartiality of that court and had therefore not violated Article 6 para. 1 (art. 6-1);", "- in the alternative, that only the Ghent Court of Appeal, whose impartiality had not been disputed, had to satisfy the requirements of that Article (art. 6-1);", "- in the further alternative, that a finding of violation would entail serious consequences for courts, such as the Oudenaarde criminal court, with \"limited staff\".", "A. The Government ’ s principal plea", "24. In its Piersack judgment of 1 October 1982, the Court specified that impartiality can \"be tested in various ways\": a distinction should be drawn \"between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect\" (Series A no. 53, p. 14, para. 30).", "25. As to the subjective approach, the applicant alleged before the Commission that Mr. Pilate had for years shown himself somewhat relentless in regard to his (the applicant ’ s) affairs (see paragraphs 45-47 of the Commission ’ s report), but his lawyer did not maintain this line of argument before the Court; the Commission, for its part, rejected the Government ’ s criticism that it had made a subjective analysis (see paragraphs 63, 68-69 and 72-73 of the report; verbatim record of the hearings held on 23 May 1984).", "However this may be, the personal impartiality of a judge is to be presumed until there is proof to the contrary (see the same judgment, loc. cit.), and in the present case no such proof is to be found in the evidence adduced before the Court. In particular, there is nothing to indicate that in previous cases Mr. Pilate had displayed any hostility or ill-will towards Mr. De Cubber (see paragraph 9 above) or that he had \"finally arranged\", for reasons extraneous to the normal rules governing the allocation of cases, to have assigned to him each of the three preliminary investigations opened in respect of the applicant in 1977 (see paragraphs 8, 10 and 16 above; paragraph 46 of the Commission ’ s report).", "26. However, it is not possible for the Court to confine itself to a purely subjective test; account must also be taken of considerations relating to the functions exercised and to internal organisation (the objective approach). In this regard, even appearances may be important; in the words of the English maxim quoted in, for example, the Delcourt judgment of 17 January 1970 (Series A no. 11, p. 17, para. 31), \"justice must not only be done: it must also be seen to be done\". As the Belgian Court of Cassation has observed ( 21 February 1979, Pasicrisie 1979, I, p. 750), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see the above-mentioned judgment of 1 October 1982, pp. 14-15, para. 30).", "27. Application of these principles led the European Court, in its Piersack judgment, to find a violation of Article 6 para. 1 (art. 6-1): it considered that where an assize court had been presided over by a judge who had previously acted as head of the very section of the Brussels public prosecutor ’ s department which had been responsible for dealing with the accused ’ s case, the impartiality of the court \"was capable of appearing open to doubt\" (ibid., pp. 15-16, para. 31). Despite some similarities between the two cases, the Court is faced in the present proceedings with a different legal situation, namely the successive exercise of the functions of investigating judge and trial judge by one and the same person in one and the same case.", "28. The Government put forward a series of arguments to show that this combination of functions, which was unquestionably compatible with the Judicial Code as construed in the light of its drafting history (see paragraph 20, first sub-paragraph, above), was also reconcilable with the Convention. They pointed out that in Belgium an investigating judge is fully independent in the performance of his duties; that unlike the judicial officers in the public prosecutor ’ s department, whose submissions are not binding on him, he does not have the status of a party to criminal proceedings and is not \"an instrument of the prosecution\"; that \"the object of his activity\" is not, despite Mr. De Cubber ’ s allegations, \"to establish the guilt of the person he believes to be guilty\" (see paragraph 44 of the Commission ’ s report), but to \"assemble in an impartial manner evidence in favour of as well as against the accused\", whilst maintaining \"a just balance between prosecution and defence\", since he \"never ceases to be a judge\"; that he does not take the decision whether to commit the accused for trial - he merely presents to the chambre du conseil, of which he is not a member, objective reports describing the progress and state of the preliminary investigations, without expressing any opinion of his own, even assuming he has formed one (see paragraphs 52-54 of the Commission ’ s report and the verbatim record of the hearings held on 23 May 1984).", "29. This reasoning no doubt reflects several aspects of the reality of the situation (see paragraphs 15, first sub-paragraph, 17 in fine and 18 above) and the Court recognises its cogency. Nonetheless, it is not in itself decisive and there are various other factors telling in favour of the opposite conclusion.", "To begin with, a close examination of the statutory texts shows the distinction between judicial officers in the public prosecutor ’ s department and investigating judges to be less clear-cut than initially appears. An investigating judge, like\" procureurs du Roi and their deputies\", has the status of officer of the criminal investigation police and, as such, is \"placed under the supervision of the procureur général \"; furthermore, \"an investigating judge\" may, in cases \"where the suspected offender is deemed to have been caught in the act\", \"take directly\" and in person \"any action which the procureur du Roi is empowered to take\" (see paragraph 15, second sub-paragraph, above).", "In addition to this, as an investigating judge he has very wide-ranging powers: he can \"take any steps which are not forbidden by law or incompatible with the standing of his office\" (see paragraph 17 above). Save as regards the warrant of arrest issued against the applicant on 5 April 1977, the Court has only limited information as to the measures taken by Mr. Pilate in the circumstances, but, to judge by the complexity of the case and the duration of the preparatory investigation, they must have been quite extensive (see paragraphs 8 and 12 above).", "That is not all. Under Belgian law the preparatory investigation, which is inquisitorial in nature, is secret and is not conducted in the presence of both parties; in this respect it differs from the procedure of investigation followed at the hearing before the trial court, which, in the instant case, took place on 8 and 22 June 1979 before the Oudenaarde court (see paragraphs 12 and 15 above). One can accordingly understand that an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed in detention on remand and who had interrogated him on numerous occasions during the preparatory investigation, albeit with questions dictated by a concern to ascertain the truth.", "Furthermore, through the various means of inquiry which he will have utilised at the investigation stage, the judge in question, unlike his colleagues, will already have acquired well before the hearing a particularly detailed knowledge of the - sometimes voluminous - file or files which he has assembled. Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-formed opinion which is liable to weigh heavily in the balance at the moment of the decision. In addition, the criminal court (tribunal correctionnel ) may, like the court of appeal (see paragraph 19 in fine above), have to review the lawfulness of measures taken or ordered by the investigating judge. The accused may view with some alarm the prospect of the investigating judge being actively involved in this process of review.", "Finally, the Court notes that a judicial officer who has \"acted in the case as investigating judge\" may not, under the terms of Article 127 of the Judicial Code, preside over or participate as judge in proceedings before an assize court; nor, as the Court of Cassation has held, may he sit as an appeal-court judge (see paragraph 19 above). Belgian law-makers and case-law have thereby manifested their concern to make assize courts and appeal courts free of any legitimate suspicion of partiality. However, similar considerations apply to courts of first instance.", "30. In conclusion, the impartiality of the Oudenaarde court was capable of appearing to the applicant to be open to doubt. Although the Court itself has no reason to doubt the impartiality of the member of the judiciary who had conducted the preliminary investigation (see paragraph 25 above), it recognises, having regard to the various factors discussed above, that his presence on the bench provided grounds for some legitimate misgivings on the applicant ’ s part. Without underestimating the force of the Government ’ s arguments and without adopting a subjective approach (see paragraphs 25 and 28 above), the Court recalls that a restrictive interpretation of Article 6 para. 1 (art. 6-1) - notably in regard to observance of the fundamental principle of the impartiality of the courts - would not be consonant with the object and purpose of the provision, bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see the above-mentioned Delcourt judgment, Series A no. 11, pp. 14-15, para. 25 in fine).", "B. The Government ’ s first alternative plea", "31. In the alternative, the Government submitted, at the hearings on 23 May 1984, that the Court should not disregard its previous case-law; they relied essentially on the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981 and on the Albert and Le Compte judgment of 10 February 1983.", "In both of these judgments, the Court held that proceedings instituted against the applicants before the disciplinary organs of the Ordre des médecins (Medical Association) gave rise to a \"contestation\" (dispute) over \"civil rights and obligations\" (Series A no. 43, pp. 20-22, paras. 44-49, and Series A no. 58, pp. 14-16, paras. 27-28). Since Article 6 para. 1 (art. 6-1) was therefore applicable, it had to be determined whether the individuals concerned had received a hearing by a \"tribunal\" satisfying the conditions which that Article lays down. Their cases had been dealt with by three bodies, namely a Provincial Council, an Appeals Council and the Court of Cassation. The European Court did not consider it \"indispensable to pursue this point\" as regards the Provincial Council, for the reason which, in its judgment of 23 June 1981, was expressed in the following terms:", "\"Whilst Article 6 para. 1 (art. 6-1) embodies the ‘ right to a court ’ ..., it nevertheless does not oblige the Contracting States to submit ‘ contestations ’ (disputes) over ‘ civil rights and obligations ’ to a procedure conducted at each of its stages before ‘ tribunals ’ meeting the Article ’ s various requirements. Demands of flexibility and efficiency, which are fully compatible with the protection of human rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the said requirements in every respect; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system.\" (Series A no. 43, pp. 22-23, paras. 50-51)", "The judgment of 10 February 1983 developed this reasoning further:", "\"In many member States of the Council of Europe, the duty of adjudicating on disciplinary offences is conferred on jurisdictional organs of professional associations. Even in instances where Article 6 para. 1 (art. 6-1) is applicable, conferring powers in this manner does not in itself infringe the Convention.... Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1 (art. 6-1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction\" - that is to say, which has the competence to furnish \"a [judicial] determination ... of the matters in dispute, both for questions of fact and for questions of law\" - \"and does provide the guarantees of Article 6 para. 1 (art. 6-1).\" (Series A no. 58, p. 16, para. 29)", "In the Government ’ s submission, the principles thus stated apply equally to \"criminal charges\" within the meaning of Article 6 para. 1 (art. 6-1). As confirmation of this, the Government cited the Oztürk judgment of 21 February 1984 (Series A no. 73, pp. 21-22, para. 56) in addition to the above-mentioned judgments of 23 June 1981 and 10 February 1983 (Series A no. 43, pp. 23-24, para. 53, and Series A no. 58, pp. 16-17, para. 30).", "In the particular circumstances, the Government noted, Mr. De Cubber ’ s complaint was directed solely against the Oudenaarde court; he had no objection to make concerning the Ghent Court of Appeal, which in the present case, so they argued, constituted the \"judicial body that has full jurisdiction\", as referred to in the above-quoted case-law.", "On the whole of this issue, the Government cited the Blaise judgment of 4 April 1984, which the Belgian Court of Cassation had delivered in a similar case, and the concordant submissions of the public prosecutor ’ s department in that case (see paragraph 20 above).", "32. The Commission ’ s Delegate did not share this view; the Court agrees in substance with his arguments.", "The thrust of the plea summarised above is that the proceedings before the Oudenaarde court fell outside the ambit of 1Article 6 para. 1 (art. 6-1). At first sight, this plea contains an element of paradox. Article 6 para. 1 (art. 6-1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that its fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up (see the above-mentioned Delcourt judgment, Series A no. 11, p. 14 in fine, and, as the most recent authority, the Sutter judgment of 22 February 1984, Series A no. 74, p. 13, para. 28). However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants.", "Furthermore, the case-law relied on by the Government has to be viewed in its proper context. The judgments of 23 June 1981, 10 February 1983 and 21 February 1984 concerned litigation which was classified by the domestic law of the respondent State not as civil or criminal but as disciplinary (Series A no. 43, p. 9, para. 11) or administrative (Series A no. 73, pp. 10-14, paras. 17-33); these judgments related to bodies which, within the national system, were not regarded as courts of the classic kind, for the reason that they were not integrated within the standard judicial machinery of the country. The Court would not have held Article 6 para. 1 (art. 6-1) applicable had it not been for the \"autonomy\" of the concepts of \"civil rights and obligations\" and \"criminal charge\". In the present case, on the other hand, what was involved was a trial which not only the Convention but also Belgian law classified as criminal; the Oudenaarde criminal court was neither an administrative or professional authority, nor a jurisdictional organ of a professional association (see the above-mentioned judgments, Series A no. 43, p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73, pp. 21-22, para. 56), but a proper court in both the formal and the substantive meaning of the term (Decisions and Reports, no. 15, p. 78, paras. 59-60, and p. 87: opinion of the Commission and decision of the Committee of Ministers on application no. 7360/76, Zand v. Austria). The reasoning adopted in the three above-mentioned judgments, to which should be added the Campbell and Fell judgment of 28 June 1984 (Series A no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify reducing the requirements of Article 6 para. 1 (art. 6-1) in its traditional and natural sphere of application. A restrictive interpretation of this kind would not be consonant with the object and purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine above).", "33. At the hearings, the Commission ’ s Delegate and the applicant ’ s lawyer raised a further question, concerning not the applicability of Article 6 para. 1 (art. 6-1) but rather its application to the particular facts: had not \"the subsequent intervention\" of the Ghent Court of Appeal \"made good the wrong\" or \"purged\" the first-instance proceedings of the \"defect\" that vitiated them?", "The Court considers it appropriate to answer this point although the Government themselves did not raise the issue in such terms.", "The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention ’ s provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26 (art. 26) (see the Guzzardi and the Van Oosterwijck judgments of 6 November 1980, Series A no. 39, p. 27, para. 72, and Series A no. 40, p. 17, para. 34). Thus, the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had \"cleared ... of any finding of guilt\" an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6 para. 2 (art. 6-2) (Series A no. 49, pp. 17-19, paras. 38-41).", "The circumstances of the present case, however, were different. The particular defect in question did not bear solely upon the conduct of the first-instance proceedings: its source being the very composition of the Oudenaarde criminal court, the defect involved matters of internal organisation and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety.", "C. The Government ’ s further alternative plea", "34. In the further alternative, the Government pleaded that a finding by the Court of a violation of Article 6 para. 1 (art. 6-1) would entail serious consequences for Belgian courts with \"limited staff\", especially if it were to give a judgment \"on the general question of principle\" rather than a judgment \"with reasoning limited to the very special\" facts of the case. In this connection, the Government drew attention to the following matters. From 1970 to 1984, the workload of such courts had more than doubled, whereas there had been no increase in the number of judges. At Oudenaarde and at Nivelles, for example, taking account of vacant posts (deaths, resignations, promotions) and occasional absences (holidays, illness, etc.), there were only six or seven judges permanently in attendance, all of whom were \"very busy\", if not overwhelmed with work. Accordingly, it was virtually inevitable that one of the judges had to deal in turn with different aspects of the same case. To avoid this, it would be necessary either to constitute \"special benches\" - which would be liable to occasion delays incompatible with the principle of trial \"within a reasonable time\" - or to create additional posts, an alternative that was scarcely realistic in times of budgetary stringency.", "35. The Court recalls that the Contracting States are under the obligation to organise their legal systems \"so as to ensure compliance with the requirements of Article 6 para. 1 (art. 6-1)\" (see the Guincho judgment of 10 July 1984, Series A no. 81, p. 16, para. 38); impartiality is unquestionably one of the foremost of those requirements. The Court ’ s task is to determine whether the Contracting States have achieved the result called for by the Convention, not to indicate the particular means to be utilised.", "D. Conclusion", "36. To sum up, Mr. De Cubber was the victim of a breach of Article 6 para. 1 (art. 6-1).", "II. THE APPLICATION OF ARTICLE 50 (art. 50)", "37. The applicant has filed claims for just satisfaction in respect of pecuniary and non-pecuniary damage, but the Government have not yet submitted their observations thereon. Since the question is thus not ready for decision, it is necessary to reserve it and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 53 paras. 1 and 4 of the Rules of Court)." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "10. Mr Oberschlick, an Austrian journalist residing in Vienna, was at the relevant time the editor of the review Forum.", "A. Background to the case", "11. On 29 March 1983 - during the parliamentary election campaign - it was reported in a television programme that Mr Walter Grabher-Meyer, then Secretary General of one of the political parties which participated in the governing coalition, the Austrian Liberal Party (FPÖ), had suggested that the family allowances for Austrian women should be increased by 50% in order to obviate their seeking abortions for financial reasons, whilst those paid to immigrant mothers should be reduced to 50% of their current levels. He had justified his statement by saying that immigrant families were placed in a discriminatory position in other European countries as well.", "12. On 20 April 1983 the applicant and several other persons laid a criminal information ( Strafanzeige ) against Mr Grabher-Meyer. However, the Vienna public prosecutor ’ s office decided on 1 June 1983 not to prosecute him.", "13. On the day it was laid, the full text of the criminal information was published by the applicant in Forum. The cover page of the relevant issue contained a summary of its contents, including the title : \"Criminal information against the Liberal Party Secretary General ( Strafanzeige gegen FPÖ- Generalsekretär )\". The following text appeared at page 9:", "(Translation)", "\"CRIMINAL INFORMATION against WALTER GRABHER-MEYER", "Date of birth unknown, occupation: Secretary General, c/o FPÖ (Liberal Party), Federal Central Office, Kärntnerstrasse 28, 1010 Vienna", "ON SUSPICION OF", "1. the misdemeanour ( Vergehen ) of incitement to hatred, contrary to Article 283 of the Criminal Code,", "2. the misdemeanour ( Vergehen ) of incitement to commit criminal offences and expressing approval of criminal offences, contrary to Article 282 of the Criminal Code, and", "3. the offence ( Verbrechen ) of activities within the meaning of sections 3 and 3d of the Constitutional Law of 8 May 1945 ( StGBl. no. 13) on the prohibition of the National Socialist Party (NSDAP) (\"Prohibition Act\").", "THE FACTS", "‘ The Secretary General of the Liberal Party, Mr Walter Grabher-Meyer today proposed raising family allowances for Austrian women by 50%, the aim of this measure being to deter Austrian women from having abortions for financial reasons. At the same time Walter Grabher-Meyer demanded that family allowances from the Austrian State for mothers of migrant workers ’ families ( Gastarbeitermütter ) should be reduced to half the present level. Grabher-Meyer stated that migrant worker families are placed in a less favourable position in other European countries too. ’", "ORF (Austrian Broadcasting Corporation), Television programmes 1 + 2 Late News 29.3.1983", "Count 1:", "Walter Grabher-Meyer ’ s public statement was made in a way which offends human dignity and is directed against a group of persons defined by their membership of a people, ethnic group or State; in the present case, by the fact that they do not have Austrian citizenship.", "The contrasting treatment of Austrian women, who are to be spared the need for abortions by being placed in a better financial position, and mothers of migrant workers ’ families who are not only not to be treated in the same way, but who are moreover, according to Walter Grabher-Meyer ’ s suggestion, to have their family allowances halved (allowances which in his opinion are too low to prevent abortion for financial reasons), gives the impression, which must in all likelihood have been intended by him, that mothers of migrant workers ’ families and their unborn children are an inferior, worthless or less valuable sector of the population as a whole, and that it is in the interests of the Austrian people for such mothers to have abortions.", "Walter Grabher-Meyer has thereby presented migrant workers as being undeserving or unworthy of the respect of their fellow human beings; the authors of this information regard this as a tendentious incitement to hatred of and contempt for migrant workers in Austria, object thereto and lay this information.", "Count 2:", "Walter Grabher-Meyer is publicly proposing - and thereby calling in particular on the Austrian Parliament and the Federal Government to introduce - measures which constitute the substance of the offence of activities within the meaning of sections 3 and 3d of the Prohibition Act (see below).", "Count 3:", "Under section 3 of the Prohibition Act, activities of any sort on behalf of the NSDAP or its aims are prohibited, even if such activities are carried out outside that organisation.", "Section 3d of the Prohibition Act says that \"A person who in public or in the presence of several persons ... instigates, incites or seeks to induce conduct prohibited by section 1 or section 3, in particular any person who for this purpose glorifies or extols the aims, organs or actions of the NSDAP, shall, unless a more serious offence appears therein, be punished by a term of imprisonment of from 10 to 20 years and confiscation of his entire property\".", "The authors of this information refer in this connection to the 25 points of the NSDAP Manifesto of 24.2.1920. They note that, until the passing of the NSDAP Prohibition Act of 8 May 1945 by the Provisional Government, this manifesto remained the party ’ s sole programme and that it therefore contains in authentic and complete form the aims of the NSDAP ’ s programme. It says inter alia that:", "‘ 5. A person who does not have German nationality is to be able to live in Germany only as a visitor and must be subject to aliens legislation.", "7. We demand that the State undertake, first and foremost, to provide opportunities for employment and the subsistence of its citizens. If it is not possible to feed the entire population of the State, citizens of foreign nations (non-citizens) must be expelled from the Reich.", "8. All further immigration of non -Germans is to be prevented. We demand that all non-Germans who have immigrated to Germany since 2 August 1914 be compelled to leave the Reich immediately. ’", "Creating a hostile attitude to citizens of foreign nations (non-citizens), and placing them in a less favourable position, to such an extent that it became difficult for them to live in the Reich and they were forced to leave, were essential aims of the NSDAP and its policy.", "Walter Grabher-Meyer ’ s proposal to increase family allowances for Austrian women by 50% in order to stop them having abortions for financial reasons, and at the same time to reduce family allowances for mothers of migrant workers ’ families to half the present level, represents a cynical means of driving citizens of foreign nations out of the Republic of Austria and indeed forcing those who stay in the Republic of Austria to have abortions; being entirely consistent with and corresponding to the philosophy and aims of the NSDAP that ‘ the State must first and foremost provide opportunities for employment and the subsistence of its citizens ’, these proposals are aimed, amongst other things, at improving the living conditions of citizens (Austrian mothers) by worsening those of migrant workers and, at the same time, at preventing all further immigration of non-Austrians (see above, NSDAP points 7 and 8).", "From this it is apparent that Walter Grabher-Meyer has undertaken activities which correspond to the aims of the NSDAP, or at the very least has extolled its measures against citizens of foreign nations by proposing that such measures be applied in Austria.", "As to the accuracy of these allegations, the authors of this information rely on their own statements, the ORF newsreaders ’ scripts for the Late News on television programmes 1 and 2 on 29.3.1983 and the NSDAP manifesto of 24.2.1920.", "This criminal information is therefore laid against Walter Grabher-Meyer etc.", "(Signed):..., Gerhard Oberschlick\"", "B. Private prosecution against the applicant", "1. First set of proceedings", "14. On 22 April 1983 Mr Grabher-Meyer brought a private prosecution for defamation ( üble Nachrede, Article 111 of the Criminal Code - see paragraph 25 below) against the applicant and the other signatories of the criminal information. He also sought the immediate seizure of the relevant issue of Forum (sections 33 and 36 of the Media Act - Mediengesetz ) and compensation from its owners (section 6 of the Media Act - see paragraph 26 below).", "15. The Review Chamber ( Ratskammer ) of the Vienna Regional Criminal Court ( Landesgericht für Strafsachen - \"the Regional Court \") decided on the same day to order the discontinuance of the proceedings under Article 485 para. 1 (4) of the Code of Criminal Procedure (see paragraph 28 below). It found that the publication did not constitute the criminal offence defined in Article 111 of the Criminal Code, since the case did not concern the wrongful attribution of a certain (dishonest) behaviour, but only value-judgments ( Bewertung ) on behaviour which, as such, had been correctly described.", "16. On appeal by Mr Grabher-Meyer the Vienna Court of Appeal ( Oberlandesgericht ), composed of Mr Cortella, as President, and Mr Schmidt and Mr Hagen, quashed the above decision on 31 May 1983. It held that for the average reader the publication must have created the impression that a contemptible attitude ( verächtliche Gesinnung ) was ascribed to Mr Grabher-Meyer. The authors had disregarded the standards of fair journalism by going beyond a comparative and critical analysis of his statements and insinuating motives which he had not himself expressed, in particular by alleging that he had been guided by National Socialist attitudes. Accordingly, the case was referred back to the Regional Court.", "2. Second set of proceedings", "(a) Before the Regional Court", "17. On 20 July 1983 the defamation proceedings against the signatories of the criminal information other than Mr Oberschlick were severed from the main proceedings by the Regional Court and referred for decision to the Vienna District Court for Criminal Matters ( Strafbezirksgericht ), on the ground that those persons had not been associated with the publication in Forum. On 9 April 1984 the former proceedings were discontinued.", "18. On 25 July 1983 the Regional Court ordered the publication in Forum of information about the defamation proceedings against the applicant (section 37 of the Media Act - see paragraph 26 below). This decision was confirmed by the Court of Appeal on 7 September 1983.", "19. The Regional Court held a hearing on 11 May 1984, during which it heard evidence from Mr Grabher-Meyer and the applicant.", "The latter offered evidence that what he had written was true ( Wahrheitsbeweis ), claiming that in this respect it was sufficient to establish that a criminal information had actually been laid in the terms published in Forum. He argued that by reporting his suspicions he had been fulfilling a legal duty and that he was therefore exculpated under Article 114 of the Criminal Code (see paragraph 25 below). The fact that the legal qualification of Mr Grabher-Meyer ’ s statements might have been erroneous could not be held against him because he was not a lawyer.", "20. On the same day the applicant was convicted of defamation (Article 111 paras.1 and 2) and sentenced to a fine of 4,000 Austrian schillings or, in default, to 25 days ’ imprisonment. The Regional Court also made the following orders against the owners ( Medieninhaber ) of Forum - the Association of Editors and Employees of Forum ( Verein der Redakteure und Angestellten des Forum): the seizure of the relevant issue of Forum, the publication of its judgment (sections 33 and 34 of the Media Act), and the award to Mr Grabher-Meyer of compensation of 5,000 schillings (section 6 of the Media Act). In addition, they were declared to be jointly and severally liable for the payment of the fine (section 35 para. 1 of the Media Act - see paragraph 26 below).", "In its judgment of 11 May 1984, the Regional Court held that it was bound by the opinion expressed by the Court of Appeal in its decision of 31 May 1983 (see paragraph 16 above). Therefore the objective conditions for the offence of defamation were satisfied.", "Mr Oberschlick also fulfilled the subjective requirements because he had acknowledged that he had intended to draw attention to what, in his opinion, was the National Socialist way of thinking of Mr Grabher-Meyer. Mr Oberschlick had, however, not established the truth of his allegations nor justified them. In the Regional Court ’ s view, it was not sufficient that this politician had made the criticised statements and that a criminal information regarding it had been laid in the terms published in Forum. The statements in question did not necessarily show the intentions Mr Oberschlick had inferred therefrom. It could also be understood as a proposal to reallocate the notoriously limited resources of the Family Compensation Fund in favour of Austrians in order to stem the influx of migrant workers. This admittedly revealed a xenophobic way of thinking, but did not yet amount to a National Socialist attitude or to a criminal offence.", "The fact that the publication involved only a reprint of the criminal information did not exculpate the applicant. Whilst everyone was free to report to the police facts which he considered constituted a criminal offence, it went far beyond the mere reporting of a criminal suspicion to publish the text of the information in a periodical and thus to make it accessible to the general public. There was no justification for doing so. In this respect, the applicant could not invoke a legal duty under Article 114 of the Criminal Code, namely to draw the public ’ s attention to the (allegedly) Nazi mentality of a high-ranking official of a governing party. That allegation came under the general rule that a person who had made an attack of this kind through the media had to prove that it was true.", "21. Mr Oberschlick subsequently requested on several occasions to be supplied with a copy of the record of the hearing, but without success. It seems that it was not until after the communication of the written judgment on 24 August 1984 that the record reached the applicant. On 6 September he applied for a rectification of the trial record which, according to him, failed to mention certain statements by Mr Grabher-Meyer which were of importance for assessing the evidence concerning the truth of the applicant ’ s allegations. He had allegedly stated at the trial, inter alia, that he was opposed to excessive immigration of foreigners ( Überfremdung ) and that for tactical reasons he approved the \"stop foreigners\" campaign (\" Ausländer Halt\") which had been conducted by a right-wing political party and had subsequently been prohibited. He had also allegedly admitted having considered social-policy measures directed against the children of foreign workers in Austrian schools.", "On 4 October 1984 the Regional Court rejected this application, after having consulted the transcriber, on the ground that after five months the judge had no recollection of the detailed statements. It nevertheless pointed out that although the latter did not appear in the transcriber ’ s notes, similar statements did.", "(b) Before the Court of Appeal", "22. On 17 December 1984 the Vienna Court of Appeal, composed of the same judges and again presided over by Mr Cortella (see paragraph 16 above), dismissed the applicant ’ s appeal ( Berufung ).", "In relation to a complaint concerning the Regional Court ’ s decision of 4 October 1984 (see paragraph 21 above), the Court of Appeal observed that this decision was final. Furthermore, it did not appear that the Regional Court had failed to determine any requests made during the trial concerning the record. In any event, the statements in question were irrelevant for the judgment on the merits of the matter.", "23. The Court of Appeal then dealt with the substantive issues. In its view, the Regional Court had not been legally bound by the Court of Appeal ’ s earlier decision concerning the qualification of the offence. The Court of Appeal, however, saw no reason to depart from that decision. What was decisive was that Mr Grabher-Meyer was alleged to have had motives which he himself had not expressed. The case therefore did not concern the (possibly incorrect) legal qualification of his statements, but allegations putting a stain on his character which objectively could not be inferred from those statements.", "According to the Court of Appeal, the Regional Court had rightly held that what had to be proved was the truth of the critical inferences as to Mr Grabher-Meyer ’ s character made in the article and had rightly found that the applicant had failed to bring this proof. The fact that a short report on the criminal information against this politician would not have been punishable did not justify the conclusion that a full reprint of it was not punishable either. The publication in the form of a criminal information was intended to ensure that the accusation as to his character made therein would have a particularly telling effect on the average reader. Neither the right to report a criminal suspicion (Article 86 para. 1 of the Code of Criminal Procedure - see paragraph 27 below) nor the exception provided for in Article 114 para. 2 of the Criminal Code (see paragraph 25 below) justified the publication because it was not appropriate ( mangels Anlassadäquanz ): it had been insinuated, without a sufficient basis in the facts, that Mr Grabher-Meyer held National Socialist attitudes.", "24. The written text of the judgment was served upon the applicant on 7 January 1985.", "On 25 September 1985 he requested the Attorney-General ( Generalprokurator ) to file a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ), but he was informed on 9 January 1986 that the Attorney-General did not intend to take any action." ]

[ "II. THE RELEVANT DOMESTIC LAW", "A. Substantive law applicable", "1. The offence of defamation", "25. Article 111 of the Criminal Code provides:", "\"1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...", "2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...", "3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.\"", "Under Article 112, \"evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...\".", "Under Article 114 para. 1 \"conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right\". Under paragraph 2 of the same provision \"a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care\".", "2. The relevant provisions of the Media Act", "26. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings (section 35).", "The person defamed may request the forfeiture of the publication by which a media offence has been committed (section 33). Under section 36 he may also request the immediate seizure of such a publication if section 33 is likely to be applied subsequently, unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure. Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted (section 37). Finally, the victim may request the publication of the judgment in so far as this appears necessary for the information of the public (section 34).", "B. Procedural provisions applicable", "1. Criminal information", "27. The first sentence of Article 86 para. 1 of the Code of Criminal Procedure reads as follows:", "\"Anybody who acquires knowledge of criminal conduct such as automatically attracts public prosecution shall have the right to report it.\"", "Furthermore, section 3 (g) para. 2 of the Prohibition Act imposes a duty to denounce offences under this Act in certain circumstances. Failure to fulfil this duty may be punished by imprisonment for between five and ten years.", "2. Defamation proceedings", "28. Under the special simplified procedure - which was followed in this instance -, if a single judge of the Regional Court is of the opinion that the facts of the case do not constitute a criminal offence, he shall seek a decision by the Review Chamber of the Regional Court (Article 485 para. 1 (4) of the Code of Criminal Procedure), which shall order the discontinuance of the proceedings if it shares his view (Article 486 para. 3). The prosecution may appeal against such an order (Article 486 para. 4). If the Court of Appeal upholds the appeal and refers the case back to the Regional Court, the following special rules apply:", "Article 486 para. 5", "\"The trial court shall not be bound by decisions of the Review Chamber or of the court of second instance which confirm ... that the facts constitute a criminal offence ...\"", "Article 489 para. 3", "\"Those members of the court of second instance who participated at a previous stage in the decision of the Review Chamber to discontinue the proceedings or in the determination of an appeal against such a decision (Article 486) shall be disqualified from hearing or determining an appeal.\"", "3. General rules concerning disqualification of or challenge to a judge", "29. Disqualification of a judge ( Ausschliessung ) is governed by the following provisions of the Code of Criminal Procedure:", "Article 70 para. 1", "\"A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ...\"", "Article 71", "\"From the moment when grounds for his disqualification come to his knowledge, every judicial officer ( Gerichtsperson ) shall refrain from any judicial acts, on pain of nullity. The judicial officer concerned may carry out judicial acts which are urgent, but only where there is danger in delay and if another judge or registrar cannot be appointed immediately. ...\"", "30. Furthermore, under Article 72 the parties to the proceedings may challenge ( ablehnen ) a judge if they can show that there are reasons for doubting his complete impartiality. Although Article 72 refers expressly to grounds \"other than disqualification\", it is the practice of the courts to apply Article 72 also in cases where a party raises an issue relating to a judge ’ s disqualification. In fact, the disqualification of a first-instance judge cannot subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party (Article 281 para. 1 (1) of the Code of Criminal Procedure). The procedure applicable in this respect is the following:", "Article 73", "\"Where a party seeks to challenge a judge, he may make an application in writing to the court of which the judge is a member or make an oral declaration to this effect before the registrar. He may do this at any time, except that, where the challenge concerns a member of the trial court, it must be made not later than 24 hours before the beginning of the hearing and, where it is directed against the whole court, not later than three days after service of the summons to attend the hearing. The application must specify and, as far as possible, justify the reasons for the challenge.\"", "Article 74", "\"(1) As a rule it is for the president of the court of which the challenged judicial officer is a member to decide on the admissibility of the challenge.", "(2) ...", "(3) No appeal lies against such a decision ...\"", "4. Rules concerning trial records", "31. Records of hearings before criminal courts in Austria are usually drawn up in summary form unless, for special reasons, the court orders the preparation of a shorthand transcript. A shorthand transcript must be prepared if this is requested by a party who advances the costs thereof (Article 271 para. 4).", "In other cases the record is limited to a note of all essential formalities of the proceedings. The parties are free to request the recording of specific points in order to preserve their rights (Article 271 para. 1, applicable to single-judge proceedings by virtue of Article 488).", "32. Where the establishment of a verbatim version is important, the judge shall, upon the request of a party, order that particular passages be read out at once (Article 271 para. 2).", "The answers of the defendant and the depositions of the witnesses and experts shall be mentioned only if they contain deviations from, alterations of or additions to the statements recorded in the files or if the witnesses or experts are heard for the first time at the trial (Article 271 para. 3).", "33. The parties are free to inspect the completed record and its appendices and to make copies thereof (Article 271 para. 5). Case-law has established that they are entitled to request additions or corrections to the record at the trial or afterwards, as long as an appeal is pending ( Evidenzblatt, \" EvBl \", 1948, p. 32 and Sammlungstrafsachen, 32/108). The court ’ s decision on such a request is final and is not open to appeal ( Richterzeitung, 1967, p. 88, EvBl. 1948/243).", "It is only total failure to prepare a trial record that is a ground of nullity (Article 281 para. 1 (3)). Other deficiencies in the record cannot be pleaded in nullity proceedings, except failure to decide on motions concerning the record which were made during the trial (Article 281 para. 1 (4)).", "PROCEEDINGS BEFORE THE COMMISSION", "34. In his application (no. 11662/85) of 16 June 1985 to the Commission, Mr Oberschlick alleged violations of Article 6 para. 1 (art. 6-1) (right to a fair hearing by an impartial tribunal established by law) and Article 10 (art. 10) (right to freedom of expression) of the Convention, as a result of the defamation proceedings instituted against him and his subsequent conviction.", "35. The Commission declared the application admissible on 10 May 1989. In its report of 14 December 1989 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (nineteen votes to two) and also of Article 6 para. 1 (art. 6-1) in relation to the proceedings before the Court of Appeal (twenty votes to one), but not in relation to the proceedings before the Regional Court (unanimously).", "The full text of the Commission ’ s opinion and the two dissenting opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT", "36. In his memorial of 3 July 1990 the applicant made the following requests:", "1. that the Court find:", "(a) that his conviction and sentence constituted a violation of his right to freedom of expression as guaranteed by Article 10 (art. 10) of the Convention;", "(b) that the proceedings at first and second instance, which led to his conviction and sentence, constituted a violation of his right to a fair trial as guaranteed by Article 6 para. 1 (art. 6-1) of the Convention;", "2. that the Court instruct the Republic of Austria to annul the seizure of issue no. 352/353 of the magazine Forum;", "3. that, in accordance with Article 50 (art. 50) of the Convention, the Court afford the applicant just satisfaction comprising specified costs and compensation for the non-material damage occasioned by the injustice of which he had been the victim.", "The Government confirmed at the hearing held on 19 November 1990 the conclusions set out in their memorial of 29 June 1990. They asked the Court to reject the application because it had been lodged out of time (Article 26 in fine of the Convention) (art. 26), or to find that neither Article 6 para. 1 (art. 6-1) nor Article 10 (art. 10) of the Convention had been violated.", "AS TO THE LAW", "I. PRELIMINARY OBJECTION", "37. By way of preliminary objection, the Government pleaded, as they had already done before the Commission, that Mr Oberschlick had not complied with the rule, in Article 26 (art. 26) of the Convention, that applications to the Commission must be lodged \"within a period of six months from the date on which the final decision was taken\" (\" dans le délai de six mois, à partir de la date de la décision interne définitive \"). This plea was made with regard, firstly, to his main complaints under Articles 6 para. 1 and 10 (art. 6-1, art. 10) and, secondly, to the specific complaint concerning the rectification of the trial record.", "A. The main complaints under Articles 6 para. 1 and 10 (art. 6-1, art. 10)", "38. The Government observed that the application did not reach the Commission until 25 June 1985, whereas the final decision by the Vienna Court of Appeal had been pronounced orally more than six months previously, on 17 December 1984. In their opinion the date of the communication of the written text of the judgment ( 7 January 1985 ) was irrelevant for this purpose (see paragraphs 22 and 24 above).", "Mr Oberschlick contended in reply that his application must be deemed to have been introduced on the date which it bore, namely 16 June 1985. In any event, the six-month period should run from service of the written text of the judgment, since no substantial application could be made to the Commission on the basis of the summary of the court ’ s reasoning given when the judgment was pronounced.", "39. Following its usual practice, the Commission accepted that the application was filed on 16 June 1985, that is the last day of the six-month time-limit \"if [it] should have to be counted as from the date when the final judgment was pronounced orally\".", "40. Having regard to the circumstances of the case, the Court accepts that, as regards his main complaints, Mr Oberschlick ’ s application was posted on 16 June 1985 and, accordingly, was introduced within the time-limit prescribed by Article 26 (art. 26).", "B. Complaint concerning the rectification of the trial record (Article 6 para. 1) (art. 6-1)", "41. The Government further submitted that, as regards the refusal of Mr Oberschlick ’ s request for rectification of the trial record, his application was clearly out of time, because the six-month period began to run on 30 October 1984, when the Regional Court ’ s decision of 4 October 1984 in the matter - which was final - was served on the applicant.", "42. The Court does not share this view. National proceedings would be unduly delayed and complicated if applications concerning procedural decisions, such as the present one, had to be filed before the final decision on the merits. Consequently, with regard to such procedural decisions, even if they have become final before the termination of the proceedings, the six-month period mentioned in Article 26 (art. 26) runs only as from the same date as that which is relevant with regard to the final decision on the merits.", "The application thus cannot be deemed to be out of time in this respect either.", "C. Conclusion", "43. In conclusion, the Government ’ s preliminary objection has to be rejected.", "II. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)", "44. Mr Oberschlick alleged that he had not received a \"fair hearing\" by an \"impartial tribunal established by law\", within the meaning of Article 6 para. 1 (art. 6-1) of the Convention which, as far as relevant, provides:", "\"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...\"", "A. Proceedings before the Vienna Regional Court", "1. Rectification of the trial record", "45. Before the Commission, the applicant complained of the Regional Court ’ s refusal to rectify the trial record which, he said, did not accurately reproduce certain statements made by Mr Grabher-Meyer, the private prosecutor, that were of particular importance for proving the truth of the applicant ’ s allegations (see paragraph 21 above).", "In its report (paragraph 85) the Commission concluded that there had been no violation of Article 6 para. 1 (art. 6-1) on this account. The applicant declared before the Court that, with one exception relating to another point, he fully shared the conclusions of the Commission and he did not go further into the question of the rectification of the trial record. In these circumstances the Court sees no reason to examine it.", "2. Fairness of the proceedings", "46. Mr Oberschlick claimed that he had been deprived of a fair trial in the second set of proceedings, in that on 11 May 1984 the Regional Court had erroneously considered itself bound by the Court of Appeal ’ s decision in the first set of proceedings (see paragraphs 20 and 23 above).", "47. Although the Regional Court ’ s finding was held to be contrary to domestic law (Article 486 para. 5 of the Code of Criminal Procedure, see paragraph 28 above), it does not, in the Court ’ s view, constitute of itself a violation of the Convention.", "The Regional Court in fact considered the evidence before it and reached the fully-reasoned conclusion that the applicant was guilty (see paragraph 20 above). This decision was subsequently upheld on appeal.", "B. Proceedings before the Court of Appeal", "48. Before the Commission Mr Oberschlick contended mainly that the Vienna Court of Appeal, when hearing his case in the second set of proceedings, was not an \"independent and impartial tribunal\" and was not \"established by law\" because, contrary to Article 489 para. 3 of the Code of Criminal Procedure (see paragraph 28 above), it was presided over by the same judge as in the first set.", "Before the Court Mr Oberschlick supplemented this complaint by submitting that in the meantime he had been led to believe that not only the presiding judge but also the other two appeal judges had participated on both occasions. From the Government ’ s reply to a question put by the Court it then appeared that this was correct.", "49. The Commission concluded that, as a result of the participation of a judge who should have withdrawn from the case in accordance with Article 489 para. 3 of the Code of Criminal Procedure, the Court of Appeal was on the second occasion not \"established by law\" and, as a separate issue, not \"impartial\" (see paragraphs 99 and 103 of its report).", "50. The Court notes that the applicant ’ s two complaints coincide in substance.", "Article 489 para. 3 of the Code of Criminal Procedure, which lays down that the Court of Appeal shall not comprise, in a case like this, any judge who has previously dealt with it in the first set of proceedings (see paragraph 28 above), manifests the national legislature ’ s concern to remove all reasonable doubts as to the impartiality of that court. Accordingly the failure to abide by this rule means that the applicant ’ s appeal was heard by a tribunal whose impartiality was recognised by national law to be open to doubt.", "51. The Government argued that by failing, at the hearing of 17 December 1984, to challenge or raise any objection to the participation of the presiding judge (Articles 73, 281 para. 1, sub 1, and 345 para. 2 of the Code of Criminal Procedure), the applicant had waived his right to have him replaced.", "According to the Court ’ s case-law, waiver of a right guaranteed by the Convention - in so far as it is permissible - must be established in an unequivocal manner (see, inter alia, the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 176, p. 35, para. 82).", "Here, not only the President but also the other two members of the Court of Appeal should have withdrawn ex officio in accordance with Article 489 para. 3 of the Code of Criminal Procedure. Whatever the position might have been with respect to the presiding judge, neither the applicant nor his counsel were aware until well after the hearing of 17 December 1984 that the other two judges had also participated in the decision of 31 May 1983.", "It is thus not established that the applicant had waived his right to have his case determined by an \"impartial\" tribunal.", "52. There has accordingly been a violation of Article 6 para. 1 (art. 6-1) of the Convention in this respect.", "III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "A. The issues to be decided", "53. According to Article 10 (art. 10) of the Convention,", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "Mr Oberschlick alleged that his conviction for defamation and the other related court decisions (see paragraph 20 above) had breached his right to freedom of expression as guaranteed in this Article.", "54. It was not disputed that the applicant ’ s conviction by the Vienna Regional Court on 11 May 1984 (see paragraph 20 above), as upheld by the Vienna Court of Appeal on 17 December 1984 (see paragraphs 22-23 above), constituted an \"interference\" with his right to freedom of expression.", "Nor was it contested that this interference was \"prescribed by law\", namely Article 111 of the Criminal Code (see paragraph 25 above), and was aimed at protecting the \"reputation or rights of others\" within the meaning of Article 10 para. 2 (art. 10-2) of the Convention.", "Argument before the Court concentrated on the question whether the interference was \"necessary in a democratic society\" to achieve that aim.", "55. The applicant stressed that in a democratic society the role of periodicals like Forum included critical comment on social or legal policy proposals made by politicians. In this regard the press should be free to choose the form of comment it thought most appropriate to its aim. In the present case he had limited himself to reporting and giving his own interpretation of Mr Grabher-Meyer ’ s proposal with regard to family allowances for foreigners. The Austrian courts had denied him the right not only of giving his opinion as to whether the proposal constituted a revival of National Socialism, but also of making historical comparisons on the basis of present facts.", "The applicant ’ s complaint was accepted by the Commission.", "56. According to the Government, Mr Oberschlick had overstepped the limits of justifiable and reasonable criticism. The impugned publication amounted, according to the Austrian courts, to an accusation that Mr Grabher-Meyer held National Socialist ideas, the impact of this accusation being strengthened by the form chosen. They held that the applicant had not been able to prove that his accusation was well-founded and that he was therefore guilty of defamation.", "In the opinion of the Government, it was not for the European Court to decide whether this reasoning of the Austrian courts was correct; this followed from the margin of appreciation to be left to the national authorities: they were better placed than the international judge to determine what matters should be regarded as defamatory, since this depended to a certain extent on national conceptions and legal culture.", "B. General principles", "57. The Court recalls that freedom of expression, as secured in paragraph 1 of Article 10 (art. 10-1), constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 (art. 5-2), it is applicable not only to \"information\" or \"ideas\" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no \"democratic society\" (see, inter alia, the Handyside judgment of 7 December 1976, Series A no. 24, p. 23, para. 49, and the Lingens judgment of 8 July 1986, Series A no. 103, p. 26, para. 41).", "Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.", "58. These principles are of particular importance with regard to the press. Whilst it must not overstep the bounds set, inter alia, for \"the protection of the reputation of others\", its task is nevertheless to impart information and ideas on political issues and on other matters of general interest (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 40, para. 65, and the above-mentioned Lingens judgment, loc. cit.).", "Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. This is underlined by the wording of Article 10 (art. 10) where the public ’ s right to receive information and ideas is expressly mentioned. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention (see the above-mentioned Lingens judgment, Series A no. 103, p. 26, para. 42).", "59. The limits of acceptable criticism are accordingly wider with regard to a politician acting in his public capacity than in relation to a private individual. The former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.", "A politician is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues (see the above-mentioned Lingens judgment, Series A no. 103, ibid.).", "60. The Court ’ s task in this case has to be seen in the light of these principles. What are at stake are the limits of acceptable criticism in the context of public debate on a political question of general interest. In such cases the Court has to satisfy itself that the national authorities did apply standards which were in conformity with these principles and, moreover, that in doing so they based themselves on an acceptable assessment of the relevant facts.", "For this purpose the Court will consider the impugned judicial decisions in the light of the case as a whole, including the applicant ’ s publication and the context in which it was written (see, inter alia, the above-mentioned Lingens judgment, Series A no. 103, p. 25, para. 40).", "C. Application of these principles", "61. The applicant was convicted for having reproduced in Forum the text of a criminal information which he and other persons had laid against Mr Grabher-Meyer. During an election campaign, this politician had made certain public statements, reported in a television programme, concerning foreigners ’ family allowances, and proposed that such persons should receive less favourable treatment than Austrians (see paragraphs 11-13 above). The applicant had expressed the opinion that this proposal corresponded to the philosophy and the aims of National Socialism as stated in the NSDAP Manifesto of 1920 (see paragraph 13 above).", "The Court agrees with the Commission that the insertion of the text of the said information in Forum contributed to a public debate on a political question of general importance. In particular, the issue of different treatment of nationals and foreigners in the social field has given rise to considerable discussion not only in Austria but also in other member States of the Council of Europe.", "Mr Oberschlick ’ s criticisms, as the Commission pointed out, sought to draw the public ’ s attention in a provocative manner to a proposal made by a politician which was likely to shock many people. A politician who expresses himself in such terms exposes himself to a strong reaction on the part of journalists and the public.", "62. In its judgment of 11 May 1984 the Regional Court found that the article in question, \"despite its designation as a criminal information, gives the impression of being intended to condemn\" the character of the politician. It therefore held that Mr Oberschlick ’ s allegations against him came under the general rule (Article 111 para. 3 of the Criminal Code - see paragraph 25 above) that a person making a defamatory statement through the media incurs criminal liability unless he proves that it is true. Since, in the Regional Court ’ s opinion, Mr Grabher-Meyer ’ s proposal were \"inconclusive\" evidence of his alleged National Socialist attitude and criminal behaviour and since no further evidence had been submitted, it found that the applicant had failed to prove his allegations and was therefore guilty (see paragraph 20 above).", "In its decision of 17 December 1984 the Vienna Court of Appeal basically confirmed these assessments (see paragraph 23 above).", "63. The Court, however, cannot subscribe to them. The information, as published by Mr Oberschlick, began by reciting the facts under the heading\" Sachverhalt \", that is reporting Mr Grabher-Meyer ’ s statements. It is undisputed that this part of the information was factually correct. What followed was an analysis of these statements, on the basis of which the authors of the information concluded that this politician had knowingly expressed ideas that corresponded to those professed by the Nazis.", "The Court can regard the latter part of the information only as a value-judgment, expressing the opinion of the authors as to the proposal made by this politician, which opinion was clearly presented as derived solely from a comparison of this proposal with texts from the National Socialist Party Manifesto.", "It follows that Mr Oberschlick had published a true statement of facts followed by a value-judgment as to those facts. The Austrian courts held, however, that he had to prove the truth of his allegations. As regards value-judgments this requirement is impossible of fulfilment and is itself an infringement of freedom of opinion (see the above-mentioned Lingens judgment, Series A no. 103, p. 28, para. 46).", "As to the form of the publication, the Court accepts the assessment made by the Austrian courts. It notes that they did not establish that \"the presentation of the article in the form of a criminal information\" was misleading in the sense that, as a consequence thereof, a significant number of the readers were led to believe that a public prosecution had been instituted against Mr Grabher-Meyer or even that he had already been convicted. The Austrian courts said no more than that this particular form of presentation was intended to ensure that what in their eyes was an accusation as to his character would have \"a particularly telling effect on the average reader\". In the opinion of the Court, however, in view of the importance of the issue at stake (see paragraph 61 above), Mr Oberschlick cannot be said to have exceeded the limits of freedom of expression by choosing this particular form.", "64. It follows from the foregoing that the interference with Mr Oberschlick ’ s exercise of his freedom of expression was not \"necessary in a democratic society ... for the protection of the reputation ... of others\".", "There has, accordingly, been a violation of Article 10 (art. 10) of the Convention.", "IV. APPLICATION OF ARTICLE 50 (art. 50)", "65. Under Article 50 (art. 50) of the Convention,", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicant requested the Court to direct the Government of Austria: (a) to rehabilitate him and formally set aside the judgment of 17 December 1984; and (b) to annul the seizure of issue no. 352/353 of Forum.", "The Court, however, is not empowered to make directions of this kind (see, mutatis mutandis, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 23, para. 54).", "Mr Oberschlick also sought compensation for pecuniary and non-pecuniary damage, as well as the reimbursement of costs and expenses. He claimed that certain of these amounts should be increased by interest at the rate of 11% per annum.", "A. Pecuniary damage", "66. The applicant sought firstly sums corresponding to the fine imposed (4,000 schillings) and the costs awarded to the private prosecutor (14,123.84 schillings) by the Austrian courts. Having regard to the direct link between these items and the violation of Article 10 (art. 10) found by the Court, he is, as the Government agreed, entitled to recover the full amount of 18,123.84 schillings.", "67. The applicant also claimed one symbolic Austrian schilling for the seizure of issue no. 352/353 of Forum (see paragraphs 13 and 20 above) and 38,280 schillings for the cost of publishing in that magazine, in pursuance of section 37 of the Media Act (see paragraphs 18 and 26 above), information concerning the defamation proceedings.", "The Court notes that the damage referred to was in fact sustained by the owners of Forum and that Mr Oberschlick did not furnish any explanation as to why he should be entitled to compensation under these heads. No award can therefore be made to him for them.", "B. Non-pecuniary damage", "68. The applicant sought 70,000 schillings for non-pecuniary damage, on account of the perplexity, anxiety and uncertainty occasioned by the prosecution for defamation.", "The Government contested both the existence of any such damage and the amount claimed.", "69. The Court does not exclude that the applicant may have sustained some prejudice of the kind alleged as a result of the breaches of Articles 6 para. 1 and 10 (art. 6-1, art. 10). It considers, however, that in the circumstances of the case the findings of violation in this judgment constitute of themselves sufficient just satisfaction.", "C. Costs and expenses", "70. The applicant claimed 9,753 schillings for his costs and expenses in Austria. These items fall to be taken into account, since they were incurred to prevent or redress the breaches found by the Court. The amount, which was accepted by the Government, appears reasonable to the Court and is therefore awarded in full.", "71. For his costs and expenses before the Convention institutions, Mr Oberschlick sought reimbursement of the fees due to Mr Fiebinger, who had prepared the initial application to the Commission (4,000 schillings), and to Mr Tretter, who had assisted the applicant throughout the proceedings (60,000 schillings), as well as his own and Mr Tretter ’ s travel expenses to Strasbourg for the purpose of attending the Court ’ s hearing on 19 November 1990 (11,532 schillings). The Government contested only the amount of Mr Tretter ’ s fees which, in their view, should be reduced to 30,000 schillings.", "The Court, however, finds the sums claimed to be reasonable and therefore allows them in their entirety.", "72. The applicant is thus entitled to 85,285 schillings for his costs and expenses.", "D. Interest", "73. Mr Oberschlick claimed that interest of 11% per annum should be added to certain of the above sums; he based this claim on the argument that he had been obliged to borrow in order to meet the costs involved. Although the Government have asked for proof of the latter allegation, no evidence has been submitted in due time. The Court therefore dismisses this claim." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "9. The applicant is the editor of the political satirical periodical \"MHUX fl- Interesstal-Poplu\" (NOT in the people ’ s interest).", "10. On 3 January 1986 an article entitled \"Mix- Xena tax- Xandir\" (From the Broadcasting Scene) appeared in the applicant ’ s periodical commenting on a particular parliamentary debate in the Maltese House of Representatives, which had been broadcast live on television. The article included the following passages:", "\"SEND IN THE CLOWN", "Some felt offended that I had lately written that, during the budget debates, I went berserk and started throwing tomatoes at the television set. And this happened when certain Members of Parliament had not as yet spoken in the debates. I will let your fertile imagination take its course to imagine what I did when two of them in particular were speaking.", "THE PARLIAMENTARY CLOWN", "I do not know if I shall be in breach of the Sedition Laws if I describe a minister as a clown. But I cannot fail to comment on Debono Grech ’ s behaviour in Parliament. It seems that Debono Grech deliberately tried to make us laugh. If this is so, Debono Grech is ridiculing what is supposed to be the highest institution of the land.", "Let us see what Debono Grech was up to. His first sentence was meant to raise some laughs as he maintained that Lawrence Gatt, a Nationalist Member of Parliament, badly needed a pair of spectacles. This was rather a flat joke. Then he started calling names Bonello Dupuis [a Nationalist Member of Parliament] and described the latter as a man who lacked principles. Then he tried to make us laugh once again when he referred to the killing of pigs. Anyway, he tried to play the clown once, twice and even three times. And some of his jokes were rather vulgar.", "I felt extremely angry that the man who is representing the people, and that includes yours truly, on agricultural matters, was using this serious and important debate to play the clown. Well, I thought, if Debono Grech has the right to speak the way he likes on the television screen, in my home, then I am also entitled to speak my mind. And I started booing him with all my might, and had I had enough tomatoes, I would have used them for other purposes.", "You may ask me what I did when ‘ il -Profs ’ Bartolo of Cospicua took the microphone. First and foremost, this man is not as yet aware that Mintoff has resigned and Bartolo still echoes him to this very day. Secondly, you stand no chance of finding anything worthwhile after analysing Bartolo ’ s speech. At least, you may find something worthwhile in Debono Grech ’ s speech, but you discover absolutely nothing in Bartolo ’ s. Let me tell you what I did when this professor stood up to speak.", "I booed this last one so heartily that the neighbours thought that I had had an epileptic fit. To crown it all, Mrs Grech, that nosy parker, entered my home unannounced and without permission and she found me on the floor in an ecstasy of booing. She thought I had become a lunatic. Really, the scene in front of the television was scary. Bartolo was gesticulating and talking rubbish on the Magruvision Television set while I lay sprawled on the floor gesticulating like a madman. And I did all this so that I may have enough material for ‘ MHUX ’. To persuade Mrs Grech that nothing was really wrong with me I had to allow her to take my pulse rate, examine my tongue and take my temperature.\"", "11. On 13 January 1986 Mr Debono Grech and Mr Bartolo, two of the Members of Parliament referred to, brought the article to the attention of the House of Representatives as an alleged breach of privilege. On 10 February, before the applicant had been heard, the Speaker announced that he had examined the matter and found a prima facie case of breach of privilege. The House, on a proposal by Mr Debono Grech, proceeded on the same day to pass a resolution which stated that the House considered the article in question as a breach of its privileges according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance (Chapter 179 of the Revised Edition of the Laws of Malta; see paragraph 20 below), hereinafter referred to as \"the Ordinance\".", "12. On 4 March 1986 the House of Representatives considered a motion, proposed by Dr Joseph Cassar and seconded by Mr Debono Grech, to direct the applicant to be summoned by notice under section 13(2) of the Ordinance to answer a charge of defamatory libel under section 11(1)(k) of the Ordinance. The terms of the motion were:", "\"That the House after having by its own resolution decided in the sitting of 10 February 1986 that the article bearing the title ‘ Mix- Xena tax- Xandir ’ which appeared at page 4 of the ‘ MHUX fl- Interesstal-Poplu ’ of 3 January 1986 be considered a breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance;", "The House orders Carmel Demicoli of Flat 1, Ferrini Court, University Street, Msida, as editor of the journal ‘ MHUX fl- Interesstal-Poplu ’, to appear before it in the sitting of 17 March 1986 at 6.30 pm to state why he should not be found guilty of breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance; and", "The House also orders the subpoena of every witness that the Clerk of the House will be asked to summon.\"", "The then Leader of the Opposition, Dr Fenech Adami, drew attention to the wording of the resolution of 10 February 1986 which he considered out of order since it did not make it clear that there was only a prima facie case of breach of privilege. For his part, Dr Cassar expressed the opinion that the proposed motion did not state that the applicant was guilty:", "\"Here we are not saying that he is guilty. We are saying: Come here so that on the 17th of March you will say why you are not guilty. And if ever you were to convince us that you are not guilty we will say that you are not guilty; if you will not convince us we will say you are guilty.\"", "After the debate the motion was adopted as proposed by Dr Cassar.", "13. On 13 March 1986 Mr Demicoli brought an application before the Civil Court of Malta in exercise of its constitutional jurisdiction challenging the proceedings instituted against him by the House of Representatives on the ground that these proceedings, which were penal in nature, violated his right under section 40 of the Constitution (see paragraph 22 below) to be given a fair hearing by an independent and impartial court.", "14. On 17, 18 and 19 March 1986, before the delivery of the judgment of the Civil Court, the applicant appeared before the House of Representatives with his lawyer.", "It was submitted as a point of order that further proceedings on the case in the House should be suspended until the court had determined the constitutional issue, but the Speaker ruled that the House should proceed with the case before it. The question was then put to the applicant, \"Does the editor consider himself to be guilty or not please? Mr Demicoli, do you consider yourself guilty?\" When the applicant refused to answer whether he was guilty or not, he was threatened with further proceedings for contempt. One of the members of the House, Dr Joseph Brincat, stated on a point of order that the breach of privilege proceedings were to be considered as being of a criminal nature and accordingly - an argument accepted by the Speaker - the rule of criminal procedure that he who stands mute is presumed to have answered ‘ not guilty ’ should be applied.", "Dr Cassar proceeded to adduce the evidence against the applicant, reading out the impugned article and concluding that it insulted Mr Debono Grech and Mr Bartolo in connection with their conduct in the House. The latter were invited by the Speaker to comment and both made statements to the effect that they considered themselves ridiculed in their capacity as members of the House, as well as in their private lives.", "Mr Debono Grech subsequently said,", "\"Mr Speaker, this is the last time I come here and go to Court in connection with this dirt. And if they attack me personally I will neither seek redress here nor go to court. Okay? And if trouble crops up in my family, if you [pointing to defence lawyer] defend him [the applicant], I will [ ‘ sue you ’ (according to the Government ’ s translation)] [ ‘ take my revenge on you ’ (according to the applicant ’ s translation)].\"", "On 19 March 1986 the House adopted a resolution in the following terms:", "\"That the House after having considered the case of breach of its privileges caused by the article published at page 4 of the journal ‘ MHUX fl- Interesstal-Poplu ’ Number 63 of 3 January 1986;", "Finds the editor Carmel Demicoli guilty of breach of privilege.\"", "The House postponed the question of punishment until another sitting, due, according to the Government, to the pending constitutional proceedings.", "15. On 16 May 1986 the Civil Court delivered judgment in favour of the applicant. It began by finding that the proceedings were not criminal in nature:", "\"The House of Representatives is not an ordinary court, although, because of the system of checks and balances already referred to, it also has quasi-judicial functions, apart from its principal function of legislator. And the law that provides for the privileges and contempt of the House (chapter 179) is not part of the criminal law of the country. It is true, as argued by the applicant, that there is a great resemblance between the penalties provided for by the Criminal Code and those provided for by this particular law. However, the decision of the House is not the criminal conviction that emerges from a decision of the Criminal Court, and the declaration of guilt for contempt and the consequential sanctions from such a declaration, despite having the same form as criminal penalties - admonitions, payment of money, imprisonment - are nonetheless not criminal convictions.\"", "However, the Court continued:", "\"The House may take proceedings for contempt where, among other things, there results:", "‘ (k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof; ’ (Vide sect. 11 Chapter 179).", "For the House to have jurisdiction to take proceedings for contempt there must be a defamatory libel (a mixed question of fact and law) and the law did not state that this is a question that must be established by the House, but something that must exist objectively; this being so, the declaration of the existence of the defamatory libel must first be made objectively by the Court, and then there will be proceedings in the House for contempt.\"", "The Civil Court concluded that the Ordinance in question did not authorise the House of Representatives of its own initiative to define what is a defamatory libel, and that, if and when it acts upon a contempt, it must act according to the principles of natural justice. It ordered that the applicant be placed in the position in which he was before proceedings were instituted against him on the basis of breach of privilege and that no further proceedings be taken against him on the basis of the resolution and motion in question.", "16. On 13 October 1986 the Constitutional Court, on appeal by both parties, disagreed with the conclusions of the Civil Court. It held that the Constitution authorised Parliament to enact laws establishing its privileges, immunities and powers, that accordingly the powers given to the House by virtue of Chapter 179 of the Laws of Malta did not violate the person ’ s right to a fair hearing by an independent court as guaranteed under section 40 of the Constitution and that in those circumstances the lower court had not been entitled to look further into the matter or to afford the remedies indicated in its judgment.", "17. On 9 December 1986 the House of Representatives summoned the applicant before it in order to decide the penalty to be imposed upon him. On being asked if he wished to comment, the applicant stated through his lawyer that he had nothing to say regarding the punishment but would comply with the House ’ s decision. He was fined 250 Maltese liri and ordered to publish the resolution of 19 March 1986 in his paper.", "18. Mr Debono Grech and Mr Bartolo participated throughout in the proceedings brought against the applicant, save that Mr Bartolo died before the sitting of 9 December 1986.", "19. The applicant has not as yet paid the fine and no steps have been taken to enforce its recovery." ]

[ "II. THE RELEVANT DOMESTIC LAW", "20. As applicable at the relevant time, the provisions of the Ordinance concerning the privileges of the House of Representatives were as follows:", "Section 9", "\"An oath or affirmation taken or made by a witness or by an expert before the House of Representatives or any Committee thereof shall for the purposes of the Criminal Code (Chapter 12) be comparable to an oath or affirmation taken or made before a Court in civil matters.\"", "Section 11", "\"(1) The House shall have the power to punish with a reprimand or with imprisonment for a period not exceeding sixty days or with a fine not exceeding five hundred liri or with both such fine and such imprisonment, any person, whether a Member of the House or not, guilty of any of the following acts:", "...", "(k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof;", "...", "(4) For the purposes of this section - ‘ publication ’ means any act whereby any printed matter is or may be communicated to or brought to the knowledge of any person or whereby any words or visual images are broadcast; ...", "(5) A person shall be deemed guilty of the acts mentioned in paragraph[s] (k) ... of subsection (1) of this section if the publication referred to in paragraph[s] (k) ... consists in the publication of such defamatory libel, false or perverted report, or misrepresentation in printed form in Malta, or in the distribution in Malta of such printed matter containing such defamatory libel, false or perverted report, or misrepresentation, from whatsoever place such printed matter may originate, or in any broadcast from any place in Malta or any place outside Malta of any such defamatory libel, false or perverted report, or misrepresentation.\"", "Subsection (6) entitles the House to order in the case of a newspaper, in addition to the punishments under subsection (1), the publication in a subsequent issue of the motion finding the accused guilty of an act mentioned in paragraph (k) of subsection (1).", "Section 13", "\"(1) ...", "(2) ... the House may direct the offender to be summoned by notice signed by the Clerk of the House, to appear before it at a specified sitting to answer the charge.", "(3) If the offender fails to appear, it shall be lawful for the Speaker of the House on the direction thereof, to issue a warrant for the offender to be arrested and brought before the House.", "...", "(5) In all cases the offender shall be given the opportunity to speak in his own defence and, ..., he may be assisted by an advocate.", "...\"", "Section 14", "\"(1) ...", "(2) When the House fines a person, the fine shall be paid to the Accountant General through the Clerk of the House within two clear days of its infliction. At the next following sitting the Clerk shall report to the Speaker the payment so made or its default; in the latter case the House may decide on the commutation of the fine into a term of imprisonment or give other directions at its discretion.\"", "21. Defamatory libel is a criminal offence under the Press Act 1974 (Act No. XL of 1974).", "Section 3 of the Act provides:", "\"The offences mentioned in this Part of the Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast.\"", "Section 11 of the Act provides:", "\"Save as otherwise provided in this Act, whosoever shall, by any means mentioned in Section 3 of this Act, libel any person, shall be liable on conviction:", "(a) if the libel contains specific imputations against such person tending to injure his character and reputation, or to expose him to public ridicule or contempt, to imprisonment for a term not exceeding three months or to a fine ( multa ) not exceeding two hundred liri or to both such imprisonment and fine;", "(b) in any other case, to imprisonment for a term not exceeding one month or to a fine.\"", "22. The Constitution of Malta also refers to the privileges of Parliament.", "Under section 34 no person is to be deprived of his personal liberty save as may be authorised by law, inter alia, in execution of an order of the House of Representatives punishing him for contempt of itself or of its members or for breach of privilege, or directing that he be brought before it.", "Section 40 provides for any person charged with a criminal offence to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.", "Section 41(1) guarantees freedom of expression with the following proviso under subsection (2):", "\"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision -", "(a) that is reasonably required -", "( i ) in the interests of defence, public order, public morality or decency, or public health; or", "(ii) for the purpose of [...] protecting the privileges of Parliament [...]", "... .\"", "PROCEEDINGS BEFORE THE COMMISSION", "23. In his application (no. 13057/87) lodged with the Commission on 22 May 1987, Mr Demicoli submitted that the proceedings against him in the House of Representatives involved the determination of a \"criminal charge\", within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, and that, in breach of that provision, he had not received a \"fair and public hearing ... by an independent and impartial tribunal\". He also alleged a failure to observe the presumption of innocence, guaranteed by Article 6 para. 2 (art. 6-2).", "24. The Commission declared the application admissible on 15 March 1989. In its report of 15 March 1990 (drawn up in accordance with Article 31) (art. 31), it expressed the unanimous opinion that there had been a breach of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 6 para. 2 (art. 6-2).", "The full text of the Commission ’ s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [*].", "AS TO THE LAW", "I. PRELIMINARY OBJECTION", "25. By way of preliminary objection, the Government pleaded, as they had already done before the Commission, that Mr Demicoli, in lodging his complaint on 22 May 1987, had failed to comply with the rule, in Article 26 (art. 26) of the Convention, that applications to the Commission must be lodged \"after all domestic remedies have been exhausted ... and within a period of six months from the date on which the final decision was taken\".", "26. The Government, relying in particular on the wording and grammatical construction of Article 26 (art. 26), as well as on the travaux préparatoires, argued that the date of the \"final decision\" was 13 October 1986, the date of the judgment of the Constitutional Court (see paragraph 16 above), that being the final court from which the applicant could have sought a remedy. They submitted that the sentencing of Mr Demicoli by the House of Representatives - which was postponed until 9 December 1986 pending the outcome of the domestic constitutional proceedings (see paragraph 17 above) - was merely the culmination of the breach of privilege proceedings against the accused and could not be considered to be the final decision in regard to the exhaustion of domestic remedies within the terms of Article 26 (art. 26).", "27. The proceedings against the applicant culminated in the decision of 9 December 1986 as to his sentence. That was the date on which his position was finally determined. The Court agrees with the Commission that this date must be regarded as the date of the final decision for the purposes of Article 26 (art. 26) of the Convention.", "28. The Government ’ s preliminary objection must therefore be rejected.", "II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)", "29. The applicant submitted that the charge of breach of privilege of which he was found guilty by the House of Representatives, was a \"criminal charge\" falling within the ambit of Article 6 (art. 6) of the Convention, which in paragraph 1 (art. 6-1) provides:", "\"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ...\"", "He alleged that he had not been given a hearing by a tribunal complying with these requirements.", "A. Applicability of Article 6 PARA. 1 (art. 6-1)", "30. The Government submitted that in Maltese law the breach of privilege proceedings taken against the applicant for defamatory libel were not \"criminal\" but disciplinary in character.", "This view, contested by the applicant, was not supported by the Commission. It considered that the proceedings in question involved the determination of a \"criminal charge\" and that Article 6 para. 1 (art. 6-1) was therefore applicable.", "31. The Court has already had to determine similar issues in other cases (see the Weber judgment of 22 May 1990, Series A no. 177, p. 17, para. 30, and the other judgments referred to therein). While it is recognized that States have the right to distinguish between criminal offences and disciplinary offences in domestic law, it does not follow that the classification thus made is decisive from the viewpoint of the Convention. The notion of \"criminal charge\" in Article 6 (art. 6) has an autonomous meaning and the Court must satisfy itself that the line drawn in domestic law does not prejudice the object and purpose of Article 6 (art. 6).", "In order to determine whether the breach of privilege of which Mr Demicoli was found guilty is to be regarded as \"criminal\" within the meaning of Article 6 (art. 6), the Court will apply the three criteria which were first laid down in the Engel and Others judgment of 8 June 1976 (Series A no. 22, pp. 34-35, para. 82) and have been consistently applied in the Court ’ s subsequent case-law (see, apart from the judgments referred to above, the Öztürk judgment of 21 February 1984, Series A no. 73, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80).", "32. It must first be ascertained whether the provisions defining the offence in issue belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently.", "The legal basis of the proceedings taken against Mr Demicoli was provided by section 11 of the Ordinance (see paragraph 20 above). The applicant argued that the origin of the Maltese law of Parliamentary privilege is to be found in United Kingdom law and that breaches of privilege are referred to as crimes in certain textbooks on English law. As noted by the Commission and the Government, breach of Parliamentary privilege is not formally classified as a crime in Maltese law. In its judgment of 16 May 1986 (see paragraph 15 above), the Civil Court ruled that \"the law that provides for the privileges and contempt of the House (chapter 179) is not part of the criminal law of the country\". The Constitutional Court, in its judgment of 13 October 1986, did not find it necessary to decide whether \"the act constituting the contempt or breach of privilege amounts to a criminal act or not.\"", "33. However, as already noted above, the indication afforded by national law is not decisive for the purpose of Article 6 (art. 6). A factor of greater importance is \"the very nature of the offence\" in question (see, inter alia, the above-mentioned Campbell and Fell judgment, Series A no. 80, p. 36, para. 71, and the above-mentioned Weber judgment, Series A no. 177, p. 18, para. 32).", "In this context the applicant quoted from the records of the Parliamentary sittings of 4, 17, 18 and 19 March 1986 to highlight the fact that certain Members of the House equated the proceedings taken against him with criminal proceedings. He pointed out that defamatory libel is a criminal offence under the Press Act 1974 (see paragraph 21 above).", "The Government, on the other hand, submitted that, although some breaches of privilege may also constitute criminal offences, Parliamentary privilege, being concerned with respect for the dignity of the House, pursued a different aim from that of the criminal law. Moreover, defamatory libel may not only constitute an offence under the criminal law, but may also give rise to a civil claim for damages, which may include punitive damages. Furthermore, the non-criminal nature of breaches of privilege was illustrated by the fact that the Ordinance treats perjury before the House as equivalent to perjury before a court in civil and not in criminal matters.", "Mr Demicoli was not a Member of the House. In the Court ’ s view, the proceedings taken against him in the present case for an act of this sort done outside the House are to be distinguished from other types of breach of privilege proceedings which may be said to be disciplinary in nature in that they relate to the internal regulation and orderly functioning of the House. Section 11(1)(k) potentially affects the whole population since it applies whether the alleged offender is a Member of the House or not and irrespective of where in Malta the publication of the defamatory libel takes place. For the offence thereby defined the Ordinance provides for the imposition of a penal sanction and not a civil claim for damages. From this point of view, therefore, the particular breach of privilege in question is akin to a criminal offence under the Press Act 1974 (see, mutatis mutandis, the above-mentioned Weber judgment, Series A no. 177, p. 18 para. 33 in fine).", "34. The third criterion is the degree of severity of the penalty that the person concerned risks incurring. The Court notes that in the present case, whilst the House imposed a fine of 250 Maltese liri on the applicant which has not yet been paid or enforced, the maximum penalty he risked was imprisonment for a period not exceeding sixty days or a fine not exceeding 500 Maltese liri or both. What was at stake was thus sufficiently important to warrant classifying the offence with which the applicant was charged as a criminal one under the Convention (see the same judgment, ibid., p. 18, para. 34).", "35. In conclusion, Article 6 applied in the present case.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "36. The applicant submitted that in the proceedings before the House of Representatives he did not receive a fair hearing by an independent and impartial tribunal. The political context in which the proceedings against him were conducted \"made a mockery of the whole concept of the independence and the impartiality of the judiciary\". This, he claimed, was evident from statements made by Members of the House in relation to his case in the official record of the Parliamentary sittings (see paragraph 14 above). He maintained that in breach of privilege proceedings Members of Parliament sit as victims, accusers, witnesses and judges. In his case it was the privilege of the individual Members concerned that was in issue and not, as the Government suggested, that of the whole House. Even if the Government ’ s view on this point were accepted, that would mean, in his view, that \"each and every Member of the House of Representatives is a judex in causa sua \".", "37. The Government argued that the House of Representatives was \"an independent and impartial tribunal established by law\" for the purpose of hearing the disciplinary charge against Mr Demicoli. The Maltese House of Representatives was an independent authority \"par excellence\". The House was independent of the executive and of the parties, its Members were elected for a term of five years and its proceedings afforded the necessary guarantees. Accordingly it fulfilled all the requirements of a tribunal set out in the Ringeisen judgment of 16 July 1971 (Series A no. 13, p. 39, para. 95). The independence of the House was sufficient to exclude any legitimate doubt as to its impartiality. Moreover, the Members directly satirised by the article intervened to defend the dignity of the House and not just their own reputations.", "38. The Commission took the view that the House of Representatives could not be considered to be a court and did not fulfil the requirements of the Convention as to independence or impartiality.", "39. The Court, like the Commission, notes that the power of the Maltese Parliament to impose disciplinary measures and to govern its own internal affairs is not in issue. Moreover, the Court ’ s task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which the proceedings against Mr Demicoli were conducted gave rise to a violation of Article 6 para. 1 (art. 6-1).", "According to its case-law, \"a ‘ tribunal ’ is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner ... It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members ’ terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6 para. 1 (art. 6-1) itself\" (see the Belilos judgment of 29 April 1988, Series A no. 132, p. 29, para. 64).", "40. In the circumstances of the present case the House of Representatives undoubtedly exercised a judicial function in determining the applicant ’ s guilt. The central issue raised in this case is whether the requirement of impartiality was duly respected. For the purposes of Article 6 para. 1 (art. 6-1) this must be determined according to a subjective test, that is on the basis of the personal conviction or interest of a particular judge in a given case, and according to an objective test, namely ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. In this context even appearances may be of a certain importance, particularly as far as criminal proceedings are concerned (see, amongst other authorities, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46-48).", "41. The two Members of the House whose behaviour in Parliament was criticised in the impugned article and who raised the breach of privilege in the House (see paragraph 11 above) participated throughout in the proceedings against the accused, including the finding of guilt and (except for one of them who had meanwhile died) the sentencing.", "Already for this reason, the impartiality of the adjudicating body in these proceedings would appear to be open to doubt and the applicant ’ s fears in this connection were justified (see the above-mentioned Hauschildt judgment, Series A no. 154, p. 23, para. 52).", "42. Accordingly, there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention on the point considered. It is therefore not necessary to go into other aspects of this provision.", "III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 2 (art. 6-2)", "43. The applicant submitted that the resolution of 10 February 1986 and the motion of 4 March 1986 (see paragraphs 11 and 12 above) placed the burden of proving innocence on the accused and accordingly violated Article 6 para. 2 (art. 6-2) of the Convention.", "The Government denied that the wording of the resolution and the motion had this effect.", "In view of the above finding of a violation of Article 6 para. 1 (art. 6-1), the Court does not consider it necessary to examine this issue.", "IV. APPLICATION OF ARTICLE 50 (art. 50)", "44. Article 50 (art. 50) provides:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "Mr Demicoli claimed under this provision compensation for both pecuniary and non-pecuniary damage, together with reimbursement of legal costs and expenses referable to the domestic proceedings as well as those before the Convention institutions. He further requested that the Court direct the taking of certain legal measures.", "A. Legal measures", "45. The applicant requested the Court to bring about, with the Government ’ s concurrence, the passing of a Parliamentary resolution revoking the two resolutions by which he was found guilty and fined, the amendment of the Ordinance to repeal section 11(1)(k) and the repeal of all references to breach of privilege proceedings in the Constitution of Malta. These measures were opposed by the Government.", "The Court notes that the Convention does not empower it to act on this request. It recalls that it is for the State to choose the means to be used in its domestic legal system to redress the situation that has given rise to the violation of the Convention (see, mutatis mutandis, the Zanghì judgment of 19 February 1991, Series A no. 194-C, p. 48, para. 26).", "B. Damage", "46. By way of compensation for pecuniary damage the applicant sought an indemnity for the Lm 250 (Maltese liri ) fine which, though still unpaid, remains due. Since this fine has not been paid and no measures have been taken to enforce payment, the Court sees no need to make any order.", "47. The applicant also sought \"a token contribution of Lm 10,000\" by way of compensation for non-pecuniary damage, not only for the fear and anguish resulting from the \"illegitimate trial to which he was subjected\" in what he described as an intimidatory atmosphere, but also for the loss of future employment prospects in the public service because he had been found guilty by Parliament.", "48. Although it cannot be excluded that the applicant did suffer some degree of distress, the Court, having regard to the circumstances of the case, is of the opinion that the finding of a violation in the present judgment constitutes in itself adequate just satisfaction under this head.", "C. Costs and expenses", "49. Mr Demicoli sought, in addition, reimbursement of costs and expenses incurred in the proceedings in the Maltese courts and before the Convention institutions.", "The Court has consistently held that reimbursement may be ordered in respect of costs and expenses that (a) were actually and necessarily incurred by the injured party in order to seek, through the domestic legal system, prevention or rectification of a violation, to have the same established by the Commission and later by the Court and to obtain redress therefor, and (b) are reasonable as to quantum (see, among other authorities, the Bricmont judgment of 7 July 1989, Series A no. 158, p. 33, para. 101).", "50. As regards the breach of privilege proceedings before the House of Representatives, Mr Demicoli sought Lm 600 by way of \"attendance\" and \"extrajudicial\" fees.", "As regards the constitutional action challenging the validity of the breach of privilege proceedings, he sought Lm 901.90 (the amount of the official taxed bill of costs) as well as a further Lm 300 by way of \"extrajudicial\" fees.", "51. For the proceedings before the Commission, the applicant sought Lm 1,828 for travel and subsistence expenses for the appearance of himself, his lawyer and his legal procurator at its hearing, in addition to Lm 3,000 by way of \"judicial and extrajudicial\" fees.", "As to the proceedings before the Court, he sought Lm 995 by way of travel and subsistence expenses for himself and his lawyer and also Lm 1,500 by way of fees.", "52. Most of the amounts claimed were contested by the Government on various grounds, notably as being excessive.", "The Delegate of the Commission considered that the applicant should receive a sum to cover his reasonable legal costs, but made no proposal as to quantum, leaving the matter to the Court ’ s discretion.", "53. Taking its decision on an equitable basis, as required by Article 50 (art. 50), and applying the criteria laid down in its case-law, the Court considers that legal costs and travel and subsistence expenses may be assessed at Lm 5,000 for both the national and the Strasbourg proceedings." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1967 and lives in Istanbul.", "7. On 12 February 1993 the applicant started working as a judge in Tufanbeyli district in Adana.", "A. The disciplinary proceedings", "8. On 14 August 1995 the General Command of the Gendarmerie submitted a formal complaint to the judicial inspection board attached to the Ministry of Justice concerning the applicant's behaviour. A disciplinary investigation into the allegations was conducted by a judicial inspector.", "9. On 1 March 1996 the judicial inspection board notified the applicant in writing that a disciplinary investigation had been carried out under Section 82 of Law no. 2802 into a number of acts which he had allegedly committed and which were considered incompatible with his status as a judge. The letter set out the charges against the applicant and he was requested to submit his defence in writing.", "10. The charges, five in all, included the accusation that the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge (the first charge). The other four charges related, inter alia, to reported incidents of his conflictual behaviour towards his colleagues and to his failure to respect the dress code of the profession and working hours.", "11. The judicial inspector drafted a report dated 27 March 1996, according to which there was no evidence to justify opening an investigation into the first set of charges. However, he stated that evidence had been obtained that the applicant had behaved in a conflictual way with his colleagues and that he shaved only once a week, came late to work and did not wear a tie. This report was submitted to the judicial inspection board of the Ministry of Justice. The Government submitted that the judicial inspector heard evidence from the Governor, the public prosecutor, the applicant and his colleagues.", "12. On 29 April 1996 the Minister of Justice approved the transfer of the whole case file to the Supreme Council of Judges and Public Prosecutors (“the Supreme Council”) with a view to the consideration of possible disciplinary measures under Section 87 of Law no. 2802.", "13. With regard to the first set of charges concerning the accusation that the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge, the applicant was accused of introducing himself at various social events as being “of Kurdish origin” and of behaving in a manner which displayed his sympathy for the PKK [1]. It was stated that the applicant had said: “If they throw me out of the judiciary, I will go to Germany to join the organisation.” It was further alleged that the applicant talked to Kurdish-speaking citizens in Kurdish in order to gain their sympathy. He was also accused of regularly reading a legal publication of the PKK, Özgür Ülke, until it was banned and of watching Med TV a PKK-controlled television channel, via a satellite, antenna at his home.", "14. In respect of the remaining sets of charges, the applicant was accused of quarrelling on various occasions with the public prosecutor, of shaving only once a week, of not wearing a tie at work and of coming to work late.", "15. In his written submissions to the Supreme Council, the applicant denied the accusations against him, maintaining that they were false, inaccurate and incomplete or had been misinterpreted. He assumed that the evidence against him consisted of statements given by his colleagues and other civil servants. He alleged that certain persons were hostile to him since he had previously lodged formal complaints against them. In this connection, he submitted that, in the past, he had made formal complaints against the public prosecutor, Mr H.A. and the elected major, Mr H.K. The applicant therefore maintained that the public prosecutor, as a result of certain personal and professional disagreements which they had had, spread false accusations against him and had convinced other local government officials to make further similar accusations. The applicant gave some examples of situations where he had been in conflict with the public prosecutor. He affirmed that he believed in all the fundamental principles of the Turkish Republic and served the State faithfully.", "16. He admitted, inter alia, that, on certain occasions and during private conversations, he had stated that he was a Kurd, had criticised certain unlawful acts of the State authorities and had maintained that a distinction should be made between the innocent population of Kurdish origin and the PKK. The applicant submitted that he condemned terrorist acts and that it was an insult to suggest that he sympathised with the PKK. He asserted that while none of his family members and close friends had ever been interrogated for terrorist offences, the public prosecutor's brothers were in custody on allegations of aiding and abetting the PKK and his nephew had been remanded in custody for alleged PKK membership.", "17. The applicant further admitted reading Özgür Ülke which, in his opinion reported, on the events in south-east Turkey, albeit in a biased manner. He argued that the incidents reported in the region were a problem which the country was facing and he, like everyone else, had the right to be informed about them. He pointed out that he also read various other lawful publications for the same purpose. Moreover, he argued that the fact that he read certain lawful partisan publications did not convey his approval of the views expressed therein. As to the allegation that he regularly watched MedTV at home, the applicant explained that he had never been able to watch the channel due to technical difficulties with the reception. He argued that, even if he had watched the channel in question, this was not unlawful. The applicant further refuted the remainder of the accusations brought against him.", "18. On 11 July 1996 the Supreme Council, after assessing the evidence in the file as well as the written defence previously submitted by the applicant, found by a majority that the evidence in the file was sufficient to conclude that the allegations against the applicant were well ‑ founded. In respect of the first set of accusations, the Supreme Council concluded that the applicant should be transferred to another jurisdiction as a sanction pursuant to Section 68 (a) and (b) of Law no. 2802. In respect of the remaining accusations, the applicant received a reprimand. The contents and the sources of the evidence in the file which were relied on were not restated in the decision.", "19. On 4 November 1996 the applicant requested the Supreme Council to rectify its decision. In his petition, he reiterated his previous submissions and requested that evidence be heard from his colleagues. The applicant maintained, inter alia, that the accusations against him were the result of lies propagated by the public prosecutor and his friends. He affirmed that he had always maintained his impartiality. He also submitted that as a young judge he might have made certain mistakes due to his inexperience, but that he should not be punished in such a harsh manner for his mistakes.", "20. On 14 November 1996 the Supreme Council unanimously rejected the applicant's request for a rectification of its decision.", "21. On 17 April 1997 the Supreme Council's appeals board dismissed the applicant's objections.", "22. The applicant was transferred to Şenpazar district in Kastamonu.", "B. Subsequent events", "23. Following an enquiry by the applicant, the Supreme Council decided on 2 October 1997 that the applicant could not be promoted for a period of two years on account of the disciplinary sanction of transfer to another jurisdiction imposed on him pursuant to Section 30 § 4 of the Law no. 2802.", "24. The applicant was subsequently appointed to Çamoluk district in Giresun. His requests of 9 January 1998 and 29 December 1998 to be appointed to a region carrying a higher rank were rejected by the Supreme Council in decisions of 12 February 1998 and 14 April 1999 respectively.", "25. On 9 December 1999 the Supreme Council dismissed the applicant's request for a retroactive promotion. It noted that the disciplinary sanction against the applicant had been erased pursuant to Law no. 4455 and that it would not be an obstacle to future promotions. However, it considered that this situation did not render null and void the Supreme Council's decision not to promote the applicant for two years.", "26. Following a fresh set of disciplinary proceedings, the applicant unwillingly resigned from his post in 2001. The applicant now practises as a lawyer." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "27. General information on the Supreme Council of Judges and Prosecutors is outlined in the following decision: İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003.", "28. The relevant provision of Law no. 2802 on judges and prosecutors reads as follows:", "Section 68", "“ Transfer to another jurisdiction shall mean the transfer to a jurisdiction one degree lower than the one in which the person concerned is currently working, for a minimum term of service, if:", "a) he/she undermines the honour and dignity of the judiciary and respect for his/her own position as a judge by his/her conduct and relations.", "b) if he/she by his/her action and conduct gives the impression that he/she cannot perform his/her duty in a correct and an impartial manner.", "... ”", "29. Law no. 4455 grants civil servants an amnesty in relation to disciplinary offences committed prior to 23 April 1999 and annuls any resulting penalties or restrictions. However, it does not provide the possibility to claim for any pecuniary loss incurred as a result of disciplinary sanctions.", "THE LAW", "I. THE GOVERNMENT'S PRELIMINARY OBJECTION", "30. The Government suggested that the applicant was no longer a victim since the consequences of the disciplinary measure imposed on him had been the subject of an amnesty. In that respect they submitted that the disciplinary sanction against the applicant had been erased from his record on 22 October 1999 and that he had been promoted in August 1999. The Government invited the Court to declare the application inadmissible or, alternatively, to strike it out of the Court's list of cases in accordance with Article 37 of the Convention.", "31. The applicant disagreed with the Government's arguments and maintained his complaints.", "32. The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a'victim'unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, for example, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).", "33. In the instant case, the Court notes that the disciplinary sanction against the applicant was the subject of an amnesty. The amnesty in question did not, however, acknowledge that there had been any breach of the applicant's rights nor did it provide the possibility for the applicant to reclaim any alleged loss of earnings caused by the impugned disciplinary sanction. Therefore, the Court does not consider that the domestic authorities have recognised or redressed the violation alleged by the applicant. He remains a “victim” of those alleged violations.", "34. Accordingly, the Government's objection must be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "35. The applicant complained that the disciplinary sanction imposed on him had infringed his right to freedom of expression since he had been punished for reading a daily newspaper and watching a television channel. He relied on Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime...”", "A. The parties'submissions", "36. The Government referred to their earlier submissions and maintained that the interference with the applicant's right to freedom of expression was justified under the provisions of the second paragraph of Article 10. They submitted that the disciplinary sanction against the applicant had not been based on his habit of reading publications of the PKK or for watching MedTV. In this connection they stated that the investigation conducted against the applicant had established, inter alia, that the applicant had been emphasising the differences between ethnic origins and therefore created the impression that he was no longer impartial. In addition, they noted that he had failed to observe the profession's regulations as regards hours and clothing as well as maintaining good relations with his colleagues. The Government stressed that by reading a publication of the PKK which had been subsequently banned and by behaving in a manner which displayed sympathy for the terrorist organisation, the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge and that therefore the disciplinary measure imposed on him had been proportionate.", "37. The applicant maintained his allegations. He claimed, in particular, that people were automatically accused of being separatists or terrorists if they affirmed their Kurdish identity. He alleged that there existed a general policy of neutralising the influence of Kurdish civil servants by appointing them to certain regions or insignificant posts. The applicant submitted that despite the fact that he was a senior judge, he was appointed to lower ‑ ranking jurisdictions. The applicant alleged that investigation were been opened against him for no reason. He maintained that he was unable to follow the publications he wanted to read for fear of misinterpretation.", "B. The Court's assessment", "38. The Court notes that it is undisputed between the parties that there has been an interference with the applicant's right to freedom of expression on account of the disciplinary sanction imposed on him for undermining the honour and dignity of the judiciary as well as respect for his own position as a judge. It further considers that, since the disciplinary measure was based on Section 68 of Law no. 2802, the interference was prescribed by law and pursued a legitimate aim, namely maintaining the authority and impartiality of the judiciary (see Altın v. Turkey (dec.), no. 39822/98, 6 April 2000). The Court will therefore confine its examination of the case to the question whether the interference was “necessary in a democratic society”.", "39. The Court reiterates the basic principles laid down in its judgments concerning Article 10 (see, in particular, İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, § 51-53, 10 October 2000, Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § § 52-5 3, and Wille v. Liechtenstein [GC], no. 28396/95, § § 61-62, ECHR 1999 ‑ VII ). It will examine the present case in the light of these principles.", "40. The Court must look at the impugned interference in the light of the case as a whole. It must determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997 ‑ VII, pp. 2547 ‑ 48, § 51).", "41. In the Vogt case, cited above, the Court held as follows, in connection with the dismissal of a civil servant: “These principles apply also to civil servants. Although it is legitimate for a State to impose on civil servants, on account of their status, a duty of discretion, civil servants are individuals and, as such, qualify for the protection of Article 10 of the Convention. It therefore falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 § 2. In carrying out this review, the Court will bear in mind that whenever civil servants'right to freedom of expression is in issue the'duties and responsibilities'referred to in Article 10 § 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.”", "42. Given the prominent place among State organs which is occupied by the judiciary in a democratic society, the Court considers that this is particularly so in the case of restrictions on the freedom of expression of a judge in connection with the performance of his functions, albeit the judiciary is not part of the ordinary civil service (see Pitkevich v. Russia (dec.), no. 47936/99, ECHR 2001).", "43. At the outset the Court observes that two separate disciplinary measures were imposed on the applicant in respect of the five sets of different charges brought against him (see paragraph 18 above). The applicant's complaint pertains to the first set of charges. The Court therefore does not find it relevant to assess the other set of charges brought against the applicant for the purposes of determining whether the disciplinary sanction imposed on him was proportionate to the aim pursued.", "44. The Court notes that the applicant was transferred to a lesser jurisdiction because the Supreme Council considered that he had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge and by his action and conduct had given the impression that he could not perform his duty in a correct and an impartial manner. The Government argued that the applicant had given the impression that he was no longer impartial by following PKK-related media and through his comments. The applicant refuted these allegations.", "45. The Court observes that neither the decisions of the domestic authorities nor the Government's submissions before the Court give a clear and precise indication as regards the applicant's impugned comments or behaviour or the exact grounds on which the Supreme Council found it established that the applicant had breached Section 68 (a) and (b) of Law no. 2802. The only information available to the Court are the accusations put vaguely to the applicant (see paragraph 13 above) and the latter's submissions concerning various incidents or events that might have triggered these accusations (see paragraphs 15-16 above).", "46. The Court finds no reference in the case file to any known incident which would suggest that the applicant's impugned conduct, including that of following PKK-related media, had a bearing on his performance as a judge and, particularly, during any previous, pending or imminent proceedings (see, Wille, § 69, cited above). It also notes that no evidence was adduced by the Government to demonstrate that the applicant had overtly associated himself with the PKK or behaved in a way which could call into question his capacity to deal impartially with related cases coming before him. In the Court's view, these are the essential factors in assessing the necessity of the measure taken by the authorities.", "47. In the absence of any such information, the Court cannot but assume that the authorities attached a considerable weight to the fact that the applicant followed or attempted to follow PKK-associated media. In this connection the Court reiterates that freedom of expression requires that care be taken to dissociate the personal views of a person from received information that others wish or may be willing to impart to him or her (see, mutatis mutandis, Halis v. Turkey, no. 30007/96, § 34, 11 January 2005 ).", "48. Having regard to the circumstances of the case as a whole and notwithstanding the national authorities'margin of appreciation, the Court considers that the interference with the applicant's freedom of expression was not based on sufficient reasons to show that the interference complained of was “necessary in a democratic society”. This finding makes in unnecessary for the Court to pursue its examination in order to determine whether the disciplinary sanction imposed on the applicant was proportionate to the aim pursued.", "49. It follows that there has been a violation of Article 10 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "50. The applicant complained that he had been discriminated against on account of his ethnic origin. He maintained that if a judge of Turkish ethnic origin had watched that particular television channel or followed that particular publication, he or she would not have been sanctioned. The applicant relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "51. The Government disputed the applicant's allegations.", "52. The Court has examined the applicant's allegation. However, it finds that the evidence before it does not disclose any appearance of discrimination on the basis of the applicant's ethnic origin.", "53. It follows that there has been no violation of Article 14.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "54. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "55. The applicant claimed pecuniary damage for loss of earnings. He estimated that his loss was around 20,000 euros (EUR) at the date of his just satisfaction claims and that it would reach around EUR 150,000 by 2005. The applicant pointed out that, since a judge's salary depended on various factors, he was unable to give a precise sum. He submitted pay statements of judges at various grades in support of his claims under this head. He further claimed EUR 500,000 in respect of non ‑ pecuniary damage. The applicant claimed that he and his family had suffered due to the fact that he had to work in small and socially backward provinces and that he had lost two years'seniority.", "56. The Government contested the amounts.", "57. The Court accepts that the applicant must have incurred some pecuniary loss due to the fact that he was not eligible for promotion for two years. However, the Court finds it difficult to determine a precise amount since - as pointed out by the applicant - the salary and promotion scales of judges are dependent upon various factors. The Court also notes that, since 2001, the applicant is no longer a judge but works as a lawyer.", "58. The Court further considers that the applicant may be taken to have suffered a certain amount of distress given the circumstances of the case.", "59. Making an assessment on an equitable basis, the Court awards the applicant EUR 5,000 for pecuniary damage and EUR 1,000 for non ‑ pecuniary damage.", "B. Costs and expenses", "60. The applicant claimed EUR 15,000 in respect of costs and expenses incurred before the Court. He did not submit any documents to support his claim under this head.", "61. The Government contested the amount.", "62. Since the applicant submitted no justification as regards costs and expenses as required by Rule 60 of the Rules of Court, the Court makes no award under this head.", "C. Default interest", "63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]